A Brady Dissent that Gives All the More Reason to Push for Brady Material Pretrial

January 7, 2014
By Hanging Out with Carl Gunn


  • A recent Chief Judge Kozinski dissent from the denial of rehearing en banc decries an “epidemic” of Brady violations.
  • Chief Judge Kozinski also decries an appellate review standard that will often allow convictions to stand despite the epidemic of Brady violations.
  • Use these concerns in pretrial litigation of Brady issues, by arguing that (1) it can’t just be assumed that prosecutors will disclose what they’re required to disclose and (2) violations often aren’t fixed after the fact.


A year and a half ago, I put up a couple of posts about the proper standard for judging whether information is Brady material at the pretrial stage rather than at the post-trial appeal or habeas stage where it usually gets litigated. The point of the posts was that the definition of “materiality” in the post-trial context, which requires the evidence to be sufficiently strong that it “creates a reasonable probability that the result of the proceeding would have been different,” is for post-trial “Does there have to be a new trial?” analysis, not pretrial “Should prosecutors have to disclose it?” analysis. The first of my posts pointed to a great Judge Pregerson (Dean, the son, not Harry, the father) opinion that makes this point and rules that in the pretrial context the government has to disclose any evidence that is “favorable” to the defense, which Judge Pregerson defined as any evidence “which relates to guilt or punishment, and which tends to help the defense by either bolstering the defense’s case or impeaching prosecution witnesses.” (See “A Third Government Misunderstanding: About Its Basic Brady Obligation” in the June 2012 link at the right, quoting United States v. Sudikoff, 36 F. Supp. 2d 1196, 1199 (C.D. Cal. 1999).) The second of the posts pointed to a discussion draft of a possible amendment to Rule 16 of the Federal Rules of Criminal Procedure and a bill introduced in the United States Senate by Alaska Senator Murkowski (with the wonderful title of “Fairness in Disclosure of Evidence Act of 2012,” linked again here) which would write a comparable standard into, in one instance, Rule 16 and, in the other instance, Title 18 of the United States Code. (See “Codifying the Brady Standard to Help the Prosecutors Understand” in the June 2012 link at the right.)

These posts come to mind because of a wonderful dissent from the denial of rehearing en banc that Chief Judge Kozinski wrote last month in a case called United States v. Olsen, which is linked here and has also been the subject of a number of other blog posts, including our own Ninth Circuit blog. (Find that blog at www.circuit9.blogspot.com and the particular post directly linked here (at least if I got the technology right and the direct hyperlink address hasn’t changed)). Chief Judge Kozinski’s opinion isn’t controlling law of course, since it’s just a dissent. Still, it has some nice nuggets you can use in urging a district court to proactively apply Judge Pregerson’s standard at the pretrial stage or, if you’re politically inclined, urging Congress or the committees on the federal rules to codify such a standard in the Federal Rules of Criminal Procedure or United States Code.

First, Chief Judge Kozinski begins his opinion with the statement: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Slip opinion, at 1. (But see Senator Murkowski’s bill.) He then expands on this later in the opinion as follows:

I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and federal and state reporters bear testament to this unsettling trend.

Slip opinion, at 14. Chief Judge Kozinski then follows this with a string cite of 29 opinions (yes, I counted them).

Second, Chief Judge Kozinski expresses a concern that appellate review, at least under the standard used by the panel in that case, is a grossly ineffective method for assuring compliance.

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.

Slip opinion, at 11 (emphasis in original).

What might you do with these comments? First, it’s some nice ammunition if you want to lobby for changes in the rules or the statutes. Senator Murkowski’s bill not only sets a pretrial disclosure standard similar to the Judge Pregerson standard I quote above, but changes the standard on appellate review. Subsection (i) of her proposed statute provides that “[i]n any appellate proceeding initiated by a criminal defendant presenting an issue of fact or law under this section, the reviewing court may not find an error arising from conduct not in compliance with this section to be harmless unless the United States demonstrates beyond a reasonable doubt that the error did not contribute to the verdict obtained.” Chief Judge Kozinski’s expression of concern about the inefficacy of appellate review provides a strong argument for adopting this standard.

More important for us practitioners who’ve given up on the political process as a way to improve the criminal justice system (or just don’t have the influence or inclination to work in that arena), we can use Chief Judge Kozinski’s comments in litigating pretrial discovery in our cases. When a prosecutor responds to your pretrial Brady motion by saying something like, “The government understands and will comply with its obligations under Brady” (this from a government memorandum of points and authorities quoted in my post on Judge Pregerson’s Sudikoffopinion), point to Chief Judge Kozinski’s view that “[t]here is an epidemic of Brady violations abroad in the land.” Then tell the judge that Brady issues need to be dealt with pretrial under Judge Pregerson’s standard because of Chief Judge Kozinski’s point that in the post-trial context, “there will be a fair chance reviewing courts will look the other way.”

In sum, Chief Judge Kozinski’s dissent provides a potent argument – from the chief judge of the circuit no less – for addressing Brady issues pretrial. So file those Brady motions now, before your trial starts.