SEATTLE – A federal judge has dismissed a gun charge against a man who was convicted of murder as a teenager, saying state Department of Corrections officers improperly withheld information that could have been helpful to his defense.
Robert Andre Frazier served 34 years in prison for taking part in the fatal beating of an elderly man outside a Bremerton restaurant in 1981, when he was 15. He was released last summer, but a few months later, he was back in custody after a confidential informant tipped off corrections officers that Frazier had armed himself with a revolver and was seeking revenge for his uncle’s recent murder in Renton.
U.S. District Judge Richard Jones wrote in an order Thursday that the corrections officers had a duty to disclose that they were aware of serious credibility issues with their confidential source, including that the tipster had failed a polygraph around the time he told them about Frazier. Instead, that information was not turned over until just before trial was due to begin, eight months after Frazier’s arrest – and by that point, the confidential source had died.
“The Government’s conduct here was unabashedly negligent,” Jones wrote. “In fact, the Government withheld impeaching information beyond mere questions about (the source’s) criminal history – it did not reveal benefits that (the source) received for cooperation,” including payment of $200.
The source’s name was redacted from court documents.
Jones said the government’s conduct was not so egregious as to necessarily warrant dismissal of the gun charge, but only the suppression of any evidence that stemmed from the informant’s tip. However, since that was all the evidence the government had – agents searched Frazier’s car and found the gun based on the tip – the judge dismissed the indictment.
The judge put the lion’s share of the blame on the Department of Corrections, noting that its officers put the assistant U.S. attorney prosecuting the case, Erin Becker, in an “increasingly untenable” spot by not coming forward with the information sooner, and that the prosecutor promptly turned over the information when she learned it.
Nevertheless, he said, prosecutors have a duty to learn of evidence favorable to the defense that is known to the government’s agents.
“That did not happen here,” he said.
Lee Covell, an attorney for Frazier, credited Becker’s handling of the case but said the DOC’s officers were too cavalier in their handling of the informant, a sex offender who knew Frazier and may have had motive to lie about him.
Frazier has been released from federal custody back to state custody, where he still faces potential sanctions for violating the terms of his release. In addition to possessing a revolver, he was living in unapproved housing when he was arrested, officials said.
Jeremy Barclay, a DOC spokesman, confirmed in an email that Frazier is being held at the King County Jail on parole violations, but he declined to comment on the withholding of information about the confidential source.
Frazier served time for robbing and beating to death Olando J. Enger, 82, with a 17-year-old friend.
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