                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 10-36063
             Plaintiff-Appellee,
                                                 D.C. Nos.
                   v.                       2:09-cv-00326-WFN
                                            2:03-cr-00084-WFN
 KENNETH R. OLSEN,
          Defendant-Appellant.



 UNITED STATES OF AMERICA,                      No. 10-36064
            Plaintiff - Appellee,
                                                 D.C. Nos.
                   v.                       2:09-cv-00327-WFN
                                            2:02-cr-00184-WFN
 KENNETH R. OLSEN,
         Defendant - Appellant.                    ORDER


                   Filed December 10, 2013

 Before: Mary M. Schroeder and Ronald M. Gould, Circuit
   Judges, and Paul L. Friedman, Senior District Judge.*

                           Order;
               Dissent by Chief Judge Kozinski


 *
   The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
2                UNITED STATES V. OLSEN

                          ORDER

    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.

                              I

    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
                 UNITED STATES V. OLSEN                      3

(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
4                  UNITED STATES V. OLSEN

did the New York Times.1 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/rZJrME (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 witness
stand.” Olsen, 704 F.3d at 1179–80. The report also
contained an extensive review of Melnikoff’s work in
Washington, recommending that the WSP redo lab work in
14 out of 100 randomly selected cases due to “the presence of
unexplained contaminants in his laboratory, among other
findings.” Id. A few quotes from the report illustrate its
force:

        ! [T]here were many mistakes in case
          documentation, administrative documentation,
          evidence analysis, data interpretation, and written
          reports, for example. The casework analysis
          seemed to be built around speed and shortcuts
          . . . . This focus on speed, as expected,


    1
    Adam Liptak, 2 States to Review Lab Work of Expert Who Erred on
ID, N.Y. Times, Dec. 19, 2002, http://www.nytimes.com/2002/12/19/us/2-
states-to-review-lab-work-of-expert-who-erred-on-id.html.
                 UNITED STATES V. OLSEN                   5

           manifested itself in acceptance of weak or
           insufficient data to reach identifications; in
           documentation mistakes and sloppy work; in
           reaching conclusions of identification without
           taking time to isolate the controlled substance
           ....

       ! [M]any of the results, collected as they were, were
         not necessarily sufficient to prove the identity of
         the questioned substance. Often the data was
         weak and there was an overreliance of basing
         identification from mixtures without taking the
         steps to separate the components. There were
         often contaminants or unexplained material in the
         blanks, and these contaminants were often not
         noted or identified, and no obvious attempt was
         made to remove them.

       ! There was a tendency for conclusions to become
         stronger as the case developed, from notes to
         written report to testimony.

Melnikoff’s employment with the WSP was eventually
terminated, and the Washington Court of Appeals affirmed
the termination based on a “finding that Melnikoff was
incompetent and committed gross misconduct.” Melnikoff v.
Washington State Patrol, 142 Wash. App. 1018, at *11
(Wash. Ct. App. 2008).

    Olsen’s lawyer knew that an investigation was underway,
but he didn’t know its scope. Nor did he know that the
WSP’s report had been completed and sent to the state
decisionmaker two months before Olsen’s trial began. Rather
than inform defense counsel and the court of these important
6                UNITED STATES V. OLSEN

developments, the Assistant U.S. Attorney prosecuting the
case materially understated the scope, status and gravity of
the investigation. He claimed that the investigation was
“purely administrative” and revolved around a decades-old
complaint limited to DNA testing, which wasn’t at issue in
Olsen’s case. Melnikoff’s lawyer, Rocco Treppiedi, made an
appearance and represented that the WSP was “in the process
of investigating” the matter and that, as of that time, there
was “absolutely no evidence, no allegation that Mr. Melnikoff
has ever done anything inappropriate with respect to anything
other than his opinion testimony on the hair sampling.” The
Assistant U.S. Attorney added that the WSP investigation was
ongoing and represented that “[t]here is nothing further that
you should know about.”

