Big CA5 en banc: reversing a $2.3 million judgment where the police hid exculpatory video before a guilty plea, the Circuit refused to reconsider its precedent limiting Brady.
This thing is full of 🔥🔥.
I start with Judge Costa's dissent. 1/
drive.google.com/file/d/1nXMjJO…
This thing is full of 🔥🔥.
I start with Judge Costa's dissent. 1/
drive.google.com/file/d/1nXMjJO…
Judge Jones concurs in the judgment, but writes separately to suggest that perhaps it was the city that was wronged here, and also to blame the district court for not examining that question /2
Judge Ho writes separately to say that the rule denying the Brady right in the pleading stage is not just circuit precedent, but correct (indeed, required). /3
Judge Ho has some harsh words for the district judge, who he says ignored circuit precedent. /4
It seems like Judge Ho's merits view on this is waiver based.
{Editorial comment: I'm not sure how one can waive a right that is being hidden from you - I will see if Judge Costa's dissent addresses this} /5
{Editorial comment: I'm not sure how one can waive a right that is being hidden from you - I will see if Judge Costa's dissent addresses this} /5
Judge Ho says that an unwaivable Brady right is like the King of Siam's white elephant: a poisoned gift /6
Back to Judge Costa's dissent: I note in explaining why he thinks Brady has to extend to the plea bargain setting, he cites new CA3 judge Bibas. /7
Costa then tackles the various arguments in support of the Circuit's position. a) isn't a guilty plea good enough? No, he says, because you get your right to effective counsel if you pleaded guilty, so why is this different? /8
Costa then rejects DOJ's policy explanation as "puzzling" /9
I really like the move Costa makes here, pointing out that the State Supreme Courts are also interpreters of the Federal constitution /10
Costa ends with an exhortation: /11
