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 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...