NEW JERSEY CRIMINAL DEFENSE LAWYERS MUST PURSUE EXCULPATORY EVIDENCE WHICH MAY CLEAR THEIR CLIENTS OF CRIMINAL CHARGES EVEN AS PROSECUTORS CONTINUE TO WITHHOLD SUCH EVIDENCE IN VIOLATION OF THE SUPREME COURT’S “BRADY” DECISION

Federal and State prosecutors have a duty to disclose exculpatory evidence – evidence of innocence or which otherwise may contribute to an individual’s defense – to attorneys who represent defendants in connection with criminal charges. The obligation to turn over exculpatory evidence is an on-going obligation, and is triggered without defense counsel asking for the information. If exculpatory information exists and a prosecutor is aware of it, it needs to be disclosed. The practical problem is how criminal defense lawyers go about diligently enforcing their right to that information. A recent opinion in a federal criminal appeal aptly illustrates the problem.
In United States v. Olsen, the appeals court upheld Olsen’s conviction for possession of pills that contained ricin, a deadly poison. The pills were initially handled and tested by Arnold Melnikoff, the State’s forensic scientist. He made the pages of The New York Times for his work in a Montana case that led to a wrongful conviction. Further investigation would find that Melnikoff’s work led to at least two more wrongful convictions.
The pills were handled on a contaminated bench where Melnikoff had previously scraped ricin off of other items, though he did place a clean sheet of “lab paper” down before dumping the bottle of pills onto the table. The pills were later tested for ricin by a third-party because Melnikoff’s lab was unequipped to test for the poison, and since the testing destroyed all of the pills, there is no way to tell if the poison was on the inside of the pills (laced pills) or outside (contamination, perhaps). Melnikoff was under investigation for faulty lab practices. This was known by the Assistant United States Attorney but it was not disclosed to Olsen’s criminal defense lawyer.
Notwithstanding these significant Constitutional violations, the defendant, Kenneth Olsen, who was convicted of knowingly developing a biological agent (ricin) for use as a weapon (allegedly laced allergy pills), will not receive relief, absent Supreme Court intervention.
Chief Judge Alex Kozinski of the U.S. Court of Appeals powerfully dissented, arguing that the frequency of Brady disclosure violations has reached epidemic proportions. Judge Kozinski cited nearly a full page of recent cases of Brady violations, while noting that these are only the instances that are actually discovered.
Judge Kozinski pointed out that there is little disincentive for prosecutors, who prioritize convictions over justice, to commit a Brady violation, as virtually no one goes to jail for prosecutorial misconduct, and the remedy is a retrial. Kozinski calls for judges to take action to cure the epidemic.
“We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction,” Kozinski stated, before warning that, “By raising the materiality bar impossibly high, the panel invites prosecutors to avert their gaze from exculpatory evidence, secure in the belief that, if it turns up after the defendant has been convicted, judges will dismiss the Brady violation as immaterial.”
To find out more about Brady requirements and how to assure that everything is done to obtain exculpatory information in your case to clear you of pending criminal charges in state or federal court, call the experienced criminal defense attorneys of Schwartz & Posnock to schedule a consultation in our Essex County (Livingston), Middlesex County (East Brunswick), Monmouth County (Eatontown), or Union County (Linden) offices.