Earl Allan Hicks, Assistant U.S., Stephanie A. Van Marter, Assistant U.S., USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.
Peter Offenbecher, Skellenger Bender, P.S. Seattle, WA, for Defendant-Appellant.
Before MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and PAUL L. FRIEDMAN, Senior District Judge.[*]
Appellant's Petition for Rehearing is DENIED.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Appellant's
Petition for Rehearing En Banc is DENIED.
Chief Judge KOZINSKI, with whom Judges PREGERSON, REINHARDT, THOMAS and WATFORD join, dissenting from the order denying the petition for rehearing en banc:
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
Kenneth Olsen was convicted by a federal jury of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175. United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir.2013). Olsen admitted that he produced ricin, a highly toxic poison, but argued that he didn't intend to use it as a weapon. Instead, he claimed that he was motivated by " an irresponsible sense of curiosity" about " strange and morbid things." Id.
To show that Olsen acted with the requisite intent, the government produced a bottle of allergy pills found among Olsen's possessions. An analysis by Washington State Police (WSP) forensic scientist Arnold Melnikoff determined that these pills might contain ricin. Because Melnikoff's lab wasn't equipped to test for ricin, Melnikoff sent the pills to the FBI, which confirmed his suspicion. Id. According to the government, these spiked allergy pills were tangible proof that Olsen intended to use the poison as a weapon. Id. at 1185.
Olsen tried to cast doubt on this evidence by arguing that the pills were contaminated by Melnikoff before he sent them to the FBI. There was evidence that Melnikoff " handled and extensively manipulated" the pills. Melnikoff admitted to examining the pills " not by individually removing them from the bottle with forceps, but rather by dumping them onto his laboratory bench, albeit on ‘ a sheet of clean lab paper,’ after he had examined other items on the same bench— which included scraping ricin-positive powder from some of these items." Id. at 1178-79. This was especially important because the ricin test destroyed the pills, so we can't tell whether the poison was inside them or merely on their surface. Id. at 1177. As a result, Melnikoff's competence and veracity were critical to the government's case. Unfortunately for the prosecution, however, there were many reasons to doubt both.
Before joining the WSP, Melnikoff ran the Montana State Crime Laboratory. While there, he conducted a hair sample analysis that resulted in the conviction of Jimmy Ray Bromgard for raping an 8-year-old girl. When a DNA analysis exonerated Bromgard after he had spent fifteen years in prison, officials in Washington and Montana took note. So did the New York Times.  Washington launched an investigation into Melnikoff's " misconduct involving courtroom testimony and/or case analysis," which was expanded after state officials discovered that another innocent Montana inmate had been wrongfully convicted based on flaws in Melnikoff's work. Id. at 1179. A month before Olsen's trial began, a third Montana inmate was exonerated on similar grounds. See Know the Cases: Paul D. Kordonowy, Innocence Project, http:// goo. gl/ r ZJr ME (last visited Nov. 27, 2013).
The findings of the WSP's investigation were compiled into a highly critical report: The panel of experts who prepared it doubted " 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 ...