"Don't ignore the Brady rule: Evidence must be shared," is the Los Angeles Times editorial from the Sunday, December 29 edition.
In 1963, the Supreme Court established a rule of evidence that is now well known to viewers of television courtroom dramas. In Brady vs. Maryland, it held that prosecutors must turn over to defense attorneys evidence favorable to the accused and "material either to guilt or punishment." But prosecutors, including in Los Angeles, have complied grudgingly with the Brady rule. Some have ignored it altogether.
Now a respected federal appeals court judge has warned of "an epidemic of Brady violations abroad in the land." Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals sounded the alarm in the case of Kenneth Olsen, a Washington state man convicted of developing a biological agent for use as a weapon. Kozinski argued that Olsen should have had his conviction thrown out.
Kozinski argues that this case is representative of an "epidemic" of Brady rule violations. He cites a string of decisions, including a 2012 case in which the Supreme Court by an 8-1 vote ordered a new trial for a convicted murderer because prosecutors had withheld crucial information.
Kozinski is right: Courts need to deal more harshly with prosecutors who don't play fair. The message, he says, should be, "Betray ... and you will lose your ill-gotten conviction." Congress and state legislatures can do their part by enacting laws such as a model statute developed by the National Assn. of Criminal Defense Lawyers that would make it harder for prosecutors to evade their Brady obligations. Prosecutors need to stop playing games with Brady.
Earlier coverage of Judge Kozinski's dissent begins at the link.
The Times also carried the news report, "Texas ex-prosecutor's sentence sends warning on wrongful convictions," by Molly Hennessy-Fiske.
Williamson County Dist. Atty. Ken Anderson had risen to a district judge by the time a special investigation was launched this year to scrutinize a murder he had prosecuted in 1987.
In a rare finding, a judge determined that Anderson had intentionally withheld evidence, resulting in the wrongful conviction of Michael Morton. Morton served 25 years in prison for the murder of his wife before DNA tests exonerated him and another man was convicted of the crime.
Anderson agreed to serve nine days in jail, resign from the bench and surrender his law license.
The dramatic, high-profile proceeding has raised the possibility of more prosecutorial misconduct investigations in Texas, a state known for tough justice and frequent executions.
Anderson was penalized after a court of inquiry, a unique Texas proceeding that allows a judge to determine whether prosecutors broke the law and, if so, to charge them.
Although it has been on the books in Texas since 1965, the court of inquiry was typically used to hold elected officials accountable. But the Morton case may change that.
"I am guardedly optimistic that we'll see more courts of inquiry," said Jeff Blackburn, founder of the Innocence Project of Texas, which helped free Morton.
State Sen. Rodney Ellis, a Houston Democrat who attended Anderson's court of inquiry, said the proceeding "sends out a message to prosecutors around the country that if you don't play by the rules, you will be held accountable."