The Ninth Circuit Court of Appeal has been asked whether a prosecutor’s failure to share evidence with a defendant violates the defendant’s civil rights even if there was no conviction.
Both counsels filed their briefs by Dec. 24.
Roger Parker, who had already served three and a half years in jail, was jailed for another six months after prosecutors found a recording of Willie Womack confessing to the 2010 murder Parker was a suspect for. Parker did not learn about the confession until October, 2020, according to his complaint. He had been held for four years, as the chief suspect in the beheading of Brandon Stevenson.
Parker had confessed after a 15-hour interrogation – a confession the original prosecutor described as coerced.
Parker’s July 29, 2021, complaint argues the confession should have been turned over to his defense attorneys when it was found, in fulfillment of the Brady Rule. The rule requires the disclosure of any evidence favorable to the defendant but found by prosecutors to be shared with the defendant’s attorney. Parker argues the decision not to share the confession violated his due process rights. He also argued he was subjected to malicious prosecution.
“A plaintiff cannot establish materiality unless the case goes to trial and the suppression of exculpatory evidence affects the outcome,”
The U.S. Supreme Court in Becker v. Kroll, cited by Riverside County in its appeal
“It is the suppression of evidence, not a conviction, that raises Brady Rule issues,”
The Ninth Circuit Court of Appeal in Richards v. the County of San Bernardino, cited by Parker in his counter to the appeal
California Central District Judge Jesus Bernal partially dismissed the case Feb. 23. He threw out Parker’s malicious prosecution claim, saying it was brought after the statute of limitations expired. He rejected the county’s request to also throw out Parker’s Brady Rule claim.
“Under these circumstances, where Mr. Parker experienced an additional, prolonged period of pretrial confinement seemingly but-for the government’s non-disclosure of material, exculpatory evidence, the Court finds that it cannot rule—as a matter of law—that Mr. Parker’s Brady related claim must be dismissed,” Bernal wrote.
The county appealed Bernal’s ruling, arguing that a Brady claim can be brought only after trial begins.
“There is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict,” they quoted from the 1999 Supreme Court case Strickler v. Greene.
They also quoted the 2007 10th Circuit case Becker v. Kroll, “[a] plaintiff cannot establish materiality unless the case goes to trial and the suppression of exculpatory evidence affects the outcome.”
In their newly filed brief, Parker’s attorneys referenced a 2014 case Tatum v. Moody, which they say affirmed a verdict on a Brady Rule related due process claim when the plaintiff had been held in pretrial detention for 27 months but was never convicted.
They also referenced the 2022 case Richards v. County of San Bernardino, in which a man was convicted of murdering his wife, and later freed, based on bite-mark evidence that was later recanted by an expert witness. In that ruling, the Ninth Circuit Court of Appeal said it is the suppression of evidence, not a conviction, that raises Brady Rule issues.
“Under Brady and its progeny, it is the suppression of material evidence—and not the plaintiff’s ultimate conviction—that deprives the plaintiff of their liberty interest in a fair trial,” the Richards ruling says
Parker’s case is not the only one related to his jailing. The second prosecutor assigned to the case, Christopher Ross, claimed he was forced off the case and placed on leave to suppress the confession by Womack. His management claimed they put him on leave due to his ongoing health issues, which he had requested accommodations for. Ross sued for retaliation, and lost the case in November.
Kimberly Trimble, Gerald Singleton and John Lemon of San Diego’s Singleton Schreiber represent Parker.
Tony Sain of Los Angeles’ Lewis Brisbois Bisgaard & Smith represents Riverside County.
California Central District Judge Jesus Bernal presides.
Case No. 5:21-cv-01280
Appellate Case No. 22-55614
Read Parker’s complaint here.
Read the order dismissing Parker’s case here.
Read the county’s appellate brief here.
Read Parker’s appellate brief here.