Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Habeas Assistance and Training 09/09 1 Remand or Hearing on Brady/Napue Claim
CASES REMANDED OR HEARING GRANTED BASED ON BRADY/NAPUE CLAIMS
(Updated Sept. 27, 2009)
* capital case
I. UNITED STATES SUPREME COURT
*Cone v. Bell,
___ U.S. ___, 129 S. Ct. 1769 (2009)
Capital habeas case remanded for determination of materiality in sentencing of evidence
suppressed by the state of the defendant’s drug addiction and impairments at the time of the
offenses. The defendant, a Vietnam veteran, robbed a jewelry store. After a high-speed chase, he
fled on foot shooting a police officer and a bystander. The next day, he beat an elderly couple to
death in their home. During his trial, he presented an insanity defense supported by two experts,
who testified the defendant suffered from acute amphetamine psychosis as a result of his drug
addiction. The state established in cross that both experts were relying solely on the defendant’s
self-reports. In rebuttal, the state presented the testimony of the defendant’s live-in girlfriend,
who testified she had never seen him use drugs. In arguments, the state asserted that the
defendant was not a drug addict and was merely a “drug seller.” Following conviction, the
defense presented no evidence in sentencing but argued the defendant’s drug addiction was
mitigating and should be considered. The state had failed to disclose statements from witnesses
who had seen the defendant several days before the murders, who described the defendant as
being “drunk or high,” “wild eyed,” and the like. In addition, multiple police bulletins describing
the defendant as a “heavy drug user” were included in the undisclosed documents. A number of
these were sent by a police officer that testified at trial that the defendant had no needle marks on
him at the time of arrest. Also undisclosed were notes of a police interview of the state’s rebuttal
witness conducted several days after the crimes, which revealed “discrepancies between her initial
statement and her trial testimony.”
In sum, both the quantity and quality of the suppressed evidence lends support to
Cone’s position at trial that he habitually used excessive amounts of drugs, that his
addiction affected his behavior during his crime spree, and that the State’s
arguments to the contrary were false and misleading.
Id. at 1784. The Court agreed with the Sixth Circuit that the evidence was immaterial to the
jury’s finding of guilt. With respect to sentencing, however, the Court noted:
There is a critical difference between the high standard Cone was required to
satisfy to establish insanity as a matter of Tennessee law and the far lesser standard
that a defendant must satisfy to qualify evidence as mitigating in a penalty hearing
in a capital case. . . . It is possible that the suppressed evidence, viewed
cumulatively, may have persuaded the jury that Cone had a far more serious drug
problem than the prosecution was prepared to acknowledge, and that Cone’s drug
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use played a mitigating, though not exculpating, role in the crimes he committed.
The evidence might also have rebutted the State’s suggestion that Cone had
manipulated his expert witnesses into falsely believing he was a drug addict when
in fact he did not struggle with substance abuse.
Id. at 1785-86. The lower courts had not “fully considered whether the suppressed evidence
might have persuaded one or more jurors that Cone’s drug addiction–especially if attributed to
honorable service of his country in Vietnam–was sufficiently serious to justify a decision to
imprison him for life rather than sentence him to death.” Id. at 1786. Remanded to the District
Court.
Youngblood v. West Virginia,
547 U.S. 867 (2006)(per curiam)
Defendant convicted of sexual assault, brandishing firearm and indecent exposure on testimony of
three women. Defendant moved to set aside verdict based on evidence investigator uncovered in
“graphically explicit note” “squarely” contradicting State’s evidence and “directly” supporting]
defense that sexual activity consensual. Note apparently shown to state investigator, but after
“alleged[ly]” reading it, investigator returned it and told person “to destroy it.” Without
discussing Brady, trial court denied new trial because “note provided only impeachment,” not
exculpatory evidence, state investigator did not find it important because he did not provide it to
prosecutor, and State not at fault for not disclosing it. State supreme court affirmed, but two
justices dissented, concluding note material and suppressed. Because defendant presented
“federal constitutional Brady claim” to state appellate and trial courts, certiorari granted,
judgment vacated and matter remanded so Court would “have the benefit of the views” of full
state appellate court.
