Tuesday, January 08, 2013

U.S. v. Olsen (9th Cir. - Jan. 8, 2013)

This opinion is exceptionally timely.  For me, anyway.

It's a neat little habeas case.  Kenneth Olsen gets convicted in 2003 of knowingly possessing a biological toxin for use as a weapon.  No small crime, and certainly not a routine one.  Olson gets sentenced to over a decade in federal prison.

Most of the facts of the case are undisputed.  Essentially, Olsen gets keenly interested in stuff like the Anarchist's Cookbook and stupidly leaves a printout of the Terrorist Encyclopedia at his work, which his co-workers find and freak out.  His employer then cans him after a search of his desk reveals a ton of other printouts, plus some test tubes full of various stuff.  Including castor beans.  Which is used to make ricin, a potent toxin.  (Fans of Breaking Bad will note many parallels here, as various episodes have chemist Walter White making ricin as well.)  So the FBI gets involved, charges are brought, and we are where we are.

Olsen's defense is a simple one.  He admits to making the stuff and doing lots of internet searches, but says that he was just intellectually interested in the stuff.  Creepy, perhaps, but not a felony.  He didn't posses the ricin "for use as a weapon" -- and that's what he's charged with.  Yes, he looked at how to make it, how various poisons are undetectable, etc.  But he wasn't actually going to use it.  That's his defense, and if he's right, he's innocent.

But the U.S. has a pretty good piece of evidence against him.  One they play up a lot during the closing argument.  The U.S. has an expert who says that he tested an Equate pill that was found in Olsen's possession and that pill tested positive for ricin.  Why put the ricin on a pill if you're not in fact intending to slip it to someone?  Gotcha.  You're guilty.

You can see why the U.S. highlights this testimony.  'Cause making ricin itself might be a lark, but putting it on a delivery system -- well, that's more than just curiosity.

There's only one problem.  It comes to light long after Olsen's conviction that the expert who tested the pill is a hack.  He's got tons of problems with his tests, and his tests (e.g., DNA tests) have been conclusively shown to have put innocent people in prison.  Plus, it turns out that the relevant AUSA knew about the ongoing investigation into this expert at the time of Olsen's trial, but didn't reveal all he knew.  Hence there's a very strong Brady claim.  One made even stronger by the fact that Olsen has an expert on habeas who says that the expert almost certainly cross-contaminated the Equate pill with ricin, hence leading to the erroneous finding.

So the central question for the Ninth Circuit becomes:  Is this damning to Olsen's conviction?  It is a "reasonable possibility" that destroying the expert's credibility about this crucial piece of evidence may have changed the result of the trial?

The Ninth Circuit says:  "No."  The evidence against Olsen, the panel says, was "overwhelming".  What was overwhelming about it?  His lengthy -- super lengthy -- research over the internet.  Only someone who was actually planning to kill someone would have done that.  No way that someone does all this stuff merely because they're (weirdly) curious about this stuff.  No way at all.

To which I have two things to say.

First, I'm far from sure about this.  That may seem super weird for Ninth Circuit judges.  Who likely do not share similarly morbid curiosities.  But there are a lot of strange dudes out there, my friend.  A plethora.  With weird interests that you can't possibly imagine.  People do strange stuff in their spare time.  Things you can't comprehend.  Is it really the case that no one would take it upon themselves to make ricin just to see if they could?  Who would spend hours and days researching the internet just to see if they could make an undetectable poison?  No one?  Beyond a reasonable doubt?

Don't forget, by the way, that as far as I can tell, the prosecution presented no evidence whatsoever about anyone who Olsen had a grudge with.  No one that he actually disliked or wanted to kill.  It's possible, of course, that Olsen had hidden hatreds, or grandiose plans.  But couldn't a reasonable jury perhaps find that he did all these internet searches about undetectable poisons just because he was (in whatever way) crazily curious about the subject matter?  Not because he was actually planning on killing someone?  There's not even a chance that a reasonable jury could have so concluded?  Really?

Which brings me to my second point.  Why this case is so personally timely for me.

Yesterday afternoon, I read this story, which was on the front page of Yahoo!.  About a million-dollar lottery winner who died the day after he cashed his lottery ticket.  The coroner who conducted the resulting autopsy ruled that this death was caused by hardening of the arteries, and into the ground the guy went.  Many months went by and, for whatever reason, a relative kept pushing for more tests on the body.  Finally the authorities relent, and -- just to shut the relative up -- they do more tests, and throw in a random test for cyanide into the mix.  Bingo.  He guy was indeed killed by a fatal dose of odorless, colorless cyanide.  Murder.

Which made me think:  Wow.  What a series of events.  Amazing.

But it also made me think:  Who committed the murder?  A wife?  Business partner?  Stranger?  Who has access to cyanide?  Seems like a pretty tough thing to get a hold of, right.  Or to make.

So what do I do?

Search the internet.  For a fairly lengthy period of time.  About how to make cyanide.  About what places (allegedly) sell it.  About whether a determined person with minimal scientific training could in fact get their hands on cyanide in order to kill someone.  And about whether (and how) a death by cyanide would be revealed in standard -- or even ordinary expanded -- autopsy.

In other words, if you looked at my internet logs for yesterday afternoon, I bet you that they would look stunningly like Olsen's internet logs.  Coincidentally enough.

So much so, in fact, that as my wife and I were driving home from dinner last night (it was our "date night"), I randomly mentioned to her that I was doing a lot of research into cyanide that afternoon, so that if anyone actually died as a result of it anytime soon, I was worried -- I said jokingly -- that I'd be the primary suspect.

Then I read today's Ninth Circuit opinion.  Freaky.

The point is, I had -- and have -- utterly no intent to kill anyone, anywhere when I did my "extensive" internet search yesterday on the practicalities of how to manufacture cyanide and whether it works as an undetectable poison.  None.  But that same evidence, the Ninth Circuit says today, constitutes such "overwhelming" evidence of an intent to use a product as a weapon that there's no possibility at all a jury could possibly come to an opposite conclusion.

Are there some difference between what Olsen did and what I did?  Sure.  I spent an afternoon, and he spent a year.  I didn't actually make the stuff, and he did.

But in my view, that may well simply goes to the extent of the intellectual (or morbid) interest, not to intent.  I was only slightly interested in cyanide, whereas Olsen was clearly very interested in ricin.

But interest doesn't necessarily equate to a desire to kill someone.  Or at least a jury might want to hear evidence about who the defendant allegedly might have wanted to kill before concluding that, beyond a reasonable doubt, a defendant did indeed secretly want to kill someone.

And if they learned that the Equate pill that the U.S. said was indeed full of ricin did not, in fact, have any ricin on it, a jury might just conclude that they're not morally certain that the defendant intended to kill someone by slipping them that pill.

Am I say that Olsen's unquestionably innocent?  Nope.  Maybe he's a potential mass murderer.  Or single murderer.  Maybe -- despite having a year to make ricin -- he just finished actually making it and the authorities grabbed him up just before he was about to kill someone.

But maybe -- just maybe -- he was a tinkerer.  He searched the internet and made the stuff and thought of himself as a modern Walter White, but never actually intended to kill anyone.

One thing I'm confident about.  The fact that your internet logs demonstrate extensive searches into a particular undetectable poison and the means to manufacture it don't prove that you're out to kill someone.

That I know.  Firsthand.