On December 10, 2013, the U.S. Court of Appeals for the Ninth Circuit denied a request for a rehearing en banc in United States v. Olsen, 2013 WL 6487376 (9th Cir. 2013) (ord. denying reh’g en banc).  The defendant, Kenneth Olsen, sought to vacate, set aside, or correct his sentence on grounds that the Government had committed a Brady violation by failing to divulge evidence that called into question the integrity of the lab analyst who determined that Olsen had laced allergy pills with ricin.  The Government had used the lab analyst’s testimony to convict Olsen of developing ricin for use as a weapon in violation of 18 U.S.C. § 175.

The U.S. Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963) that a prosecutor violates due process when he suppresses evidence that is favorable to the defendant when that evidence is material to guilt or innocence.  This includes any evidence that speaks to the credibility of a witness.  Giglio v. U.S., 405 U.S. 150 (1972).

Evidence is material under Brady if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419 (1995).  “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine confidence in the outcome of the trial.’”  Smith v. Cain, 132 S. Ct. 627 (2012) (quoting Kyles).

Kenneth Olsen was convicted by a federal jury in 2003 of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175.  Olsen admitted that he produced ricin, a highly toxic poison, but argued that he did not intend to use it as a weapon.  Instead, he claimed that he was motivated by “an irresponsible sense of curiosity” about “strange and morbid things.”

To show that Olsen did in fact intend to use the ricin as a weapon, the Government produced a bottle of allergy pills that was found among his possessions.  A forensic scientist for the Washington State Police had determined that the pills might contain ricin and sent them to the FBI for confirmation.  The FBI confirmed that the pills did contain ricin.  Olsen tried to cast doubt on this evidence by arguing that the pills were contaminated by the forensic scientist before he sent them to the FBI.  The forensic scientist admitted that he did not use forceps to individually remove each pill from the bottle.  Rather, he placed “a sheet of clean lab paper” on his lab bench and dumped the pills onto it.  The forensic scientist had previously used his bench to examine other items and scrape ricin powder from them.  Importantly, the FBI’s ricin test destroyed the pills so there was no way to determine whether the ricin was inside them or merely on their surface.  Thus, the competence and veracity of the forensic scientist were critical to the Government’s case.

Prior to joining the Washington State Police, the forensic scientist ran the Montana State Crime Lab.  While there, he conducted a hair sample analysis that resulted in the conviction of a man for the rape of an eight year old girl.  Fifteen years later, that man was exonerated by a DNA analysis.  Following the man’s exoneration, the State of Washington commenced an investigation into the forensic scientist. The investigation was subsequently expanded after it was discovered that another innocent Montana man had been wrongfully convicted based on flaws in the forensic scientist’s work.  The findings from the investigation were compiled into a report that was highly critical of the forensic scientist.  Specifically, the report expressed doubt in the forensic scientist’s “diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand.”  The report also contained an extensive review of 100 randomly selected cases the forensic scientist had worked on, and concluded that lab work had to be redone in 14 of them due to “the presence of unexplained contaminants in [the] laboratory.”

The Assistant U.S. Attorney (“AUSA”) prosecuting Olsen knew about this report two months before Olsen’s trial began, and yet he did not disclose its existence to the defense.  Following his conviction, Olsen appealed, arguing that the AUSA’s failure to disclose the report constituted aBrady violation because he could have used it to attack the forensic scientist’s credibility at trial.  The Ninth Circuit did find that the investigation constituted evidence unfavorable to the prosecution that should have been disclosed to the defense but determined that the evidence was not material to Olsen’s conviction.  Olsen subsequently filed a petition for a rehearing en banc which was denied.  U.S. v. Olsen, 2013 WL 6487376 (9th Cir. 2013) (ord. denying reh’g en banc).  However, Chief Judge Kozinski dissented saying, “There is an epidemic of Brady violations abroad in the land.  Only judges can put a stop to it.”  Chief Judge Kozinski explained:

The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice.  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.

He then concluded his dissent with the following missive:

We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, you will lose your ill-gotten conviction . . . 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.

U.S. v. Olsen offers mixed news for those facing the prospect of a federal criminal investigation.  The bad news is that the Ninth Circuit signed off on what appears to have been a blatant violation of Brady, which may make prosecutors more cavalier in their decisions regarding whether or not to disclose certain evidence that could help the defense.  The good news is that Chief Judge Kozinski and four others dissented, which offers hope that courts will soon step up and vigorously enforce the Brady rule so as to ensure that defendants’ due process rights are being recognized by prosecutors.