Wednesday, January 9, 2013
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Court Upholds Conviction of Possessing Lethal Amounts of Ricin
By JACKIE FUCHS, Staff Writer
A man convicted of possessing lethal amounts of the biological toxin ricin was not entitled to habeas corpus relief, even though a forensic scientist who analyzed his belongings may have contaminated some of them, the Ninth U.S. Circuit of Appeals held yesterday.
Senior Judge Paul L. Friedman of the D.C. Circuit, sitting by designation, said the unanimous panel was “confident beyond doubt” that the jurors would have found Kenneth Olsen guilty even if they had known about a report which called into question the scientist’s credibility.
In 2001, test tubes and other chemistry paraphernalia were found in Olsen’s cubicle at Agilent Technologies, Inc., where Olsen worked as a computer technician, along with internet printouts and books with titles such as the “Terrorist Encyclopedia,” “How to Kill,” “Silent Death,” “Getting Even,” and the “Poisoner’s Handbook.”
The items were taken to the Washington State Patrol crime laboratory, where they were examined by forensic scientist Arnold Melnikoff, who found among the items a bag of castor beans and several bottles of medicine, including a bottle of Equate-brand allergy capsules, and a residue on some of the items he later identified as castor oil.
Castor Beans
Suspecting that the items might contain ricin, a highly deadly poison derived from castor beans, Melnikoff sent them to the Federal Bureau of Investigation for analysis.
The FBI forwarded the items to the United States Army Medical Research Institute of Infectious Diseases, which confirmed that the items tested positive for ricin.
At trial, Olsen did not contest the fact that he produced and possessed ricin, but claimed that he did so only out of “an irresponsible sense of curiosity” about “strange and morbid things,” and not “for use as a weapon.”
The prosecution presented substantial evidence, however, that Olsen methodically researched undetectable ways to kill and spiked an Equate capsule with ricin.
After a 12-day trial, the jury convicted Olsen of knowingly possessing a chemical and biological agent for use as a weapon,
Olsen filed a habeas motion on numerous grounds, including a Brady v. Maryland claim based on the prosecution’s alleged suppression of a report containing criticisms of Melnikoff’s honesty and professional competence on other cases.
Motion Denied
Senior District Judge William Fremming Nielsen of the Eastern District of Washington denied Olsen’s motion in its entirety, and the panel granted a certificate on four issues, including Olsen’s contention that the prosecution suppressed evidence about Melnikoff.
In an affidavit filed in support of Olsen’s motion, an expert concluded it was “highly probable” that Melnikoff contaminated the Equate capsule with ricin after examining it on “a sheet of clean lab paper” on which he had already examined other items from Olsen’s cubicle.
More importantly, Olsen’s defense counsel asserted it had never received the file from an unrelated internal investigation of Melnikoff by the Washington State Patrol, in which experts called into question “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.”
Although Assistant U.S. Attorney Earl Hicks informed the district court of the internal investigation during a pretrial hearing, he emphasized that no findings of any wrongdoing had yet been made.
Expert’s Testimony
Melnikoff subsequently testified before the jury about his handling and examination of the items from Olsen’s cubicle. Defense counsel was permitted to elicit from him only the fact that during his career complaints had been filed against him.
The panel held that even though the federal prosecutor did not provide Olsen with the state’s internal investigation file, there was no reasonable probability that the verdict would have been different had it been disclosed.
Friedman wrote:
“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 … that he intended to use the ricin he possessed as a weapon.”
The contaminated Equate pill was, the panel said, but one piece of evidence for which no innocent explanation was plausible. The prosecution convincingly demonstrated that Olsen produced enough ricin to kill at least 75 people and “more tellingly that Olsen carried out extra steps to …[enhance] its toxicity and deadliness.”
Prolonged Investigation
The evidence also showed that Olsen carried out a prolonged investigation into how to harm someone while avoiding detection, at time searching the internet with phrases including “silent killers,” “death by poison,” “tasteless poison,” “undetectable poisons,” “untraceable poisons,” and “painless death.”
Perhaps most incriminating of all, Friedman said, were Olsen’s mathematical calculations of the weight in kilograms of a 150-pound person, the approximate weight of Olsen’s wife, the woman with whom Olsen was having an affair, and Olsen’s former supervisor.
Friedman also did not accept Olsen’s claim his trial was tainted by a juror who provided two inaccurate answers in his juror questionnaire and who had prior knowledge about the case, saying that he accepted Nielson’s conclusion that the inaccuracies were the result of mistake, and that they did not constitute the “extreme” situation which would justify a presumption of partiality.
Senior Judge Mary M. Schroeder and Judge Ronald M. Gould concurred in the opinion.
The case is United States v. Olsen; No. 10-36064.
Copyright 2013, Metropolitan News Company