Following Judge Kozinski’s extraordinary dissent to the denial of en banc review in United States v. Olsen, Judge Richard Kopf put the question on the table:

The judge writes: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, Nos. 10-36063-36064 (9th Cir., December 10, 2013) (dissent). Is the most interesting man in the world merely trying to be interesting or is HE right?

As interesting as the opinions of others may be, the far more interesting question is what Judge Kopf thought of Judge Kozinski’s opinion and, to push the envelope a bit farther, how would he, as a district court judge, cure the disease, if disease it was.  Judge Kopf was kind enough to oblige:

If Chief Judge K. believes there is an epidemic of Brady violations, I cannot dispute his assertion because I don’t have his much broader perspective as Chief Judge of the Ninth Circuit. As a district judge, and one who relies on our tough and excellent magistrate judges to handle pretrial motion practice, I see only a tiny slice of the issue. Moreover, where I hang out, the federal prosecutors are, by and large, quite careful, or so it seems to me. The disease that Chief Judge K. worries about does not seem to present, at least in epidemic proportions, in the District of Nebraska where we typically rank in the top 10 when it comes to criminal cases per judge.

A very judicious response, though it fails to recognize a core symptom of the disease, that it doesn’t present itself until it presents itself, and like a festering sore hiding below the skin, no one knows of the infection until a huge, ugly, disgusting boil erupts on the surface.  That it doesn’t appear to be a problem could mean that it’s not a problem, or that there is no huge, ugly, disgusting boil.  It’s impossible to know which is which until and unless it breaks through the surface.

That said, Judge Kopf nonetheless addressed his thoughts on dealing with the Brady epidemic.

Back when I was a Magistrate Judge between 1987 and 1992, many federal prosecutors followed an “open file” policy. That is, the defense lawyer got access to the complete investigative file–everything the prosecutor had–except for legal research and the prosecutor’s outgoing correspondence. The defense lawyer was able to copy whatever the lawyer wanted. That seems sensible to me. Indeed, I would be inclined to change the Federal Rules of Criminal Procedure to require prosecutors to open their investigative files.

This is a fine idea, though changing the federal rules to require open file discovery is perhaps a bit overly optimistic given how the government in some districts will fight vehemently against any effort to get an iota more disclosure than Rule 16 demands, arguing that they will be severely prejudiced if forced to reveal their evidence as it will allow defense counsel to prepare. Think getting 1000 pages of 3500 material over the lunch break.

Open file discovery by the prosecution is one of the panaceas often urged to fix the Brady disclosure, and while it will certainly help, it’s a palliative, not a cure. There is a huge gap between agents uncovering evidence that undermines the prosecution and that finding its way into the government’s file. Not only do agents actively avoid discovery evidence that kills the case, but they dismiss as “obviously wrong” anything that doesn’t bolster their narrative, which creates a self-justifying cycle of concealment.  It’s not Brady, it’s just worthless crap because it doesn’t prove the defendant guilty. So into the garbage it goes.

But this relies on the largesse of the prosecution to allow open file discovery, so I pushed my luck by asking Judge Kopf about districts where the government wasn’t so kind.

In answer to your question, one of the measures that might be adopted by federal trial judges throughout the nation is to adopt a uniform process for the referral of any violation of Brady to DOJ’s Office of Professional Responsibility. While I cannot go into detail because the matter is pending, I know from very recent experience that such referrals scare the living shit out of federal prosecutors. Any judge can trigger a mandatory referral by simply stating in an order the nature of the violation and demanding that the prosecutor’s behavior be subjected to an OPR investigation. Such an order might read like this,

“The Court having found a violation of the requirement of Brady v. Maryland due to the nondisclosure of X by prosecutor Y, the United States Attorney for the District of Nebraska and AUSA Y are ordered to report this violation to the Department of Justice’s Office of Professional Responsibility. The results of the investigation shall in turn be made available to the undersigned and the Chief Judge of this court by the United States Attorney and further action, including disbarment of AUSA Y. from the practice of law in this court, may ensue.”

Curiously, not even Judge Kozinksi, in his scathing dissent, mentioned the name of the AUSA involved, though Radley Balko did.  When Judge Kopf says that a referral to OPR “scares the living shit out of federal prosecutors,” I believe him.  Whether it’s the equivalent of disbarment or sanction is hard to say, as it may be more a matter of internal humiliation and the end of a promising prosecutorial career than a legal career per se.

But what remains unanswered is how this serves to accomplish two tasks: First, help the particular person whose rights were denied by the prosecutorial misconduct, who must still show not only that a Brady violation occurred, but that but for that violation, there was a reasonable probability that the outcome would have been different.

Second, sufficiently change the incentive system that rewards concealment of Brady by doing nothing more, in the case of its being found, proven and shown to have sufficiently impacted the outcome to require a new trial. So the defendant gets to go through another trial and the prosecution is forced to do what it was required to do the first time? Big deal.

On the second prong, the point of referral to OPR and outing in the decision is to impose a burden on the prosecutor who concealed the Brady, thus providing a reason not to conceal. It depends on judges doing two things, finding the violation intentional such that outing the prosecutor is warranted, and then actually naming and shaming the assistant.

Judge Kopf says it will work, and I believe him. But what I strain to believe is that judges will do this. Other than the most flagrant, outrageous, patent case, judges are extremely reluctant to lay deliberate misconduct on a prosecutor. They bend over backwards to find the opposite, that even if concealment happened, it was unintentional and the nice young man would never deliberately violate the law. Maybe he wasn’t sufficiently trained (as in Connick v. Thompson) or maybe he had a bad day, or the sun was in his eyes. Anything but he engaged in deliberate misconduct.

I don’t blame Judge Kopf for not coming up with a killer answer. No one else has either, which is why I’ve long argued that Brady is Wild Bill Douglas’ greatest joke, a carrot so tasty that criminal defense lawyers desperately want it, but always just out of our reach.  And so it remains.