II. UNITED STATES COURTS OF APPEALS
United States v. Salem,
578 F.3d 682 (7th Cir. 2009)
Witness intimidation case remanded to trial court due to inadequate record on Brady claim. Just
prior to sentencing, the government disclosed a plea agreement from another case that indicated
the alleged victim had been involved in a murder (along with the defendant entering that plea
agreement) for which he had never been charged, even though it was potentially a capital case.
From the plea agreement, it appeared that the alleged victim had made a detailed statement about
that murder that had never been disclosed. Case remanded to ensure that all evidence disclosed
and to reevaluate the claim.
*Smith v. Secretary, Dept. of Corrections,
572 F.3d 1327 (11th Cir. 2009)
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Under AEDPA, capital case remanded for cumulative materiality consideration of six Brady
claims. Defendant was convicted, in 1983 and again on retrial in 1990, of robbery and murder of
a cab driver. The defendant’s fingerprints were on the phone used to call the cab. A witness
testified that when the cab arrived the defendant got in the backseat while his codefendant got in
the frontseat. The defendant’s uncle testified that a pistol was missing from his house and
witnesses testified the defendant had a pistol in the hours before the robbery. An eyewitness, who
lived near the crime scene, testified that he saw the defendant get out of the backseat with a gun
and saw him shoot the cabdriver, who was running away. Other witnesses testified the defendant
made incriminating statements afterwards. Expert testimony established the presence of lead
residue consistent with bullets in the defendant’s pocket. During the 1990 trial, the eyewitness
admitted that he had received leniency on seventeen unrelated felony charges he had pending in
exchange for his 1983 testimony. The codefendant had pleaded guilty to second degree murder
and testified for the state that the defendant was the shooter. The only defense witness testified
that the codefendant told him, while in confinement, that the defendant was not the shooter. The
Eleventh Circuit held that six undisclosed items must be considered in a cumulative materiality
analysis: (1) Evidence that the eyewitness sought assistance with pending probation violations and
a grand theft charge in exchange for his 1990 testimony. The state court never addressed this
evidence. (2) Evidence that the eyewitness was concerned in 1990 that he might be charged with
sexually abusing a minor and sought the prosecutor’s assistance with this charge. Because this
evidence provided a “motivation to testify,” the state court’s determination that it was not
impeachment material was unreasonable. (3) Police reports that the eyewitness was initially listed
as a suspect. While this evidence was not material in itself, the state court did not consider it
cumulatively. (4) Evidence from prosecutor notes and police reports that the witness who
described seeing the defendant get in the backseat of the cab provided a physical description of a
man 30-75 pounds lighter than the defendant and remained “not positive” of his identification
even after identifying the defendant from a photograph. While this evidence was not material in
itself, the state court did not consider it cumulatively. (5) Evidence that the eyewitness
approached the codefendant in a holding cell prior to trial, showed hip a map of the crime scene,
and offered to help him with the case. While this evidence was not material in itself, the state
court did not consider it cumulatively. (6) Evidence that the statement of one of the witnesses
testifying that the defendant came to her house and made incriminating statements after the
shooting was inconsistent with statements of other witnesses about the defendant’s whereabouts
at the time. The Court held that, in considering materiality:
[I]t is essential that the process not end after each undisclosed piece of evidence
has been sized up. The process must continue because Brady materiality is a
totality-of-the-evidence macro consideration, not an item-by-item micro one. . . .
Cumulative analysis of the force and effect of the undisclosed evidence
matters because the sum of the parts almost invariably will be greater than any
individual part.
Id. at 1346-47. Here, the state court failed to conduct a cumulative analysis. Even assuming it
had, the state court did not consider the evidence that the eyewitness assistance with the possible
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sexual abuse charges in 1990 in that analysis. Remanded for the cumulative analysis.
Starns v. Andrews,
524 F.3d 612 (5 Cir. 2008) th
In manslaughter case where petitioner argued self-defense, petitioner was entitled to merits review
of Brady claim that was based on the suppression of witness’s grand jury testimony describing the
victim’s very disturbed mental state shortly before her death. (The witness was called before a
grand jury that did not indict petitioner and was not called by the prosecution at trial.) Although
defense counsel had been told that the witness reported that the victim had “acted strangely,” the
prosecutor downplayed any potential mental health issues in the case. On this record, the lower
court erred in finding that the federal petition was untimely on the ground that petitioner should
have investigated the potential Brady violation earlier.
