I have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen,
704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.
Kenneth Olsen was convicted of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175. Olson admitted that he produced ricin but insisted that Olsen admitted that he did it out of “an irresponsible sense of curiosity.” To show an intent to use the ricin as a weapon, the prosecutors produced a bottle of allergy pills that was sent to the Washington State Police forensic scientist Arnold Melnikoff for evaluation. Because Melnikoff did not have the equipment for such a test, he sent them to the FBI lab. However, before sending them off, Melnikoff emptied the bottle on his lab table where ricin material had been placed earlier. He then sent them to the FBI which found small traces of ricin. It was clearly an improper procedure and for many it was par for the course of Melnikoff who have been previously criticized for sloppy work. This included prior cases from his work in Montana where at least two innocent people were convicted based on his faulty analysis. An investigation and report of experts of Melnikoff expressed significant doubt regarding “Melnikoff’s diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand.” The Washington State Police later terminated Melnikoff’s employment and the Washington Court of Appeals affirmed the termination based on a “finding that Melnikoff was incompetent and committed gross misconduct.” Melnikoff v. Washington State Patrol, 142 Wash. App. 1018, at *11 (Wash. Ct. App. 2008).
While the defense counsel only knew of ongoing investigations, the assistant United States Attorney knew the full story and the utter lack of credibility for the key expert in the case. Kozinski noted:
Rather than inform defense counsel and the court of these important developments, the Assistant U.S. Attorney prosecuting the case materially understated the scope, status and gravity of the investigation. He claimed that the investigation was “purely administrative” and revolved around a decades-old complaint limited to DNA testing, which wasn’t at issue in Olsen’s case. Melnikoff’s lawyer, Rocco Treppiedi, made an appearance and represented that the WSP was “in the process of investigating” the matter and that, as of that time, there was “absolutely no evidence, no allegation that Mr. Melnikoff has ever done anything inappropriate with respect to anything other than his opinion testimony on the hair sampling.” The Assistant U.S. Attorney added that the WSP investigation was ongoing and represented that “[t]here is nothing further that you should know about.”
Notably, following a common practice, the court omits the prosecutor’s name. This has long been criticized as an aspect of the problem of shielding federal prosecutors from accountability for unethical acts. It also denies an easy record for defendants and defense counsel to confirm the record of prosecutors who are suspected for wrongdoing. However, recently the Ninth Circuit refused a demand from the Justice Department to remove the name of such a prosecutor. The Justice Department fights hard to keep the names out of such opinions and stories, as they did in the abusive Swartz case.
The prosecutor named in media reports at the time was Assistant U.S. Attorney Stephanie Whitaker, but there is no mention of the name of the prosecutor who is accused in the Olsen case.
The Justice Department has a long and troubling record of prosecutorial abuse and particularly Brady violations (here and here and here). This problem persists because of the Department’s culture and tolerance for such abuses. The Office of Professional Responsibility (OPR) has been the subject of long-standing complaints for its failure to act on allegations. I have personally had occasion to bring a couple complaints to the Justice Department of extremely serious misconduct by prosecutors and saw no action taken by OPR.
Kozinski’s opinion is much appreciated given this record but it clearly fell on deaf ears with his colleagues. Kozinski clearly tries to shame his colleagues into acting to guarantee fair trials and professional standards. He notes “[b]y turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.” However, the result is, to put it simply, shameless.
Here is the opinion: usca9-brady
Bron,
That is because you’ve migrated over time from being a big “L” libertarian (which if you’re honest you were once much more aligned to) to being more of a small “L” libertarian. There is nothing wrong with the small “L”. Maximizing individual liberty has always been a part of the balancing act, but it is only on one side of the scale. The other side is order and justice. The nature of the social compact necessitates that absolute liberties cannot be as the norm and that some sacrifices will need to be made to ensure justice and order. The use of objective standards and (ideally impartial) third party adversarial courts over subjective individual standards and self-help necessitates this.
Gene H:
We should have objective standards to base our actions on. Which is what you and I have been arguing about for years. We are arguing about what is the basis for those standards.
Ross,
A good point and salient to the role of civil disobedience in a functioning democracy as one of the bulwarks against tyranny.
Gene H:
I have never been against government, I think libertarians are wrong about not wanting any government. And they are wrong about private police forces [other than rent a cops] and court systems. Jesus, that would be a scary place to live.
Human beings need objective standards so they can plan for the future.
