Category Archive: Recent Decisions


Judge EasterlyIn an exhaustive indictment of government discovery and Brady/Giglio gamesmanship, the District of Columbia Court of Appeals, Judge Catherine Friend Easterly [great judicial name], recently ordered a new trial for DC Inmate Carl Morton in United States v. Vaughn et al. Morton and co-defendant Alonzo Vaughn were convicted for (1) aggravated assault and (2) assault on a law enforcement officer in connection with an incident at the D.C. Jail in which a group of men attacked a fellow inmate and a corrections officer who came to that inmate’s aid. Unbeknownst to either defendant, the government’s, Assistant United States Attorneys Mary Chris Dobbie and Reagan Taylor, primary and strongest identifying witness, presented to the jury as “Officer” Angelo Childs, had recently been adjudged to have made demonstrably false allegations regarding an earlier inmate assault. “Officer” Childs was subsequently demoted from Lieutenant to Sergeant as a result of that false testimony.

In a Department of Corrections Office of Internal Affairs (OIA) “Final Report,” Childs and other officers were shown to have falsely reported a separate incident regarding alleged inmate assault.  In the relevant portion of this report — which the government suppressed — the investigator concluded that Childs’ report was, in fact,  contradicted by video footage taken of the scene. Instead of turning the entirety of the report over to defendants, or to the court, the government prosecutors strategically excised the damning portions and submitted only the innocuous and inconclusive portions (sound familiar):

the government submitted to the trial court ex parte what it said was the OIA Final Report, but in fact was only the first five pages of the ten-page report (and included none of the documents in the appendix, 76 pages in all). The first five pages of the OIA Final Report contain “background” information, investigative notes, and a full reproduction of Officer Childs‟s account of an inmate assault in his Incident Report without any indication that that account was being questioned; the findings adverse to Officer Childs begin on the sixth page.

Click here to read more »


indexIn an unusual and virtually unprecedented opinion,  US v. Garner et al, No. 2_11_CR_00038 (N.D. Miss. July 15, 2014), Judge Neal Biggers of the Northern District of Mississippi sua sponte acknowledged his prior elision of arguments that the government, Assistant United States Attorneys’ Clayton A. Dabbs and Robert J. Mims, engaged in constitutional and statutory violations at trial, and sua sponte granted defendants a new trial for Brady violations.

After the trial, which alleged federal crimes arising from a bribe and kickback scheme involving a community hospital, Judge Biggers entered judgments of acquittal and alternately motions for new trials for defendants Earnest Levi Garner and Raymond Lamont Shoemaker. On the government’s appeal, the Fifth Circuit reversed, reinstated the jury verdicts of guilty and remanded for resentencing. On remand, the district court noted that its prior grant of the alternate new trial motions did not address defendants’ claims of Brady violations but instead relied on a separate legal issue related to “agency” (as to the hospital) and the related jury instructions. Nor did the government address the Brady issues in its appeal to the Fifth Circuit, “ostensibly since the [] court had not ruled on them.” Because the court “did not grant the defendants a ruling on the Brady claims,” and despite the peculiar procedural posture, the court determined that “to refuse to rule on these constitutional claims now would be a denial of due process and contrary to the interests of justice.”

Click here to read more »

One Small Step: Immunity Doctrines Do Not Shield All Rogue Prosecutors

56000_56548_powell_posner.jpg.CROP.original-originalBoldly going where virtually no Federal Court of Appeals has ever gone before, a split panel of the Seventh Circuit in Fields v. Wharrie, in an opinion written by Judge Richard Posner, held this week that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction. Here Lawrence Wharrie (an attorney still admitted to practice in Illinois and without any record of disciplinary history) fabricated [as distinct from coercing false testimony] evidence against a defendant [during the investigative stage].  Accordingly, Judges Posner and Joel Flaum held that the prosecutor is not entitled to “absolute prosecutorial immunity” nor to “qualified immunity” for the harm caused to the criminal defendant from that fabrication. Specifically, Wharrie coerced witnesses to give testimony that Wharrie and other Prosecutors (as well as the witnesses) knew to be false, resulting in Nathson Fields’ conviction of two murders and his imprisonment for 17 years until he was acquitted in a retrial.  [Mr. Fields subsequently received a certificate of innocence from the court in which he had been tried]. Judge Diane Sykes dissented from the crucial holding.