Jeffries v. Morgan,
522 F.3d 640 (6 Cir. 2008) th
In attempted rape and murder case, district court was required to review the entire record in
assessing petitioner’s Brady and insufficiency of the evidence claims. (The Brady claim involved
the failure of the prosecution to disclose information about an initial suspect that the authorities
“cleared.” Although nothing withheld was itself material exculpatory evidence, petitioner argued
that disclosure was nevertheless required because further investigation would have led to
inculpatory admissions by the suspect that the prosecution failed to discover.)
United States v. Rodriguez,
496 F.3d 221 (2 Cir. 2007) nd
In prosecution for conspiracy to possess and distribute cocaine, a remand to the district court was
necessary for a determination of the substance of a government witness’s lies during her initial
interview with law enforcement authorities, in order to determine whether the prosecution’s
failure to disclose the substance of the lies prior to trial violated Brady. Although the prosecutor
elicited during the witness’s testimony that she had initially lied about everything, this would not
be sufficient to comply with Brady if it was incomplete or if defense counsel was denied the
opportunity to effectively use the impeaching or exculpatory information.
Spencer v. Klauser,
70 F.3d 1280 (9th Cir. 1995) (unpublished)
Habeas case attacking guilty plea to child molestation charges remanded for evidentiary hearing
where substantial evidence tended to show that medical reports indicating no signs of sexual
abuse existed at time of plea but were not disclosed by the state. This nondisclosure, coupled with
defendant’s questionable mental competency created the danger of a guilty plea by an innocent
man, and further inquiry was required.
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Walker v. City of New York,
974 F.2d 293 (2nd Cir. 1992), cert. denied, 113 S.Ct. 1387 (1993)
In a §1983 action, plaintiff’s complaint alleging failure of the municipality to train its assistant
DA’s on fulfilling Brady obligations, with result that the DA’s suppressed impeachment evidence
and failed to reveal lineup misidentification, was sufficient to state a claim against the
municipality.
United States v. Bryan,
868 F.2d 1032 (9th Cir.), cert. denied, 493 U.S. 858 (1989)
In mail fraud case, vacating conviction and remanding to the district court for a determination
whether defendant was denied access to documents to which he was entitled under Rule
16(a)(1)(C) or Brady. On remand, the district court is to determine whether the prosecutor had
knowledge of and access to documents in the possession of closely related federal investigatory
agencies that were either material to Bryan’s defense or belonged to him within the meaning of
Rule 16(a)(1)(C). In addition, the district court should determine whether such documents, if they
exist, were Brady evidence, and, if so, whether they were material within the test announced in
Bagley.
*Moore v. Kemp,
809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054 (1987)
Whether a key prosecution witness was incarcerated at the time of his testimony against a capital
defendant, or had been promised immunity for his testimony, would be material if not disclosed.
Because review of the prosecution witness’s probation file, in the context of the entire record,
convinced the court of appeals that it contained information highly relevant to petitioner’s
Brady/Giglio claim, the state habeas court, in denying petitioner’s counsel access to that
information, denied petitioner the opportunity to prove his claim. It therefore followed that the
state habeas hearing was not full, fair, and adequate and so the findings produced by that hearing
regarding the Brady/Giglio claim were not entitled to deference. The case was remanded for an
evidentiary hearing on the claim.
Levin v. Katzenbach,
363 F.2d 287 (D.C. Cir. 1966)
Claim for relief based on breach of prosecutor’s duty to disclose is not dependent on whether a
more able, diligent or fortunate counsel might possibly have discovered the evidence on his own.
Remand for evidentiary hearing on claim that prosecution failed to disclose evidence that called
into question the testimony of prosecution witnesses.
III. U.S. DISTRICT COURTS
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*Williams v. Schriro,
423 F.Supp.2d 994 (D. Ariz. 2006)
In highly circumstantial capital murder case, petitioner was entitled to an evidentiary hearing on
his claim that the prosecution violated Brady by withholding evidence regarding the existence of
an alternate suspect. The state court procedural bar on untimeliness grounds was not consistently
applied, and petitioner had diligently presented his claim to state court. Note: The petition was
ultimately denied. See Williams v. Schriro, 2007 WL 552230 (D.Ariz. Feb 21, 2007).
