Metropolitan News-Enterprise


Wednesday, August 16, 2023


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Ninth Circuit:

Brady Claim May Not Be Based on Prolongation of Jailing

Man Accused of Murder Who Spent Nearly Four Years in Pre-Trial Custody—Confined Even After Prosecution Had Confession by Another, Which Wasn’t Turned Over to Defense—Cannot Maintain Civil Rights Action Under Brady  


By a MetNews Staff Writer


A man who was held in pre-trial custody for three years, 11 months, and 17 days for a murder of which he was later adjudged factually innocent might have a civil rights claim against the County of Riverside, former Riverside District Attorney Paul E. Zellerbach and others, the Ninth U.S. Circuit Court of Appeals said yesterday, but he has no cognizable claim under 42 U.S.C. §1983 based on violation of his Brady rights.

The decision comes in the case of Roger Wayne Parker who alleges that he was kept behind bars—without ever having had a preliminary hearing—despite deputies in the District Attorney’s Office imploring higher-ups to release him based on their doubts he committed the crime, keeping him confined for about six months even after a recorded confession to the killing by another man, Willie Womack, was uncovered. Parker asserts that he was incarcerated owing to Zellerbach’s desire to retain a tough-on-crime image.

The decision, before the Ninth Circuit on an interlocutory appeal, reverses an order by District Court Judge Jesus G. Bernal of the Central District of California denying the defendants’ motion for judgment on the pleadings. On remand, the Ninth Circuit judges said, Parker must have an opportunity to plead a civil rights violation under a different theory.

Brady Claim

The U.S. Supreme Court held in 1963 in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” A rare two-judge Ninth Circuit panel—comprised of Judges Andrew D. Hurwitz and Ryan D. Nelson—yesterday declared:

“[N]either the Ninth Circuit nor any other circuit has found Brady prejudice when the nondisclosure did not affect the outcome of a criminal proceeding.

“Parker did not state a Brady claim because he does not claim the nondisclosure would have changed the result of any proceeding in his criminal case.”

Parker’s Brief

Parker’s appellate brief, signed by Gerald B. Singleton, John C. Lemon, and Kimberly Trimble of the San Diego law firm of Singleton Schreiber, LLP, sets forth:

“This case arises from an innocent man, Plaintiff-Appellee Roger Parker, spending nearly four years in jail for a murder he did not commit because Defendants-Appellants—the leaders of the Riverside Office of the District Attorney—intentionally withheld material exculpatory evidence for a political purpose….Now, Defendants-Appellants are attempting to avoid accountability for this constitutional violation by arguing that—even accepting that material, exculpatory evidence was intentionally withheld for political gain—Mr. Parker’s claim is not cognizable as a due process claim in a § 1983 civil rights lawsuit for the sole reason that he did not suffer a conviction.

“This Court must now decide whether four years of pretrial detention caused by prosecutors’ intentionally withholding material, exculpatory evidence for a political purpose establishes a viable due process claim pursuant to 42 U.S.C § 1983.”

The brief argues:

“The due process right to material, exculpatory evidence in the government’s possession exists throughout a criminal proceeding, not just at trial. When that right is violated, § 1983 provides a means by which the aggrieved person can vindicate his rights. Accordingly, Plaintiff-Appellee Parker urges this Court to affirm the district court’s holding that Mr. Parker has stated a legally viable §1983 due process claim by alleging that he ‘experienced an additional, prolonged period of pretrial confinement’ caused by ‘the government’s non-disclosure of material, exculpatory evidence.’ ” 

Ninth Circuit’s Response

Hurwitz and Nelson responded:

“…Parker’s harm did not result from a proceeding tainted by nondisclosure, and we see no reason to extend Brady beyond its limited purpose. Although Brady sounds in due process…, it remedies the injustice that results when ‘a state has contrived a conviction through the pretense of a trial.’…To implicate Brady, the harm must result from the government’s failure to disclose material exculpatory or impeaching evidence. Here, the cause of Parker’s continued detention was not the suppression, but the DA’s continued prosecution even after receiving Womack’s confession. Had the DA immediately dismissed the charges against Parker after learning of the confession, he would not have been detained for the extra six months, whether or not the confession had been turned over.

