United States v. Kenneth Olsen
737 F.3d 625 (2013)
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Rule of Law:
Under Brady v. Maryland, a prosecutor's due process obligation requires the disclosure of favorable evidence that is material to guilt or punishment. Evidence is material if its suppression creates a reasonable probability of a different result, which is a standard met when the suppressed evidence undermines confidence in the outcome of the trial.
Facts:
- Kenneth Olsen was charged with knowingly developing the poison ricin for use as a weapon.
- Olsen admitted to producing ricin but contended his motive was an 'irresponsible sense of curiosity,' not an intent to use it as a weapon.
- The government's primary evidence of intent was a bottle of allergy pills, allegedly laced with ricin by Olsen.
- Forensic scientist Arnold Melnikoff performed the initial analysis of the pills, which involved dumping them onto a lab bench where other ricin-positive items had previously been examined.
- The pills were destroyed during subsequent testing, making it impossible to determine if the ricin was inside them or if they were merely contaminated on the surface by Melnikoff's handling.
- Prior to Olsen's trial, a Washington State Police (WSP) investigation into Melnikoff's work concluded he was incompetent, lacked credibility, and had a history of contaminating samples.
- The prosecutor did not disclose the WSP report to Olsen's defense team, and instead misrepresented the nature and severity of the investigation to the court.
Procedural Posture:
- Kenneth Olsen was convicted by a jury in a U.S. District Court (trial court) of developing a biological agent for use as a weapon.
- Olsen appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit (intermediate appellate court).
- A three-judge panel of the Ninth Circuit affirmed Olsen's conviction, finding the suppressed evidence was not material under Brady.
- Olsen, as appellant, filed a Petition for Rehearing and a Petition for Rehearing En Banc, asking the full court to review the panel's decision.
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Issue:
Does a prosecutor's failure to disclose an investigative report detailing the incompetence, misconduct, and history of contamination by the government's key forensic expert witness constitute a material violation of the defendant's due process rights under Brady v. Maryland?
Opinions:
Majority - Per Curiam
The majority issued a summary order denying the petition for rehearing and rehearing en banc without providing any legal reasoning or addressing the substantive issue.
Dissenting - Chief Judge Kozinski
Yes. The prosecutor's failure to disclose the investigative report on Melnikoff was a material violation of Olsen's due process rights under Brady. The suppressed report constituted powerful impeachment evidence against the government's most critical witness, whose testimony about the ricin-laced pills was the 'glue that held the prosecution's case together.' All other evidence of Olsen's intent—internet searches and book purchases—was ambiguous and circumstantial. The report directly corroborated the defense's theory that the pills were contaminated by Melnikoff, not poisoned by Olsen. Suppressing this evidence undermines confidence in the trial's outcome, thus satisfying Brady's materiality standard as defined in precedents like Kyles v. Whitley. The original panel's conclusion that the other evidence was 'overwhelming' was incorrect, as that evidence only became damning when viewed through the lens of the potentially contaminated pills.
Analysis:
This dissent from the denial of rehearing en banc is a forceful critique of what the author sees as a systemic failure by courts to enforce prosecutors' Brady obligations. By arguing that the original panel set the materiality bar 'impossibly high,' the dissent warns that such a lenient standard creates a moral hazard, incentivizing prosecutors to hide exculpatory evidence in close cases. The opinion serves as a call to action for the judiciary to take a more robust role in policing prosecutorial misconduct to protect defendants' constitutional rights and the integrity of the criminal justice system. It highlights the profound impact that impeachment evidence against a single, critical witness can have on the entire structure of a prosecution's case.