Steward v. Grace,
362 F.Supp.2d 608 (E.D. Pa. 2005)
Petitioner convicted of murder was entitled to evidentiary hearing on his Brady claim involving an
allegation that the prosecution suppressed evidence that the coat allegedly belonging to the killer
contained hair that did not match petitioner. It needed to be resolved whether a search warrant
indicated the purpose for which petitioner’s hair was taken. If it did, petitioner would have been
on notice of the testing and not entitled to relief. A request for DNA testing of the hair was
denied, because it would not prove actual innocence or provide the basis for relief on any claim.
Note: The petition was ultimately denied. See Steward v. Grace, 2007 WL 2571448 (E.D. Pa.
Aug. 30, 2007).
Lopez v. Massachusetts,
349 F.Supp.2d 109 (D. Mass 2004)
In kidnapping-murder case, petitioner was entitled to an evidentiary hearing, and was authorized
to seek discovery, on his Brady claim which involved suppression of evidence about an alternative
suspect. Note: The petition was ultimately denied. See Lopez v. Massachusetts, 480 F.3d 591 (1
st
Cir. 2007).
United States v. Anderson,
2003 WL 21544241 (D. Kan. July 2, 2003) (unpublished)
In federal criminal case involving Medicare kickbacks and conspiracy, petitioner was entitled to an
evidentiary hearing on his claim that the prosecution suppressed evidence that one of its witnesses
had a prior relationship with federal law enforcement officials. Note: The § 2255 petition was
ultimately denied. See United States v. Anderson, 2004 WL 624966 (D. Kan. 2004).
Reid v. Vaughn,
2003 WL 924080 (E.D. Pa. March 4, 2003) (unpublished)
In post-AEDPA case, petitioner was entitled to an evidentiary hearing on his claim of Brady error
premised on the failure of the prosecutor to reveal that a key prosecution witness had given an
inconsistent description of the crime shortly before his testimony and then reverted to the original
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version after receiving stern warnings from the prosecutor. (The Brady claim was discovered
when post-conviction counsel read of the incident in a non-fiction book.) The petitioner did not
fail to develop the facts in state court given that he presented a statement written by a defense
investigator who had interviewed the prosecution witness and received confirmation from him
about the allegation, and petitioner had requested, but was denied, an evidentiary hearing.
Petitioner was not guilty of lack of diligence simply because he did not present the state court
with affidavits from the prosecutor or the prosecution witness. The state court’s ruling that
petitioner was not entitled to an evidentiary hearing because he failed to present sufficient
evidence to support his allegations was not imposition of an adequate state procedural rule given
that the rule was not consistently applied. Note: The habeas petition was ultimately denied. See
Reid v. Vaughn, 279 F.Supp.2d 636 (E.D. Pa. 2003).
Lavallee v. Coplan,
239 F.Supp.2d 140 (D. N.H. 2003)
In case involving charges of sexual abuse of a minor, the state court’s finding that the prosecution
had no duty to produce records in the possession of the New Hampshire Department of Health
and Human Services, Division of Children, Youth and Families (“DCYF”) contradicted the broad
language used by the Supreme Court in Kyles v. Whitley, and was “contrary to” Pennsylvania v.
Ritchie, where the Supreme Court made no distinction between the prosecution and a state
protective service agency that possessed exculpatory evidence sought by the defense. Although
neither Pennsylvania v. Ritchie nor Kyles v. Whitley requires prosecutors to survey every state
agency to determine whether the agencies possess potentially exculpatory evidence, where, as in
this case, “the state has a statute pertaining to the disclosure of confidential state records, and the
trial court has ordered the prosecutor to produce those records to the defense, the disclosure
obligations of Brady v. Maryland, and its progeny, apply.” The suppression of the relevant
records until jury deliberations were in progress denied Lavallee of the opportunity to effectively
utilize the materials; it is “unreasonable to suggest that Lavallee should have asked the trial court
to re-open the evidence at that point for additional cross-examination.” Lavellee’s motion to
dismiss the indictment following revelation of the records was adequate to preserve the Brady
claim. Materiality will be determined by review of the records and consideration of the entire
record. Relief will be precluded, however, if the state trial court’s finding that the records were
cumulative, and therefore not material, was not contrary to Supreme Court precedent or involving
an unreasonable application of such precedent. Note: The district court ultimately denied relief.
