I have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen,
704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.

Kenneth Olsen was convicted of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175. Olson admitted that he produced ricin but insisted that Olsen admitted that he did it out of “an irresponsible sense of curiosity.” To show an intent to use the ricin as a weapon, the prosecutors produced a bottle of allergy pills that was sent to the Washington State Police forensic scientist Arnold Melnikoff for evaluation. Because Melnikoff did not have the equipment for such a test, he sent them to the FBI lab. However, before sending them off, Melnikoff emptied the bottle on his lab table where ricin material had been placed earlier. He then sent them to the FBI which found small traces of ricin. It was clearly an improper procedure and for many it was par for the course of Melnikoff who have been previously criticized for sloppy work. This included prior cases from his work in Montana where at least two innocent people were convicted based on his faulty analysis. An investigation and report of experts of Melnikoff expressed significant doubt regarding “Melnikoff’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 Washington State Police later terminated Melnikoff’s employment and the Washington Court of Appeals affirmed the termination based on a “finding that Melnikoff was incompetent and committed gross misconduct.” Melnikoff v. Washington State Patrol, 142 Wash. App. 1018, at *11 (Wash. Ct. App. 2008).

While the defense counsel only knew of ongoing investigations, the assistant United States Attorney knew the full story and the utter lack of credibility for the key expert in the case. Kozinski noted:

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.”

Notably, following a common practice, the court omits the prosecutor’s name. This has long been criticized as an aspect of the problem of shielding federal prosecutors from accountability for unethical acts. It also denies an easy record for defendants and defense counsel to confirm the record of prosecutors who are suspected for wrongdoing. However, recently the Ninth Circuit refused a demand from the Justice Department to remove the name of such a prosecutor. The Justice Department fights hard to keep the names out of such opinions and stories, as they did in the abusive Swartz case.

The prosecutor named in media reports at the time was Assistant U.S. Attorney Stephanie Whitaker, but there is no mention of the name of the prosecutor who is accused in the Olsen case.

The Justice Department has a long and troubling record of prosecutorial abuse and particularly Brady violations (here and here and here). This problem persists because of the Department’s culture and tolerance for such abuses. The Office of Professional Responsibility (OPR) has been the subject of long-standing complaints for its failure to act on allegations. I have personally had occasion to bring a couple complaints to the Justice Department of extremely serious misconduct by prosecutors and saw no action taken by OPR.

Kozinski’s opinion is much appreciated given this record but it clearly fell on deaf ears with his colleagues. Kozinski clearly tries to shame his colleagues into acting to guarantee fair trials and professional standards. He notes “[b]y turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.”  However, the result is, to put it simply, shameless.

Here is the opinion: usca9-brady