Click here to read more »

Free after 11 years of wrongful imprisonment!

NinthCircuitcourtofappealslogo For different reasons, but like  Michael Morton in Texas, a California man spent 11 years in prison for a murder he did not commit.  Finally, DeAndre Howard is a free man.  As the Los Angeles Times reports:

Not only had Howard always maintained his innocence, but in 2004, one of the attempted murder victims wrote  a declaration that “the truth remains that DeAndre Howard never attempted to murder me. Neither did he murder victim Mark Anthony Freeman.” Howard’s defense attorney at the time of trial did not even interview the victim, Ragland, before the trial. 

From behind bars, Howard fought for his innocence. He began filing a flurry of appeals, which hinged on his belief that his trial lawyer hadn’t properly defended him. His main point of concern was that his lawyer had never interviewed Ragland despite Howard’s entreaties to do so. Howard said his position was bolstered in 2004 when Ragland sent a letter to Howard’s appellate attorney saying that Howard wasn’t the gunman.

The California state courts had summarily rejected his claims-obviously giving no thought to the facts or issues, and the federal district court denied his habeas petition.

It took the Ninth Circuit Court of Appeals to grant Howard habeas relief on his claim of ineffective assistance of counsel for his trial attorney’s failure to interview Ragland-the survivor of the shooting in a case where eyewitness testimony was shakey at best. In an opinion authored by Nancy Gertner, District Judge sitting by designation, and joined by Chief Judge Alex Kozinski who often speaks out against government misconduct and in protection of individual rights, and Circuit Judge Dorothy Nelson, reversed the district court’s denial of Howard’s habeas petition and remanded the case for a hearing.

Then, as The Los Angeles Times reports:

After years of fighting for his innocence from behind bars, a federal judge had finally granted him an appeal. Prosecutors, he said, gave him a choice.

He could plead guilty to involuntary manslaughter and get out in time for a Thanksgiving dinner with his family. Or he could go back to trial and risk spending the rest of his life in prison.

He chose trial. That felt final. It felt right.

“There was no need to compromise your integrity just so you can go free,” he said. “I felt that’s something you have to hold firm to even if your life is on the line.”

Howard is now free. The jury acquitted him, thanks to the Ninth Circuit for paying attention and digging into the law and facts of his case and remanding the case for a hearing.



News FLASH: U.S. Attorney Confesses Error after Thrashing by Ninth Circuit

Our prior post gives you the opportunity to watch the Ninth Circuit En Banc soundly thrashing an Assistant United States Attorney for implying he knew a key fact that was not in evidence as he argued in rebuttal for a criminal conviction. Prosecutorial misconduct!

The Court was quite pointed, especially Chief Judge Kozinski, “suggesting” that the government confess error and use the tape of the argument as instructional video for its prosecutors.

The United States Attorney for the Southern District of California wisely decided to do just that, no doubt to avoid a scathing decision from the Court. Here’s the government’s motion to vacate Maloney’s conviction and remand the case.  It’s really just two paragraphs which can be summed up as: We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument.

The residual problem, however, includes the number of judges that saw this misconduct and did nothing; the failure of the United States Attorney to confess error originally; the government’s continued defense of this indefensible conduct even at oral argument before the Court; and ,the irrefutable fact that the United States Attorney wouldn’t have done anything about it yet if Judge Kozinski and his colleagues had not forced them to do so.

Another round of applause for the Ninth and the judges on this en banc for seeing an injustice and correcting it!


REINHARDTIn another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959).

The opinion, written by Judge Reinhardt, and joined by Judges Milan D. Smith Jr. and James G. Carr, found “textbook prosecutorial misconduct” “violat[ing] the basic tenet of Napue v. Illinois,” which prohibits “soliciting false evidence,” and requires the prosecutor to not “allow[] it to go uncorrected when it appears.” Reversing District Judge Phyllis J. Hamilton, the panel found that the California Court of Appeals’ decision upholding Mr. Dow’s conviction was contrary to and/or an unreasonable application of existing Supreme Court precedent.

