Thursday, December 12, 2013

Kozinski - a judicial conservative - calls for a crackdown on rampant prosecutorial misconduct.

From HuffPo:

The dissent in U.S. v. Olsen from Alex Kozinski, the chief judge of the U.S. Court of Appeals for the 9th Circuit, 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 decision released this week, the 9th Circuit court found extensive prosecutor misconduct on the part of Assistant U.S. Attorney Earl Hicks (*see clarification below), who works for the Office of U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutorsneed 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 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."

The dissent is written in Kozinski's snarky style.

Intriguing, in a Jerry Springer kind of way, but whom was Olsen planning to kill? We don’t know. And what was his motive? The panel doesn’t say. Given that the government so thoroughly “captured [Olsen’s] thought process,” id. at 1186, it’s surprising that these “thoughts” don’t shed light on the intended victim (or victims?). 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, which makes the materiality analysis that much weaker.
This is hardly the “overwhelming” evidence of intent that the panel promises. The evidence is consistent with Olsen’s intent to use the ricin as a weapon, of course, but it’s also consistent with the irresponsible curiosity that Olsen claims motivated him. The pills shed an entirely different light on the matter. They demonstrate that Olsen moved beyond curiosity and took concrete steps to use the poison. They are the “glue that held the prosecution’s case together,” providing “the only ‘direct’ evidence that connected [Olsen] to the crime.” Horton v. Mayle, 408 F.3d 570, 579 (9th Cir. 2005). Had the jury seen the WSP report or been told of its contents, it may well have developed doubts about whether Olsen poisoned the allergy pills. 

This next is chilling because none of us know when we are going to be facing a charge where the "scientist" thinks it is his job to ensure convictions.

Olsen’s case points to another important problem—that of rogue investigators and forensic experts. Melinkoff’s long history of misconduct, resulting in the wrongful conviction of numerous innocent people, is hardly unique. Just last month, Annie Dookhan, a Massachusetts crime-lab technician, was sentenced to 3–5 years imprisonment after spending several years filing positive results for samples she had not properly tested. Her misconduct tainted over 40,000 drug samples, implicating several thousand defendants (hundreds of whom have already been released).


1 comment:

Lauran said...

Evidently, Kozinski isn't the only justice who's noticing a dangerous trend:

Who links to me?