Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department

kozinskiDeptofJusticeI 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

76 thoughts on “Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department”

  1. Fannie Mae and Freddie Mac were not nationalized, genius.

    Do you even know what that word means?

    That was a rhetorical question.

    They are still privately held GSEs despite calls from some to nationalize them as part of bailing them out. They were placed in conservatorship and their leadership replaced due to mismanagement as part of bailing them out but the government does not own them. Conservatorship is a temporary court-ordered state that will be lifted once the companies are turned around. It is not nationalization. Nationalization would require the government take ownership. The Federal Government did not take ownership of either entity.

    Conservatorship is not nationalization.

    Once again, thanks for demonstrating that you have no idea what you are talking about.

    1. Genie – FNMA and Freddie Mac are now managed and controlled by the U.S. Government and it still controls the company to this day.

      On September 7, 2008, the Federal Housing Finance Agency (FHFA) placed
      Fannie Mae and Freddie Mac, two government-sponsored enterprises (GSEs) that play a critical role in the U.S. home mortgage market, in conservatorship. As conservator, the FHFA has full powers to control the assets and operations of the firms. Dividends to common and preferred shareholders are suspended, but the U.S. Treasury has put in place a set of financing agreements to ensure that the GSEs continue to meet their obligations to holders of bonds that they have issued or guaranteed. This means that the U.S. taxpayer now stands behind about $5 trillion of GSE debt. This step was taken because a default by either of the two firms, which have been battered by the downturn in housing and credit markets, could have caused severe disruptions in global financial markets, made home mortgages more difficult and expensive to obtain, and had negative
      repercussions throughout the economy. This report provides basic information on the GSEs, the government intervention, and the potential cost to the taxpayer.

  2. Bron,

    Also, we’ve discussed TARP before. It isn’t socialism. It’s corporate welfare. It’s fascism. It would have been socialism if the companies had been nationalized in response to their failure.

    1. FNMA and Freddie Mac were nationalized. GM, AIG and a number of banks were not. Corporatism does appear to be one of the hallmarks of fascism which are significantly taxed and regulated as part of the scheme. We call business primarily corporations, but it can be any business arrangement. The oligarchs obviously skim enough off the top of the various companies and funnel the money back to the banksters, making it a nice neat scheme. Anyone involved is both provided perpetual funded and protected, as long as they do what the banksters want. But the banksters really don’t care if some do get caught, as their is always another lackey who can be enticed to sell their soul.

  3. Bron,

    That’s because you don’t know what socialism is well enough to properly assess what works and its variations. Me and Tony are for a very specific form of socialism that not only works, it works today. It also isn’t communism or fascism.


    You have it backwards yet again. The “means of production” is the oligarchy taking over the government. Get a clue.

  4. Sh*t, who could forget the last 12 years and especially the last 5 years with all the TARP, stimulus and other economy killing measures.

    Certainly not much serious capitalism to be seen there.

  5. Gene H:

    And that is exactly how I feel about socialism. Based on the 19th and 20th centuries and their examples, I would say I am closer to the truth.

    Granted capitalism needs a few tweeks, like keeping government out of the economy except as an umpire.

  6. Seems like there should be a web resource available, listing each brady-cop and brady-prosecutor.

  7. “Injustice anywhere is a threat to justice everywhere.” Martin Luther King Jr., Letter from Birmingham Jail, April 16, 1963.

    We criminal defense attorneys need to be vigilant and always hold these prosecutors accountable. As a retired Kentucky state court judge once was quoted as saying about the prosecutors actions ” They’re trying to slip sunshine past the rooster.”

    Ready the fight grasshopper.

  8. Actually, Bron, if you want to assign blame the better place to lay it would be on human nature. It’s simply not compatible with the idea of laissez-faire capitalism. Never has been. Probably never will be.

    1. Gene H. – But human nature is compatible with force, coercion, slavery, economic slavery, war and systemic corruption that statism has produced throughout history?

