Even An Assumed Discovery Violation Requires Actual Prejudice to Obtain a New Trial

State v. Jackson, Minn.S.Ct., 8/6/2009.  Someone shot Markey, a Bloods gang member.  Mr. Jackson and his crew believed that one of three gangs – the Bogus Boys, the 20s or the 10s – had done it, so they went looking for them.  In the ensuing melee Mr. Jackson shot and wounded T.K., and he shot and killed Gennaro Knox.  Neither shooting victim was affiliated with any gang.

This was Mr. Jackson’s second trial; the first ended in a mistrial when the jury could not reach a verdict.  In the run up to the first trial, the state had filed a certificate to withhold Rule 9 disclosures for ten witnesses.  The state did provide information that these witnesses had given to police but it withheld identifying information about who they were and where they could be found.  The criminal rules allow this to occur:

The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at trial.

Seven of those witnesses testified at the first trial.  Mr. Jackson argued in the run up to the second trial that these seven witnesses had been “sworn to testify at trial” and so he was entitled to all un-redacted copies of all Rule 9 materials.  When Mr. Jackson made this pitch to the trial court to get the un-redacted reports in between the two trials, the trial court denied the request for production of the materials.

The appellate court assumed that the state had violated a discovery order; only Justice Page said that the rule entitled Mr. Jackson to the materials in between the two trials.  The appellate court, however, said that Mr. Jackson had to show prejudice from the alleged violation, which he did not do. 

Mr. Jackson also complained of four items of evidence that the trial court allowed the state to introduce to prove that he committed these crimes for the benefit of a gang.  One was a printed web page that depicted Mr. Jackson and his girlfriend, both wearing red, the color that other witnesses said was affiliated with member of Mr. Jackson’s gang.  The appellate court questioned whether the state had presented a proper foundation for the introduction of the web page, suggesting that someone from the website who had knowledge of the website content needed to testify to authenticate it.  Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).  Even so, Mr. Jackson could not show that the introduction of the web page substantially influenced the jury’s decision.