     Each of these statements was contradicted by the WSP
report. But because the Assistant U.S. Attorney failed to
disclose the contents of the report to the district judge, the
judge relied heavily on the Assistant U.S. Attorney’s
inaccurate representations in evaluating Olsen’s request to
cross-examine Melnikoff about the investigation. The judge
stated: “[L]et me just say a few words about my
understanding of this, and counsel should check me if I am
wrong.” He then said that “[t]he only issue here involved at
all is whether or not there was some inaccuracy regarding his
testimony in Montana about comparing hair samples on rape
and homicide cases,” and that “there is nothing in here that I
see that indicates that there was any problem at all during the
state—his tenure with the State of Washington.” He
summarized: “There has been no investigation—or at least
no conclusions. They are just bare allegations involving hair
sample analyses, the subject of which is not in any way
involved in this case.” The district judge surmised that
Melnikoff’s forced administrative leave during the
                 UNITED STATES V. OLSEN                      7

investigation must have been taken “out of an abundance of
precaution.” He then asked, “[W]here am I off the track?”

    Nearly everything the district judge understood to be true
was false. But the prosecutor did not correct the district
judge, who then concluded that it would be “unfair to Mr.
Melnikoff to allow counsel to delve into this issue” and
“under an analysis of [Federal Rule of Evidence] 403, it just
would be improper to go into that.” As a result, the
government introduced the spiked allergy pills and the jury
heard Melnikoff’s testimony, all without ever being informed
of these serious doubts about their reliability.

                              II

    Olsen claims that the prosecutor’s failure to disclose the
WSP investigative report violated Brady v. Maryland,
373 U.S. 83 (1963). Brady holds that a prosecutor violates
due process when he (1) suppresses evidence (2) that is
favorable to the defendant, when that evidence (3) is material
to guilt or innocence. Id. at 87. This extends to evidence that
bears upon the credibility of a government witness. Giglio v.
United States, 405 U.S. 150, 153–54 (1972). The panel
expressly recognizes that the report was favorable to Olsen;
nevertheless it dismisses Olsen’s complaint on the ground
8                    UNITED STATES V. OLSEN

that the WSP report wasn’t material.2 Olsen, 704 F.3d at
1183–87.

    Evidence is material under Brady if it creates “a
‘reasonable probability’ of a different result.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995). “A reasonable probability
does not mean that the defendant ‘would more likely than not
have received a different verdict with the evidence,’ only that
the likelihood of a different result is great enough to
‘undermine[] confidence in the outcome of the trial.” Smith
v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles, 514 U.S.
at 434). To say that the undisclosed information wasn’t
material, a court must conclude that the other evidence was
so overwhelming that, even if the withheld evidence had been
presented to the jury, there would be no “reasonable
probability” that it would have acquitted. This standard isn’t
satisfied if “the State’s argument offers a reason that the jury
could have disbelieved [the undisclosed evidence], but gives
us no confidence that it would have done so.” Id.

   Although the investigative report provided objective,
empirical support to corroborate Olsen’s claim that Melnikoff
contaminated the pills, the panel concludes that there is no


    2
    Because the panel found the report immaterial, it didn’t address the
“complex question” of whether knowledge of the state report could be
imputed to the federal prosecutor. Olsen, 704 F.3d at 1183. This court
has not addressed this issue, but several of our sister circuits have found
such imputation proper in at least some circumstances. See, e.g., United
States v. Risha, 445 F.3d 298, 304 (3d Cir. 2006); United States v. Antone,
603 F.2d 566, 570 (5th Cir. 1979). Because the panel declined to address
this issue, however, we must attribute to the prosecutor the knowledge that
Melnikoff was incompetent and routinely contaminated samples entrusted
to him for testing. But the Assistant U.S. Attorney failed to disclose any
of this to the defense or the district court.
                 UNITED STATES V. OLSEN                     9

“reasonable probability” that the jury would have acquitted
Olsen had the investigative report been disclosed. According
to the panel, the pills are just a sideshow. Quoting the
government’s brief, the panel insists that the pills were
“‘simply one more layer in an already overwhelming case
against the Defendant’”—an “overwhelming” case built on
“devastating evidence.” Olsen, 704 F.3d at 1185. “Even if
Melnikoff’s credibility as a witness had been totally
destroyed we are confident beyond doubt that the jury would
have found Olsen guilty, based on the overwhelming
evidence presented by the government that he intended to use
the ricin he possessed as a weapon.” Id. (emphasis added).