A consequence of not “confronting” suspects under oath: Americans would be shocked to learn the degree that FBI, police and prosecutors knowingly “fabricate” evidence – this creates blacklisting of innocent citizens.
“Confrontation” is key to deterring fraud by law enforcement and intelligence personnel. It is the thread that runs through the FISA Court, Guantanamo, etc.
Programs like CoinTelPro actually legalize these felony crimes perpetrated by the FBI, prosecutors, etc.
Skipples,
You’re funny when you try to play semantics with me and tell me “I don’t get it”. Your ignorance of even basic terminology and your adherence to Libertarian dogma betrays your inability to address legal and political science matters rationally. Also, keep your conclusions out of my mouth. What I know is you’re not competent to discuss these matters and be taken seriously.
Run along now.
The adults are having a conversation.
“Society should always be evolving toward more individual liberty not less.”
On this we agree. However, the trend is not a linear progression. It’s cyclical progression. Positive and retrograde motion are possible along the base curve. Modulating the amplitude and frequency while maintaining the upward trend and avoiding catastrophic instability is the thing.
Also, allowing each man to function as law unto himself by allowing the individual to determine what is and is not ethical in their social interactions has a name: anarchy. We need commonly agreed upon standards of behavior. I may not think it’s ethical to kill someone over say a financial transaction but that doesn’t mean the guy next door doesn’t think it’s perfectly acceptable. Would you rather be subject to individual subjective whim or a uniformly applied agreed upon objective standard?
Rules have a purpose that if far broader than simply limiting choice.
Gene H:
As I said, we know more now than we did 4,000 years ago.
There are eternal truths. It may take society many thousands of years to discover them but that doesnt mean they dont exist.
Is it wrong to throw a crippled baby over a cliff? Some Greek communities did so. The needs of the many outweighed the needs of the individual. Was it right? No, we now call it infanticide. Should it have ever been done? No but it made sense to that community at that time in history.
Killing infants is something that should never be done and is morally wrong. We can understand why and understand the context but that doesnt make it right.
Society should always be evolving toward more individual liberty not less. As we learn more we should become more free. To put more constraints on individual action is to go backwards in time.
The Greeks killed crippled children because they could not take care of them, now we can cure many sick children and they grow up to become contributing members of society and not burdens.
Bron,
The problem with your supposition is there is no evidence Soros is interested in privatizing government services or laissez-faire economics unlike the Kochs. As for the Kochs? They think they’re going to be at the top of the food chain and simply immune no matter what. They’ve thought about it, think they can profit by privatization and in their arrogance they either don’t see or don’t care about the consequences of privatization so long as they are the big fish.
“Less government would mean we would be more free.”
No. Inadequate and misapplied government means you are both less free and greater subject to the oppression of others without consequence to them. Again, size isn’t the proper metric. Functionality is the metric. Government needs to be big enough to do the job defined and no larger, but the scale is dependent upon the scale of the job as defined (which in turn relies upon proper definition in the first place). Consider: the War on Drugs. The problem isn’t the scale of the operation and never was. The problem is that the job was improperly defined in the first place. Drug use isn’t a criminal problem. It’s a health and sociological problem. Using criminalization to address that problem in the first place was the wrong tool for the job. The predicate definitions were flawed at the onset. Just so, other jobs suffer from the same problem with faulty predicates. That, however, is an engineering problem so to speak. One cannot accomplish a goal unless one understands the goal, the inherent nature of both the goal and the problems reaching it and the environment (in the broadest sense of the term) that the job exists in.
Other than that, it sounds like you’re starting to see the forest for the trees.
It’s cold outside, but has Hell frozen solid? 😀
“People like the Kochs? They want to be your kings. They want to own outright the police, the prisons, the laws and everything that is yours to be subject to their control through those private (and preferably for their private profit) mechanisms.”
Private court systems, police forces and prisons, to a lessor degree, are a very bad idea.
If there were private police forces, what would prevent George Soros from arresting the Kochs and trying them in his court system? And the Kochs from doing the same to Sorros?
I would think the Kochs and Sorros would be smart enough to think that through.
I really dont know too much about current libertarian thought but I am pretty sure they are giving up on private courts and police systems. Since they are against drug laws, I am not sure how private prisons fit into their world view since, or so it seems, many prisons are over crowded due to drug related charges.
How would having private prisons be a good idea if you didnt have enough people to fill them due to lax drug laws?
