9th Circ. OKs Lesser Charge in 1981 Murder

     SAN FRANCISCO (CN) – California can sentence a man for second-degree murder after a Ninth Circuit panel dumped a first-degree murder conviction because of the prosecution’s secret deal with an accomplice, the same panel held Monday.
     A jury convicted Joseph Shelton and two others for the 1981 kidnapping and murder of a couple in Lassen County.
     Serving 40 years to life for the first-degree murder of one victim, second-degree murder of the other, two counts of kidnapping, two counts of theft and two weapons charges, Shelton sought federal habeas relief on the basis of evidence withheld from the defense.
     The prosecution never revealed to the defense that it offered one of the accomplices a secret deal not to test his mental competency until after he testified against Shelton.
     A three-judge panel of the Ninth Circuit found earlier this year that this failure to disclose the deal blocked Shelton from questioning the competency of the prosecution’s key witness.
     The panel ordered a judge to retry Shelton on the first-degree murder charge within a reasonable period of time or resentence him on the remaining convictions. But the panel also noted that Shelton’s own admissions meant a jury could find him guilty of second-degree murder despite the Brady violations – prompting the state to ask for permission to accept the lesser conviction.
     Shelton did not oppose the state’s request, and on Monday the panel modified its order to allow California to impose the second-degree murder conviction.

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