      Our founding fathers gave us a system of limited government and a very succinct Bill of RIghts to protect. One of the greatest nations, ever on the planet could not hold back the encroachment by the oligarchs to take greater and greater controls over the political machine and it’s primary goal of controlling the means of production.

      Thinking that anyone can retake this system from them and use it for the common good, has been an illusion. Perhaps it can be done, but I think not. To many people are willing to protect the status quo, thinking that if we just do this or that, that, we can make the system work properly. History has not shown this to be true but history has shown that when people have greater freedoms, the majority is better off. It may not be perfect but it does limit some of the controlling mechanism that are used by the ruling oligarchy.

  9. Gene H: Think we actually agree on things, just coming at it from different vantage points.

    In my state of Virginia, nothing changed among the voters until the ACLU and other groups exposed that the rights of American citizens (with English sounding names) were being targeting.

    Virginians found out drones were flying over private hunt-clubs and the reaction was almost immediate – voters were demanding new laws restricting drones. In another case the ACLU reported that the Virginia State Police were targeting African-American college students at all-black colleges as potential terror threats.

    If you can expose these cases, it gets reformed very fast. If it is portrayed as only affecting foreigners many voters don’t pay attention.

  10. Ross,

    That is a problem. It is a problem that will be addressed when the public no longer asks for accountability for governmental actors but demands it. One of the ways to make that demand is mass civil disobedience as protest. This imperial attitude of “if the King does it, it isn’t illegal” will only be stopped (I think at this point) by a display of public force. For a long time, I hoped the system could be brought about by internal corrective measures, but since the expansion of Valeo into the travesty of Citizens United and the pending McCutcheon case, the fascists are even bother trying to hide what they are doing anymore. I fear our course will only be corrected now by civil unrest. Civil unrest that is the inevitable outcome of a two-tiered justice system. Our first critical error was not putting Nixon in jail for the rest of his life. It’s all been down hill since then. The Corporatists/Fascists are well on their way to victory, doomed to repeat the lessons of history that fascism never works in the long term and is doomed to a violent, messy end no matter who tries it. They are selling a pig in a poke to an electorate that is generally too poorly educated and/or too apathetic about the nature of proper Constitutional civics to realize the meal people like the Kochs aided by people like Holder, his boss and Sen. McConnell are serving isn’t freedom or liberty as advertised but rather greater tyranny and oppression for the greater profits of the few over the needs of the many.

    However, I disagree on the matter of the suspension of habeas corpus. We declared war on a tactic, not a nation-state although we could have (and should have) declared war on Saudi Arabia for their role in 9/11. The “War on Terror” isn’t a proper war at all. It’s a war on liberties and freedom sold as being “for our protection” when the reality is you as likely to be killed by your own furniture as a terrorist. It’s an excuse for turning this country into a militarized police state and propping up the businesses and people who benefit financially from such tyranny; the MIC oligarchy. It isn’t about anything else. If it were, we’d have annexed Saudi Arabia first.

    But nooooooo. Bush and Cheney, ass deep in the oil and defense industries and in bed with Saudi Arabia took another tack: invading a country that didn’t attack us and stood in the way of a regional hegemony in the form of a Wahhabist Caliphate as desired by their business partners in the country that paid for and manned the 9/11 attack.

    And that’s working out so well for us both domestically and internationally.

    Yep. A lack of accountability in government is a problem. It is a problem that will eventually be our ruin. It will be cold comfort that it will be their ruin as well. Our greatest enemy isn’t our fundamental form of government but rather its usurpation from within aided by ignorance, apathy and the effectiveness of propaganda. Whether their empire ends in 50 years or 850 years, it will end as all tyrannical empires do.

    “I met a traveller from an antique land
    Who said: ‘Two vast and trunkless legs of stone
    Stand in the desert. Near them on the sand,
    Half sunk, a shattered visage lies, whose frown
    And wrinkled lip and sneer of cold command
    Tell that its sculptor well those passions read
    Which yet survive, stamped on these lifeless things,
    The hand that mocked them and the heart that fed.
    And on the pedestal these words appear:
    “My name is Ozymandias, King of Kings:
    Look on my works, ye mighty, and despair!”
    Nothing beside remains. Round the decay
    Of that colossal wreck, boundless and bare,
    The lone and level sands stretch far away.'”