Click here to read more »


Ninth Circuit Chief Judge Alex Kozinski

In an opinion showing great respect for  and actually enforcing Due Process, the government’s burden of proof, the Speedy Trial Act, Rule 16 ‘s disclosure requirments, and the reasons for a fair trial, Ninth Circuit Chief Judge Kozinski, joined by Judges  Wardlaw and Gould, vacated an illegal reentry conviction and remand the case for further proceedings on whether the government’s failure to disclose under Rule 16 was willful, and ASSIGN THE MATTER TO A NEW JUDGE. In the case, United States v. Hernandez-Meza, the district court judge, like far too many others, seemed to feel compelled to help the prosecutor secure a conviction-nevermind the rules. The Ninth Circuit views the rules differently-as in, they should be followed.

To make things clear for all concerned, the Panel of the Ninth Circuit:

) held that the district court’s ruling allowing the government to introduce evidence after the evidence had closed misstated the record and was an abuse of discretion.

Because the district court’s ruling—allowing the government to introduce evidence after the proofs had closed—failed to
show the proper degree of reluctance and misstated therecord, it was an abuse of discretion. See Hinkson, 585 F.3dat 1261–62.

2)  held that a Speedy Trial Act Violation that required dismissal of the charge:

The government here took just two days beyond the STA deadline to bring Hernandez-Meza to trial. The government could have avoided this problem, had it asked the district judge to stop the STA clock during either of the one-week continuances granted due to the collapse of plea negotiations.

See 18 U.S.C. § 3161(h)(7)(A); Zedner v. United States, 547 U.S. 489, 507 (2006). But the government made no such request and the STA clock ran out. Under the circumstances, the district judge had no authority to let the case go forward. See 18 U.S.C. § 3162(a)(2).

3) Rejected the government’s claim of suprise and and held it to its burden of proof.

What matters in satisfying the government’s burden of proof in a criminal case is not objective reality nor defendant’s personal belief, but the evidence the government presents in court. No competent prosecutor would be surprised, based on what he thinks defendant should know, to find defense counsel poking holes in the government’s case. The argument is without merit, yet the government made it before the district court, and again on appeal. See United

States v. Kojayan, 8 F.3d 1315, 1320, 1322 (9th Cir. 1993)(we expect the government on appeal not to repeat specious arguments line prosecutors make in the heat of the moment).

4)    held the government must follow Rule 16:

Upon a proper request by the defendant, the government must produce items in its control that it “intends to use . . . in its case-in-chief at trial.” See 16 Fed. R. Crim. P. 16(a)(1)(E)(ii). The government doesn’t contest that the mother’s naturalization certificate was in the government’s control or that Hernandez-Meza made a timely Rule 16 request.

5) and held that the DISTRICT JUDGE should pay attention to Rule 16 and enforce it:

In defense counsel’s view, there was no point in allowing

the government to reopen because it had failed to disclose the

certificate during discovery and so was precluded from

introducing it as part of its case-in-chief. Despite defense

counsel’s attempts to engage the district court on this issue,

the court never addressed it. When defense counsel reiterated

the argument, the judge brushed her off: “We’re beyond

that,” he said, and moved on.

But defense counsel had raised a legitimate issue and was

entitled to a ruling from the district court. Giving an

explanation for significant rulings is an important component

of due process. It lets the adversely affected party know that

the judge has heard and understood its argument, and that the

judge’s ruling is based on the facts and the law. An

explanation also allows the judge to confirm that his ruling is

correct. If he is unable to articulate a  plausible rationale for

his ruling, he may think better of it. Finally, and not least, by

failing to give any indication that he applied the correct legal

standard, the district judge made appellate review difficult.

See Hinkson, 585 F.3d at 1261–62; cf. United States v.

Taylor, 487 U.S. 326, 336–37 (1988) (“[A] district court must

. . . clearly articulate [its reasoning] in order to permit

meaningful appellate review.”). Had the district judge paused to consider defense

counsel’s argument,he may well have realized that thegovernment was seeking to reopen in order to present a document during its case-in-chief that it had failed to disclose during discovery. But, by failing to disclose, the government undertook the clear risk that it would be precluded from presenting the document as part of its principal case. See Fed. R. Crim. P. 16(a)(1)(E)(ii); id. 16(d)(2). Allowing the government to reopen in order to introduce the documentcircumvented the government’s self-imposed limitation. This was unfair to Hernandez-Meza, who was entitled to build his defense strategy on the assumption that he had seen all the items the government would present as part of its case.

