had the know-how to manufacture speed. Id. at 380-81. The court found such conduct to be egregious and concluded that "fundamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fermented by them will be barred. Id. at 381.
Thus, these cases, and cases cited therein, establish a fundamental fairness or due process defense when government overinvolvement in the commission of the crime itself reaches a demonstrable level of outrageousness. Since the present case does not concern government overreaching or overinvolvement in the commission of the crime itself, the court concludes that the due process defense established in this line of cases is inapplicable here.
Ashland also argues that the withholding of exculpatory evidence from the grand jury violates due process. Specifically, Ashland relies on a recent Supreme Court decision, Arizona v. Youngblood, 488 U.S. 51, 57 U.S.L.W. 4013, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), for the proposition that the bad faith withholding of exculpatory evidence by the government constitutes a violation of due process.
In Youngblood, the defendant was convicted of child molestation, sexual assault, and kidnapping. The Arizona Court of Appeals reversed the conviction because the state had failed to preserve semen samples from the victim's body and clothing. 57 U.S.L.W. at 4013. In reversing the court of appeals, the Supreme Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process." Id. 57 U.S.L.W. at 4015. Arguing that the withholding of evidence from the grand jury in the present case was in bad faith, Ashland asserts that its due process rights were denied. As set forth below, however, this reasoning is flawed because it is based upon an incorrect presumption by Ashland that the assertedly exculpatory evidence withheld was in fact exculpatory and material to the defense.
In Youngblood, the court based its decision on the lack of bad faith by the officials responsible for maintaining the possibly exculpatory evidence. However, the Court also noted that "the possibility that the semen samples could have exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta." Id. 57 U.S.L.W. at 4015 note *. The Court is referring to United States v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984), in which the defendants sought to suppress the results of blood/alcohol tests because the state had failed to preserve breath samples used in the tests. Youngblood, 57 U.S.L.W. at 4015. In rejecting this argument, the Court noted, inter alia, that "'in the light of the procedures actually used the chances that preserved samples would have exculpated the defendants were slim . . . .'" Id. (quoting Trombetta, 467 U.S. at 489). A concise summary of this materiality requirement is set forth in Justice Stevens' concurring opinion in Youngblood :
Our cases make clear that "the proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt," and the State's failure to turn over (or preserve) potentially exculpatory evidence therefore "must be evaluated in the context of the entire record." United States v. Agurs, 427 U.S. 97, 112 [49 L. Ed. 2d 342, 96 S. Ct. 2392] (1976) (footnotes omitted); see also California v. Trombetta, 467 U.S. 479, 488 [81 L. Ed. 2d 413, 104 S. Ct. 2528] (1984) (duty to preserve evidence "must be limited to evidence that might be expected to play a significant role in the suspect's defense").