Tuesday, March 08, 2005

9th Circuit weighs in on prosecutorial inconsistency

On the heels of last week's CA S. Ct. opinion in In re Sakarias comes yesterday's 9th Circuit en banc decision in Hayes v. Brown (2005 WL 517853). The 9th Circuit reversed a CA man's death sentence because prosecutors concealed the fact that they had cut a deal with their main witness' attorney. The deal was kept secret from the witness himself so he would not knowingly perjure himself. A 7-4 majority of the en banc panel, however, held that due process "protects defendants against the knowing use of any false evidence by the state."

Several other courts in recent years have found some "aggressive" prosecutorial tactics troubling. However, even these courts have disagreed over when prosecutorial misconduct so prejudices a defendant that it requires a reversal. The US Supreme Court may be set to clear things up. It granted cert. in a 6th Circuit case where the prosecutor argued in the 2 defendants' separate trials that each defendant had shot the victim. The 6th Circuit found this use of "two inconsistent and irreconcilable theories" to be a due process violation. The case is Mitchell v. Stumpf (Jan. 7, 2005 No. 04-637). It is set for argument on April 19, 2005.

Claire Cooper of the Sacramento Bee has this article on the 9th Circuit's ruling.

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