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In an article for Forbes magazine titled, “Out-Of-Balance: Basic Flaws In The Brady System” (January 15, 2014), attorney Richard Albert uses the case United States v. Olsen, in which the Ninth Circuit’s denial on appeal last December drew a scathing dissent from Chief Judge Alex Kozinski, to examine structural problems that prevent adherence to Brady among prosecutors.

Kozinski and the four justices who joined his dissent found that the government “materially understated the scope, status and gravity” of an investigation into a lab analyst who reported that allergy pills found in Olsen’s possession positively tested for ricin. The investigation, conducted by the Washington State Police, revealed that the analyst did sloppy work “built around speed and shortcuts,” which was compromised by “the presence of unexplained contaminants in his laboratory” in other cases.

Albert uses Olsen to examine what he calls “fundamental problems with the Brady system”.

First, Albert argues, there is an obvious structural problem with Brady. Though a prosecutor has a duty to pursue both punishment for the guilty and freedom for the innocent, once a prosecutor chooses to pursue a charge against an individual he must, by definition, believe in that person’s guilt. As a result, says Albert:

“Asking such a prosecutor to view evidence as favorable to the defense goes against human nature, particularly in the midst of an adversarial contest with defense counsel who, by definition, is trying to obtain a result the prosecutor believes is incorrect and unjust.  The frequency, both in experience and in the case law, of prosecution claims that particular evidence “is not Brady,” testifies to this basic point.  When you know the defendant is guilty and you have painstakingly gathered substantial evidence that you believe so demonstrates, you are much more inclined to see evidence requested by the defense as irrelevant or part of an effort to confuse the facts, rather than as “exculpatory” or favorable to the accused.”

Secondly, there is a lack of sufficient incentives to get prosecutors to comply with Brady once they believe a defendant is guilty. Albert continues:

“Because the duty to provide favorable evidence to the accused is at odds with human nature, there must be a strong incentive for the prosecutor to comply… The casual and mundane nature of the Olsen prosecutor’s breach – the failure to connect with another prosecutor over period of months, despite promising the trial judge that he would – illustrates the absence of any effective incentive.”

The fear of facing discipline is virtually nonexistent among prosecutors given the lack of action on the part of disciplinary boards to call out or punish prosecutorial misconduct.

Albert concludes, “unless more comprehensive changes are made to the Brady regime, its basic weaknesses as illustrated by cases like Olsen will continue to result in too many due process violations and too many miscarriages of justice.”

Read the full article here.


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