See Lavallee v. Coplan, 374 F.3d 41 (1 Cir. 2004). st
Herbert v. Government of Virgin Islands,
2001 WL 1691546 (D. Virgin Islands Dec. 10, 2001) (unpublished)
Defendant was entitled to an evidentiary hearing on his claim that the prosecution suppressed a
tape recording or transcript in which the identity of the real robber-killer was revealed. The trial
court erred in denying the Brady claim on the grounds that defendant had not requested the
information and that the prosecution had not been actually aware of it. The case is remanded in
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order to give defendant “the opportunity to establish the location of the tape or transcript,
whether the Government had possession of it, whether the prosecutor knew or should have
known of it and otherwise attempt to establish his Brady claim.”
*Bell v. Haley,
2001 WL 1772140 (M.D. Ala. Dec. 5, 2001) (unpublished)
In Alabama death penalty case, petitioner was entitled to an evidentiary hearing on his claim that
the prosecution suppressed evidence that witness Austin, who testified that petitioner confessed
to committing the murder alone, had made a prior statement indicating that petitioner had claimed
that prosecution witness Hubbard had fired the initial shot. Petitioner was also entitled to a
hearing on his allegation that the prosecution failed to disclose a deal made with Austin in
exchange for his testimony against petitioner, and on whether the state failed to correct false
testimony by Hubbard and Austin. “One obvious purpose of the rule announced in [Brady and its
progeny] is to prevent the prosecution from doing what it may have done here: presenting to the
jury a theory of the case that it may have known was incomplete or misleading and suppressing
the evidence that would enable the jury to undertake informed and meaningful deliberations.”
Materiality regarding the above evidence is measured by whether or not there is a reasonable
probability of a more favorable sentence. Given new evidence proffered by petitioner, he is also
entitled to an evidentiary hearing on his claim that the prosecution suppressed evidence of a deal
with prosecution witness Hubbard. Although the claim was procedurally defaulted, cause and
prejudice were established.
IV. STATE COURTS
LaPointe v. Commissioner of Correction,
966 A.2d 780 (Conn. App. 2009)
Murder, arson, and sexual assault case remanded (in second state habeas proceedings) following
trial court’s erroneous grant of the respondent’s motion for a judgment of dismissal concluding
that the defendant failed to establish a prima facie case. The state’s failure to disclose detective
notes about the burn time of the fire in light of other evidence concerning the defendant’s
whereabouts at the time established a prima facie showing requiring additional proceedings.
People v. Frantz,
868 N.Y.S.2d 757 (N.Y.A.D. 2008)
Hearing ordered on Brady claim in post-conviction review of second degree murder and robbery
case. An accomplice, who plead guilty to robbery and a reduced sentence, testified that he saw
the defendant handling a gun and saw both the defendant and his codefendant shoot the victim. A
hearing was warranted because the accomplice had made pretrial statements that he did not see
the defendant with a gun, that the alley where the shooting took place was dark, and that he saw
only the codefendant shoot the victim. Hearing to address questions of fact regarding whether
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this prior statement was disclosed to the defense and materiality.
Stanley v. State,
995 So.2d 599 (Fla. App. 2008)
Based on petitioner’s allegations that State withheld evidence of agreement it made with its
witness in exchange for witness’s testimony against petitioner, trial court erred in its summary
denial of claim, and matter remanded for evidentiary hearing or other relief.
Garcia v. State,
291 S.W.3d 1 (Tex.App. 2008)
In case involving, inter alia, charges of aggravated assault with a deadly weapon, the trial court
abused its discretion in denying defendant’s motion for a new trial without an evidentiary hearing
on defendant’s Brady claim. The claim was supported by an affidavit from an investigator who
claimed that the investigator used by the prosecutor revealed post-trial that the victim awoke from
his coma with no memory of who shot him, that the prosecution team worked with the victim to
reconstruct his memory, and that the victim was informed that he faced criminal charges if his
memory did not become more clear. An affidavit from defendant’s attorney explaining that the
prosecutor’s investigator refused to sign an affidavit and denied making the statements attributed
to him in the other affidavit did not defeat the need for a hearing.
