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A prosecutor violates due process when he suppresses evidence that is favorable to the defendant.

-- Brady v. Maryland
373 U.S. 83 (1963) 
Prosecutorial Misconduct

Prosecutors who bend or even break the rules to win a conviction almost never face any punishment

Rampant Prosecutorial Misconduct
January 4, 2014

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.

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."

The defendant, Kenneth Olsen, was convicted of producing ricin, a toxic poison, for use as a weapon. Federal prosecutors knew — but did not tell his lawyers or the court — that an investigation of the government's forensic scientist, whose lab tests were critical to the case, had revealed multiple instances of sloppy work that had led to wrongful convictions in earlier cases. A state court found the scientist was "incompetent and committed gross misconduct."

Yet the majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen's guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist's firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady violations. Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence "so long as it's possible the defendant would've been convicted anyway," as the judge wrote. This creates a "serious moral hazard," he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

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."

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.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving "the public's trust in our justice system," and the foundation of the rule of law.

Copyright 2014, The New York Times

From: "Rampant Prosecutorial Misconduct," The New York Times, EDITORIAL BOARD, January 4, 2014.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Rejecting Voodoo Science in the Courtroom

The U.S. has relied on flawed forensic-evidence techniques for decades, falsely convicting many.


September 19, 2016

The White House will release a report Tuesday that will fundamentally change the way many criminal trials are conducted. The new study from the President's Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques — DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

Americans have long had an abiding faith in science, including forensic science. Popular TV shows like "CSI" and "Forensic Files" stoke this confidence. Yet the PCAST report will likely upend many people's beliefs, as it should. Why trust a justice system that imprisons and even executes people based on junk science?

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. "The prospects of developing bitemark analysis into a scientifically valid method" are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is "vanishingly small," "essentially zero," or "microscopic." The report calls such claims "scientifically indefensible," but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Problems with forensic evidence have plagued the criminal-justice system for years. Faith in the granddaddy of all forensic-science methods—latent fingerprint comparison—was shaken in 2004 when the FBI announced that a print recovered from the Madrid train bombing was a perfect match with American lawyer Brandon Mayfield. Spanish authorities promptly discovered that the print belonged to someone else.

Doubt turned to horror when studies revealed that certain types of forensic science had absolutely no scientific basis. Longstanding ideas about "char patterns" that prove a fire was caused by arson have been discredited. Yet at least one man, Cameron Todd Willingham of Texas, was executed based on such mumbo jumbo.

The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. All should be swiftly implemented. Preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any. The report will also immediately influence ongoing criminal cases, as it provides a road map for defense lawyers to challenge prosecution experts.

As for past convictions obtained through discredited methods, the outlook remains grim. A 1997 Justice Department inspector-general report impugned 13 FBI lab examiners involved in more than 7,600 cases, including 64 capital cases. But, as John Malcolm of the Heritage Foundation points out, a 2014 Justice Department inspector-general report shows that only 312 of these cases had been reviewed in the past 17 years.

Federal courts can't much help either. Setting aside wrongful convictions has become exceedingly difficult under a 1996 law called the Antiterrorism and Effective Death Penalty Act, which severely limits the ability of federal courts to review state-court decisions. Congress should amend the legislation to authorize swift federal relief to prisoners who make a convincing showing that they were convicted with false or overstated expert testimony.

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Mr. Kozinski, a judge on the Ninth Circuit Court of Appeals since 1985, was a senior adviser to the PCAST report.

Copyright 2016, Dow Jones & Company, Inc.

From: "Rejecting Voodoo Science in the Courtroom — The U.S. has relied on flawed forensic-evidence techniques for decades, falsely convicting many." The Wall Street Journal, September 19, 2016, http://www.wsj.com/articles/rejecting-voodoo-science-in-the-courtroom-1474328199, accessed 09/23/2016.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading
  1. Judge Kozinski speaks out on the origins and consequences of prosecutorial misconduct and the critical need for reform.

  2. Alex Kozinski, "Preface; Criminal Law 2.0," Ann. Rev. Crim. Proc., 44 Georgetown Law Review, 2015.

  3. "Qualified Immunity: Striking the Balance for Prosecutor Accountability," Center for Prosecutor Integrity, 2014.

  4. Judge Kozinski's dissent in the Kenneth Olsen case.

  5. Tulanelink.com, "Dishonest Prosecutor Receives Slap on Hand."













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