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Judge Alex Kozinski, who has made headlines over the past few years for raising concerns about our nation’s epidemic of prosecutorial misconduct, is making good on his promise to “name names” when prosecutors engage in chicanery. On Monday, Kozinski authored the Ninth Circuit Court of Appeals’ majority opinion in Frost v. Gilbert, a state prisoner’s appeal from a denial of habeas corpus in the Western District of Washington. After identifying the members of the prosecutor’s office involved in the misconduct, Judge Kozinski wrote these blunt words:

The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration. This would seem to be the prudent course.

Mr. Frost had been convicted for committing a spree of armed robberies and a burglary. His case had already appeared before the Ninth Circuit, which had granted him a new trial because the trial court improperly restricted the defense team’s closing argument. But, the U.S. Supreme Court reversed that decision, holding that the court of appeals did not properly apply the strictures of the (draconian) Anti-Terrorism and Effective Death Penalty Act. It threw the ball back into the Ninth Circuit’s court for further proceedings.

This time around, the Ninth Circuit not only revisited the closing argument issue—quickly ruling against Mr. Frost—but also explored for the first time claims about prosecutorial misconduct. The opinion explains the role of one of the state’s key witnesses, Edward Shaw:

Shaw . . . was an acquaintance who testified about how Frost interacted with ringleader Matthew Williams, who Frost claimed coerced him into participating in the crimes. In April 2003, Shaw met with detectives to discuss what he knew about Frost’s involvement. At that time, Shaw had pending charges for unlawful possession of drugs and a firearm. Shaw asked for favorable treatment in exchange for information about Frost’s criminal activity but the prosecution refused to make a deal. Nevertheless, Shaw disclosed what he knew. Frost was arrested the same day. . . . Subsequently, but before Frost’s trial, Shaw was charged with second-degree assault with a deadly weapon growing out of a domestic-violence incident. In November 2003, a few weeks before Frost’s trial, Shaw signed two plea agreements. He received a nine-month sentence for all his crimes, conditioned on his testifying truthfully against Frost.

At trial, Shaw deflated Frost’s duress claim, testifying that Frost giggled when he spoke to Shaw about the crimes after-the-fact. Shaw acknowledged that he had made a plea agreement about his unlawful possession charges, but he made no mention of the domestic violence charges. Moreover, the prosecution only put into the record an unsigned copy of the one plea Shaw disclosed; it turned out the signed copy was actually different because it contained a handwritten reference to the domestic violence case number. Over five years passed before any member of the defense team ever learned of the undisclosed plea agreement.

Judge Kozinski’s majority opinion first explains why the Ninth Circuit should consider the Petitioner’s prosecutorial misconduct claims. The lower court ruled that Mr. Frost was prohibited from presenting the claims because he did not raise them in a timely fashion. But, the majority opinion points out that Mr. Frost—without a lawyer at the time—diligently and repeatedly requested the information that the prosecutor’s office originally concealed. In response to those requests, the State continued to provide inaccurate and incomplete responses, which forced Mr. Frost to present his misconduct claims late. He only learned fully about Shaw’s plea agreements after a lawyer was appointed to represent him on his habeas petition, after the filing deadline had already passed.

Despite finding “cause” for Mr. Frost bringing his Brady and Napue claims late, the court went on to explain that it could not grant him a new trial unless he proved “prejudice.” In other words, he needed to demonstrate a reasonable likelihood that the allegedly false testimony Shaw gave at the trial affected the jury’s decision to find him guilty. Because it was unlikely that Shaw would have gotten significantly more time on the undisclosed domestic violence charges than he was already facing on the unlawful possession charges, and because other evidence—Frost’s own testimony—cast doubt on the duress defense, the court found that there was no prejudice.

In most judicial opinions about Brady issues, the discussion ends there. If the court does not find prejudice, it denies the defendant relief and moves on. Indeed, one of the most confounding things about the Brady doctrine is that the Supreme Court has held there is no “violation” of an individual’s due process rights unless there is prejudice. A prosecutor hiding exculpatory evidence is not enough to trigger constitutional concerns, apparently. And, without a violation, reprimanding prosecutors for their misdeeds is much more difficult. But, as Professor Eugene Volokh reported in the Washington Post, Judge Kozinski recognizes that “[n]aming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.” Thus, even though the court found no prejudice upon which it could reverse Mr. Frost’s conviction, Kozinski took the critical step of identifying the people who withheld exculpatory evidence and continued to conceal it.

The goods can be found in Part II(C) of the opinion. Importantly, this part is not a holding of the Ninth Circuit because one of the judges in the majority did not join this section. Therefore, with a minority of the court behind him, Kozinski included Part II(C) as a way to make clear that prosecutors should not expect continued judicial silence about State misconduct.

Although we conclude that Frost is not entitled to relief, we find the facts giving rise to his Brady and Napue claims most troubling. As the matter has been presented to us, there is cause to believe that the King County Prosecuting Attorney’s office violated Brady and Napue by willfully withholding evidence of Shaw’s domestic-violence plea deal and by permitting Shaw to lie on the stand. . . . So far as we are aware, the individuals involved have never been held to account for their conduct. As the dissent acknowledges, the deputy prosecuting attorney in Frost’s case, Zachary Wagnild, introduced into evidence an unsigned plea agreement . . . . [with a] difference [from the signed agreement] . . . [that] was material . . . . The dissent chalks this all up to a case of ‘the left hand [not knowing] what the right hand was doing’ in a busy office with multiple prosecuting attorneys. But it’s more akin to one hand washing the other.


We are also troubled by the conduct of Gary Ernsdorff, the deputy prosecuting attorney who handled Shaw’s domestic-violence case. . . . The domestic-violence plea agreement had been signed on November 3, a month before Frost’s trial even began, but it was kept secret until it was too late for Frost to use it in his defense. . . . Finally, we are concerned by the actions of Kelli Williams, the public records officer for the King County Prosecuting Attorney’s office at the time Frost sought information about Shaw. . . . Williams provided incorrect or misleading information in response to his requests.

Perhaps most remarkably, this Part concludes with the specific reference to the state bar and how these individuals should handle potential disciplinary repercussions. Kozinski’s words are worth repeating:

The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration. This would seem to be the prudent course.

The Ninth Circuit sharply divided in this case, and Judge Richard Tallman wrote a heated partial-dissent, which called out Kozinski for going too far in launching “ad hominem attacks.” The opinion puts plenty of blame at the feet of Frost and his lawyers for failing to uncover the undisclosed plea agreement by consulting the public docket on Shaw’s cases two days after his trial ended in a conviction. As if the defense attorneys were not entitled to rely on the propriety of the witness’s testimony and the State’s obligation to correct false testimony. Incredibly, it also faulted Frost for not paying the $195 fee for copying materials about Shaw’s criminal cases while he was incarcerated and unrepresented and without access to resources. The partial-dissent also takes Kozinski to task for drawing conclusions about prosecutorial misconduct where there has been no evidentiary hearing or official fact-finding. Tallman, once an Assistant US Attorney in the jurisdiction from which Frost’s case emerged, expressed evident displeasure that someone “tarnished” the “character and integrity of several public employees” in King County under these circumstances.

One major question is whether Kozinski’s opinion—which takes the laudable if unusual step of identifying misbehaving members of the prosecutor’s office by name—will inspire other judges to follow suit. And, more generally, will courts recognize what Kozinski expressed about prosecutorial suppression of exculpatory evidence in his now-famous dissent in Olsen in late 2013: “Only judges can put a stop to it.” Or, will the status quo—in which judges are “strangely reluctant” to call out prosecutors let alone hold their convictions to account—continue to prevail?

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