Totalitarian countries want to make everything an individual does illegal so the state has a means of suppressing dissent. Less government would mean we would be more free. Unless of course your idea of freedom is something other than an individual being able to take actions to further the enjoyment of his life and to do what he thinks is best for him and his family within a moral and ethical framework dedicated to individual rights and individual liberty.
Bron,
They are not hard terms, but soft, in the sense of the difference between hard rule and soft rule utilitarianism. They have a solid core framework, but the “edges are fuzzy” as they are indeed somewhat dependent upon how a given society views them at a given time. Just like “good and evil”. They rest in social context. Not all terms are binary or absolute. What was justice in ancient Greece is not what is justice in Denver today. As we’ve discussed before, justice isn’t as simple a concept as it appears on the surface. Same for the other terms.
Gene H:
“Egalitarianism, equality and justice are moving targets.”
Why? There are certain principles which apply to human action. Human nature is still what was 4,000 years ago. We know more but we are still the same animal.
By saying those concepts are moving targets you seem to be implying, at least in my mind, that they can be whatever society says they are at any given time. If they are whatever society says they are, then they are nothing but empty words.
Why would I read something from someone affiliated with the Kochs via the Cate Institute other than for amusement? And it was amusing. The rule of law is a journey, not a destination. This is evidenced by the evolution of Constitutional jurisprudence from the time of its ratification to Dred Scott to Emancipation to the 14th Amendment to the Civil Rights Act of 1964 (intended as a non-inclusive list to illustrate the trend). His “three points” are little more than infantile rebellion – 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society’s power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law.
His first point acknowledges a truism – that no man made system is perfect. It also neglects another truism – systems can be designed to eliminate human interference; political or otherwise. When considered by a technocrat (and I am a technocrat), you see his view is distorted and his fundamental assumption – that the rule of law is something static instead of dynamic – is flawed. Egalitarianism, equality and justice are moving targets. They always have been. They always will be. The line of Constitutional jurisprudence briefly noted above illustrates this factual – not philosophical – principle in action.
His second point is simply an assumption predicated upon the first that the rule of law is static and the basis of belief. That is a simplistic and wrong understanding of the nature of the rule of law. It discounts that the rule of law’s dynamic nature means it is inherently capable of both positive and retrograde change. Since it is a truism that no man made system is perfect, that does not negate that the goal should always be to come as close to perfection as possible. Part of the problem in our country is that the rule of law is currently in retrograde as we have let – and as a society this was done with our implicit complicity – the politics of the wealthy and the corporations decide our political and legal agendas instead of properly exercising our democracy until the point the system has become completely rigged against actual democracy. Voting doesn’t change anything any more. The Obama continuation of the Bush Legacy illustrates that quite well. Voting at the national level is a show we put on, a mask of democracy, but the government has been constantly growing less responsive to the needs of the many and obedient to the desires of the few. This is a problem that was created by bad laws like Buckley v. Valeo and Citizens United and the dismantling of government via lobbying by those interested in privatizing governmental functions to make them personally profitable to people like the Kochs – who, make no mistake about it, are fascists and enemies of democracy. These cases, by the way, perfectly exemplify the possible retrograde movement of the mobile target that is the rule of law as informed by a republican representative democracy. The rule of law is not what he seems to think it is. He’s confusing the ideal of the rule of law as framed by our Constitutional form of republican representative democracy for what the rule of law actually is: it is – like justice – an aspiration to an every moving state of being. When the rule of law fails is when seeking the ideal is abandoned because of mere “politics” being used as a cop out for people not properly exercising control over the government via democratic process. Ours is a self-inflicted wound. Whether this wound eventually leads to reformation or the pendulum swings to revolution remains to be seen.
His third point is a conclusion based upon his incorrect and unsophisticated predicate assumptions about what the rule of law is. The rule of law does not need to be abandoned. It needs to be taught to the people for the nuanced concept it is in conjunction with linking its dynamic nature to the importance of both voting and civil disobedience in the function of a true democracy. People need to know that the rule of law as an ideal framed by democracy is what the fight has always been about. The Founders knew that our nation would always be under attack both external and internal for being a representative democratic republic. They knew that both the reality and that ideal set forth by choosing that form were to require constant vigilance if the power of the state was to remain in the hands of the people (as in all of them).
