That's the strong language in a dissent written by the Chief Judge of the 9th Circuit, Alex Kozinski. You can read the U.S. Court of Appeals for the Ninth Circuit ruling, and Judge Kozinski's dissent, in USA v. Olsen, in Adobe .pdf format.
The ABA Journal posts, "‘Epidemic of Brady violations’ decried in Kozinski opinion," by Debra Cassens Weiss.
The chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals is taking a stand against failure to disclose exculpatory evidence in a case involving a ricin suspect and a lab analyst who was later fired for alleged incompetence.
Chief Judge Alex Kozinski highlighted the issue in a Dec. 10 dissent (PDF) to the denial of an en banc rehearing. He begins this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” His dissent was joined by four other 9th Circuit judges.
The defendant in the case, Kenneth Olsen, was convicted of developing a biological agent for use as a weapon, Kozinski wrote in the dissent. Olsen had admitted developing ricin, but said he did so only out a curiosity and had no intent to use it as a weapon. To show intent, the government tested some allergy pills in Olsen’s possession and determined they also contained ricin. Olsen contended there was contamination by a Washington state lab analyst who admitted examining the pills before sending them to the FBI.
The lab analyst was being investigated by state police amid allegations that his work helped convict three inmates who were later exonerated. The resulting police report criticized the lab analyst for sloppy work that appeared to be “built around speed and shortcuts.” A federal prosecutor never informed the federal judge presiding over Olsen’s trial about the scope of the conclusions, though the report had been completed at the time and was awaiting approval by a state decision-maker.
"Failure to Divulge Evidence an Epidemic, Judge Says," is by Tim Hull at Courthouse News Service.
Judges Harry Pregerson, Stephen Reinhardt, Sidney Thomas and Paul Watford joined Kozinski in a vigorous dissent to that ruling.
"Had Melnikoff been fully impeached, the only evidence from which the prosecutor could've proven Olsen's intent to use ricin as a weapon would have been a few Google searches and bookstore receipts," Kozinski wrote.
"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice," Kozinski added. "It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
While Brady violations occur in all courts, Kozinski noted three recent cases in the 9th Circuit where the disclosure rule played a role, including United States v. Sedaghaty, Aguilar v. Woodford, and United States v. Kohring.
"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities," Kozinski wrote. "The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."
"Chief Judge For 9th Circuit Cites 'Epidemic' Of Prosecutor Misconduct," is by Radley Balko at Huffington Post.
Brady of course is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a decision released this week, the 9th Circuit court found extensive prosecutor misconduct on the part of Assistant U.S. Attorney Earl Hicks, who works for the Office of U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)
Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialist Arnold Melnikoff, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.
But at the time of the trial, Melnikoff was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly-chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."
AUSA Hicks knew about the investigation of Melnikoff, and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize is at as an "administrative" review that was limited to one case from 10 years ago.
"Judge Says Lazy, Unethical Prosecutors Across America Are Breaking A Basic Rule," by Erin Fuchs for Business Insider.
"I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country," Kozinski wrote. "But it wouldn't be true."
Related posts are in the prosecutorial misconduct category index.
The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.