The dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. v. Olsen starts off with a bang:
"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."
Brady, of course, is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a ruling from a three-judge 9th Circuit panel in January detailed extensive questionable conduct on the part of the prosecutor, Assistant U.S. Attorney Earl Hicks (*see clarification below), who works for the Office of the U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion this week doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)
Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.
But at the time of the trial, one forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."
AUSA Hicks knew about the investigation of Melnikoff and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize it as an "administrative" review that was limited to one case from 10 years ago.
While the 9th Circuit panel found that the investigation was evidence unfavorable to the prosecution that wasn't turned over to Olsen's attorneys, the court also determined that the evidence wasn't "material" to Olsen's conviction. That is, even if it had been turned over to Olsen's attorneys, Olsen would likely have been convicted anyway. (The opinion did not address whether the evidence had been suppressed.) Here's where Kozinski, dissenting from the 9th Circuit's decision Tuesday not to rehear the case before the full court, rips into his colleagues . . .
In November 2012, the Federalist Society hosted a panel discussion on prosecutorial conduct at its National Lawyers Convention. Participating were:
- Mr. James C. Dunlop, Jones Day
- Ms. Sidney K. Powell, Sidney Powell, PC
- Prof. Ronald D. Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
- Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP and former U.S. Homeland Security Advisor
- Moderator: Hon. Merrick B. Garland, U.S. Court of Appeals, D.C. Circuit
You can watch a video of the event here.