The dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. v. Olsen starts off with a bang:
"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."
Brady, of course, is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a ruling from a three-judge 9th Circuit panel in January detailed extensive questionable conduct on the part of the prosecutor, Assistant U.S. Attorney Earl Hicks (*see clarification below), who works for the Office of the U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion this week doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)
Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.
But at the time of the trial, one forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."
AUSA Hicks knew about the investigation of Melnikoff and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize it as an "administrative" review that was limited to one case from 10 years ago.
While the 9th Circuit panel found that the investigation was evidence unfavorable to the prosecution that wasn't turned over to Olsen's attorneys, the court also determined that the evidence wasn't "material" to Olsen's conviction. That is, even if it had been turned over to Olsen's attorneys, Olsen would likely have been convicted anyway. (The opinion did not address whether the evidence had been suppressed.) Here's where Kozinski, dissenting from the 9th Circuit's decision Tuesday not to rehear the case before the full court, rips into his colleagues:
"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
Kozinski also has some choice words for Hicks, though again, it's unfortunate that he doesn't call the prosecutor out by name.
"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."
Nor, unfortunately, do bar associations or disciplinary boards. In a phone interview today, Olsen's attorney Peter Offenbecher says he's profoundly disappointed with the decision. "My client did not get a fair trial. And it's because of a systemic problem of misconduct that the courts fail to correct. It's a sad day for the criminal justice, and it's a sad day for the Constitution."
The U.S. Department of Justice is stingy when it comes to releasing information about disciplining federal prosecutors for misconduct, but it seems unlikely Hicks will face any real sanction. Recent media investigations have found that such discipline is rare. Even in cases involving high-profile, egregious misconduct, like the prosecution of the late U.S. Sen. Ted Stevens, prosecutors can usually duck any serious sanction. In the Stevens case, the DOJ imposed light suspensions on the offending prosecutors, and even those were later overturned by an administrative law judge. (You could make a strong argument that federal prosecutors have more protections against professional sanction than criminal defendants do against violations of their constitutional rights by federal prosecutors.)
Offenbecher says it's unlikely that he'll file a complaint against Hicks. That isn't uncommon, either. Defense attorneys have to work with prosecutors on behalf of other clients, including negotiating favorable plea bargains. Putting yourself in the cross-hairs of a U.S. attorney's office can make it very difficult to be an effective advocate. That's a lot of risk to take on, especially if it's unlikely that anything will actually come of the complaint.
Offenbecher didn't cite those reasons, though. He said that at the moment, he's just more interested in achieving justice for his client than seeing a federal prosecutor get punished.
That's certainly understandable. But it highlights a system that provides strong incentives for prosecutors to shortcut constitutional rights (convictions are good for a prosecutor's career) and provides no incentives whatsoever for the courts, defense attorneys, bar associations or anyone else to do anything about it.
(The Office of Michael Ormsby, U.S. Attorney for the Eastern District of Washington, did not return my call requesting comment.)
UPDATES AND CLARIFICATIONS: A spokesman for U.S. Attorney Michael Ormsby contacted me after this post went live. He emphasized that the panel opinion in the case did not find that AUSA Hicks committed a Brady violation. When I asked if that means that U.S. Attorney Ormsby believes that Hicks was not obligated to turn over the exculpatory evidence, the spokesman referred me back to the opinion, and emphasized that the opinion found no Brady violation. When I asked if this means that the office believes Hicks did nothing wrong, the spokesman again referred me to the opinion, and again emphasized that it found no Brady violation.
It's also not completely clear that Hicks knew of the extent of the investigation. Kozinski's opinion "imputes" that knowledge to him, which is to say it's information he should have known and turned over. But it's possible that he simply didn't bother to find out, which then allowed the court to proceed based on a mistaken understanding of the investigation. If that's the case, then Hicks was guilty of incompetence, or perhaps willful ignorance, but not of knowingly suppressing evidence favorable to Olsen. Therefore, the previous assertion in the post that the panel found Hicks to have committed extensive misconduct wasn't accurate. While Kozinski and the minority of judges who joined in his dissent thought there was misconduct, once the panel had determined that the favorable evidence wasn't material, they didn't come to a conclusion on the question of whether Hicks knowingly suppressed that evidence or whether he was obligated to seek it out.
CORRECTIONS: Olsen's attorney is Peter Offenbecher. This post originally identified him as Paul Offenbecher. Also, an earlier version of the story did not clearly distinguish between the 9th Circuit's December decision to deny a full-court rehearing in U.S. v. Olsen, from which Chief Judge Kozinski dissented, and the January panel decision that had detailed questionable prosecutorial conduct.