Sunday, December 15, 2013

Case o' The Week: A Potent prescription, for an epidemic -- Brady and Giglio Violations

“There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.” United States v. Olsen, 2013 WL 6487376 (9th Cir. Dec. 10, 2013) (ord. denying reh'g en banc), (C.J. Kozinski, dissenting), decision available here.

Players: Three-judge panel decision by Senior DJ Friedman, joined by Judges Schroeder  (above left) and Gould. Dissent from denial of rehearing en banc by CJ Kozinski (above far left), joined by Judges Pregerson, Reinhardt, Thomas and Watford.

Facts: Olsen was an IT guy. At work he stashed printed materials on poisons and methods of revenge. 704 F.3d 1172, 1176 (9th Cir. 2013) (panel decision). Investigation also revealed test tubes and chemistry paraphernalia. Id. A Sheriff collected everything and sent it to a crime lab, where it was examined by forensic scientist Arnold Melnikoff. Id. Melnikoff found items associated with ricin, allergy pills, and other medicine. Melnikoff sent the material to the FBI, which confirmed ricin in the tubes and jars. Id. 
  At trial, Olsen conceded a strange interest in morbid things, but denied that he possessed ricin “for use as a weapon” in violation of 18 USC § 175. Id. at 1177. The AUSA argued that the presence of ricin in the allergy pills proved Olsen intended to deploy the chemical. Id. 
  Olsen was convicted; his conviction was upheld on appeal. Id. at 1178. 
  Olsen later discovered that Melnikoff had been under investigation for incompetence, that his work had resulted in a number of flawed convictions, and that in Olsen’s case he had mishandled the allergy pills in a way that could contaminate them with ricin. Id. at 1178-79. Though the trial AUSA was aware of the investigation, he did not follow up to learn the details of the Melnikoff inquiry – he thus did not disclose the full scope of this Brady / Giglio material. Id. at 1180-81. 
  Olsen filed a Brady habeas claim, the district court denied it, and the three-judge panel affirmed.

Issue(s): En banc review?

Held: Denied, over a potent dissent by CJ Kozinski. He writes, “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.” Ord. Denying Reh’g En Banc, 2013 WL 6487376, *5 (Kozinski, C.J., dissenting).

Of Note: The Chief pens a cynical, cost-benefit analysis of why AUSAs choose not to investigate and disclose Brady: no platitudes, no bland assurances of DOJ’s integrity, no reassurances that it won’t happen again. 

  It is great. 

  Chief Judge Kozinski explains that the toothless penalties for Brady violations “create a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice.” Id. He observes, “Some prosecutors don’t care about Brady because courts don’t make them care.” Id. at *6 (emphasis in original). In just a few pages the CJ explains the systemic reasons for the “epidemic” of Brady violations – and warns of the consequences, with convictions of the innocent and the erosion of the public’s trust in the justice system. Id. at *6-*7. “We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.” Id. at *8.

  This dissent is a must read and deserves heavy citation in Brady battles.

How to Use: Read it carefully, and the three-judge opinion does hide a gem for the defense to mine. The government argued that the impeachment material was irrelevant because the administrative decisionmaker reviewing Melnikoff’s fate had not yet made any findings before the trial. 
  AUSAs often argue the same nonsense in the context of citizen complaints made against police officers. The panel flatly and squarely rejects the government’s attempt to hide behind administrative findings: “This position is untenable under Brady, and the government’s tenacious adherence to it is mystifying.” 704 F.3d 1172, 1182. 
  Cite Olden when the federal government hides dirty cops behind (suspect) administrative findings (or lack of findings) by police misconduct review boards.
For Further Reading: Jimmy Ray Bromgard served 14 years for a crime he didn’t commit, before he was exonerated. 
  The forensic examiner at Bromgard’s trial, who testified under oath about a (non-existent) microscopic hair-matching procedure? 
   Albert Melnikoff. 
   See Innocence Project article here.

Image of Chief Judge Kozinski, and (former) Chief Judge Schroeder, from

Steven Kalar, Federal Public Defender N.D. Cal.


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