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Smith v. Almada (9th Cir. - Oct. 19, 2010)

By Shaun Martin

A dissent by Judge Dorothy Nelson is worth at least mentioning.  Particularly since she's not known as The Great Dissenter.  Especially in opinions joined by, say, Judge Gould.

Ergo my mention of this case.

I'd discuss the opinion anyway.  If only to point out that in the unlikely event that you want to commit arson, the opinion gives two pieces of implicit advice.

First, don't just pour gasoline all over the place, nor put it alone in a container.  It'll just explode and burn out too quickly.  Instead, stick the gasoline in a container alongside lots of paper -- magazines, cardboard, old mail, etc. That'll make the thing burn better, apparently.

Second, if you follow the above advice, do not use your own magazines and mail addressed to you.  Yes, you might think it'll all burn up.  But you'll be wrong.  So, for example, when the arson investigators here found the ignition materials, alongside a plethora of old magazines and mail with Anthony Smith's name on them, guess who their chief suspect was, and who they ultimately prosecuted?  Yep.  Same guy.  A guy who, investigators later discovered, had a beef with the business that was burned down.

But unlike most of my lessons, maybe this last one is something that you can ignore.  'Cause guess what?  Notwithstanding this evidence, Smith wasn't convicted at trial.  His first jury hung 7-5 in favor of acquittal.  And his second jury hung 11-1 the same way.  At which point the government gave up.

So maybe the lesson is:  Go ahead and use your own mail.  No biggie.

Or, perhaps, that trying to frame someone by using their mail will successfully avoid the heat on you, but won't get the other person convicted.

Notwithstanding the importance of those lessons, as well as the disputes that they might engender, that's not -- obviously -- what the majority and dissent disagree about.  The other thing that allegedly happened is that the prosecutor in the case allegedly failed to disclose exculpatory evidence.  So Smith sues.

The majority, however, affirms the district court's dismissal of this action.  Holding that Smith can't prevail because he wasn't convicted.  Sure, he spent a year and a half in prison (since he couldn't make bail), lost his liberties and (potentially) wages and defense costs, etc.  Too bad.  You undeniably could have sued if you were found guilty, the Ninth Circuit says.  But you weren't, so you can't.  Sorry about that.

The Ninth Circuit's got a reason for that seemingly counterintuitive holding, of course, arguing that by definition you're categorically not deprived of a fair trial as a result of the failure to disclose exculpatory evidence if the consequences of that proceeding aren't adverse.  I'm not sure this really applies to a hung jury or in situations in which (as here) there are multiple proceedings, but there's a broader beef as well, and that's the one that Judge Nelson articulates.  You can be damaged, and your rights violated, she argues, even if the result of the trial is an acquittal.  Hence the rule that the Ninth Circuit articulates, she says, unfairly imposes the requirement of a guilty verdict on civil Brady claims.

I wanted to add just one thing to Judge Nelson's dissent.  Suppose we're not talking about a Brady violation -- a failure to disclose exculpatory evidence -- but instead out-and-out perjury.  Let's say the prosecutor puts a witness on the stand that he knows is committing perjury; indeed, has told him to lie.  Moreover, at trial, that is the only evidence against that defendant.  Absent that evidence, there'd have been a dismissal of the case at the close of the prosecution's case.  Because of that evidence, defendant spends $100,000 in attorney's fees and associated costs in order to rebut it at trial, with witnesses, experts, etc.  And, ultimately, the jury agrees with him and acquits him.

Presumably the answer has to be the same, right?  No remedy, since no conviction.  Putting on perjured testimony seems practically identical to failing to disclose exculpatory evidence, after all, and has the same effect.  So even putting on perjured testimony doesn't violate anyone's rights as long as the jury eventually figures it out (or hangs), eh?

That just doesn't seem plausible to me.  Either under existing doctrine or as a matter of fundamental fairness.  Seems to me that you can sue for deliberate perjury even if you're acquitted.  Ditto, I think, for a failure to disclose exculpatory evidence, at least when (as here) there are damages that allegedly flow therefrom.  (Indeed, in some ways, a failure to disclose exculpatory evidence is more harmful than putting on perjured testimony -- at least you get to challenge and cross-examine the latter, whereas with the former you never even know about the stuff and hence have no opportunity to present it.)

So I think there's a lot here to think about.

Full post as published by California Appellate Report on October 20, 2010 (boomark / email).