Crime-Spree Player Fails to Secure 9th Circuit Relief

     SEATTLE (CN) – On remand from the U.S. Supreme Court, the en banc Ninth Circuit on Monday affirmed a federal judge’s denial of habeas relief to a man convicted of participating in an armed-robbery spree, but said he can appeal possible constitutional violations.
     Three judges joined Circuit Judge Richard Tallman in a scathing partial dissent.
     Joshua Frost was convicted in 2003 of participating in an 11-day string of robberies in Washington state. At trial, Frost argued that he was forced to participate in the crimes under duress, claiming that the other participants had threatened to kill him and his family.
     Monday’s circuit opinion had to do with whether Frost was prejudiced by the King County Superior Court’s refusal to allow Frost’s counsel to make alternative arguments during his trial, and whether Frost’s Brady and Napue rights were violated with regard to a key witness.
     The witness, Edward Shaw, was an acquaintance of Frost’s who testified that Frost was “giggling” when Shaw asked whether Frost was involved in the robberies, which the prosecution used to counter Frost’s argument that he had acted under duress.
     Frost protested that the state prosecutors unlawfully failed to disclose that Shaw’s testimony stemmed from two plea agreements, one related to a domestic violence incident and the other to unlawful possession.
     A federal judge found that Shaw’s testimony “wasn’t pivotal in light of the prosecution’s ample evidence establishing Frost’s involvement in the charged crimes” and declined to grant a certificate of appealability on the issue.
     But the Circuit’s majority found that the issues related to Shaw’s testimony “are at least debatable and implicate Frost’s constitutional rights” and granted the certificate.
     Writing for the majority, Circuit Judge Alex Kozinski suggested that Washington state records officers may have intentionally thwarted Frost’s efforts to obtain “documents that could be used to establish the credibility Mr. Shaw has or had as a police informant.”
     And the fact that “Shaw’s plea agreements were not filed until two days after Frost was convicted, even though they had been signed weeks earlier, seems like more than carelessness on the prosecution’s part,” he said.
     Kozinski still said that Frost could not show prejudice, because “while Frost could have shown that Shaw was a bad guy” the evidence “wouldn’t have gotten him far,” since the jury already knew that Shaw received benefits in exchange for his testimony.
     But in section II-C of the opinion – which Circuit Judge Jacqueline Nguyen did not join – Kozinski said that the majority found the facts related to Frost’s constitutional violation claims “most troubling.”
     “As the matter has been presented to us, there is cause to believe that the King County prosecuting attorney’s office violated Brady and Napue by willfully withholding evidence of Shaw’s domestic-violence plea deal and permitting Shaw to lie on the stand,” Kozinski said.
     “That this was a deliberate tactic rather than an oversight is demonstrated by the fact that the prosecution kept Shaw’s signed plea agreements secret until two days after Frost was convicted.
     “It is possible, though unlikely, that filing the plea agreement in Shaw’s domestic-violence case two days after the jury returned its verdict in Frost’s case was mere coincidence.
     “But filing it on the same day as the unlawful-possession plea agreement bespeaks coordination and planning,” Kozinski said.
     Moreover, subsequent to the trial, the records office “stonewalled” in providing Frost information when he “doggedly requested it,” possibly indicating a “deliberate effort to prevent disclosure,” Kozinski said.
     “The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration,” he said.
     In a fierce partial dissent, Tallman said that “part II of today’s opinion is an imprudent exercise of judicial power,” and called the section “a groundless, personal attack against several King County employees who have no way to defend themselves from defamation.”
     He added, “Article III of the United States Constitution is not a roving commission permitting federal judges to use their opinions as a platform to launch such ad hominem attacks.”
     The Federal Court’s decision was “absolutely correct,” he said, and therefore “no further consideration on appeal is warranted.”
     Tallman concurred that Frost had not shown prejudice as to the state’s conduct, but he also found that Frost did not show cause to excuse his procedural default.
     He went on to call section II-C of the opinion “merely hortatory” that “automatically assumes the worst” of the King County prosecutors and “brands them with a scarlet letter.”
     “Thankfully, a majority of the court has refused to join in this indefensible and intemperate attack,” Tallman said.
     Erik Levin, who represented Frost, said in a phone interview that the Circuit’s opinion was “disappointing.”
     “The Ninth Circuit found that the judge cut Mr. Frost off at the knees at the most important moment in his trial and deprived him of the opportunity to argue his innocence in summation,” said Levin, whose office is in Berkeley, California.
     “If that doesn’t result in an unfair trial, then what does?”
     Regarding Kozinski’s contested statements about the King County prosecutors, Levin said that he thought the judge’s “bigger point” is “that we don’t talk about these things.”
     The case has a lengthy court history, he said, and “now we’re back on our sixth opinion and this is the first time that someone was talking about what happened.”
     Levin added that Kozinski’s statements spoke to “something very disturbing that’s going on with regularity.”
     The Washington Attorney General’s office did not immediately respond to an email requesting comment on Monday afternoon.

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