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US Attorneys are violating defendants' rights: 9th Circuit chief

The chief judge of the 9th Circuit court of appeals just issued a stinging rebuke to members of his own court, assistant U.S. attorney who tried the case before them, and federal prosecutors across the nation. His comments were part of his dissent in a federal weapons case in which the prosecutor appeared to have held back evidence he had been legally and ethically bound to deliver to a defendant facing federal weapons charges.

The U.S. Constitution requires prosecutors to play fair. In part, that means prosecutors must allow criminal defendants to examine all of the evidence before trial. Moreover, that includes any and all evidence that might help the defense, wrote the U.S. Supreme Court in a 1963 case called Brady v. Maryland. Because of that case, "exculpatory," or pro-defense evidence is often referred to as "Brady evidence."

Unfortunately, over the years, courts have knocked the teeth out of that obligation by allowing prosecutors to get away with withholding Brady evidence if they feel it didn't matter. On appeal, courts determine whether the withheld evidence would likely have changed the outcome of the trial. If they decide it probably wouldn't have, they brush off Brady violations as "harmless error."

In the recent case, the defendant was accused of trying to produce ricin, a deadly poison, for use as a weapon. The alleged ricin was tested by a forensic scientist -- whom it was later revealed was under investigation for misconduct, and his testimony was already suspected to leading o three wrongful convictions.

It's is unclear this prosecutor actually knew of the report, but it would been willful ignorance or plain incompetence for him to have failed to perform a basic check on such a crucial witness in a biological weapons case.

The majority of the 9th Circuit panel decided the investigation wasn't material to the credibility of the scientist and, therefore, the prosecutor's failure to turn it over was harmless error. The dissenting chief judge had some choice words to say, citing "an epidemic of Brady violations abroad in the land."

"The panel's ruling is not just wrong," he wrote, "it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It...will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way."

Source: The Huffington Post, "Chief Judge For 9th Circuit Cites 'Epidemic' Of Prosecutor Misconduct," Radley Balko, Dec. 11, 2013

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