Thursday, March 24, 2011
In an unpublished memorandum decision, the Ninth Circuit Court of Appeals found that Peter Kott's conviction, like Kohring, needed to be reversed because of Brady violations by prosecutors. The court in citing the Supreme Court's decision in Bagley said, that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." The court remanded it to the district court to determine if the prosecution "acted flagrantly, willfully, or in bad faith."
Judge Fletcher concurred and dissented in part, finding a new trial an insufficient remedy. She wrote to express the view that the court's supervisory authority should be used and the indictment should be dismissed with prejudice. Judge Fletcher stated:
"I am deeply troubled by the government's lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial -- despite the the government's failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government's star witnesses, ..., regarding the payments Kott allegedly received."