Latest in Brady

US vs. Kohring, No. 08-30170 (3-11-11)(Thomas with Tashima, partial concurrence and partial dissent by B. Fletcher). The defendant here was a former state representative charged and convicted of public corruption as part of the undercover operation that also involved Senator Ted Stevens.

Stevens had his charges dismissed because of the gov't's withholding of Brady and Giglio evidence. While this case was on appeal, and the Stevens mess came out, the gov't disclosed information, and suggested that the case be remanded for the Brady. The 9th remanded for the district court to see if there was a Brady violation, and whether it was prejudicial. The district court found in fact that Brady was withheld, but considered it immaterial because it didn't go to the actual bribery. On appeal, the 9th reversed and remanded for a new trial. The 9th noted that the Brady information went to the character of the chief cooperating witness (Allen), his motives, bias, ability to remember, truthfulness, and there was also evidence that exculpated the defendant. The 9th wrote a treatise on how this evidence could (and should) be used. B. Fletcher concurred, and only dissented because she thought the withholding was flagrant and intentional, and she would dismiss with prejudice.