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9th Cir. Affirms Denial of Habeas Relief to Armed Robbery Defendant

By Jonathan R. Tung, Esq. on March 23, 2016 | Last updated on March 21, 2019

In what is certainly a confounding jumble of legal issues indeed, the Ninth Circuit affirmed a lower district court's decision to deny habeas relief to a man who'd been convicted of numerous crimes arising out of his early 2000s Washington state crime spree.

In what was not presented as a petitioned issue, the circuit concluded that although it had affirmed on the issue of habeas, the defendant was free to appeal possible constitutional violations.

Facts at Hand

The case of Joshua Frost v. Gilbert saw the defendant rampaging through Washington State in a series of crimes that riveted newsgoers. At trial, Frost argued that he had only participated in the crime spree because he had been forced by other participants with threats against him and his family.

The state's witness, Edward Shaw -- also Frost's acquaintance -- testified that Frost was "giggling" when asked if he'd been somehow involved in the crimes. Prosecutors presented this testimony before the jury to prove that Frost wasn't under duress and had participated in the crimes willingly.

Frost had protested that Shaw's testimony was traded during two plea agreements. Such tit-for-tat arrangements are not per se unlawful. But Frost's attempts to secure documentation to present the argument in court appeared to be stymied by either the prosecution or the prosecution's office -- a possible ethical violation.

Withholding Evidence?

"As the matter has been presented to us, there is cause to believe that the King County prosecuting attorney's office violated Brady and Napue by willfully withholding evidence of Shaw's domestic-violence plea and permitting Shaw to lie on the stand," the Ninth Circuit said.

In fact, the majority of the opinion appeared to strongly intimate that something was very rotten in the King County prosecutor's office. "The [records office] we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing and explanation for its consideration."

Defense in Dissent

Judge Tallman dissented fiercely and accused Judge Alex Kozinski of too quickly pointing a finger at Kong County employees. He stated that the opinion was merely "hortatory" and that it had "brand[ed the employees] with a scarlet letter."

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