Chief Judge Kozinski has been feisty with prosecutorial overreach lately. A couple months ago, he snarked his way through an en banc beatdown of a prosecutor who asserted facts not in the record to secure a conviction. He was no doubt hoping to give us an encore performance in a case out of Washington, but his colleagues denied the request for an en banc rehearing.
But that didn’t stop the inimitable jurist from penning a lengthy dissent from the decision leveling harsh criticism at the prosecutor for the “violence done to the Constitution.”
So is the Chief Judge just cranky or was there some real abuse here?
There was some real abuse here. Not to be blunt, but the Koz is entirely correct on this one.
Kenneth Olsen decided to make some ricin, as one does, and he got pinched for it. A mere grain or two of ricin can kill a human — it’s basically weaponized castor oil, which is one more reason you shouldn’t use castor oil ever. Anyway, Olsen claimed his foray into biological warfare was the product of morbid curiosity rather than a specific effort to poison anyone. The statute provides a safe harbor for “bona fide research,” which presumably includes morbid curiosity. In the words of Patton Oswalt, “science: we’re all about coulda, not shoulda.”
The prosecutor claimed that Olsen had indeed moved beyond developing ricin for morbid curiosity into the statute’s “for use as a weapon” provision by lacing allergy medicine with ricin. To prove this point, the government pointed to a state police forensic scientist named Arnold Melnikoff who tested the pills. The FBI later discovered the ricin, but only after the pills — in their original form — had been destroyed by Melnikoff. So the FBI’s findings relied on Melnikoff properly handling the pills.
If the state of Washington called a panel of experts because a whole mess of convictions have gotten overturned that were secured by forensic evidence Melnikoff developed, and that same panel wrote a report calling out Melnikoff’s laboratory technique, would that be something Olsen’s counsel might want to know? Chief Judge Kozinski thought so:
Olsen’s lawyer knew that an investigation was underway, but he didn’t know its scope. Nor did he know that the WSP’s report had been completed and sent to the state decisionmaker two months before Olsen’s trial began. 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. 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. Melnikoff’s lawyer, Rocco Treppiedi, made an appearance and represented that the WSP was “in the process of investigating” the matter and that, as of that time, there was “absolutely no evidence, no allegation that Mr. Melnikoff has ever done anything inappropriate with respect to anything other than his opinion testimony on the hair sampling.” The Assistant U.S. Attorney added that the WSP investigation was ongoing and represented that “[t]here is nothing further that you should know about.”
Each of these statements was contradicted by the [Washington State Police] report.
The district judge relied on the prosecutor’s statements characterizing the investigation as no biggie and the pills were introduced and the jury heard testimony from Melnikoff.
The panel felt the official report suggesting “hey, this guy secures false convictions by mishandling evidence” was immaterial because Olsen’s conviction was already assured based on overwhelming evidence. The Chief is incredulous:
So what is this “devastating,” “overwhelming” evidence? “Thought” evidence, of course: “‘What is unique about the evidence in this case is we have captured a thought process,’” the prosecutor said in closing. Id. at 1186. By this, the prosecutor meant the ambiguous evidence of a year’s worth of Olsen’s Internet browsing. Id. at 1185. 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. Id. During that year, Olsen visited sites relating to ricin and other poisons. Id. He printed materials from these pages and ordered works with menacing titles such as: “‘How to Kill,’ ‘Silent Death,’ ‘Getting Even,’ and the ‘Poisoner’s Handbook.’” Id. at 1186. Olsen also searched for “‘silent killers,’ ‘death by poison,’ ‘tasteless poison,’ ‘hidden poison,’ ‘undetectable poisons,’ ‘untraceable poisons’… ‘deadly sleeping pills,’ and ‘common ingredients for death by sleep.’” Id.
While that all sounds like a good reason for Olsen’s neighbors to move, it’s also entirely consistent with his morbid curiosity defense and fails to prove that he actually intended to kill someone. The jury might well have still convicted Olsen even knowing that Melnikoff was not straight outta CSI. In fact, they probably should have still convicted him because his defense is pretty weak sauce, but it certainly wasn’t assured. And as Chief Judge Kozinski explains, the problem with the decision in this case is that it incentivizes prosecutors to withhold potentially exculpatory information whenever they feel they can get away with it — juries be damned.
Some are less than impressed with this opinion, such as Professor Kyle Graham:
Kozinski buries the lede (at fn. 2) in his dissent – unclear at best whether the prosecutor had a duty to obtain the alleged Brady evidence.
— Kyle Graham (@kylefgraham) December 10, 2013
This is a fair point in the abstract, but also seems to undersell the facts. Even if the prosecutor had no affirmative duty to seek out this knowledge, on multiple occasions the district judge asked the prosecutor to confirm a certain set of facts and the prosecutor allowed the judge to continue to labor under a misconception. Once placed on the spot by the judge, it kind becomes your duty to not let them stay in the dark. It’s at least the prosecutor’s duty to admit, “I’ve not looked into whether the investigation is broader than you say.”
A state official also made numerous efforts to reach the federal prosecutor to explain the accurate state of the investigation and there’s no indication that any effort was expended following up. Prosecutors don’t have to scour the planet for potentially exculpatory evidence, but when it’s getting dumped in their lap, they can’t just dodge the incoming phone calls like their law school asking for a donation.
The erosion of Brady continues unabated. And we missed out on another great oral argument video.