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By Kent Scheidegger et al.

Did the State Expressly Waive Exhaustion Defense to a Brady Claim?: Jonathan Adler at Volokh Conspiracy has this post on today's Sixth Circuit decision in D?Ambrosio v. Bagley. In the opinion, a divided three judge panel split over when in a habeas proceeding the state may "expressly waive" its defense that the petitioner had failed to exhaust his Brady claims in state court. In D'Ambrosio, the divided panel held that the government?s conspicuous failure to raise such a claim could constitute an ?express? waiver, even though the waiver was never made explicit. D'Ambrosio had amended his habeas corpus petition to include a Brady claim after he learned the state was withholding mitigating evidence. When D'Ambrosio made the motion, the state's attorney "stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend...continue to full post

Full post as published by Crime and Consequences on June 05, 2008 (boomark / email).