King County's failure to disclose evidence: a deliberate decision or a simple mistake?

Frost v. Gilbert, No. 11-35114 (9th Cir. Mar. 21, 2016) (en banc).

Joshua Frost was convicted of a string of armed robberies in the Seattle area and is now serving a 55-year sentence. The King County Prosecuting Attorney’s office told Frost’s counsel that one of the prosecution’s key witnesses, a certain Edward Shaw, had been charged with gun and drug crimes and had inked a favorable plea deal with the state in exchange for his testimony against Frost. What neither the prosecution nor Shaw himself revealed, however, was that the state had another favorable plea deal with Shaw, this one arising out of domestic-violence charges. Frost found about this deal only through post-conviction public-records requests.

In this habeas corpus proceeding, the en banc Ninth Circuit concludes that even if the jury had learned about Shaw’s second plea deal, there is just no reasonable probability that its verdict would have been any different. The prosecution’s conduct, however, troubles a plurality of the court, which believes it likely that the prosecution deliberately kept the second plea deal secret.

Judge Tallman dissents in part, concluding that, for procedural reasons, the court cannot hear Frost’s claims at all. And he is offended by what he considers “a groundless personal attack against named employees of the King County Prosecutor’s Office.”

There’s certainly some circumstantial evidence that someone deliberately decided not to disclose the second plea deal. The deal was signed a month before Frost’s trial began, but was not actually filed in court—and thus made public—until two days after Frost’s conviction. Now, this may just be a coincidence, as the plurality somewhat grudgingly concedes. In any event, it justifies an independent inquiry into exactly what went wrong. The plurality is right to be concerned, but it expresses its concern in tones of unjustified certainty. Judge Tallman is right that the plurality is making contestable inferences, but he is wrong to believe that the plurality’s concerns are “indefensible.”