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The Ninth Circuit U.S. Court of Appeals granted a reprieve Monday to a condemned California man because prosecutors didn’t tell the trial court they had a deal with the main witness. The 7-4 en banc ruling reverses a three-judge panel decision from 2002. The defendant, Blufford Hayes Jr., got lucky with the make-up of the en banc: Judge Sidney Thomas, who had dissented on the earlier panel, wrote Monday’s majority tossing the death conviction. Chief Judge Mary Schroeder and Judges Susan Graber, Kim McLane Wardlaw, William Fletcher, Raymond Fisher and Richard Paez joined Thomas. Judges Richard Tallman, Andrew Kleinfeld, Ronald Gould and Jay Bybee dissented. A jury had convicted Hayes for murdering Vinod “Pete” Patel on New Year’s Day 1980. Patel was the manager of a resident hotel in Stockton where Hayes was staying. At trial, prosecutor Terrence Van Oss — now a San Joaquin County Superior Court judge — presented testimony from Hayes’ acquaintance, Andrew “A.J.” James, who told jurors Hayes had confessed to him and that he drove Hayes to his mother’s house after the killing. The problem, according to Monday’s decision, is that Van Oss had made a secret deal with James’ attorney to help secure that testimony. Van Oss agreed to drop pending felony charges against James in exchange for the cooperation. But Van Oss made the deal only with James’ attorney, and the attorney and Van Oss agreed not to tell James so that James could truthfully testify that he wasn’t getting special treatment from the DA’s office. Monday’s majority rests its decision upon a U.S. Supreme Court case, Napue v. Illinois, 360 U.S. 264, which says that “the state may not use false evidence to obtain a criminal conviction.” The state Attorney General’s office, which defended the conviction, argued that there wasn’t a Napue violation because James did not perjure himself on the stand. “The state is wrong,” Thomas wrote. “There is nothing in Napue � to suggest that the Constitution protects defendants only against the knowing use of perjured testimony. Due process protects defendants against the knowing use of any false evidence by the state.” Van Oss also told the trial court there had been “no promises, no discussions about this other offense at all.” The en banc panel further ruled that the false evidence was material to Hayes’ conviction and criticized Van Oss for “artificially bolstering James’ credibility.” The majority also argued that James would not have testified at all without the deal with prosecutors, and that would have changed the entire case against Hayes. “The due process violations have undermined our confidence in the verdict,” according to the opinion. But the dissent, written by Judge Tallman, points out that the prosecution actually made two deals with the defense. Besides getting the secret get-out-of-jail card for unrelated felonies, James was also granted transactional immunity in connection with his role in Hayes’ crimes — something the jury was well aware of, according to the dissent. “To label the testimony of James ‘false’ is a misnomer on these facts,” Tallman wrote. Because the jury knew that prosecutors had agreed not to pursue those charges against James, the secret deal would not have had as big of an effect on James’ credibility. Although the dissenters agree that Van Oss’ behavior was “repugnant,” they would let the conviction stand. Reiterating a constant criticism leveled by the Ninth Circuit’s conservative judges upon their liberal colleagues, the dissent urges the court to trust “jurors who had the distinct benefit of hearing all the testimony and seeing the evidence first-hand” rather than intruding into something that occurred “more than 20 years ago.” Hayes v. Brown, 05 C.D.O.S. 1972, was the second decision in less than a week in which judges voided death convictions citing California prosecutors’ unethical trial strategy. Thursday, in In re Sakarias, 05 C.D.O.S. 1846, the California Supreme Court criticized Los Angeles County Deputy District Attorney Steven Ipsen for presenting inconsistent theories at two different capital murder trials based on the same circumstantial evidence.

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