Speaking to materiality under Rule 16, Kozinski writes:

The naturalization certificate should have been disclosed in any event under the separate prong of Rule 16 that applies to documents “material to preparing the defense.” See Fed. R. Crim. P. 16(a)(1)(E)(i). Materiality is a low threshold; it is satisfied so long as “the information [in the certificate] would have helped” Hernandez-Meza prepare a defense. United States v. Doe, 705 F.3d 1134, 1151 (9th Cir. 2013). Information is material even if it simply causes a defendant to “completely abandon” a planned defense and “take an entirely different path.” Id.

But wait, there’s more 🙂

Upon defendant’s request, the government must disclose any documents or other objects within its possession,custody or control that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i). Unlike the preceding and subsequent subsections, which both require that “the government knows—or through due diligence could know—that the” item exists, see Fed. R. Crim. P. 16(a)(1)(D), (F), subsection (E) is unconditional. Lack of knowledge or even a showing of due diligence won’t excuse non-compliance. It thus behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case. See United States v. Leal-Del Carmen, 697 F.3d 964, 969 n.4 (9th Cir. 2012); see also Editorial, Beyond the Brady Rule, N.Y. Times, May 19, 2013, at SR10. When there has been a proper Rule 16(a)(1)(E)(i) request, and the prosecution finds itself holding a document during the trial that it should have turned over, as happened here, it must promptly advise opposing counsel and the court that it hasn’t complied with its Rule 16 obligations. See Fed. R. Crim. P. 16(c). The district court can then take such remedial measures as it deems appropriate, including continuing the trial or declaring a mistrial. See Fed. R. Crim. P. 16(d)(2).

It gets even better. 🙂 🙂  In the interest of the appearance of justice, the panel assigns the case to a new judge to examine whether the prosecutor deliberately withheld the certificate from the defense to try to lock him into a position, despite obvious knowledge it was material.

We vacate the conviction and remand for an evidentiary hearing into whether the prosecution’s failure to disclose the certificate in discovery or at any point before the proofs had closed was willful. If it was willful, the district court shall impose appropriate sanctions. The district court shall, in any event, dismiss the illegal reentry count of the indictment on account of the STA violation, with or without prejudice, depending on its weighing of the relevant factors. See 18 U.S.C. § 3162(a)(2); United States v. Lewis, 349 F.3d 1116, 1121–22 (9th Cir. 2003).

We are perturbed by the district court’s handling of the reopening issue. The court persisted in giving a reason for allowing the government to reopen that was contradicted by the record, despite defense counsel’s repeated attempts to point out the error. The court also ignored defendant’s twiceraised Rule 16 objection and made a questionable ruling regarding defendant’s Speedy Trial Act claim.

““Whether or not [the district judge] would reasonably be expected to put out of his mind” his previous rulings, and “without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, . . . we conclude reassignment is appropriate,” and we so order. See Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc).

VACATED and REMANDED. This panel retains jurisdiction over any further appeals in this case.


        Kim Wardlaw Ninth Circuit           Judge Gould Ninth Circuit

Kozinski Blisters Prosecution For Unconstitutional Silence

“We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.”  Kozinski (pictured below), concurring with his panel opinion.

Harlan Fiske Stone Moot Court Competition, Monday, March 26, 2012, at Columbia Law School in New York.  (Photo by Diane Bondareff)

Writing for the panel and even more in his own concurrence, Ninth Circuit Chief Judge Alex Kozinski blisters the Phoenix police detective who interrogated the defendant, and the Arizona prosecutors and trial judge who misapprehended the constitutional requirement to provide exculpatory and impeachment evidence to the defense.    Ms. Milke was denied her constitutional right to extensive evidence of her lone interrogator’s history of lying, abuse of power, and other judicial findings of the police officer’s similar misconduct and disregard of constitutional rights.

The Ninth Circuit ordered the release of the defendant who has been incarcerated under a death sentence for 22 years and set clear procedures and time limits Click here to read more »