Do Brady violations Zellner-style actually have standing in US law? Are there precedents?

I find Zellner's Brady claims confusing is as much she claims that material was withheld in four areas: 1. Fuel in the Rav4, 2. Zips answer machine, 3. Flyover video of Salvage yard, 4. An undefined piece of evidence showing the RAV4 was driven directly from the salvage yard to the quarry.

Where I find this confusing is that while an argument can be made for at least some items that they were not turned over to the defense, they haven't been located subsequently so how can it be determined the material it contained would have assisted in Avery's defense - ie resulted in a different verdict.

My understanding is there always has to be a determination that prejudice was created in order to justify a new trial. That had the defense had this data then a new verdict would have resulted. But if the only fact is the absence, what is the justification for a new trial? What new evidence would the jury be presented with? The defense already had the absence of data which they could have presented as evidence of police misconduct and they didn't. You could argue Ineffective assistance of counsel for not raising the absence.

So are there precedents on new trials being granted on the basis that material was not disclosed and never subsequently located?

On the 4 Brady violations themselves

  1. Fuel in the RAV4: it probably didn't create prejudice, unless Zellner could prove the RAV4 definitely had a full tank at a certain time point.

  2. Zips answer machine. Again probably didn't create prejudice. Has anyone checked the CDs containing the prison phone calls - as that was a CD handed to CASO by Jacobs?

  3. Flyover video. Quite likely was edited and may have caused prejudice. Although my view is the RAV4 was already there and all the video would have shown is it was not yet covered in branches and metal sheets

  4. RAV4 driven to the quarry. I think that was just based on a peculiar construction on the scent tracking dogs, hence already disclosed and not a violation (assuming they have fiddled with the canine reports.....)

Posted Jul 31, 2017, 2:42 PM UTC

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