Don’t ignore the Brady rule: Evidence must be shared

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.

The evidence against Olsen took two forms: voluminous records of his browsing the Internet for information about poisons (which Olsen attributed to his own curiosity about “strange and morbid things”) and a bottle of allergy pills found in Olsen’s possession that allegedly contained ricin.

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The defense argued that a forensic scientist with the state police who analyzed the pills before they were sent to the FBI may have contaminated them. But the argument wasn’t as strong as it could have been because prosecutors had failed to turn over information about an investigation of the scientist’s work in other cases that found fault with his “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.”

Despite this lapse, a three-judge panel of the 9th Circuit upheld the conviction, citing “reasonable probability” that the jury would have found Olsen guilty even if it had known about the investigation. As Kozinski notes, this approach guts the Brady rule by telling prosecutors they need not turn over exculpatory evidence “so long as it’s possible the defendant would’ve been convicted anyway.”

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.