Edwards v. State,
985 So.2d 698 (Fla. App. 2008)
Lower court erred in summarily denying Brady claim that alleged the prosecution failed to
disclose: (1) a note to the trial judge requesting leniency for petitioner’s co-defendant; (2)
co-defendant’s pretrial statement that the gun used during the robbery was a “cap gun”; (3) video
surveillance from the crime scene; and (4) a forensic report noting that a positive identification of
petitioner’s footprint could not be made.
Ward v. State,
984 So.2d 650 (Fla. App. 2008)
In case involving a no contest plea to careless or negligent operation of a vehicle causing death or
serious injury while license was revoked, the lower court erred in summarily denying petitioner’s
Brady claim which alleged that the prosecutor withheld a report by the medical examiner
indicating that a highway patrol officer had stated that the other car had been driving on the
wrong side of the road at the time of the accident. It was improper for the lower court to reject
the claim on the ground that records from a related civil suit established that petitioner could have
obtained the report at issue had he exercised due diligence given that the civil records were never
made part of the record in this case. (Nor did the lower court observe the procedures required
for taking judicial notice of court documents.) That the medical examiner had been listed by the
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prosecutor as a witness in a discovery exhibit also did not defeat the claim.
*Commonwealth v. Dennis,
950 A.2d 946 (Pa. 2008)
Remanding for consideration of several claims, including claim that the Commonwealth violated
Brady by failing to disclose activity sheets addressing police interviews with the victim’s aunt and
uncle that indicated that eyewitness Howard told them that two other previously unmentioned
individuals witnessed the crime and that Howard knew the assailants as classmates from a high
school that petitioner had not attended. According to petitioner, disclosure of this evidence
would have permitted further impeachment of Howard, an important witness at trial.
*Sanders v. State,
285 S.W.3d 630 (Ark. 2008)
Granting permission for lower court to entertain coram nobis petition alleging Brady claim where
prosecution witness allegedly admitted at post-conviction hearing that he had lied when he
claimed at trial not to have made a deal with the prosecutor in exchange for his testimony against
petitioner and the trial prosecutor corroborated the witness’s admission. Given the significance of
this witness’s testimony at trial, good cause was shown to allow petitioner to proceed with the
claim.
*Rivera v. State,
995 So.2d 191 (Fla. 2008)
Lower court erred in summarily rejecting Brady/Giglio claim raised in successive petition alleging
that jailhouse informant falsely testified that he received no deal for his testimony. In support of
the claim, petitioner pointed to a recently discovered plea agreement as well as jail receipts, a law
enforcement synopsis of a conversation with the informant, and a law enforcement memorandum
of an interview with informant corroborating the information in the plea offer. Petitioner further
contended that the new information established that the inmate was working as a confidential
informant for law enforcement at the time he gave evidence against petitioner. Because the State
did not sufficiently refute the allegations, petitioner was entitled to an evidentiary hearing on his
Brady/Giglio claims.
Hempstead v. State,
980 So.2d 1254 (Fla. App. 2008)
In burglary case, petitioner was entitled to further review of Brady claim based on suppression of
wife’s arrest statement. The lower court erred in concluding that petitioner could not establish
prejudice on the ground that the wife’s trial testimony was cumulative to testimony by the chief
prosecution witness. In fact, the wife’s prior statement not only could have been used to impeach
her trial testimony, but it also could have been used to cast doubt on the chief prosecution
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witness’s testimony.
Boyd v. United States,
908 A.2d 39 (D.C. 2006)
In kidnaping-murder case where prosecution theory was that defendant was one of four assailants,
and defense theory was that three men not including the defendant committed the crime, case is
remanded to trial court for it to order prosecution to disclose statements by eyewitnesses to the
kidnaping who saw less than four assailants. If the defendant believes the statements are material,
he is to file a motion to vacate the conviction under Brady. The prosecution had withheld the
statements on the ground that the witnesses may not have been in a position to see all four men.
