Appeal from the Supreme Court of the Northern Mariana Islands. D.C. No. CV-92-00012-DC. Dela Cruz, Villagomez, Bellas, Justices, Presiding.
Before: James R. Browning, Stephen S. Trott and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld; Dissent by Judge Trott.
KLEINFELD, Circuit Judge:
This case involves issues of our appellate jurisdiction over cases from the Supreme Court of the Commonwealth of the Northern Mariana Islands.
Campbell was prosecuted on a citation for drunk driving. Police had come to arrest a man named Isla. According to Campbell, the two police officers who arrested Isla asked Campbell to follow them in his car, so that he could drive another witness back home. A third officer pulled Campbell over and cited him.
His lawyer promptly requested the names of the two officers who arrested Isla, and the Isla police report. The prosecutor refused throughout the pretrial period to make these disclosures. The superior court had ordered the prosecution "to provide discovery" which "shall, at a minimum, include the evidence that the prosecution intends to present in its case-in-chief at trial."
Shortly before trial, Campbell moved that the government "be precluded from offering any evidence or testimony concerning the manner in which Mr. Campbell was driving as well as his demeanor." The ground was the government's refusal to accede to the discovery demands. The defense theory was that the evidence was exculpatory, so had to be produced without order under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and also that the court's order and rules required disclosure.
The superior court heard the motion on the morning of the day trial was to start. At the hearing, the prosecutor brought the two officers to court, and offered to let defense counsel talk to them. She said that she would give the Judge the Isla police report to review in camera to see if it contained discoverable material.
The court granted the defense motion in limine. Then, because the case could not be tried without the excluded evidence, he dismissed the case without prejudice.
The government appealed. It argued that Brady would have been satisfied by in camera inspection, and dismissal was inappropriate.
The Commonwealth Supreme Court vacated the dismissal and remanded. Commonwealth of the Northern Mariana Islands v. Campbell, 1993 WL 614809 (N. Mariana Islands 1993) (No. 90-012, 92-0070). It held that the superior court "should have fashioned a remedy short of dismissing the case." The two officers' observations of Campbell were material, but the record did not establish whether they were exculpatory. A written motion should have been presented to the superior court, and the court should have inspected the Isla police report in camera to see if it contained material which would be exculpatory for Campbell. A hearing or a short continuance, it ruled, would have enabled Campbell to interview the two officers and review the report.