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.
And:
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?
OK . . . now this is exactly what I was asking for in my comment re Alec’s post the Sauter case in TX, above: naming names. Thank you Judge Kozinski for making that point; thank you Bert for emphasizing it.
When your comment “the laudable if unusual step of identifying misbehaving members of the prosecutor’s office by name” is juxtaposed against Alec’s piece above, which fails to name the lawyers and judges complained of, it leaves a not-so-subtle scent of hypocrisy wafting over this (excellent) blog.
As a victim of egregious vindictive prosecution by the Manhattan DA office for over 5 years now, I am very thankful for Judge Alex Kozinski being a voice for accountability. My case is currently before the Appellate Division: First Judicial Department and to my great surprise, the Chief of Organized Crime in Manhattan and lead prosecutor on my case has just been forced/retired out of the DA’s office. His lack of accountability is exactly why he was able to relentlessly pursue me and my family for so many years. I’m sure he’s not even worried about consequences. Such a rarity.
Bravo Judge Kozinski, to those wrongly convicted due to prosecutor misconduct You, Sir, are a knight in shining armor! Absolute immunity taints our judicial system. Is it not only fair, and just, to publicize names? I think so.
Proven corruption in St. Louis Mo with AUSA worked with my sons attorney to convict while another one of his clients proffered circumstantial conspiracy Canabis distribution.. Jailed for 2 years with no priors after turning himself in
When a person that stops at railroad stop signs in the middle of nowhere and walks six blocks to legally cross the street has a criminal record – the justice system is plagued with corruption and misconduct. Thankfully, there are still a few that believe in justice – not “just us”.
I had a judge apologize for putting “unnecessary” lifetime restraining orders against me. He said that it wasn’t because he was worried about me doing anything – that it was more to satisfy the plaintiff and that he had to cover his back in case someone forced an issue. He, also, warned me to be careful of her since she knew every move I made when I had to guess that she was at work.He suggested that I get an order against her. I explained that, that would lower me to her level and that mentally she couldn’t handle it.
Another judge, after looking at the drivers manual, a Google Earth map showing the lines on the road matched those of a legal left turn in the Washington State Drivers Manual, hearing the cops version of the “illegal turn” etc, and hearing my version of my legal left hand turn etc – said,”That may be legal out there, but in my courtroom, today, it is illegal.” The two cases in front of me were DWI’s – he dropped all charges and told them not to do it again.
After:
Being arrested on the created charge of blocking traffic (I was walking on the edge of the road in a fruit packing plant area, during offtime hours. The road is wide enough for two sixteen wheelers to pass each other easily.)
Being assaulted twice by the same officer
Being denied medical for the sustained injuries
Being threatened by a jailer with, “You’re not going to population, you’re mine”
Not having video cameras running for protection
– and many other things, the judge told me that if I wanted medical attention I would have to plead guilty. If I took the case to trial I would be there until February – it was October.
For another created charge – after receiving a summons to appear in court on Monday, I was arrested on Sunday – for the same charge. I told the cop the summons was at my house he told me I was lying and refused to go and let me show him.
The charge changed three times during the course of the trial. I asked the judge if my attorney and I could speak with the prosecutor it was granted. With my attorney present I asked the prosecutor to please drop the charge because he knew it was not true that I was innocent. He said I Cannot drop the charges against anyone even if they’re innocent for fear that they will commit the crime and it will come back on me and ruin my career and my reputation. I told him that if he didn’t drop it I would be writing a letter telling of being forced into pleading guilty to the Washington Bar Association. He told me that if I did not plead guilty he would create 50 felony cases against me so that something would stick. I was forced to sign the plea deal before appearing in court the next time. The judge knew that there was an issue and brought it up but because I had signed the plea deal it was too late to do anything. After writing letters to the State Bar about being forced by Tod Bergstrom to plead guilty or I would have 50 felony cases put on me when it was time for sentencing the judge looked out noticed Tod was not there and asked the stand in prosecutor where he was. The stand-in prosecutor while looking at me said due to a very valid complaint mr. Bergstrom will not be in court for quite some time if ever. With some research I found that Tod was in the position of being a mediator rather than the assistant Deputy prosecuting attorney for King County.
These are just a few things that show musconduct and corruption.
…and the innocent continue to be persecuted.