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Legal Ethics

‘Epidemic of Brady violations’ decried in Kozinski opinion

Posted Dec 11, 2013 7:34 AM CDT
By Debra Cassens Weiss

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The chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals is taking a stand against failure to disclose exculpatory evidence in a case involving a ricin suspect and a lab analyst who was later fired for alleged incompetence.

Chief Judge Alex Kozinski highlighted the issue in a Dec. 10 dissent (PDF) to the denial of an en banc rehearing. He begins this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” His dissent was joined by four other 9th Circuit judges.

The defendant in the case, Kenneth Olsen, was convicted of developing a biological agent for use as a weapon, Kozinski wrote in the dissent. Olsen had admitted developing ricin, but said he did so only out of curiosity and had no intent to use it as a weapon. To show intent, the government tested some allergy pills in Olsen’s possession and determined they also contained ricin. Olsen contended there was contamination by a Washington state lab analyst who admitted examining the pills before sending them to the FBI.

The lab analyst was being investigated by state police amid allegations that his work helped convict three inmates who were later exonerated. The resulting police report criticized the lab analyst for sloppy work that appeared to be “built around speed and shortcuts.” A federal prosecutor never informed the federal judge presiding over Olsen’s trial about the scope of the conclusions, though the report had been completed at the time and was awaiting approval by a state decision-maker.

“Rather than inform defense counsel and the court of these important developments,” Kozinski wrote, “the Assistant U.S. attorney prosecuting the case materially understated the scope, status and gravity of the investigation.”

A 9th Circuit panel had found the report wasn’t material, citing government evidence of extensive Internet searches by Olsen about ricin and how to poison and kill people. But Kozinski finds the evidence lacking. “Intriguing, in a Jerry Springer kind of way,” Kozinski writes, “but whom was Olsen planning to kill? We don’t know. And what was his motive? The panel doesn’t say. …

“Surely somewhere in the 20,000 pages of Internet proxy logs Olsen searched for ‘what to wear to your boss’s funeral’ or ‘how to file a widower’s tax return,’ or maybe he watched How to Murder Your Wife on Netflix. But the opinion makes no mention of it.”

Kozinski argues that prosecutors are rarely penalized for Brady violations, and the panel opinion sends the wrong signal. “By turning a blind eye to this grave transgression,” he writes, “the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.”

Hat tip to @MikeScarcella.

Updated on Dec. 13 to correct a typo.

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