Chief Judge Kozinski Urges Action on Brady Violation 'Epidemic'

Dissents are worthless, right? After all, they're not controlling, especially dissents from orders.

This dissent from an en banc rehearing denial, by Chief Judge Alex Kozinski, arguing that the frequency of Brady disclosure violations has reached epidemic proportions, is one more reason why Judge Kozinski is quickly becoming a personal favorite. It's snarky, well-written, and makes you wonder how in the heck the original panel (and the en banc deniers) got the case so wrong.

Unfortunately, it's legal effect is nill, which means 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.

Overwhelming Evidence?

On first glance, the evidence against Olsen truly seems "devastating." As Kozinski quipped, "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."

The sites related to ricin and other poisons. He ordered such books as "How to Kill," "Silent Death," and the "Poisoner's Handbook." Searches included "common ingredients for death by sleep," "silent killers," and "tasteless poison."

Of course, that all fits with Olsen's narrative, which was that he merely had a morbid curiosity, with no intent to kill. Then again, he also had notes of dosages and the weight in kilograms of a 150lb person, the weight of his boss, wife, and mistress.

"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," Judge Kozinski noted.

It's all circumstantial. Well, except for those allergy pills that tested positive for ricin.

Faulty Forensics

Ah, the pills -- the reason this case is still alive, eleven years after Olsen was arrested.

The pills were initially handled by Arnold Melnikoff, a forensic scientist of note, though not for good reason. He's 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.

And those pills? They 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 (laced pills) or outside (contamination, perhaps).

Brady Violation and/or Blind Eye?

Okay, there's a dirty lab, but what does the Assistant United States Attorney have to do with it?

We can't be sure exactly what he knew about the then-pending investigation of Melnikoff, or of the report issued months before Olsen's trial, which recommended retesting in 14 out of 100 randomly-selected Melnikoff cases. (Per The Associated Press, the report found problems in 29 of the 100 cases, and recommended his termination).

Here's what we do know: Defense counsel and the judge were under the impression that the investigation was "purely administrative" and that it only related to decades-old DNA disputes.

The judge, after stating, "check me if I am wrong," described his incorrect understanding of the investigation, including that "there is nothing in here that ... indicates that there was any problem at all during ... his tenure with the State of Washington," and that Melnikoff's suspension was taken "out of an abundance of precaution."

The AUSA remained silent. The judge kept all mention of the investigation (and the not-known-about damning report) out of the trial, and let the pills in.

During all of this, the AUSA was apparently dodging calls from his state counterpart, who left multiple messages concerning the Melnikoff investigation. The AUSA promised the court that he would follow-up on the state's investigation. The record shows a single returned call, where he left a message. He didn't answer when she called back later that afternoon.

Willful withholding, recklessness, or an intentional blind eye?

Brady Epidemic?

The panel found all of this unpersuasive and "immaterial" in light of the other evidence. Kozinski, and four fellow en banc denial dissenters, disagree, summarizing the remaining evidence as "a few Google searches and bookstore receipts." But the larger issue is the alleged Brady epidemic.

Kozinski cites nearly a full page of recent cases, while noting that these are only the instances that are actually discovered.

He also points 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."

Related Resources:

• United States v. Olsen (Ninth Circuit Court of Appeals - Order and Dissent)
• Failure to Divulge Evidence an Epidemic, Judge Says (Courthouse News Service)
• Kozinski Crashes Nissan Leaf Settlement Party -- As a Plaintiff (FindLaw's Ninth Circuit Blog)
• U.S. Attorney's Office Gets Called Out for Ethics Violations (FindLaw's Fourth Circuit Blog)