Albert Lessard v. Fred R. Dickson, Warden California State Prison, San Quentin, California

394 F.2d 88 Albert LESSARD, Appellant, v. Fred R. DICKSON, Warden California State Prison, San Quentin, California, Appellee. No. 21513. United States Court of Appeals Ninth Circuit. April 17, 1968, As Amended on Denial of Rehearing June 4, 1968. Albert Lessard, in pro. per. Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Don Jacobson, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before JOHNSEN, * BARNES and ELY, Circuit Judges. PER CURIAM. 1 Judge Johnsen and Judge Barnes are of the opinion that the District Court's denial of Lessard's habeas corpus petition is entitled to be affirmed. Judge Ely is of the opinion that the District Court's disposition was proper as to all of Lessard's asserted claims except one, on which he is expressing his dissenting view. Lessard is a California state prisoner under a life sentence for conviction of first-degree murder. 2 The claim on which we thus differ is one of several charges made by Lessard that the prosecution had knowingly concealed and suppressed matters of evidence favorable to him. All of the claims of suppression (and other unfair-trial claims, such as the alleged use of perjured testimony) were made the subject of an…

(dissenting):

I respectfully dissent. The opinion of my Brothers, carefully considered though it is, tends to obscure certain facts which are undeniable. They are as follows:

(1) Almost immediately after the homicide was committed, the investigating officers interviewed a woman who supplied them with facts which, if given as testimony and believed, would have materially strengthened the appellant’s defense.

(2) The name of the woman, as well as the material evidence which she furnished, was, for some reason, concealed by the prosecution until after the termination of a trial in which appellant was found guilty.

(3) There has never been a factual hearing by any court or court officer empowered to make a determination regarding the particular point with which I am now concerned.

As I see it, the majority reaches its conclusion by an indirect course, thereby avoiding a head-on confrontation with the controlling issue. That issue may be stated very simply: Is the prosecution excused from an unconstitutional concealment of material, exculpatory evidence in its possession because, and only because, the concealed evidence was acquired two years before the defendant’s trial from a…

Judge Johnsen and Judge Barnes are of the opinion that the District Court’s denial of Lessard’s habeas corpus petition is entitled to be affirmed. Judge Ely is of the opinion that the District Court’s disposition was proper as to all of Less-ard’s asserted claims except one, on which he is expressing his dissenting view. Lessard is a California state prisoner under a life sentence for conviction of first-degree murder.

The claim on which we thus differ is one of several charges made by Lessard that the prosecution had knowingly concealed and suppressed matters of evidence favorable to him. All of the claims of suppression (and other unfair-trial claims, such as the alleged use of perjured testimony) were made the subject of an evidentiary hearing before a special master appointed by the California Supreme Court in a habeas corpus proceeding permitted to be instituted in that Court under its original jurisdiction, and of a plenary determination by the Court, on the master’s record and report, of the lack of merit in each of them. See In re Lessard, 62 Cal.2d 497 , 42 Cal.Rptr. 583 , 399 P.2d 39 . Lessard’s conviction had previously been affirmed on an appeal from the judgment *89…