Case o' The Week: On Dueling Epidemics - Garrison and Brady / Giglio Violations

  What happens when the epidemic of opioid addiction meets the epidemic of  Brady violations?

United States v. Garrison, 2018 WL 1938523 (9th Cir. Apr. 25, 2018), decision available here.

Players: Decision by Judge Gould, joined by Judges Murguia and Chief District Judge Christensen.

Facts: Garrison was a physician’s assistant. Id. at *1. His clinic used “patient recruiters” to bring in homeless people and generate OxyContin. Id. at *2. “Patients” were relieved of pills, and the Oxy sold illegally. Id.

  Garrison went to trial with others charged with a conspiracy to illegally distribute drugs. Id. “Before and during trial, the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense, as was required by law.” Id. at *3. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it didn’t disclose notes of this conduct to the defense. Id.

  Another violation was a cooperating co-D that was given a “special” deal, that allowed her to continue to work in the medical field. This unusual deal wasn’t disclosed to the defense (or court) even after the cooperator testified on direct. Id.

  The court gave several curative instructions, but denied Garrison’s motion for dismissal. Id. at *4.

  Because of still more problems surrounding JDA breaches, the government dismissed charges against the co-d’s. Garrison was left with a guilty verdict and a 10-year sentence. Id. at *5, *6.  

Issue(s): [Garrison] “contends that because the government repeatedly failed to timely disclose evidence revealing weaknesses in its case, there is ‘little doubt’ that, if that evidence been timely disclosed, Garrison would have been acquitted.” Id. at *6.

Held: “We disagree . . . .” Id. “There is no dispute here that the government failed to comply with the requirements of Brady and Giglio when it disclosed evidence late regarding [the cooperators] falsifying records for [another witness], and failed to timely disclose the side deal with [one of the cooperators]. All of the late disclosed evidence, however, was given to the jury. And the district court gave a jury instruction telling the jury that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure. From the instruction it is clear that the jury was empowered to exonerate Garrison because of the government's misconduct, if it chose to do so. But the jury instead found Garrison guilty. In light of the extensive evidence against Garrison, we cannot conclude that any prejudice stemmed from the late disclosure.” Id.

Of Note: The first paragraphs of Garrison read like a sentencing judge’s rebuke on the dangers of opioids and the responsibilities of medical professionals. Id. at *1. This early exegesis on the “epic crisis of deadly opioid abuse and overuse,” id., means the die is cast: there will be no Brady reversal of this Oxy conviction.

  A troubling decision, Garrison reveals deep, repeated discovery violations in a CD Cal prosecution. Yet there is no outrage expressed; no demand for training or reform.

  Five years ago, five jurists correctly opined: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (dissenting from denial of rehearing en banc).   

  Three of those jurists are now gone. The epidemic, however, remains.

How to Use: Tucked into Garrison is an interesting Joint Defense Agreement (“JDA”) discussion. Id. at *3. Counsel for one defendant in a JDA disclosed protected information to the government. Id. That JDA breach and disclosure was part of the reason for dismissals for two co-Ds. Id.

  This discussion in Garrison is worth a very close read, if you are mulling a JDA (and an even closer read if a JDA participant has breached your deal).

                                               

For Further Reading: A famously enlightened analysis of meaningful pretrial Brady / Giglio obligations is United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal. 1999).  Sudikoff tackles our current federal discovery model, that illogically analyzes discovery obligations at trial through a retrospective appellate lens.

  Sudikoff’s author? The Honorable District Judge Dean Pregerson – the presiding judge in Garrison! 

  Read Sudikoff and Garrison together, for a potent and ironic illustration of the depth of our structural discovery problems. In the 1999 Sudikoff case, prescient Judge Pregerson was anticipating the exact problems that now plague the 2018 Garrison case. 

  The answer? Well, here in the Golden State, California Rule of Prof. Conduct 5-110 is a very promising start. Had Garrison been tried after 5-110's effective date, would these discovery violations trigger bar referrals for the AUSAs?

  A plain reading of the rule suggests, "yes."

Image of Oxycontin from https://www.cbsnews.com/news/purdue-oxycontin-maker-to-stop-promoting-drug-to-doctors-amid-opioid-epidemic/

Image of the Honorable Judge Dean Pregerson from http://www.receivers.org/recnews/ArticlePage.php?id=303&keywords= 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Stay & Abey A-OK - California Rule of Professional Conduct 5-110 and Section 2254 Litigation

 Ethical rules for prosecutors have no teeth, some complain.

