Lawyers Use High Court Petition To Highlight Prosecutorial Misconduct

Lawyers for a computer support technician convicted of possessing ricin to use as a weapon are asking the Supreme Court on Thursday to hear his appeal, as a way to send a message about widespread prosecutorial misconduct.

The technician, Kenneth R. Olsen, says the Justice Department’s failure to disclose an investigation that uncovered persistent misdeeds by a forensic expert who testified at his 2003 trial robbed him of a strong defense and violated his Fifth Amendment due-process rights. The forensic scientist was later fired “for incompetence and gross misconduct,” the petition states. But in January 2013, a three-judge panel on the U.S. Court of Appeals for the 9th Circuit ruled that prosecutors had presented so much evidence against Olsen at trial that the failure to turn over a report critical of the scientist wasn’t material to the case.

Late last year, 9th Circuit Chief Judge Alex Kozinski (joined by four others on the bench) unsuccessfully urged the whole court to reconsider. In a blistering dissent, Kozinski outlined nearly three dozen cases describing the government’s failure to share information that would help defendants. The judge decreed there was an “epidemic” of such violations and that only courts could put an end to them.

Lawyers for Olsen — at two private law firms in Seattle, a Northwestern University legal clinic and the Williams & Connollly firm in Washington, D.C. — pepper their Supreme Court petition with pungent quotes from Kozinski, such as this one: “When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system and chips away at the foundational premises of the rule of law.”

The involvement of Williams & Connolly hearkens back to the failed corruption prosecution of the late Alaska Sen. Ted Stevens. U.S. Attorney General Eric Holder walked away from that case early in the Obama administration after an FBI agent blew the whistle and a series of evidence-sharing lapses came to light under prodding from Stevens’ defense team at Williams & Connolly.

Since then, the Justice Department has played down incidents of misconduct by its prosecutors and agents. But a report last month by the Project on Government Oversight found that hundreds of DOJ lawyers had violated rules, laws or ethical standards. Lawmakers and some defense attorneys worry the department isn’t doing enough to police its own ranks, and they’ve introduced legislation to empower the independent inspector general to investigate.

The Justice Department had no immediate comment on Thursday’s filing, but the Solicitor General will have an opportunity to lay out the government’s arguments in the coming weeks.

Olsen, who’s been sentenced to more than 10 years in prison, may not be the most sympathetic figure. He never denied possessing ricin, arguing rather that he never intended to use it as a weapon against anyone else.

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