The trial court had agreed that disclosure was not required and denied a defense request to review
the statements in camera, noting that the prosecution’s theory was not that the four men were
standing together for anyone to see. At trial, however, one of the prosecution witnesses claimed
to have seen four assailants outside the car. “In arguable cases, the prosecutor should provide the
potentially exculpatory information to the defense or, at the very least, make it available to the
trial court for in camera inspection. Further, when the issue appears to be a close one, the trial
court should insist upon reviewing such material, and should direct disclosure to the defense if,
considering (to the extent possible) the anticipated course of the trial, there is a reasonable
probability that disclosure may affect the outcome.”
Ex Parte Ramirez,
2006 WL 3735390 (Tex. Crim. App. Dec. 20, 2006) (unpublished)
In burglary case, remand to trial court to consider Brady claim where prosecutor had not yet
responded to petitioner’s allegation that the State suppressed evidence that a witness could not
identify him as the perpetrator of the offense, and then falsely represented to the defense, and the
trial court, that the witness was medically unavailable to testify.
Missouri v. Parker,
198 S.W.3d 178 (Mo. App. 2006)
Petitioner convicted of being an accessory in a drive-by shooting was entitled to an evidentiary
hearing on his claim that the prosecution violated Brady when it suppressed statement from a
witness identifying the car from which shots were fired as a car other than one petitioner was in,
and statements from witnesses in the home who testified that the victims were outside and ran
inside after shooting. Such evidence would have supported his claim that he was in a car that
drove by the house at issue, but that shots were not fired from the car he was in and that the
house was dark with nobody outside when he drove by.
Armstrong v. State,
2006 WL 1626726 (Tenn. Crim. App. Jun. 8, 2006) (unpublished)
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Writ of coram nobis is proper vehicle for litigating Brady claim if State suppressed evidence.
Remanding for determination of whether State suppressed evidence, whether claim could have
been discovered with due diligence, and whether Petitioner was “without fault” in delay of
bringing claim. Underlying claim involves two medical records indicating that because victim’s
eyes were taped shut she never saw her attackers.
State v. Seabrookes,
2006 WL 1060502 (N.J. Super. April 24, 2006) (unpublished)
Remand for further proceedings where it appeared that the prosecution was aware during
defendant’s trial of information undercutting its theory of the case – that defendant and his
indicted co-defendant committed two murders together. Shortly after defendant’s conviction, the
prosecution moved to dismiss the indictment in the co-defendant’s case based on new information
indicating he was not involved. This evidence may have been material, among other reasons,
because a key eyewitness had identified without hesitation both defendant and the co-defendant as
the perpetrators in one of the shootings.
State ex re. Walker v. State,
920 So.2d 213 (La. 2006)
Petitioner’s discovery of allegedly suppressed evidence allows untimely filing. Remand to
determine if State has been prejudiced by events beyond its control. If not, Brady claim should be
reached on merits.
Commonwealth v. Daniels,
837 N.E.2d 683 (Mass. 2005)
In homicide case, petitioner was entitled to post-conviction discovery in connection with his
motion for new trial which was premised on newly discovered information implicating another
person in the murder and providing a motive for this new person and another to harm the victim.
The Commonwealth had a continuing duty to disclose exculpatory information, despite the trial
court’s denial of defendant’s pretrial discovery motions, especially where counsel made very
specific requests for information that were related to the new information. Given the specificity of
the request a lower standard for determining the appropriateness of a new trial should be used and
the defendant “need only demonstrate a substantial basis exists for prejudice from the
nondisclosure”
People v. Forster,
2005 WL 2234760 (Cal. App. Sept. 15, 2005) (unpublished)
Where defendant was convicted of pointing a gun at a police officer based on the testimony of the
officer, and defendant admitted he had a gun but claimed he was running away and that the officer
falsely accused him to cover up his improper shots at defendant, the trial court failed to conduct
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the proper Brady analysis when it determined that an incident in which the officer shot at a
suspect allegedly attempting to rob him was undiscoverable because the incident was eleven years
old and had not been recorded in the officer’s file (although the court noted the age of the incident
should be considered in materiality analysis).
Johnson v. State,
617 S.E.2d 252 (Ga. App. 2005), rev’d on other grnds., State v. Johnson, 630 S.E.2d 377
(Ga. 2006)
In drug possession case where defense was that the drug was planted in defendant’s car and
witnesses described suspicious actions of a man, Cedric Bridges, in and around defendant’s car,
lower court needed to determine whether the confidential informant was Bridges, rather than
simply a tipster. If it was Bridges, this fact would be crucial to the defense, and that it should be
disclosed in the event of a retrial.
