Metropolitan News-Enterprise


Monday, June 11, 2007


Page 1


C.A. Reinstates Charges Against Alleged Taliban Backers


By a MetNews Staff Writer


Criminal charges cannot be dismissed as a sanction for a prosecution discovery violation absent a showing that the material withheld was exculpatory, the Third District Court of Appeal has ruled.

The justices ruled  Thursday that a Yolo Superior Court judge exceeded his authority when he dismissed charges against several defendants who allegedly assaulted a fellow Muslim in West Sacramento in 2004 because he was planning to go back to his native Afghanistan and work for the U.S. military.

The defendants are Mohammed Qumar Ashraf, Zafaruddin Niazi, Sarajuddin Niazi, and Khialuddin Niazi.

Defense attorneys in the case brought a motion in limine seeking to keep evidence regarding the defendants’ political views, including their alleged affiliation with the Taliban, out of the trial. The prosecution responded that such evidence, including testimony regarding an argument between the victim and one of the defendants a short time before the assault, was relevant to show motive.

The prosecutor later disclosed that it just learned of additional statements, made to detectives, regarding the defendants’ support for, and involvement with, the Taliban.

When defense lawyers contacted the lead detective on the case, they learned that those statements had been excised from previously delivered discovery materials at the request of “a joint FBI-Homeland Security Office task force.” Prosecutors then re- interviewed witnesses and promised to deliver reports of those interviews to defense counsel.

The defense, without waiting to receive those reports, moved to dismiss the charges as a discovery sanction. While the prosecutor assured the court that there was no intent to conceal anything that the defense was entitled to know, adding that the material in question was “inculpatory,” not exculpatory, Judge William S. Lebov granted the motion.

The judge reasoned that there had been “a violation of the discovery statute” that was “not intentional by the Deputy District Attorney . . . but was intentional by law enforcement in general, and specifically” the lead detective. He also said it was possible the statements were exculpatory, noting that the task force had not seen it necessary to contact the defendants after talking to the witnesses.

But Justice Ronald Robie, writing for the Court of Appeal, cited Penal Code Sec. 1054.5(c), which provides that “[t]he court shall not dismiss a charge [as a sanction for non-compliance with discovery obligations] unless required to do so by the Constitution of the United States.”

Robie went on to note that the only discovery obligation imposed on prosecutors under federal constitutional principles is the production of “material exculpatory evidence,” as set forth in Brady v. Maryland (1963) 373 U.S. 83. Unless the defendant can show both the materiality and the exculpatory nature of the evidence, dismissal is not among the sanctions the judge can impose, the justice explained, rejecting the contention that the dismissal order is reviewable only for abuse of discretion.

“The judge had no discretion to exercise” absent the showing of a Brady  violation, the justice said, concluding that no such violation occurred. .

“We are at a loss to understand how any of the matter described above could be deemed ‘favorable’ to defendants for Brady purposes,” Robie explained. “So far as we know, the excluded matter all related to defendants’ support of and/or sympathy for the Taliban.  To the extent defendants’ status as Taliban sympathizers/supporters is relevant at all in this case, it appears relevant only as circumstantial evidence of defendants’ possible motive for attacking [victim Sayed] Sayah because of his plans to work as an interpreter for United States military forces in Afghanistan.”

The trial judge’s reason for believing the material might be exculpatory was “faulty,” Robie said.

.  “While the evidence of a lack of contact [with homeland security officials] might itself be favorable to defendants (to rebut evidence of their Taliban affiliations), evidence of a lack of contact is not the evidence the People failed to disclose, and the finding of a Brady violation cannot be premised on the potential exculpatory nature of such other evidence,” the justice said.

The case is People v. Ashraf, 07 S.O.S. 3078.


Copyright 2007, Metropolitan News Company