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The 9th U.S. Circuit Court of Appeals has again cracked down on a secret deal used to prosecute a death penalty case, granting habeas corpus relief Tuesday to an inmate on California’s death row. A unanimous three-judge panel ordered a new trial or a new sentence for Benjamin Wai Silva, who was sentenced to death for his role in the 1981 abduction, assault and murder of two college students, Kevin Thorpe and his girlfriend, Laura Craig, in Madeline, Calif. The court upheld Silva’s kidnapping, robbery and firearms convictions. The Lassen County district attorney’s office had prosecuted Silva and two accomplices, Norman Thomas and Joe Shelton. Thomas testified against Silva after making a deal with prosecutors that required he not be psychiatrically examined even though there were indications he had mental problems. Silva’s defense attorney wasn’t told of the deal, a violation of Brady v. Maryland, 373 U.S. 83, according to Tuesday’s panel. “The reliability of the jury’s verdict as to Silva’s role as the triggerman in Thorpe’s murder was compromised by the Lassen County district attorney’s unscrupulous decision to keep secret the deal he made to prevent an evaluation of the competence of the … star witness,” wrote Senior 9th Circuit Judge Betty Fletcher. “The particularly atrocious nature of the crimes with which Silva was charged cannot diminish the prosecutor’s — and our court’s — duty to ensure that all persons accused of crimes receive due process of law.” Judges Sidney Thomas and Kim McLane Wardlaw joined Fletcher. The panel pointed out that the nature of the deal — not wanting Thomas’ mental acuity to be evaluated — indicated that even prosecutors had doubts about his testimony. “In the absence of disclosure of Thomas’s questionable mental state to the defense and the jury, the guilty verdict returned on the murder charge is not one worthy of our confidence,” Fletcher wrote. It’s not the first time the 9th Circuit has granted relief to Silva. Previously, the same panel had sent the case back to the district court after finding Silva’s trial counsel ineffective for not investigating mitigating evidence. It’s the second time this year the circuit has criticized prosecutors in a published opinion for using a secret deal to secure a death penalty conviction. In March, a divided en banc panel reversed a three-judge opinion to grant habeas relief to Blufford Hayes Jr. in Hayes v. Brown, 05 C.D.O.S. 1972. At that trial in San Joaquin County, prosecutors made a deal not to go after their star witness but didn’t tell the trial court. Judges Thomas and Wardlaw were also in the majority that sided with Hayes. Tuesday’s case is Silva v. Brown, 05 C.D.O.S. 6537. Silva was represented on an appeal by Phillip Trevino of Los Angeles and Michael Brennan of Manhattan Beach, Calif.

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