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Hein v. Sullivan, et al., No. 07-56277 (4-12-10) (Trager, D.J., joined by Kleinfeld and Tallman). In a murder case, the state prosecutor failed to disclose a Brady immunity letter and committed misconduct in closing. The 9th, however, holds that over a 2-month trial, such prosecutorial missteps did not undermine the fairness of the trial. The 9th adopts a "reasonable probability" of a different result to analyze the misconduct and Brady and found that the result would have been the same. The 9th reasons that the prosecution presented the only theory or theme that fit. The impeachment from an immunity letter, and the misconduct of attacking counsel, defendants, and evidence misstatements were, well, regretable, but the petitions were denied.

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