US v. Jernigan, No. 05-10086 (7-9-07) (en banc). The 9th, en banc, reaffirms the government's duty to disclose Brady and grants a motion for new trial. The female defendant was convicted of robbing three banks. While in custody, awaiting trial, two more banks were robbed by a woman that bore a striking resemblance to the defendant: both were Hispanic, five feet tall, with acne or pock-marked face. Although the government knew that other banks had been robbed by this person bearing an uncanny resemblance, the government never disclosed to defense counsel. Counsel argued at trial that it was a misidentification, hammering on inconsistencies with the tellers' descriptions. The jury nonetheless convicted. In prison, the defendant learned of this other robber, and moved for a new trial. The district court denied the request (EHC), stating that the two may have resembled one another but their identities were different. The 9th (B. Fletcher) reversed and granted a new trial, stressing that the government's information was Brady, and should have been disclosed. The evidence met the Brady requirements of being favorable to the defendant, was suppressed by the government (although not by the US Atty see n. 5), and must be material. Bingo to all three. The opinion details the inconsistencies with the identifications, the hesitations, and the similar modes of robbing the banks. There was other exculpatory evidence, too. This led to the reversal. Dissenting, Bea (joined by O'Scannlain) would affirm on the factual findings by the district court that the women did not look alike. The dissent's approach is simply to review the lower decision, not to do justice.

This was tried as a FPD case from Arizona (Phoenix, so we have an interest).

Crater v. Galaza, No. 05-17027 (7-9-07). The 9th (O'Scannlain joined by Brunetti and Trott) reject broad-based constitutional challenge to AEDPA on the basis that it effectively suspends the writ of habeas corpus. The 9th finds that a curtailment does not abrogate the writ. The 9th unsurprisingly joins the other circuits.