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Federal judge delivers harsh dissent in evidence case

In his comments following a recent ruling issued by the U.S. Court of Appeals for the 9th Circuit (Missouri is in the 8th Circuit), the defense attorney called it “a sad day for the Constitution.”

The dissenting judge in the case simply called the decision of his colleagues in an evidentiary matter “wrong.”

Chief judge Alex Kozinski had further and even incendiary comments regarding a federal criminal case the court considered on appeal that focused centrally on a prosecutor’s failure to turn over evidence to the defense attorney that was potentially favorable to his client.

In 1963, the United States Supreme Court ruled in a case called Brady v. Maryland that so-called exculpatory evidence possessed by the government and requested by a criminal defendant must be turned over. Failure to do so, stated the Court, violated a suspect’s constitutional rights.

In the recent 9th Circuit case, the court ruled that, although the prosecutor failed to disclose evidence favorable to the defendant, that evidence was not material to the case.

In other words, the court stated, the guilty outcome that resulted at trial (the defendant was convicted of developing a biological agent for use as a weapon) would have stood regardless. Given that, there was no Brady violation.

In his strongly worded dissent, Kozinski cited “an epidemic of Brady violations abroad in the land” and called the court’s ruling “dangerously broad.” He derided it by claiming that it removed the burden on a prosecutor to produce impeaching evidence “so long as it’s possible the defendant would’ve been convicted anyway.”

In Kozinski’s view, the case outcome will encourage prosecutors to simply withhold evidence when there is any potential for a court to deem it immaterial.

And that, Kozinski’s dissent implies, skews justice.

Source: Huffington Post, "Chief judge for 9th Circuit cites 'epidemic' of prosecutor misconduct," Radley Balko, Dec. 11, 2013

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