In his most recent Huffington Post column, Radley Balko writes about the epidemic of prosecutorial misconduct as noted in the dissent by Alex Kozinski, the Chief Judge for the Ninth Circuit.
Last week, Kozinski issued a blistering dissent in a case where the court upheld the conviction of Kenneth Olsen, a man convicted of developing ricin. The defense subsequently learned thatone of the people handling the evidence for Olson’s case was Arnold Melnikoff, a forensic analyst who is under investigation for forensic misconduct that has led to three wrongful convictions. One of those cases is that of Jimmy Ray Bromgard, who was wrongfully convicted of raping an 8-year-old girl based on faulty hair analysis conducted by Melnikoff, and served more than 15 years in prison. According to Kozinski, the prosecution knew about the investigation, but still allowed Melnikoff to testify against Olson.
Assistant U.S. Attorney Earl Hicks also withheld information of Melnikoff’s history of misconduct from Olsen’s attorneys and allowed Melnikoff’s attorney to characterize it as an “administrative” review that was limited to one case from 10 years ago.
According to the 9th Circuit panel of judges, the investigation of Melnikoff’s misconduct wasn’t “material” to Olsen’s conviction; he would have been found guilty regardless. In his dissent, Kozinski criticizes the other two judges on the panel.
“The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This 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, as happened here.”
“Protecting the constitutional rights of the accused was just not very high on this prosecutor’s list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one’s daily errands signifies a systemic problem: Some prosecutors don’t care about Brady because courts don’t make them care.”