Not Very High On The Prosecutor’s List of Priorities

In a dissent to the 9th Circuit’s refusal to rehear en banc the appeal in United States v. Olsen, Chief Judge Alex Kozinski, joined by Judges Pregerson, Reinhardt, Thomas and Watford, opens with this sentence:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

The opinion, which goes on for another 16 pages, just gets better and better.  After struggling to find a way to excerpt it in order to add commentary, I realized that it was far more important to read Judge Kozinski than me, and so I demur to comment for now, and ask you to take the time to read the dissent.  It is devastating. It is real.  It touches on so many aspects of systemic failure that undermines the efficacy of our beloved system that it is absolutely worthy of your time to read.

Here is the original panel decision.

Here is the dissent from denial of rehearing en banc.

Update:  The good news is that Judge Kopf, finished with his trial in beautiful Sioux Falls, has discovered Judge Kozinski’s dissent.  The bad news is that he didn’t discover it here, but rather from Howard Bashman (who can’t be bothered with the criminal law blawgosphere). The good news is that Bashman linked to Radley Balko’s HuffPo post, which is good news since it gets this information out to a mainstream audience that would otherwise never see it.

I look forward to Judge Kopf thoughts on the dissent.


12 thoughts on “Not Very High On The Prosecutor’s List of Priorities

  1. william doriss

    Took me a long time, but read both opinions. The dissent by Judge Kozinski was excellent; it deserves to be publicized widely.

    1. SHG Post author

      Good things often require a bit of effort. For many, that’s enough to assure they never know about them. You know, like “Constitution, TL;dr.”

      1. SHG Post author

        True. I wonder if that was deliberate or because, as Judge Alex noted in the opening line, his dissent was directed to the court’s failure, not the prosecutor’s failure. Either way, another perpetual problem.

  2. Jack

    I absolutely could not believe the paragraph on page 14 and 15 where Kozinski writes “Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend” and supports it with THIRTY different cases, the vast majority within the last three years…

    It is incredibly disappointing that this was a dissent.

    1. SHG Post author

      It is disappointing this this was a dissent, but then it wasn’t a lone dissenter, and it was remarkably on point. Perhaps not perfect, but it’s opinions like this that eventually shame judges of conscience into action.

  3. Wheeze The People™

    What a well-written and thoroughly scary dissent . . .

    Scary because: 1) it highlights (or more properly lowlights) systemic malfeasance by prosecutors and the judiciary with unmistakable clarity; 2) it shakes one’s belief in a justice system that is, far more often than not, generally fair; 3) it is a dissent, with the effect of empowering more, not less, abuses in the future by those individuals prone to cheating to win . . .

    Meaning the villains are likely to laugh it off. “Oh, Judge Kozinski’s dissent, yeah, that was funny, wasn’t it?? No harm, no foul” . . .

    1. John Barleycorn

      Our esteemed host thinking about Shaming Judges of conscious into consciousness now that is good a bit fanciful but good. And you Wheeze speaking of laughing villains and no foul. One could work that into a few chapters in a very cool comic book series.

      Shaming and laughing villains are a good start but this dissent is just the sort of cackling that cries out for some proper catch and release wild fowl venting to determine if there is in fact any foul.

      I guess if I try real, real hard I might one day come to my senses and figure out all the reasons Courts from sea to shining sea don’t like to go around naming the names of the individuals working as agents of ‘Merica in these opinions.

      But more importantly to this comic book series I just gots to wonders if after reading opinions like this in their office if the Attorney General calls out over the buildings intercom system requesting that Assistant United States Attorney Number 1684532-34 please report to the Principles Office for an ethics lecture? Or, if it is it more likely that the Attorney General takes them out to lunch and thanks them informally over a few cocktails inquiring about the health of their spouse and children’s latest soccer game and then whispers in their ear to let them know to shrug it off and reassures them that ‘Merica won again and that they done-did-a-good-one taking one on the chin for the ‘Merica Team and that their promotion is in the works?

      Now it is critical that the characters in this ongoing comic book series have a name. Perhaps starting a five dollar nationwide office pool game to create a nickname for this or that anonymous Assistant US Attorney cited in this or that opinion for each opinion that comes out of the various courts would help create a wider comic book series audience? Then these opinions would be sure to make it to at least the front page of the entertainment sections of newspapers thought out the land.

      I can see it now:

      “Rather than inform defense counsel and the court of these important developments, Trickster Tracey 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”
      ~Olsen dissent

      “Administrative?” Judge King Koz thundered from the bench looking right through Trickster Tracey and the attorneys seated next to him interrupting his argument to dismiss the appeal.
      ~first block in the third chapter of the comic book.

      But I just can’t decide if I should go with stainless steel or chromed spikes on sides of the head of King Koz’s gavel and should Trickster Tracey be wearing pointed toe brown ostrich leather dress shoes or steel toed red crocodile leather boots with blue soles accented white stitching and seams?

  4. Pingback: Fixing Brady: A Judge’s Perspective | Simple Justice

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