The chief judge of a major U.S. appeals court has
written a stinging opiniontaking prosecutors to task for failing to reveal evidence that could be favourable to defendants — a
so-called Brady violation.
“There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it,” Judge Alex Kozinski wrote in a dissenting opinion in a case where one of these violations allegedly occurred.
The term Brady violation comes from the U.S. Supreme Court case Brady v. Maryland, in which the court found prosecutors violated a defendant’s right to due process by withholding exculpatory evidence.
Despite this ruling, Brady violations have continued to be a problem over the years. In the most high-profile violation, prosecutors in the corruption case against Ted Stevens hid evidence that would have been favourable to the late senator.
“Brady violations have reached epidemic proportions in recent years,” Kozinski wrote. “…When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational premises of the rule of law.”
Kozinski’s dissent came in a case against Kenneth Olsen who was convicted of creating a biological agent to use as a weapon, according the ABA Journal, which posted the opinion.
To help convict Olsen, prosecutors relied on analysis from a Washington State Police (WSP) forensic scientist named Arnold Melnikoff. It turned out that WSP had been investigating Melnikoff following allegations that his analysis had led to two flawed convictions, according to Kozinski’s opinion.
A panel of experts doubted “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.”
Prosecutors never revealed the full scope of this damning report to the defence, as the Brady rule requires. A panel of judges found the report wasn’t important enough to affect the outcome of the case, but Kozinski disagreed.
“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.”
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