Failure to Divulge Evidence|an Epidemic, Judge Says

(CN) - The failure of prosecutors to divulge exculpatory evidence in criminal cases has reached epidemic proportions, the 9th Circuit's top judge wrote Tuesday.

Reacting to the federal appeals court's refusal to reconsider the case of man convicted in 2003 for possessing Ricin with intent to use it as a weapon, Chief Judge Alex Kozinski stated that an absence of "professional discipline" and a lack of real consequences has loosed "an epidemic of Brady violations abroad in the land."

Named for the U.S. Supreme Court's landmark case from 1963, Brady v. State of Maryland, the Brady rule generally requires prosecutors to hand over all exculpatory evidence to the defense.

Kenneth Olsen, who was arrested in 2001 after co-workers discovered his "Terrorist Encyclopedia" and suspicious web searches, claimed that a Brady violation occurred in his case when Assistant U.S. Attorneys for the Eastern District of Washington failed to divulge a damning investigation of the forensic scientist who helped secure his conviction.

Fellow employees also found chemistry equipment and a "wealth of internet printouts and books on poisons and methods of harming people and exacting revenge," in Olsen's workspace, according to the court. Some of the evidence, including a bottle of allegedly "spiked" allergy pills, was handed over to Washington State Patrol forensic scientist Arnold Melnikoff. After deciding that the pills might contain ricin, Melnikoff sent them to FBI analysts, who later found traces of deadly poison.

Olsen claimed that the pills had been contaminated by Menikoff before he had sent them to the FBI. Melnikoff denied the charge, while admitting that he examined the pills on a bench that had previously held "ricin-positive" items. Olsen also noted that Melnikoff was at the center of a scandal in the Montana State Crime Lab where an innocent man had spent 15 years in prison for raping a child based on incorrect DNA analysis.

A subsequent report on Melnikoff's work in Montana and Washington found a history of incompetence and "the presence of unexplained contaminants in his laboratory." The Washington State Patrol eventually fired him for incompetence and gross misconduct.

Olsen's attorney knew that the state was investigating Melnikoff, but he did not know that the report had been finished for two months before the trial even began, according to Kozinski.

"Rather than inform defense counsel and the court of these important developments, the Assistant U.S. Attorney prosecuting the case materially understated the scope, status and gravity of the investigation," Kozinski wrote. "He claimed that the investigation was 'purely administrative' and revolved around a decades-old complaint limited to DNA testing, which wasn't at issue in Olsen's case."

Sentenced to 10 years behind bars and 5 years of supervised release, Olsen appealed his conviction to the 9th Circuit, alleging, among other things, a Brady violation. A three-judge panel unanimously affirmed in January, and on Tuesday the appeals court refused Olsen's request for en banc review.

Judges Harry Pregerson, Stephen Reinhardt, Sidney Thomas and Paul Watford joined Kozinski in a vigorous dissent to that ruling.

"Had Melnikoff been fully impeached, the only evidence from which the prosecutor could've proven Olsen's intent to use ricin as a weapon would have been a few Google searches and bookstore receipts," Kozinski wrote.

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice," Kozinski added. "It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

While Brady violations occur in all courts, Kozinski noted three recent cases in the 9th Circuit where the disclosure rule played a role, including United States v. Sedaghaty, Aguilar v. Woodford, and United States v. Kohring.

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities," Kozinski wrote. "The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care." (Emphasis in original).

Olsen's attorney, Peter Offenbecher, of Seattle's Skellenger Bender, said Tuesday that, "as usual, Chief Judge Kozinski is right on the mark."

"The panel opinion in Olsen will embolden unscrupulous prosecutors to hide obviously exculpatory evidence because there is no consequence for them even if they are caught red-handed," he said. "This is a sad day for the criminal justice system."

A spokesperson for the U.S. Attorney for the Eastern District of Washington did not immediately return a request for comment.

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