Case o' The Week: We'll always have Paris (and, hopefully, this great Brady decision -- Jernigan)

Writing for a whopping 13-2 en banc Court, Judge Betty Fletcher delivers another memorable decision protecting a defendant's Brady rights. United States v. Jernigan, __ F.3d __, No. 05-10086, 2007 WL 1965112 (9th Cir. July 9, 2007), en banc. (Decision available here). This en banc case is well worth a read for its Brady lessons, and also for the Ninth Circuit's first published reference to Paris Hilton (in a -- memorable -- dissent by Judge Bea).

Players: Judge B. Fletcher authors, joined by Judges Kozinski, Rymer, Bybee and Ikuta (and eight others). Only Judges Bea and O’Scannlain dissent.

Facts: Rachel Jernigan, a short Latina woman with acne, was tried and convicted for robbing a Bank of America. 2007 WL 1965112, *2 . The surveillance video was lousy; the conviction was primarily on eyewitness testimony. Id. While Jernigan was in custody, another short Latina woman with acne robbed the same BofA, and was caught with a tracking device tucked into the money. Id. This second short Latina woman also robbed several other banks near the BofA, while Jernigan was in custody and before her trial. Id. at *2. The FBI agent knew of this second Latina, but never bothered to tell the AUSA. Id. at *8. After conviction, Jernigan raised the government’s Brady violation and moved for a new trial. Id. at *2. The district court denied these motions; a three-judge panel affirmed, and the case went en banc.

Issue(s): “Jernigan asserted that the government had failed to meet its Brady obligations by not disclosing the existence of a phenotypically similar bank robber who had been robbing banks in the same area after Jernigan’s incarceration.” Id.

Held: “As we view the withheld evidence in the context of the entire record, it is apparent to us that the evidence was material and that Jernigan was prejudiced by its suppression. Withholding knowledge of a second suspect conflicts with the Supreme Court's directive that ‘the criminal trial, as distinct from the prosecutor's private deliberations, [be preserved] as the chosen forum for ascertaining the truth about criminal accusations.’ Kyles, 514 U.S. at 440. By suppressing this evidence, the prosecution arrogated to itself a central function belonging to the criminal jury and pursued its role as adversary to the exclusion of its role as architect of a just trial. Cf. Brady, 373 U.S. at 87-88 & n. 2. The government has deprived Jernigan of a fair trial and placed a possibly innocent woman behind bars. Because the evidence withheld by the government was material, we reverse the decision of the panel and district court, and remand to the district court for further proceedings consistent with our opinion.” Id. at *6.

Of Note: Judge Fletcher drops a notable footnote: Jernigan had passed (with flying colors) a polygraph confirming her innocence (though we’re assured the en banc court didn’t consider that fact when granting relief). Id. at *5 n.9. Not to be outdone, dissenting Judge Bea counters in a footnote that the district court judge in the case was appointed in 1980 (presumably for the argument that an experienced judge deserves more deference). Id. at *6 n.3 (Bea, J., dissenting). Law is fought in the text; equities, battled in footnotes.

Judge Bea’s dissent is – colorful. He provides a detailed exegesis on smoked and smelly fish that poachers would trail on the ground, to explain the term, “red herring.” Id. at *7. He likens the language of (tremendously respected) Judge Fletcher to the “last retort of the knave caught red-handed.” Id. Finally, he creates the Ninth Circuit’s first published reference to Paris Hilton. Id. at *10 n.12.

((Thankfully) almost lost in this rejoinder is a potentially dangerous point – Judge Bea’s view that the Ninth affords no deference to the district court’s Brady determination, while other circuits employ the abuse of discretion standard to the district court’s factual findings.) Id. at *11.

How to Use: This strong en banc Brady analysis provides much fuel for the discovery fire. (Not many en banc decisions lately that garner thirteen votes -- district courts take note). The Ninth emphasizes that Brady obligations are triggered even if the agent alone – and not the AUSA – has the information. Id. at *8 n.10. Judge Fletcher also correctly undertakes the Brady analysis in the context of the entire record (not just the non-disclosed fact in isolation). Id. at *3. Finally, the decision has wonderful language undercutting eyewitness identification, including cross-racial eyewitness identification. Id. at *3.

For Further Reading: As of last week, no word yet of a cert. petition (knock wood). See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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