Ricin Case Brings Up Disregard for Criminal Evidence Rule

By Tom Bacon

A former Spokane Valley man sentenced a decade ago for making and intending to use the deadly poison ricin has failed again in his bid to overturn his sentence. But Kenneth R. Olsen's conviction aroused the wrath of five dissenting judges on the 9th Circuit Court of Appeals who lashed out at prosecutors and judges who ignore the basic rules of justice.

Most judicial dissents are couched in mild, respectful language. But not this one, written by 9th Circuit chief judge Alex Kozinski, joined by four other appeals judges. They charged that US prosecutors in Spokane ignored a well-settled requirement that evidence favorable to a criminal defendant be turned over to defense lawyers. It's called the Brady rule, after a case heard years ago by the US Supreme Court.

The dissenting judges wrote "some prosecutors don't care about Brady because courts don't make them care." They said that federal prosecutors in Spokane behaved with "casual disregard for their own constitutional obligations and for Olsen's rights. Worse, they wrote "when such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition."

In a final blast, the dissenting judges said the reviewing panel of judges "shirked its own duty" and compounded the violence done to the Constitution by the assistant US attorney in Spokane. The issue was forensic work done in the Washington State Patrol lab by disgraced - and later fired - analyst Arnold Melnikoff. Olsen's defense lawyer suspected that Melnikoff might have contaminated ricin-tainted allergy pills by his sloppiness or incompetence.

But the prosecutor Olsen's case never acknowledged an investigation into Melnikoff's work that led to his firing, nor was Olsen's jury told about it.

The five judges are worried about what they see as an emerging trend in the US - prosecutors' propensity for short cuts and indiffernce to their ethical and legal responsibilities. They wrote that "Brady" violations have hit epidemic proportions in recent years. The judges' verbal blasts echoed Olsen's wife in 2003 when he was sentenced. She assailed overzealous prosecutors.
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