Metropolitan News-Enterprise


Tuesday, July 10, 2007


Page 1


Ninth Circuit: Prosecutor Withheld Evidence in Bank Robbery

Judges Say Arrest of Look-Alike Suspect in Another Case Was Material to Defense


By Kenneth Ofgang, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered a new trial for a convicted bank robber, saying prosecutors should have disclosed that a woman with a similar appearance was arrested for other bank robberies in the vicinity.

In a 13-2 en banc decision, the judges said the evidence was material to Rachel Jernigan’s claim that she was not the woman who robbed a bank in Gilbert, Ariz. during September 2000.

The court took the case en banc in January, invalidating last year’s ruling by a divided three-judge panel that the evidence was immaterial because the two women did not truly look alike, even though both were about five feet tall, Hispanic, and had acne.

While the defense argued that the prosecution’s eyewitnesses had misidentified Jernigan, jurors found her guilty in the U.S. District Court for the District of Arizona. Judge Earl H. Carroll sentenced her to 14 years in prison, followed by five years of supervised release. Two other bank robbery charges against her, based on crimes that occurred in October 2000, were dismissed.

While in prison, Jernigan learned that Juanita Rodriguez-Gallegos had been arrested in December 2001, about 30 minutes after the same Gilbert bank was robbed. Rodriguez-Gallego was charged with that robbery, two November 2000 robberies, and brandishing a firearm during a violent crime.

She eventually pled guilty to the gun charge, and the robbery charges were dismissed.

Jernigan then filed a motion for a new trial based on Brady v. Maryland and Rule 33 of the Federal Rules of Criminal Procedure. Defense counsel argued that since the FBI was aware at the time of Jernigan’s March 2001 trial that a similarly looking suspect had robbed two banks in the area while Jernigan was in custody, the prosecution’s intentional or inadvertent failure to disclose that information deprived Jernigan of a fair trial.

Carroll, however, concluded that the two women did not look alike and denied the motion.

But Senior Judge Betty B. Fletcher, who dissented from the three-judge panel’s ruling in favor of the government, said the prosecution’s case against Jernigan was so weak that the disclosure of the similarity between her appearance and that of Rodriguez-Gallego might have tipped the case in her favor.

The eyewitness identifications of Jernigan were “already questionable,” Fletcher wrote for the en banc court. They were uncorroborated and were “particularly suspect” since the eyewitnesses were not Hispanic, the judge said, citing the work of psychologist Elizabeth Loftus and others on the inaccuracy of cross-racial identifications.

Fletcher also emphasized the similar conduct exhibited in all of the robberies, including the use of handwritten notes, as well as FBI statistics showing that women and Hispanics rarely rob banks. “The likelihood of two short, Hispanic female robbers with pockmarked skin holding up banks in the same area is therefore extremely low,” the judge said.

Chief Judge Mary M. Schroeder joined in the opinion, as did Judges Harry Pregerson, Alex Kozinski, Pamela Ann Rymer, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Marsha Berzon, Jay S. Bybee, Consuelo M. Callahan, and Sandra S. Ikuta.

Judge Carlos Bea, joined by Judge Diarmuid F. O’Scannlain, dissented, accusing his colleagues of usurping the function of the trial court.

Other circuits, Bea argued, accord deference to a district judge’s factual findings with regard to the issue of materiality under Brady.

“The non-disclosed evidence in this case does not create a reasonable probability of a different result because it does not support the inference that the five eyewitness[es] who independently identified Jernigan as having committed the September 20, 2000 bank robbery were mistaken,” Bea wrote.

Carroll, having observed the surveillance photos from the robberies and having seen Jernigan throughout her four-day trial, was in a superior position to determine whether the two women looked alike and was of the opinion that the witnesses would have been able to distinguish between them, Bea argued.

The case is United States v. Jernigan, 05-10086.


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