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San Francisco-The 9th U.S. Circuit Court of Appeals granted a reprieve last week to a condemned California man because prosecutors didn’t tell the trial court that 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 makeup of the en banc: Judge Sidney Thomas, who had dissented on the earlier panel, wrote last week’s majority tossing the death conviction. In the 9th Circuit, not all judges hear en banc appeals. 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. New Year’s murder 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, Calif., 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 last week’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. The ruling’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 9th Circuit further ruled that the false evidence was material to Hayes’ conviction and criticized Van Oss for “artificially bolstering James’ credibility.”

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