U.S. v. Juan, No. 11-10539 (01-07-13) (M. Smith with Sack and Gould)

Note: This is an Ariz FPD case

This case deals with whether the government can bully its own witness into recanting testimony by threatening perjury.  The 9th holds that there is a due process concern, but no evidence exists here that the witness was told of the threats and so the conviction is affirmed.  The victim and spouse in this domestic assault case testified in the prosecutor's case that her injuries were indeed accidental.  She accidentally fell in avoiding defendant's vehicle.  The prosecutor asked for a break, and a lengthy discussion ensued, with the threats of perjury against the witness being raised.  The court appointed counsel for the witness.  The next day, the witness changed her story, and said that she was indeed assaulted by being run over.  The jury convicted.  The 9th stated that the prosecutor could not bully or threaten a defense witness with perjury in an attempt to drive the witness from the stand.  See Webb v. Texas, 409 U.S. 95 (1972).  This due process concern has been raised in regard to defense witnesses.  It also applies to prosecutor witnesses, because it distorts the truth seeking process and limits the right to present a defense.  Although the 9th concludes Webb applies to all witnesses, there must be a tie with causation.  The witness must know of the threat.  Here, though, there was no evidence of the witness being informed of the threat.

Cunningham v. Wong, No. 09-99008 (01-08-13) (Tallman with Gould; partial dissent by Pregerson)

The 9th affirms a denial of a capital habeas.  The 9th found that the prosecutor did not engage in misconduct and that the defense had been given the salient facts of Brady material.  There was not IAC in trial nor sentencing.  There was no Miranda violation because the statement was not actually a confession.  Pregerson, dissenting, argues that IAC occurred at sentencing in the failure to call an expert to tie a nexus between the petitioner's horrific childhood abuse, his inability to conform his behavior to social norms, and the present felony murder crime.

U.S. v. Olsen, No. 10-36063 (01-08-13) (Friedman with Schroeder and Gould)

He was a mad scientist.  The government forensic scientist, that is, and he was fired soon after the conviction. The internal investigation was ongoing during the trial.  Did it matter in this prosecution for ricin?  No, because this information was not material to Brady.  The evidence was overwhelming the petitioner intended to use ricin as a weapon, and he did contest that he produced and possessed ricin.

U.S. v. J.J., No. 12-30206 (01-09-13) (Gould, M. Smith, and Duffy, DJ SDNY)

A juvenile's mind is developing, still forming, different from an adult's.  This difference is recognized in capital jurisprudence, in life sentences, and of course in juvenile proceedings.  So, in transferring a juvenile to adult status, would a psychological evaluation be a prerequisite to approving a transfer motion?  "No," holds the 9th, joining other circuits in saying that a court has broad discretion.  Here, facing a second degree murder and firearm charge, the 17 year old opposed the compulsion of a psychological exam.  The court did not compel the exam, and went on to consider testimony of lay witnesses, notably police, pretrial and probation officers, who all thought the juvenile was mature and appropriate and understood what was occurring.  The court also took testimony from BOP on programs available.  These witnesses provided enough information for the court to to make a decision about intellectual development.  Moreover, 5032 of the Juvenile Act does not require a psychological test.  The Act focuses on the age, the type of offense, and the "interests of justice," which requires factors such as social and background circumstances, psychological maturity and intellectual development, adjustment to programs and so forth.  As the 9th stressed, it falls within the discretion of the court.

Babb v. Lozowsky, No. 11-16784 (01-11-13) (Murguia with Tashima and Clifton)

The 9th reversed a granting of a Nevada habeas petition.  The 9th found that the state court unreasonably interpreted federal law in not applying a narrowing definition of first degree murder, but held the error was harmless because the jury in all likelihood convicted on a valid felony murder charge.