 (Tell that to the A.G. now dealing with exhaustion in Fresno . . . .)

Diaz-Sanchez v. Beard, 2018 WL 636921 (9th Cir. Jan. 31, 2018).

Ed. Note: A slow week in the Ninth is a good opportunity to flag developments for an important new Cal. Rule of Professional Conduct – 5-110, “Special Responsibilities of Prosecutors.”

Players: Intriguing opinion by ED Cal Magistrate Judge Sheila K. Oberto.

Facts: Diaz-Sanchez, a state prisoner, was convicted of multiple counts of second degree murder, attempted murder, and kidnapping: he was sentenced to 45 years to life. Id. 

  In 2014, he filed a § 2254 petition. Id. at *1. In 2017, the district court adopted the M.J.’s 2015 recommendations to dismiss as time barred. Id. 

  In 2017, Diaz-Sanchez moved for reconsideration: that claim remains pending. Id. 

  In 2018, the Petitioner moved to stay and abey unexhausted claims based on the November 2017 change to California Rule of Professional Conduct 5-110. Id. at *1. Diaz-Sanchez set forth three unexhausted claims under the new rule, invoking the 

  1) special duties of a prosecutor to disclose information about a witness which is relevant to evidence that calls into question trial counsel’s mental competency; 

  2) duty to disclose State Bar decisions, and 

  3) duty to disclose impeachment evidence and not to introduce false evidence.” Id. at *2.

  The A.G. did not Reply to the motion. Id.

Issue(s): Are Petitioner’s disclosure claims, “plainly meritless?” Id. at *2 (citing Rhines v. Weber, 544 U.S. at 269, 278(2005).

Held: “From the limited record, the Court cannot say that these disclosure claims are ‘plainly meritless.’ . . . Further, nothing in the record suggests that Petitioner has intentionally or maliciously failed to pursue his potentially meritorious claim. . . . Indeed, Petitioner could not have pursued these claims because the California Supreme Court adopted the new rule on November 2, 2017, after Petitioner filed his Motion for Reconsideration on October 5, 2017. Accordingly, the Court finds good cause for the unexhausted claim and will grant a stay and abeyance under Rhines.” Id. at *2 (internal quotations and citations omitted).

Of Note: New Rule 5-110 largely tracks ABA Model Rule 3.8. Compare California Rule of Professional Conduct 5-110, available here , with Model Rule 3.8, available here.

  Rule 5-110 is magnificent. Happily, in our view this enlightened new rule applies with equal force to federal prosecutors practicing in California. Thanks to the Citizen’s Protection Act (and through the local rules of District Courts likethe ND Cal.), California rules of professional conduct apply (we contend) to AUSAs practicing in the Golden State. 

  The ND Cal FPD has modified our initial discovery letters to include Rule 5-110 requests, and a potential 5-110 disclosure issue has already lurked around the edges of federal NorCal trial. 

  Potent stuff, this: a new rule that merits very close study by California’s state and federal defense bars.

How to Use: Subsection (F) of 5-110 requires a prosecutor to disclose to a court and / or the defendant, after conviction, any “new, credible and material evidence” creating a “reasonable likelihood” that a convicted defendant did not commit the crime. We routinely send pre-conviction discovery letters – in the vein of Diaz-Sanchez; should we also send California D.A.s and AUSAs post-conviction requests for Section (F) evidence?

                                               

Nominee Mark Bennett

For Further Reading: President Trump has nominated his second Ninth jurist (the first nominee is from Oregon). 

   Former Hawai’i State Attorney General Mark Bennett was recently nominated to fill Judge Richard Clifton’s seat. See article here. 

Judge Mark Bennett

   Though blue slips are not yet formal for Mr. Bennett, from the initial reactions of the two (Democratic) state senators a smooth confirmation seems likely. 

  Hawai'an Mark Bennett would presumably be a very different jurist than the Iowan Judge Mark Bennett, who frequently visits in the Ninth (though it is always foolish to judge a judicial book by its Presidential cover).

California Rule of Professional Conduct 5-110 heading from http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-5-110

The Honorable District Judge Mark Bennett from https://herculesandtheumpire.com/tag/judge-mark-bennett/ 

Nominee Mark Bennett from http://www.civilbeat.org/2018/02/this-trump-pick-wins-rare-applause-from-hawaiis-democratic-senators/ 

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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