Mimesis Law
21 July 2019

Kozinski & Tallman Fight Over A Brady Violation, But Does It Really Matter?

Mar. 25, 2016 (Mimesis Law) — If a Brady violation happens and nobody cares, did it really happen? Judge Alex Kozinski, rogue California conservative and scourge of prosecutors, has the United States Court of Appeals for the Ninth Circuit at odds over another discovery violation. The inter-court spat reveals a good bit about how judges view (or don’t view) hiding evidence.

The opinion is fun because its snarky. Who doesn’t want to see prestigious federal judges get a little snippy with each other? At the end of the day, what happens when a court (or at least some of a court) one step below the Supreme Court suspects a prosecutor cheated? Well, of course, nothing happens. But we get a good opinion at least.

Back in 2003, Joshua Frost apparently got involved in an eleven-day spree of armed robberies and a burglary. He was charged and went to trial. He lost. His journey to the Ninth Circuit involved the trial judge mistakenly forbidding his lawyer from arguing two conflicting defenses. But this isn’t about that.

The Ninth Circuit wasn’t really impressed with Frost’s arguments. Convicted defendants rarely win appeals. Once they get to the appellate court, all evidence was overwhelming and all errors were harmless.

It was a discovery violation that got all the judges up in arms. And it was all the judges. The opinion was en banc. “En banc” is a fancy legal term for “all the judges show up at the same damn time.” Eleven judges makes for good times.

Frost went to trial arguing two defenses; he didn’t do it, but if he did it was under duress. Witness Edward Shaw was called to testify that Frost was not under duress during the crimes. A bit of a troublemaker himself, Shaw had already cut a deal with the prosecutors. During Shaw’s testimony, he claimed an unsigned plea agreement was the same as the one he had signed.

Of course it wasn’t the same. The signed one, filed two days after Frost was convicted, referenced an additional charge being taken care of by the agreement. Nobody disputes the agreement should have been turned over before trial.

After Frost’s conviction, he started trying to get information related to Shaw’s deal. He wrote several letters to the public records officer, Kelli Williams, who sent back a series of misleading responses. A federal defender eventually found the records and immediately filed a petition for personal restraint, which is a Washington State avenue for attacking a conviction. The petition was deemed untimely, which was part of the reason the discovery violation ended up at the center of the federal case.

Two lines of reasoning related to the discovery violation developed in the Ninth Circuit’s opinion this week. Kozinski was pissed at the prosecutors. Shaw’s plea agreement, which was materially different than the one presented in court, was filed two days after the trial ended. It had been signed and ready for filing weeks before trial. Both the trial prosecutor, Zachary Wignard, and the prosecutor with the plea agreement, Gary Ensdorff, seem to have collaborated to hide the real facts of the plea agreement. At least, that was Kozinski’s opinion.

Judge Richard Tallman of the Ninth Circuit took the opposite tack, finding even the discussion of a potential Brady violation to be “an imprudent exercise of Article III judicial power.”

Section II C of Judge Kozinski’s opinion—for which there is no majority—launches a groundless, personal attack against several King County employees who have no way to defend themselves from the defamation. Judge Kozinski’s quiver is full, and Section II C of his “opinion” loosens several arrows directed at the King County Prosecutor’s Office and the Sheriff’s Department. The attack in Section II C is mounted notwithstanding the ultimate conclusion that Frost still loses because he cannot establish prejudice from the revived constitutional violations. Article III of the United States Constitution is not a roving commission permitting federal judges to use their opinions as a platform to launch such ad hominem attacks. Section II C of Judge Kozinski’s opinion is not the judgment of this court.

Tallman’s harsh words are curious. He fails to follow Kozinski’s logic. Kozinski saw what happened and realized the prosecutors were up to something. An ad hominem attack is against a person, regardless of the position they are taking. Like if he said, “I hate prosecutors so let me blast these guys, no matter what they did.” Of course, spending a little time researching the good judge would prove he certainly doesn’t feel that way. Kozinski thinks most prosecutors are honest. This wasn’t a groundless attack. It was an attack grounded in fact.

Tallman’s real problem is that, ultimately, Frost loses because he was not prejudiced by the Brady violation. In other words, who cares?

That seems to be a common refrain when evaluating prosecutorial shenanigans. Tallman may be right. The concealed plea agreement probably wouldn’t have helped Frost’s cause too much.

And there is the issue. Kozinski is mad because it happened. Tallman doesn’t care because it didn’t matter. The two divergent theories are important in understanding why Brady violations are both common and dangerous.

“Noble cause corruption” is the idea that it’s okay to make things up or bend the rules to get the right guy. The “no finding of prejudice” by an appellate court is simply the same thing from the other direction. Noble cause corruption relies on the ends justifying the means. Finding no prejudice relies on the end having justified the means. Both involve a lack of concern with the process, as long as the right bad guy gets sent off to the big house.

Both theories threaten the criminal justice system. The term “due process” gets thrown around a lot. It just means fair treatment. Not fair treatment for innocent people. Not fair treatment for people who the police couldn’t find a bunch of evidence against. Fair treatment for everybody.

Hiding evidence is not fair. Hiding some of the evidence but leaving the rest of it is not fair. Hiding evidence that didn’t seem important is not fair.

Kozinski cares about the process. Tallman cares about the result. The one you choose to care about is important. The result is for that one person that got convicted and no one is going to let out. The process is for everybody.

Of course, none of this matters to Frost. Under either view, he stays in jail. If you wait to care about all of this until you need it, it’s too late.

3 Comments on this post.

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  • JoAnne
    25 March 2016 at 4:08 pm - Reply

    Nice analysis. It should be about the process not the result. Result oriented opinions have long created bad law and a disregard for bad lawyering.

  • A Critical Look At D.C. Circuit’s Proposed Criminal Disclosure Rule
    30 March 2016 at 8:35 am - Reply

    […] 30, 2016 (Mimesis Law) — Recently, at Fault Lines, Josh Kendrick wrote about the war of words between Judge Kozinski and Judge Tallman, both of the Ninth Circuit, […]

  • A Critical Look At D.C. Circuit’s Proposed Criminal Disclosure Rule
    30 March 2016 at 8:35 am - Reply

    […] 30, 2016 (Mimesis Law) — Recently, at Fault Lines, Josh Kendrick wrote about the war of words between Judge Kozinski and Judge Tallman, both of the Ninth Circuit, […]