    So what is this “devastating,” “overwhelming” evidence?
“Thought” evidence, of course: “‘What is unique about the
evidence in this case is we have captured a thought process,’”
the prosecutor said in closing. Id. at 1186. By this, the
prosecutor meant the ambiguous evidence of a year’s worth
of Olsen’s Internet browsing. Id. at 1185. In an investigation
that would have made Big Brother green with envy, the
government produced 20,000 pages showing the websites
Olsen visited and the searches he performed. Id. During that
year, Olsen visited sites relating to ricin and other poisons.
Id. He printed materials from these pages and ordered works
with menacing titles such as: “‘How to Kill,’ ‘Silent Death,’
‘Getting Even,’ and the ‘Poisoner’s Handbook.’” Id. at 1186.
Olsen also searched for “‘silent killers,’ ‘death by poison,’
‘tasteless poison,’ ‘hidden poison,’ ‘undetectable poisons,’
‘untraceable poisons’ . . . ‘deadly sleeping pills,’ and
‘common ingredients for death by sleep.’” Id.

    The panel then tells us of Olsen’s handwritten notes in
which he wrote out “the maximum doses, in milligrams,” of
four antihistamine and sleeping drugs, including the one that
10                UNITED STATES V. OLSEN

had been spiked with ricin. Id. at 1186–87. “Perhaps most
incriminating of all,” the panel says, was the fact that “Olsen
mathematically calculated the weight in kilograms of a 150-
pound person.” Id. at 1187. We’re told that Olsen’s wife, his
mistress and his former boss “all weighed around 150
pounds,” id., as if this is proof that Olsen intended to kill one
(or all?) of them.

    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. But without the report,
                  UNITED STATES V. OLSEN                     11

without any indication that Melnikoff’s work had been
condemned as incompetent by a panel of experts, without any
indication that contaminating samples through careless
handling was Melnikoff’s modus operandi, the jury had no
reason to doubt that it was Olsen who contaminated the
allergy pills. And, once the jury believed Olsen went so far
as to spike the pills, all the remaining, otherwise ambiguous
evidence falls into place as further corroboration of his ill
intent.

                              III

    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.

    A robust and rigorously enforced Brady rule is imperative
because all the incentives prosecutors confront encourage
them not to discover or disclose exculpatory evidence. Due
to the nature of a Brady violation, it’s highly unlikely
wrongdoing will ever come to light in the first place. This
creates a serious moral hazard for those prosecutors who are
more interested in winning a conviction than serving justice.
In the rare event that the suppressed evidence does surface,
the consequences usually leave the prosecution no worse than
had it complied with Brady from the outset. Professional
discipline is rare, and violations seldom give rise to liability
12                UNITED STATES V. OLSEN

for money damages. See, e.g., Connick v. Thompson, 131 S.
Ct. 1350, 1366 (2011). Criminal liability for causing an
innocent man to lose decades of his life behind bars is
practically unheard of. See, e.g., Nathan Koppel, Texas Ex-
Prosecutor Gets Brief Jail Time for Misconduct, Wall St. J.,
Nov. 9–10, 2013, at A5 (reporting that Texas settled civil and
criminal misconduct charges against former prosecutor Ken
Anderson, whose suppression of evidence in a murder trial
resulted in the defendant spending 25 years in prison, in
exchange for Anderson “forfeit[ing] his law license, []
serv[ing] up to 10 days in jail, pay[ing] a $500 fine and
perform[ing] 500 hours of community service”). If the
violation is found to be material (a standard that will almost
never be met under the panel’s construction), the prosecution
gets a do-over, making it no worse off than if it had disclosed
the evidence in the first place.

    Olsen’s prosecution highlights the problem. The
prosecutor just did not take his constitutional duty to disclose
exculpatory evidence very seriously. This is not the usual
case where the prosecutor was unaware of exculpatory
evidence being held by the police without his knowledge.
The Assistant U.S. Attorney knew Melnikoff was being
investigated and promised the district court that he would get
more information, but never followed through. The record
shows that Elizabeth Brown, his state counterpart, repeatedly
attempted to contact the Assistant U.S. Attorney concerning
the Melnikoff investigation. On April 8, she left a message
asking him to call her regarding Melnikoff. She tried again
on April 15, this time providing the name and phone number
of another state employee whom the Assistant U.S. Attorney
could contact about the Melnikoff investigation. Ten weeks
later, at a June 30 pretrial hearing, the Assistant U.S. Attorney
promised the court that he would call the state,
                     UNITED STATES V. OLSEN                           13

acknowledging that he “ha[d] not had a chance to call the
state authorities” but “will continue to pursue it.” He stated:
“I know that I have to follow up and contact the State of
Washington again, which I have done in the past, and every
time I have contacted them, they have told me exactly what
Mr. Treppiedi has told me.” The Assistant U.S. Attorney
didn’t say whom he spoke to, but it wasn’t Brown, who was
in charge of this aspect of the investigation.