“No court has adopted Parker’s proposed rule. Indeed, most other courts have required a conviction to establish prejudice.”

Requirement of Conviction

The appellants contended in their opening brief that “as the other Circuit Courts to address this issue have all found, there can be no Brady violation without a conviction,” urging the Ninth Circuit to adopt such a rule. Hurwitz and Nelson pointed out that the Ninth Circuit has “applied Brady in the pretrial context” such as at a hearing to determine if a guilty plea was voluntary and at a suppression hearing.

“The difficulty in this case is that there was no judicial proceeding that could be affected by the withheld confession,” the judges wrote. “Without that, Parker cannot show Brady prejudice, and his Brady claim fails.”

They noted that in his brief, Parker cited the Ninth Circuit’s 2014 decision in Tatum v. Moody. There, it was held in an opinion by Judge Marsha S. Berzon that “the Constitution does protect Walker from prolonged detention when the police, with deliberate indifference to, or in the face of a perceived risk that, their actions will violate the plaintiff’s right to be free of unjustified pretrial detention, withhold from the prosecutors information strongly indicative of his innocence.”

That decision, the judges pointed out, quotes with approval the circuit’s 2001 opinion in Lee v. City of Los Angeles saying that “continued detention after it was or should have been known that the detainee was entitled to release” can give rise to a claim under the Fourteenth Amendment.”

“In this interlocutory appeal, however, we are not asked to address the merits of a Tatum–Lee claim,” the judges wrote. “On remand, Parker can seek leave to amend his complaint to assert that claim.”

Concurring Opinion

In a concurring opinion, Nelson said that all but two of the other circuits have confined Brady to trials, and commented:

“Our duty is to uphold the Constitution. We have deviated from its text and original public meaning in extending Brady. In an appropriate case, we should realign our Brady caselaw with the Constitution and the prevailing view among the other circuits.

The case is Parker v. County of Riverside, 22-55614.

A Riverside Superior Court judge in 2021 declared Parker factually innocent.

Beleaguered Ex-Prosecutor

The current suit against Zellerbach is one of many confrontations in which he has been involved. The confrontations included a court battle with former Deputy District Attorney Christopher Ross.

 Parker’s case was originally assigned to Riverside Deputy District Attorney Lisa DiMaria. When she proclaimed to supervisors that Parker appeared to her to be innocent, the case was turned over to Ross.

He came to the same conclusion as DiMaria and urged the release of Parker, to no avail. It was he who uncovered a recording of a telephone conversation in which a man who shared a residence with Parker had confessed to the slaying of Parker’s supposed victim.

Ross was allegedly ordered to bury evidence exonerating Ross, including DNA evidence. He wouldn’t comply, was taken off the case, and later fired. He sued Zellerbach but a jury found in favor of the former district attorney.

 Zellerbach , a Riverside Superior Court judge from 2000-2011, on Nov. 2, 2011, received a public admonishment from the Commission on Judicial Performance for improper campaign activity while a judge, running for the post of district attorney in 2010, and, after being elected, and still a judge, using the prestige of his office to garner contributions in an effort to pay off campaign debts.

On Jan. 7, 2015, he entered a plea of no contest to vandalism and was sentenced to 12 months of summary probation, with the requirements that he put in 60 hours of community service, pay $800 in fines and penalties, and make restitution in the amount of $75. Zellerbach in 2014 tore down campaign signs of his hos campaign rival, Mike Hestrin—who prevailed at the polls.

On Oct. 5, 2016, Zellerbach incurred a public reproval from the State Bar based on his conviction.

While district attorney, he obtained warrants for wiretaps in staggering numbers. One judge, at the behest of his office, in 2014 authorized 624 wiretaps.

A warrant was issued for his arrest in 2016 after he failed to show up for a hearing concerning the wiretaps, and at one point, the Indio Police Department urged the Estrin Office of California Attorney General to file criminal charges against Zellerbach.


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