The Epidemic of Prosecutorial Misconduct. Spoliation. Withheld evidence.

The Epidemic of Prosecutorial Misconduct.  Spoliation. Withheld evidence.

Cases every criminal lawyer needs to know:  Brady v. Maryland   Kyle v. Whitley  Giglio v. United States  Napue v. Illinois  Arizona v. Youngblood   And the dissent in US v. Olsen.

In this post, I provide links to opinions and discussions on prosecutorial misconduct, including the subornation of perjury, Brady violations, and spoliation of evidence.  Interestingly, in the civil law, the remedies for spoliation seem more defined; on the criminal side, the analysis is one of due process.

I successfully represented clients in having a federal government’s writ of execution dismissed in its attempt to seize property to satisfy a two decades’ old restitution order issued in connection with a twenty year old plea to food stamp fraud.  The subject property actually belonged to my clients’ daughter, and was purchased by her via “proceeds” tenuously and remote in time to the parents’ disclosed donation of property to her years prior.  There is a section at pp. 5-7 on spoliation because the federal government admitted it had destroyed the entirety of the criminal files.  The brief is available at writing sample Lewis response to OSC re asset forfeiture. The court dismissed the government’s writ, without having to reach the spoliation issue.

Alex Kozinski, Chief Judge, United States Ninth Circuit Court of Appeal, wrote a remarkable article on, among other things, prosecutorial misconduct and evidentiary issues, published here at  As a Shreveport attorney these days, I was moved by Kozinski’s discussion of Marty Stroud’s published mea culpa upon the exoneration of Glen Ford after exculpatory evidence came to light, a man he prosecuted onto death row.  (see id. at p.xxxvii).

United States v. Olsen is a must read.  The dissent excoriates what was a sham of a criminal trial, and shames not only prosecutors, but experts, forensic evidence and judges, as well.  Kenneth Olsen was convicted by a federal jury of knowingly developing a biological agent [ricin] for use as a weapon in violation of 18 U.S.C. § 175.   He never poisoned anyone.  Nor did he try to.  Olsen admitted that he produced ricin, a highly toxic poison, but argued that he didn’t intend to use it as a weapon. Instead, he claimed that he was motivated by “an irresponsible sense of curiosity” about “strange and morbid things.”

He was convicted, with the help of an unscrupulous prosecutor, a rogue expert, and an unmindful court.   Kozinski opened the dissent with this:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

He summed up the actual evidence, thusly:

“So what is this “devastating,” “overwhelming” evidence? “Thought” evidence, of course: “‘What is unique about the evidence in this case is we have captured a thought process,’” the prosecutor said in closing. Id. at 1186. By this, the prosecutor meant the ambiguous evidence of a year’s worth of Olsen’s Internet browsing. Id. at 1185. In an investigation that would have made Big Brother green with envy, the government produced 20,000 pages showing the websites Olsen visited and the searches he performed. Id. During that year, Olsen visited sites relating to ricin and other poisons. Id. He printed materials from these pages and ordered works with menacing titles such as: “‘How to Kill,’ ‘Silent Death,’ ‘Getting Even,’ and the ‘Poisoner’s Handbook.’” Id. at 1186. Olsen also searched for “‘silent killers,’ ‘death by poison,’ ‘tasteless poison,’ ‘hidden poison,’ ‘undetectable poisons,’ ‘untraceable poisons’ . . . ‘deadly sleeping pills,’ and ‘common ingredients for death by sleep.’” Id.”

“The panel then tells us of Olsen’s handwritten notes in which he wrote out “the maximum doses, in milligrams,” of four antihistamine and sleeping drugs, including the one that had been spiked with ricin. Id. at 1186–87. “Perhaps most incriminating of all,” the panel says, was the fact that “Olsen mathematically calculated the weight in kilograms of a 150- pound person.” Id. at 1187. We’re told that Olsen’s wife, his mistress and his former boss “all weighed around 150 pounds,” id., as if this is proof that Olsen intended to kill one (or all?) of them.”

Kozinski characterized the evidence succinctly:

“Intriguing, in a Jerry Springer kind of way, but whom was Olsen planning to kill? We don’t know. And what was his motive? The panel doesn’t say. Given that the government so thoroughly “captured [Olsen’s] thought process,” id. at 1186, it’s surprising that these “thoughts” don’t shed light on the intended victim (or victims?). Surely somewhere in the 20,000 pages of Internet proxy logs Olsen searched for “what to wear to your boss’s funeral” or “how to file a widower’s tax return,” or maybe he watched “How to Murder Your Wife” on Netflix. But the opinion makes no mention of it, which makes the materiality analysis that much weaker. This is hardly the “overwhelming” evidence of intent that the panel promises. The evidence is consistent with Olsen’s intent to use the ricin as a weapon, of course, but it’s also consistent with the irresponsible curiosity that Olsen claims motivated him.”

Kozinski criticized not just the instant prosecutor, an assistant US attorney, but all prosecutors, stating

“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 the federal and state reporters bear testament to this unsettling trend.”

Kozinski didn’t stop there.  He continued:

“When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.

Kozinski then excoriated, with his usual penchant for in depth citation, the abuses of government forensic evidence and expert testimony, stating:

“Olsen’s case points to another important problem—that of rogue investigators and forensic experts. Melinkoff’s long history of misconduct, resulting in the wrongful conviction of numerous innocent people, is hardly unique.