     Somehow, the Assistant U.S. Attorney never managed to
get ahold of Brown, even though she called his office yet
again on July 3, the day Melnikoff testified. Brown spoke to
the Assistant U.S. Attorney’s secretary and asked that he call
her office, but he failed to inform the court or defense counsel
of the call and, so far as the record reflects, did not return the
call. Instead, he stood before the district judge and uttered
falsehoods about the WSP investigation. See pages 5–6,
supra. All told, the record shows only a single call from the
prosecutor to Brown—three months before Olsen’s trial.3 He
left a message, but failed to answer her return call later that
afternoon.

   Is there any doubt that if the Assistant U.S. Attorney had
thought Brown had inculpatory evidence to provide him, he
would have managed to connect with her? Or if these
messages had been from a doctor or broker or child’s
schoolteacher? We can be sure that the Assistant U.S.
Attorney would have found the time for an extra phone call.


 3
    Olsen sought an evidentiary hearing on his Brady claim in the district
court, at which he planned to depose the Assistant U.S. Attorney.
Although the court initially scheduled one, it was subsequently canceled.
Thus, the Assistant U.S. Attorney has never directly spoken to the
attempts he made to contact the WSP.
14                UNITED STATES V. OLSEN

But protecting the constitutional rights of the accused was
just not very high on this prosecutor’s list of priorities. The
fact that a constitutional mandate elicits less diligence from
a government lawyer than one’s daily errands signifies a
systemic problem: Some prosecutors don’t care about Brady
because courts don’t make them care.

    I wish I could say that the prosecutor’s unprofessionalism
here is the exception, that his propensity for shortcuts and
indifference to his ethical and legal responsibilities is a rare
blemish and source of embarrassment to an otherwise diligent
and scrupulous corps of attorneys staffing prosecutors’
offices across the country. But it wouldn’t be true. Brady
violations have reached epidemic proportions in recent years,
and the federal and state reporters bear testament to this
unsettling trend. See, e.g., Smith v. Cain, 132 S. Ct. 627
(2012); United States v. Sedaghaty, No. 11-30342 (9th Cir.
Aug. 23, 2013); Aguilar v. Woodford, No. 09-55575 (9th Cir.
July 29, 2013); United States v. Kohring, 637 F.3d 895 (9th
Cir. 2010); Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009);
Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009); Harris
v. Lafler, 553 F.3d 1028 (6th Cir. 2009); United States v.
Zomber, 299 F. App’x. 130 (3d Cir. 2008); United States v.
Triumph Capital Grp., Inc., 544 F.3d 149 (2d Cir. 2008);
United States v. Aviles-Colon, 536 F.3d 1 (1st Cir. 2008);
Horton v. Mayle, 408 F.3d 570 (9th Cir. 2004); United States
v. Sipe, 388 F.3d 471 (5th Cir. 2004); Monroe v. Angelone,
323 F.3d 286 (4th Cir. 2003); United States v. Lyons, 352 F.
Supp. 2d 1231 (M.D. Fla. 2004); Watkins v. Miller, 92 F.
Supp. 2d 824 (S.D. Ind. 2000); United States v. Dollar, 25 F.
Supp. 2d 1320 (N.D. Ala. 1998); People v. Uribe, 76 Cal.
Rptr. 3d 829 (Cal. Ct. App. 2008); Miller v. United States,
14 A.3d 1094 (D.C. 2011); Deren v. State, 15 So. 3d 723
(Fla. Dist. Ct. App. 2009); Walker v. Johnson, 646 S.E.2d 44
                  UNITED STATES V. OLSEN                     15

(Ga. 2007); Aguilera v. State, 807 N.W.2d 249 (Iowa 2011);
DeSimone v. State, 803 N.W.2d 97 (Iowa 2011);
Commonwealth v. Bussell, 226 S.W.3d 96 (Ky. 2007); State
ex rel. Engel v. Dormire, 304 S.W.3d 120 (Mo. 2010); Duley
v. State, 304 S.W.3d 158 (Mo. Ct. App. 2009); People v.
Garrett, 964 N.Y.S.2d 652 (N.Y. App. Div. 2013); Pena v.
State, 353 S.W.3d 797 (Tex. Crim. App. 2011); In re Stenson,
276 P.3d 286 (Wash. 2012); State v. Youngblood, 650 S.E.2d
119 (W.Va. 2007).

