Chief Judge Kozinski’s Ninth Circuit Dissent In U.S. v. Olsen Offers Hope that Courts Will Keep Prosecutors Honest

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...