Nope. No sale. His argument is better made than your own, but his logic is just as faulty. You cannot treat a dynamic system in analysis as if it was static. They are fundamentally different creatures. The rule of law is not a myth to be dispensed with. It is a nuanced concept that needs to be better taught and understood by the general populace as it relates to the active nature of democracy and the formulation and promulgation of laws so that the ideal may be pursued instead of abandoned. Because abandoning the rule of law and accepting the rule of men (which is the one and only alternative) is abandoning democracy for feudalism or some other form of oligarchy which is exactly what villains like the Kochs want: a “free market” (no such thing exists without regulation) for legal services. A market that history shows when it is unfettered creates monopolies and is capable of manipulation far easier than the author realizes in his fever dream. People like the Kochs? They want to be your kings. They want to own outright the police, the prisons, the laws and everything that is yours to be subject to their control through those private (and preferably for their private profit) mechanisms.
No man is my king.
The role of a government form like that laid out by the Founders is predicated upon the usurpation of tyranny in all its forms by vesting political power in the people – all of them – and not allowing the accretion of absolute power by any one or any group. This argument of his is a weak rationalization for allowing the coup de grace by those who seek absolute power by exercising economic tyranny. In the marketplace of ideas, which is the only true free marketplace, I say “no sale”. It’s a thinly disguised apologetic for the “I want to be free to screw you over without fear of consequence” crowd. That bad news for that crowd is they never learned the lessons of history. When you neglect the needs of the many for the desires of the few or the one, the few or the one will eventually pay for their desires with their lives when the many rise up against them. I know this because history tells me so.
It is the rule of law that keeps them from having absolute power. To what degree is the only question. That degree is, as stated, a moving target and especially on the “low control” end of the target.
So I’ll keep pursuing that moving target of matching the dynamic to the ideal instead of abandoning the rule of law – which is essentially what your boy advocates.
Why would I give the would be tyrannical enemy what they want?
That was a rhetorical question.
It’s a flimsy argument (and to his credit he admits its a hard sell) based on false premises and bad definitions; the staple tactic of Libertarians and laissez-faire goons who are depending upon appealing to ignorance and the use of value loaded language.
His isn’t a path to freedom for all. Its a path to tyranny by the few over the many. It’s an appeal to abandon the last line of control over would be kings.
It is . . . utter bullshit. Well presented bullshit. Bullshit nonetheless.
Thanks for playing!
Have a nice day.
essais, les essais!
I asked Beldar what was up with the “We are from France” rant that he repeats. He says that if he plays the role of the guy in Saturday Night Live from twenty some odd years ago that no one will really believe that he is from another planet. I do not think that he is from another planet. He seems to be making headway on the Dogalogue Machine. The dogs are anxious to get back on the blog here. Beldar seems to be able to speak with the dogs much better than I can. That, has me puzzled.
This guy read it but I could not get the dogs to read it.
Gene H. noted: “Why would I read something from someone affiliated with the Kochs via the Cate Institute other than for amusement?”
Then you rattle off in critique, what he is saying. You obviously read it after all. Yes it is a moving target, but my god Gene, does justice have to continue to be almost non-existent before we do something to fix it; that really works?
You just don’t get it Gene: the government cannot cure the problems it causes. Prosecutorial corruption is a direct result of lousy social policy via the government. Not recognizing the contraindications of social policy, appears to be where it throws you off. Recognize that it is not that any single policy takes a society from freedom to fascism, it is that, collectively, a mass of socialistic polices and their contraindications can. Yes it is a moving target, one so great that I do not wish to experience it any further. Million of lives and $trillions of property can be destroyed is very short periods of time, that took hundreds of years to build.
Have you started to notice a recent acceleration of increased prices. One retailer, told me his costs went up over 120% on a number of items recently purchased. As an example he told me that an item that cost him $5.50 went up to $12.00, his cost. That means he would now have to sell it for somewhere over $20.00, instead of $10,00. My wife just reported a 9 role pack of toilet paper at Publix was $15.00. Real estate prices are inflating in some areas in South Florida at about 1.5% a month, because of an excessive number of investors in the market, all cash offers. Owner occupied sales are far and few between in most of the markets.
The unwillingness of many Americans to not see the long term contraindications of various social policies, is unbelievable and Gene you should know better. Thinking that government can cure the majority of social problems is an illusion and we have 50 years of history to prove it. Our government and Citizens had the most modern resources in history yet almost all social problems today are worse than they were 50 years ago.
That was BarkinDog above. Beldar is still trying to get the kinks outta the new Dogalogue Machine from France.
Ou se trouve une…… yak bark, growl,
RTC,
I think books only work if you understand them. Which of course rules Ol’ Skipple right out. Showing him a book and saying “read and understand this” is a lot like showing a dog a card trick. It was a good thought on your part though. Most admirable.