Barker v. Fleming
No. 04-35911 (9-8-05). This was an identification case. The clerk was robbed by a “clown” – a robber with make-up in a joker style. The clerk at first couldn’t identify who the robber was, but after talking to co-workers, they figured it was someone with tattoos, and that such a man had come into the store previously the past days. The clerk told the officer, who said that he knew the guy, and that he had been in jail. The clerk was shown a photo line-up and picked out the petitioner. There was subsequently the jailhouse snitch, who said that petitioner had confessed. The first trial hung; the second ended in conviction, and a life sentence. In this petition, the 9th did indeed find that there was a Brady violation. The jailhouse snitch had even more prior convictions involving dishonesty and moral turpitude than was known by defense counsel at the time. The 9th reached this conclusion under a de novo standard because the state supreme court had muffed the standard of review for Brady violations. No matter though because the 9th found that it wasn’t prejudicial. The jailhouse snitch was thoroughly impeached and beaten up on cross and these additional convictions wouldn’t have mattered. The 9th looked at the strength of the eyewitness identification and the lack of reliance the prosecutor placed on the snitch. Interestingly, the 9th’s reliance on the strength of eyewitness identification should be used in arguing for an expert witness to discuss the fallacy. If the 9th is going to exult such evidence, it can be attacked.