Thursday, July 28, 2005

Case o' The Week: Betty, Sid and Kim are the Brady Bunch in Silva

A good panel does the right thing despite the terrible nature of the crime -- just the type of hard, but fair, outcome one hopes for from the Ninth. See Silva v. Brown, __ F.3d __, 2005 WL 1732765 (9th Cir. July 26, 2005) available here. In Silva, Judge Betty Fletcher lays out Brady/Kyles discovery law in beautiful detail, with welcome language for future discovery battles.

Players: Judges Betty Fletcher, Sid Thomas, and Kim Wardlaw (pictured to the left)– a great panel, with a characteristically just result from these three judges.

Facts: Silva was convicted in a state trial for murder, kidnaping, and other offenses. Id. at *1. The case involved a gruesome kidnaping, rape, and double-murder of two college students traveling on vacation. Id. The State’s lead witness, Thomas, had psych issues, but at the D.A.’s request psych-competency testing was deferred until after the snitch testified against the defendant. Id. at *2. In return, the D.A. dropped murder charges against the snitch. Id. This secret agreement was never disclosed to trial defense counsel. Id. at *3.

Issue(s): "The existence of this deal evidencing the prosecution’s concern as to the mental state of Thomas was obviously impeachment evidence favorable to the defense. The deal was never disclosed to the defense. The only question the parties debate is whether it was material." Id. at *5. [Ed. Note: The question was whether the evidence was "material" for the Brady analysis].

Held: "We answer this question in the affirmative. We cannot overemphasize the importance of allowing a full and fair cross-examination of government witnesses whose testimony is important to the outcome of the case." Id. at *5 (internal quotations and citation omitted).

Of Note: Perhaps wary of unwanted Supreme Court interest, Judge Fletcher writes a great opinion that details the many ways that impeachment information can be "material" for Brady purposes. She explains, "Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case." Id. at *5. She emphasizes, "evidence that calls into question a witness’s competence to testify is powerful impeachment material." Id. at *6. She also observes that the testimony would have called "into question the prosecutor’s faith in the competence of its own witness." Id. at *7; see also id. at *8 ("The prosecutor’s own conduct in keeping the deal secret underscores the deal’s importance.")

How to Use: Silva joins a handful of Ninth Circuit cases that should be cited heavily in discovery demands and in discovery litigation. Judge Fletcher goes the extra mile to provide language that emphasizes the broad scope of discovery obligations, kindly marshaling supporting authority along the way. See id. at *5 (quoting Banks, Carriger v. Stewart, and East v. Johnson).

For Further Reading: Panel member Judge Kim Wardlaw has emerged as one of the strong voices in the Ninth – her questions during recent en bancs have been aggressive and insightful while she refuses to let government counsel off easy. For an unusually candid interview of Judge Wardlaw, see the "Underneath Their Robes" page here.

Steven Kalar, Senior Litigator Northern District of California. Website available at


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