Kermit George Hilliard v. James C. Spalding, Superintendent, and Slade Gorton, Attorney General of the State of Washington

Hilliard was tried and convicted in a Washington state court on charges of rape, kidnapping and sodomy. After exhausting his state remedies, he petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . The district court denied the petition, and Hilliard brought this appeal, in which he raised eleven issues. Ten of his contentions are without merit; we treat them in a separate memorandum disposition issued today. However, Hilliard has raised a colorable claim that the government suppressed evidence relevant to the rape conviction in violation of his constitutional right to due process of law. Because the proper resolution of this claim depends on a factual determination, we reverse and remand to the district court for an evidentiary hearing.

FACTS:

The record shows that the rape for which Hilliard was convicted took place in July 1975. Immediately after the victim reported the crime to the Seattle police, she was taken to Harborview Hospital for a physical examination. There, a physician obtained a sample of fluids from her vaginal tract, which he placed on a glass slide. An examination of the sample revealed the presence of sperm in the victim’s vaginal secretions.…

dissenting.

I have difficulty with the majority’s conclusion that a remand is necessary in this case because the existence of the sperm slide was disclosed at trial. Dr. Silverstri testified that he examined the vagina for sperm and placed the material on a glass slide. Thus the defendant and his counsel were made aware that a sperm slide had been prepared. Nevertheless, counsel remained silent. He did not demand production of the slide for testing, nor did he request a continuance to review the slide and pursue further discovery.

There is no reversible error for failure to disclose when the information is furnished at trial. See United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392, 2397 , 49 L.Ed.2d 342 (1976) (“The rule of Brady v. Maryland ... involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.”) (emphasis added); United States v. Iverson, 648 F.2d 737 (D.C.Cir.1981); United States v. Craig, 573 F.2d 455, 492 (7th Cir.1977) cert. denied, 439 U.S. 820 , 99 S.Ct. 83 , 58 L.Ed.2d 110 (1978).

The majority suggests that the sample may have been destroyed prior to Dr. Silverstri’s testimony. If so, this fact…

719 F.2d 1443 Kermit George HILLIARD, Petitioner-Appellant, v. James C. SPALDING, Superintendent, and Slade Gorton, Attorney General of the State of Washington, Respondents-Appellees. No. 82-3641. United States Court of Appeals, Ninth Circuit. Submitted May 9, 1983. * Decided Nov. 8, 1983. As Amended Dec. 1, 1983. Kermit George Hilliard, in pro. per. Michael P. Lynch, Asst. Atty. Gen., Olympia, Wash., for respondents-appellees. Appeal from the United States District Court for the Western District of Washington. Before TANG, FERGUSON and BOOCHEVER, Circuit Judges. FERGUSON, Circuit Judge: 1 Hilliard was tried and convicted in a Washington state court on charges of rape, kidnapping and sodomy. After exhausting his state remedies, he petitioned for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 . The district court denied the petition, and Hilliard brought this appeal, in which he raised eleven issues. Ten of his contentions are without merit; we treat them in a separate memorandum disposition issued today. However, Hilliard has raised a colorable claim that the government suppressed evidence relevant to the rape conviction in violation of his constitutional right to due…