Crime-Spree Player Loses Again in Ninth Circuit

SEATTLE (CN) — The en banc Ninth Circuit ruled that prosecutors' failure to disclose a witness's plea agreement is not enough to warrant a new trial for a man convicted of taking part in a spree of armed robberies.

Joshua Frost was found guilty in 2003 of participating in an 11-day string of robberies and a burglary.

Frost's attorney argued during trial that other people forced his client to commit the crimes, and that they had threatened to kill him and his family.

The King County Superior Court refused to allow Frost's attorney to raise alternative arguments. The Washington Supreme Court said that was a mistake, but it found the error was harmless.

Frost has also argued that the prosecution withheld information that would have undermined the testimony of witness Edward Shaw, who testified in exchange for a plea agreement for a domestic violence charge.

At trial, prosecutors showed an unsigned plea agreement for an illegal drug and firearm charge against Shaw, but the domestic-violence plea deal was not mentioned.

Years of records requests from Frost did not turn up any documents he was looking for that would show "any special treatment [Shaw] was given" for cooperating with the prosecution relating to Shaw's domestic violence case.

Frost's federal public defender, who represented him in his habeas challenge, found the previously undisclosed plea agreements in 2009 and filed a personal restraint petition.

The state supreme court denied the petition as untimely, and both a magistrate and federal judge concluded that the prosecution had not made "persistent efforts to suppress" the disputed evidence.

In an amended opinion filed Monday, the full Ninth Circuit unanimously held that there is not a "reasonable probability" that the outcome of Frost's trial would have changed if the jury knew about Shaw's plea agreement.

"While Frost could have shown that Shaw was a bad guy because he not only unlawfully possessed a firearm and drugs but also assaulted his girlfriend, it wouldn't have gotten him far," Judge Alex Kozinski wrote for the en banc panel. "The jury already knew that Shaw received benefits in exchange for his testimony."

Kozinski also noted that evidence of the domestic-violence plea agreement would have been undercut by Frost's testimony, "which cast doubt on his duress defense."

Frost had admitted at trial that he was left alone while his accomplices committed one robbery, and he "didn't have a good answer for why he didn't attempt to escape," according to the 15-page ruling.

The Ninth Circuit had previously ruled against Frost in March, affirming the federal judge's denial of habeas relief but finding that Frost can appeal possible constitutional violations.

However, the San Francisco-based appeals court withdrew that opinion and replaced it after the dismissal of a grievance against then-prosecutor Zachary Wagnild, who had introduced the plea agreement against Shaw for illegal weapon and drugs.

The original opinion was split 6-5 and included a dissent. Monday's amended opinion is unanimous.

In the March opinion, Kozinski suggested the fact that Shaw's plea agreements were not filed until after Frost's convictions "seems like more than carelessness on the prosecution's part."

"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 at the time.

Those critiques are not included in the amended opinion.

In an email to the Seattle Times in March, Wagnild, now a criminal defense attorney, denied withholding evidence.

"As a prosecutor it was always my goal to provide criminal defendants with all of evidence that could in any way be conceived to be exculpatory or otherwise helpful to the defense," Wagnild wrote.

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