Brown v. Farwell, No. 07-15592 (5-5-08). "The prosecutor's fallacy" occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant. Petitioner was convicted of sexual assault on a child. There was conflicting circumstantial evidence, and real questions of eyewitness identification. The state's expert gave testimony that stated that petitioner's guilt was 99.99967%, and downplayed the matching of petitioner's four brothers. The state admitted error in prior proceedings but tried to backtrack at argument (not smart). The 9th affirmed the district court's granting of the petition (Wardlaw joined by Hawkins). The 9th focused on the Jackson standard of a rational jury versus a reasonable jury, and that an analysis was lacking of the elements and evidence in the state supreme's court's decision. O'Scannlain dissented, arguing that the state supreme court's application of Jackson and federal law was reasonable, and that the evidence had to be viewed in the light most favorable to the state, and here there was circumstantial evidence, and some weight should be given to DNA.

Congratulations to Paul Turner and Franny Forsman of the Nevada FPD Office (Las Vegas).

U.S. v. Chapman, No. 06-10316 (5-6-08). Three weeks into trial, the prosecutor turned over 650 pages of Brady and Giglio and other discovery. This was in a complex fraud trial, with goverment witnesses who had shady or questionable pasts or motives, and the government had been ordered to turn over the discovery far in advance. They did not. The court railed against the prosecutor, and the defendants moved for mistrial. The court granted the motion, and dismissed the indictment. The government appealed. The 9th (Wardlaw joined by Hawkins AND O'Scannlain) held that the government could appeal and the appeal was not barred by double jeopardy. The 9th then found that the court did not abuse its discretion in dismissing the indictment. It is worth quoting the conclusion in full (p. 4964):

The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many key witnesses had been testified and been released. Even
then, it failed to turn over 650 documents until the day the disrict court
declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard to the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial -- the only lesser remedy ever proposed by the government -- would substantially prejudice defendants.