The Brady Bunch: Border Patrol Case Reveals Intra-Ninth Circuit Split On Brady Issue

U.S. Border Patrol Agent Nicholas Corbett has been charged with second-degree murder, manslaughter, and negligent homicide in connection with the death of illegal immigrant Francisco Javier Dominguez Rivera.  I previously reported on this case back in October when Corbett was attempting to have Dominguez Rivera's relatives deemed incomptent to testify against him at trial.  To briefly recount the facts of the case, it is undisputed that Corbett shot and killed Dominguez Rivera with his service pistol while he was patrolling the border.  Corbett, however, claims that he acted in self defense after Dominguez Rivera assaulted him with a rock while he was trying to apprehend him; Dominguez Rivera's relatives and the prosecution contend that Corbett shot him without provocation.

Now, Corbett's defense counsel has filed a motion in the United States DIstrict Court for the District of Arizona asking the prosection to produce material evidence that is favorable to the defendant or which affects the credibility of the state's case.  According to defense counsel, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal. 

Under defense counsel's definition of materiality, a prosecutor would have to turn over even inadmissible evidence to defense counsel.  A quick look at Ninth Circuit case law reveals that the issue is considerably more complicated than defense counsel's plain statement.  Since the Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1 (1995), courts have split as to whether inadmissible evidence can be "material" pursuant to the Brady doctrine established in Brady v. Maryland, and thus form the basis for a new trial when a prosecutor fails to timely disclose it to defense counsel.

I have consistently argued that courts holding that the failure to disclose inadmissible evidence can never form the basis for a new trial are acting incorrectly and that the Supreme Court should promptly resolve the circuit split.  My research in the Corbett case has revealed that there are actually intra-circuit splits on the issue.  In Paradis v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001), after discussing the circuit split, the Ninth CIrcuit found that its own past decisions were inconsistent on the issue, with some cases implying that inadmissible evidence can never be material and form the basis for a new trial and other cases implying the contrary.  After making these findings, however, the court proceeded to find that the evidence at issue was admissible and thus that it did not need to resolve the conflict in its prior cases. See id. 

When there is a conflict among circuits over a key issue, there is a clear need for the Supreme Court to resolve the conflict.  When circut courts themselves are rendering contradictory opinions on the same issue, the need to resolve the issue becomes essential. 

-CM