So what if it comes weeks after the legal world knew and discussed the call to arms of the 9th Circuit chief judge, Alex Kozinski?  Seriously, so what?  Isn’t it better late than never that the New York Times pens an editorial praising his Olson dissent?  Of course it is. Don’t be a hater.

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

No, don’t cringe at how the editors took breathless liberties in order to simultaneously smack prosecutorial overreach, excessive plea bargaining and the death of trials in order to bolster the importance of Brady.  If it makes your head hurt, suck it up. Segues are for kids.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”

See that? They got there. Prosecutors fail? Check. Courts “rarely” (never is a very strong word) hold them accountable? Check. Epidemic? Check.  “Only judges can put a stop to it”? Check.  It’s all in there. See how you got all bothered for nothing?  And no doubt the editors, now that they’ve completed the requisite cursory run through of the usual bogeymen, will reach the right conclusion:

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Uh, wait a sec, there, guys.  It’s not just happening when they “are sitting on what they see as a mountain of evidence proving guilt.” If anything, it’s far worse, far more nefarious, when the evidence is weak or equivocal, and exculpatory evidence will shift the balance of proof away from conviction.

But the point of Brady has nothing to do with whether the case is weak or strong. Either way, under any circumstances, if there is material (not evidence either, by the way) that is exculpatory for the defendant (or can be used to impeach the prosecution’s witnesses, since Giglio gets too little love these days), the prosecution is required to disclose it.

Nor is it “their job to believe in the defendant’s guilt.”  Actually, it’s their job to do justice, and if anything, they should think that the evidence proves a defendant’s guilt.  Beliefs have nothing to do with it.

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Whoa.  First you applaud Judge Kozinki’s “[o]nly judges can put a stop to it,” and then slip-slide right past it with “but it will take more than judges to fix the problem”?  Did you not read the dissent?  Do you not get the problem that Brady is a right without a remedy because judges have failed for the past 50 to do anything when it just doesn’t happen?

Open file discovery, a nice idea to the extent it happens, would be a fine thing to do to the extent Brady ever finds its way into the file and to the extent the open file is actually open and the file.  But how the New York Times leaps over the failure of the judiciary at every level to make Brady count by imposing sanctions, both in terms of reversal as well as punishment of prosecutors who deep-six exculpatory information, and eliminating the bottomless pit of harmless error is absurd.

Yes, Judge Kozinski is right. Very right. The New York Times, on the other hand, either lacks the ability to understand why or deliberately chose to shift the blame sideways so as not to piss off those at fault. The job of the judiciary is to make sure that the constitutional rights of individuals are not violated, and they have failed to do so here. Have the balls to say so, editors. It’s the fault of judges. That was Alex Kozinski’s point. Blame the judges.