Defendant is mildly mentally retarded. She's caught bringing drugs across the border. When she's interviewed, she says that she was coerced, and that she "wanted to be caught" so did a variety of things at the border to bring attention to herself; patting her stomach, throwing her passport down, etc.
Her defense attorney makes sure to ask the U.S. to preserve any relevant videotapes. But the U.S. nonetheless destroys (pursuant to a routine policy) the videotape of the relevant border crossing.
I agree with pretty much everything the Ninth Circuit says when it reverses the district court. The videotape might well have had some important stuff on it that would confirm defendant's story. The AUSA should have known to request its preservation.
I'm not at all sure that the U.S. acted in bad faith -- which the Ninth Circuit finds. Nonetheless, I am confident that the defendant's ability to defend herself -- to potentially confirm some of her story about being coerced and all allegedly trying to draw attention to herself at the border -- was diminished by the government's conduct.
My biggest departure from the Ninth Circuit's disposition is in its final two paragraphs. I agree that there's not really "comparable" evidence to the stuff the U.S. destroyed; yes, the defendant can testify about what she did, but a videotape is worth a thousand times more than the self-interested testimony of the defendant. For this reason, the Ninth Circuit dismisses the indictment. Which may well have the result of setting a guilty person free.
I'm not sure that's a necessary remedy. Let's assume -- and it's an assumption, but it's one that I'm prepared to make legally -- that the videotape confirmed the defendant's story that she engaged in some crazy acts at the border. To me, that's doesn't necessarily mean that she was innocent. It may be that she was just incredibly nervous. Or had sampled some of the methamphetamine that she was smuggling across. In short, the lost evidence might -- might -- have been helpful to her case, but it's not necessarily dispositive.
Given this fact, what about a lesser remedy than dismissal of the indictment? What about telling the jury that there was a videotape of the events at issue, that the videotape was improperly destroyed, and that the jury should accordingly assume that this videotape confirms every single objective act relayed by the defendant? The thrown passport. The tummy patting. Everything. Then let the other facts come in -- cross-examination, other evidence, etc. -- and have the jury decide guilt.
What's wrong with this lesser remedy? The videotape couldn't do any better than confirming the defendant's story in this way. So why not simply tell the jury that it must assume that that's what the videotape did, in fact, show in spades, and then let them assess the balance of the evidence?
We generally assume that juries follow instructions. If you're not positive, we can give 'em an even stronger instruction. Tell 'em that there is a videotape (there was, after all), tell 'em we've seen it (a statement that's presumably true; someone at some point saw it), and tell 'em that while we can't show it to 'em right now (true), it confirms everything that the defendant said she did in the line at the border. The last statement being true as a legal matter.
The AUSA screwed up here. But to me, I'm not sure the remedy necessarily needs to be dismissal of the indictment. Something lesser might well solve the problem. Setting a defendant free sometimes is the only available remedy, but I'm not sure this is one of those cases.
