CA1: a loss for a habeas petitioner, a win for a negligent government

Olszewski v. Spencer, 05-1833 (10/20/06). On habeas the petitioner makes a number of interesting claims, which are all rejected, by Judge Dyk, up from the Federal Circuit.

Destruction of Exculpatory Evidence (in particular a record of a statement):  The SJC had ordered the trial court to make findings regarding the culpability of the commonwealth.  It did that.  The state courts concluded that despite the fact that the police were “foolish” their behavior did not justify dismissal of the indictment.  At a second trial, the police were subject to cross-examination about this stuff.  Applying California v. Trombetta, 467 U.S. 479 (1984), Youngblood v. West Virginia, 547 U. S. ___ (2006), and Il. v. Fisher, 01-1833 (2004), the court holds that:

Olszewski has failed to show that the statement contained additional, material information that was lost as a result of the destruction. Mere speculation about the possible existence of additional, material evidence in the destroyed statement is simply insufficient to demonstrate a due process violation.

As usual, the First concludes that the prosecutors statements during closing argument, involving misdescriptions of the evidence, and speculations about someone would have testified are not condemned.  As usual, the Court repeats some platitudes about how the duties of prosecutors are, like, important and stuff, and how they shouldn’t break rules, but in reality courts of appeal are simply not going to reign prosecutors in.  The message from the First is clear: 1) go ahead and say what you want; and 2) dare the defense to preserve the error by objecting, and getting a curative instruction which makes the defendant look even more guilty. 

Finally, an ineffective assistance claim fails on procedural default grounds, regarding an alleged failure to show why a witness was missing.  Strangely, the procedural default occurs as a result of a single justice of the Supreme Court rejecting the claims because they were “not new” which the First considers to be an independent and adequate state ground.