  11. Gene H:

    I’m talking about law breaking by government officials (including federal felonies) – not law breaking by citizens.

    The U.S. Constitution is also a wartime charter designed to be followed during wartime and other emergencies. There are emergency provisions already designed into it.

    In my view, the NSA (commanded by the President and Congress) could have suspended most (not all) Habeas Corpus suspensions only from September 2091 until about 2002. There wasn’t major chaos in American locality in 2002.

    Of course we are talking about “Law vs. Tradition” – we have a long history of law breaking that violates both the Constitution and federal laws – we just don’t arrest the law breakers very often.

  12. In other words, Ross, you are being defiant to those who are flaunting the law instead of upholding it equally from their position of power.

    You say tomato, I say tomahto.

    I suggest your definition of civil disobedience is too narrow. At its core, the notion is about speaking truth to power. It is the is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power and it is not always non-violent.

    Nacchio was a bad example too. He was acting in defense of accusations of insider trading and never offered any substantive proof of his allegations against the NSA. Don’t get me wrong. I’m a harsh critic of the NSA and don’t put what he claims past them, but I also consider the source and their personal investment in such claims. Avoiding jail time is a pretty strong motivator to just take Nacchio at his word. Trying to pass the buck on the causation of his insider trading to the NSA does not mitigate his wrong doing nor does it prove what he claimed about the NSA. Even if true, his allegations would not have mitigated his actions. All things being equal, he could have had his foreknowledge of Qwest’s pending stock plunge from any number of sources given his access to the inside big picture of what was going on in the company. It was a desperate ploy by a desperate man. It gives further cause to question the NSA, but it is manifestly not an act of civil disobedience. It’s not even “calling foul”. It’s CYA.

  13. Gene H:

    Civil Disobedience is knowingly and non-violently violating an existing law that one views as unjust, that is not what I’m referring to.

    For example: Former Qwest Communications CEO, Joseph Nacchio, claims that the NSA was violating federal law and the U.S. Constitution in FEBRUARY of 2001. It was a federal crime at the time these laws were violated.

    Those of us that are crying “foul” are not practicing civil disobedience, we are saying the constitutional “rule of law” applies to everyone including the NSA, FBI, etc.

    Nobody is above the U.S. Constitution and it’s subordinate federal, state and local laws – government officials are not above the law. Until the Bill of a Rights are amended, it is still the law.

  14. Bron:

    Labels are never totally accurate but think you are missing part of the issue.

    Using a metaphor: American government is a “fenced pasture” not a “leash and collar”. The “fence” is the Bill of Rights/U.S. Constitution and it’s subordinate federal, state and local laws – citizens can roam free of government spying/intrusion as long as they don’t cross the laws or the U.S. Constitution or fence-line.

    Executive Branch agencies like the FBI, NSA, etc. practice a “leash and collar” approach – they beleive everything is their business and like totalitarian control over American citizens – in violation of their oath of office.

    Most of us want constitutional government and are against unconstitutional practices like the “leash and collar” approach. None of us are against government entirely.

  15. Gene H:

    I dont think I was ever a big L libertarian. I am pretty sure I have always been for limited government. If I wasnt, I was wrong.

    1. Bron, I’ll take any reduction in the size and scope of government that we can get. Good luck though, until the purse strings run dry. It shouldn’t be to much longer. Most of the people I speak with are surprised the dollar is still alive. I think we will be entering into double digit inflation in coming months. That’s when reality will really start to hit everyone’s pocket. The last five years will have been a cake walk. It actually kept me awake the other night. The one thing we can’t do is let them put us into civil war.

  16. In some ways that is an accurate characterization, Bron, but not in others.

    Fair though.

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