Kozinski continued, and again, laid blame on prosecutors:

“Because modern criminal trials frequently turn on forensic reports, these incidents of misconduct raise the frightening prospect that many of the over 1.5 million people now populating state and federal prisons might, in fact, be innocent. See E. Ann Carson & Daniela Golinelli, Prisoners in 2012—Advance Counts, Bureau of Justice Statistics (July 2013). How do rogue forensic scientists and other bad cops thrive in our criminal justice system? The simple answer is that some prosecutors turn a blind eye to such misconduct because they’re more interested in gaining a conviction than achieving a just result.

Kozinski saved his harshest words… for judges and closed with this:

“In turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.


The Ninth Circuit has a youtube channel.  You can watch oral arguments…online.  A must watch oral argument (in addition to those discussed by Kozinski in his article) is 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015), watch?v 2sCUrhgXjH4.  The case was before the court on habeas review, of the second state court conviction of Baca of murder for hire.  (Notably, the purported principal, was never investigated, arrested, or tried). The first conviction was reversed because the state prosecutor suborned perjury.  At the second trial, a second state prosecutor….suborned perjury.  Somehow the California appellate courts let it slide the second time.  By the 28 minute mark, Kozinski is tearing into the state attorney general.  The Los Angeles Times published an article on the matter and a link to the argument (as does the above youtube link).

Other sources of possible interest on the issues of spoliation and/or prosecutorial misconduct:

An Epidemic of Prosecutor Misconduct, Center For Prosecutor Integrity (2013)

Prosecutor Knowingly Elicits False Testimony Robbery Conviction Thrown Out (2013).  Dow v. Virga, No. 11-17678 (9th Cir. 2013):

The prosecutor’s procurement of testimony she knew to be false and her failure to correct it constitutes prosecutorial misconduct under Napue v. Illinois. Indeed, rather than tell the Court that the detective’s testimony was false, she used it to argue the defendant’s guilty conscience to the jury.

While this ethical violation does not give rise to an automatic reversal, the 9th Circuit determined that a new trial is required for Dow because the prosecutor’s actions would have influenced the judgment of the jury. This is the “materiality” standard for Napue violations. Judge Reinhardt wrote for the 9th Circuit:

Applying de novo review, we conclude that Dow prevails on his Napue claim because he meets the materiality standard. This standard, which requires us to determine whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103 (emphasis added), is easily met here.  The evidence against Dow was weak and the prosecutor’s arguments undoubtedly had an effect on the jury’s decision.  Thus, Dow was deprived of his constitutional right to due process of law.


This article (Spoliation of Evidence discusses remedies applied in civil cases for spoliation of evidence:

Over the years, the courts have found numerous sanctions to be appropriate for spoliation of evidence. Courts have allowed adverse inferences to be drawn from the loss or destruction of relevant evidence, dismissed cases or stricken pleadings, issued fines and applied most every other sanction available for the failure to provide discovery. A proper spoliation sanction should serve both fairness and punitive functions. Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2008). Because failures to produce relevant evidence fall “along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,” Raush v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988), the severity of the sanction must, depending on the circumstances of the case, correspond to the party’s fault.

This law review article, Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009). Available at: r/vol77/iss6/2 focuses on destruction of DNA evidence, and discusses the relevant and apposite case law.

A public defender in Wisconsin, uploaded this Spoliation powerpoint (in pdf format) regarding spoliation of evidence, with possible remedies and a sample motion.

The North Carolina Indigent Defense Services uploaded the article, A Practical Guide to Brady Motions (2008) as apart of its regular training programs.

A 2009 list of successful Brady/Napue cases is available here courtesy of the Capital Defense Network.

A law review article entitled “Bad Faith Exception to Prosecutorial Immunity for Brady Violations,” proposes such an exception and explains why it would not violate Imbler or Kalina v. Fletcher.  Benne L. Gershman, Bad Faith Exception to Prosecutorial Immunity for Brady Violations, Amicus, Aug. 10, 2010,

I was tasked to do the research on this case… to pierce prosecutorial immunity.  The limits of prosecutorial immunity are fairly well outlined in the Ninth Circuit decision in Milstein v. Cooley.

The following is a case that originated in the Middle District of Louisiana and the Fifth Circuit pierced prosecutorial immunity for the conduct of the prosecutor in having a witness arrested without a warrant in retaliation for a refusal to cooperate:

“The issues in this case are whether a state prosecuting attorney is absolutely immune from suit for money damages for (1) ordering a sheriff’s deputy to make a warrantless arrest without probable cause of a witness in retaliation for the witness’s refusal to testify that her boyfriend had struck her in the face during a domestic violence altercation, and (2) subsequently maliciously prosecuting the witness for making a false report of domestic violence. We conclude that the prosecuting attorney is absolutely immune from liability for initiating an alleged malicious prosecution against the witness but not absolutely immune from liability for ordering the officer to make a warrantless arrest.”
Loupe v. O’Bannon, No. 15-30535 (5th Cir. 2016)


I also discussed prosecutorial immunity in another post.

I will, as always, be amending this post, as I find resources.


Kathryn S. Bloomfield










2 thoughts on “The Epidemic of Prosecutorial Misconduct. Spoliation. Withheld evidence.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s