Over 50 years ago the United States Supreme Court held in Brady v. Maryland that prosecutors had a duty to disclose exculpatory evidence. In Brady, the United States Supreme Court observed that “our system of the administration of justice suffers when any accused is treated unfairly.” Seeking to alleviate unfair treatment, the Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.

One might reasonably think, why would it take a United States Supreme Court decision to tell prosecutors – whose obligation is to seek justice – that failing to disclose favorable evidence to the accused heightens the risk justice will not be achieved? Surely this principle would 50 years later be ingrained into the fabric of the legal profession. But, sadly it is not. For example, officials at the U.S. Department of Justice are pushing back against recent criticism about prosecutors’ ethics from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Kozinski wrote in a law journal article this summer that there were “disturbing indications that a non-trivial number of prosecutors” had committed misconduct, such as misleading juries, lying and helping police present false evidence. He quoted from a 2013 opinion in which he wrote that there was an “epidemic” of prosecutors shirking their obligation to turn over potentially favorable evidence to defense lawyers.

Justice Department officials wrote a public letter refuting statements that Kozinski made in the article, which was published as a preface to the Georgetown Law Journal Annual Review of Criminal Procedure.

“Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country,” Associate Deputy Attorney General Andrew Goldsmith and U.S. Attorney John Walsh of Colorado wrote. They concluded in the letter: “We respectfully dissent.”

There are two reasonably undeniable truths. First, the “overwhelming majority” of prosecutors honor their legal and ethical obligations, including the requirement that they turn over potentially favorable information to defense lawyers. Second, there are far too many cases where the first undeniable truth does not happen.