    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.
When such transgressions are acknowledged yet forgiven by
the courts, we endorse and invite their repetition.

    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). See Katharine Q. Seelye & Jess
Bidgood, Prison for a State Chemist Who Faked Drug
Evidence, N.Y. Times, Nov. 23, 2013, at A9; Jennifer Levitz,
Crime Lab’s Ex-Chemist Is Sentenced, Wall St. J., Nov.
23–24, 2013, at A2.           Such incidents have become
distressingly common. See, e.g., Joseph Goldstein, New York
Sees Errors on DNA In Rape Cases, N.Y. Times, Jan. 11,
2013, at A1 (noting a city investigation that confirmed
16               UNITED STATES V. OLSEN

mishandling of evidence in at least 26 rape cases, prompting
officials to explore over 800 more cases); Agency: Houston
crime lab worker had history of poor work, ABC (Apr. 5,
2013), http://goo.gl/9o8pfA (recounting the substandard work
of a Texas lab technician affecting nearly 5,000 cases in 36
counties). Even the vaunted FBI Laboratory at Quantico,
Virginia hasn’t been immune from charges of falsification
and pro-prosecution bias. See Spencer S. Hsu, Justice Dept.,
FBI to review use of forensic evidence in thousands of cases,
Wash. Post (July 10, 2012), http://goo.gl/9GQUFw
(announcing that the FBI was undertaking the largest-ever
review of potential lab misconduct—over ten thousand cases
going back to at least 1985—due to numerous problems with
forensic analyses).

    Because modern criminal trials frequently turn on
forensic reports, these incidents of misconduct raise the
frightening prospect that many of the over 1.5 million people
now populating state and federal prisons might, in fact, be
innocent. See E. Ann Carson & Daniela Golinelli, Prisoners
in 2012—Advance Counts, Bureau of Justice Statistics (July
2013). How do rogue forensic scientists and other bad cops
thrive in our criminal justice system? The simple answer is
that some prosecutors turn a blind eye to such misconduct
because they’re more interested in gaining a conviction than
achieving a just result. See, e.g., Goldstein v. City of Long
Beach, 715 F.3d 750, 751–52 (9th Cir. 2013) (recounting the
Los Angeles District Attorney’s Office’s repeated use of a
jailhouse informant despite serious (and undisclosed)
concerns about his reliability, including his heroin addiction
and a history of providing unsubstantiated testimony in
exchange for sentence reductions), rev’d 555 U.S. 335
(2009). Montana’s investigation of Melnikoff’s work is
emblematic of the problem. The state’s Attorney General
                  UNITED STATES V. OLSEN                      17

conducted such a perfunctory investigation that a group of
concerned citizens, including three retired justices of the
Montana Supreme Court, filed a petition accusing him of
“abandoning justice.” Maurice Possley, Lab errors cited in
petition on 200 Montana cases, Chi. Trib. (Aug. 26, 2004),
http://goo.gl/Wxf6a8. The Attorney General, for his part,
“said he believes Melnikoff was competent and there are no
problems in the crime lab.” Id.

     We must send prosecutors a clear message: Betray
Brady, give short shrift to Giglio, and you will lose your ill-
gotten conviction. Unfortunately, the panel’s decision sends
the opposite message. The panel shrugs off an egregious
Brady violation as immaterial. Had Melnikoff been fully
impeached, the only evidence from which the prosecutor
could’ve proven Olsen’s intent to use ricin as a weapon
would have been a few Google searches and bookstore
receipts. This is surely enough to show a reasonable
probability of a different result. By raising the materiality bar
impossibly high, the panel invites prosecutors to avert their
gaze from exculpatory evidence, secure in the belief that, if
it turns up after the defendant has been convicted, judges will
dismiss the Brady violation as immaterial.

    On these facts, I would easily find a Brady violation. My
only question is whether the Assistant U.S. Attorney’s failure
to discover the WSP report was willful or reckless, and if so,
whether an Order to Show Cause should be entered inquiring
why he and his supervisor should not be sanctioned. There is
room for reasonable disagreement on this point, but I fail to
see any plausible argument that the prosecutor did not violate
Olsen’s constitutional rights when he failed to disclose
evidence casting serious doubt on the reliability of the only
dispositive piece of evidence in the case. By turning a blind
18               UNITED STATES V. OLSEN

eye to this grave transgression, the panel has shirked its own
duty and compounded the violence done to the Constitution
by the Assistant U.S. Attorney.