Polk v. State,
906 So.2d 1212 (Fla. 2005)
In sexual abuse case, remand for consideration of petitioner’s claims, including Brady claim,
where petitioner post-conviction obtained DNA results excluding him as source of semen found at
the crime scene. Defendant had no duty to exercise due diligence in reviewing the DNA test
results before the time the state actually furnished them.
Freshwater v. State,
160 S.W.3d 548 (Tenn. Crim. App. 2004)
In robbery-murder case where victim was shot with two different guns and the defense was that
the accomplice was solely responsible for the crime which the defendant was unaware in advance
would even occur, remand for evidentiary hearing on allegations that the prosecution suppressed
evidence that the accomplice admitted sole responsibility to a snitch.
State v. French,
85 P.3d 196 (Hawai’i 2004)
Trial court abused its discretion in refusing to conduct an in camera review of the complainant’s
probation records and then releasing to defendant relevant information pertaining to the
complainant’s truthfulness and honesty. Although the records are confidential under state law, any
statutory privilege must bow to the defendant’s constitutional rights.
Manning v. State,
884 So.2d 717 (Miss. 2004)
Evidentiary hearing was warranted on numerous claims, including claims that the prosecution
Habeas Assistance and Training 09/09 14 Remand or Hearing on Brady/Napue Claim
knowingly presented false testimony, coerced a witness into providing false testimony, and
suppressed exculpatory evidence. The false testimony/coercion allegation concerned a prosecution
witness who testified that he lived across the street from the victims and observed petitioner force
his way into the victims’ apartment on the day of the capital murders. Newly discovered evidence,
including suppressed police reports, indicated that the witness did not live across the street from
the victims’ apartment until after the murders. The witness explained in an affidavit that he was
pressured by the police to implicate petitioner. Other suppressed evidence included a finding that
a shoe print found in blood at the victims’ apartment was a size 8, which was too small to have
been made by petitioner, and information implicating a third party in the offense.
People v. Ledbetter,
794 N.E.2d 1067 (Ill. App. 2003)
Lower court erred by summarily dismissing post-conviction relief petition which alleged that the
prosecution violated Brady by failing to disclose that the police officer who testified that
petitioner had confessed to him was under investigation for corruption at the time of his
testimony.
Abatti v. Superior Court,
4 Cal.Rptr.3d 767(Cal. App. 2003)
Trial court erred in failing to perform in camera review of former police officer’s personnel
records where the former officer was a key prosecution witness and defense counsel had obtained
information that the witness had left the police department due to accusations of acts of moral
turpitude rather than because of a disability as he’d claimed in an interview with the defense
investigator. Defense counsel further averred that counseling records in the personnel file would
document prior acts of dishonesty. The information sought by defendant was thus material under
Brady because it could impeach the former police officer, who was to testify that defendant made
admissions to him that would corroborate the victim’s story.
Bustillo v. Johnson,
63 Va. Cir. 125, 2003 WL 22518501 (Va. Cir. Ct. 2003)
In a murder case where the defense at trial was that another party was the actual assailant, police
reports that provided some corroboration to the defense theory were exculpatory and should have
been disclosed. The case is remanded for a limited hearing on the question of materiality.
Guzman v. State,
868 So.2d 498 (Fla. 2003)
In capital murder case where prosecution witnesses lied about the benefits received by a witness,
remand for further consideration of petitioner’s Giglio claim is required because the lower court
erroneously applied the less-defense friendly materiality standard of Brady. Where false testimony
Habeas Assistance and Training 09/09 15 Remand or Hearing on Brady/Napue Claim
has been presented, the proper question “is whether there is any reasonable likelihood that the
false testimony could have affected the court’s judgment as the factfinder in this case. If there is
any reasonable likelihood that the false testimony could have affected the judgment, a new trial is
required. The State bears the burden of proving that the presentation of the false testimony was
harmless beyond a reasonable doubt.”
Moss v. State,
860 So.2d 1007 (Fla. App. 2003)
Circuit court erred by summarily denying a motion for post-conviction relief in murder case where
agents from the FBI crime laboratory were important prosecution witnesses and the motion
alleged that the prosecution failed to disclose reports finding that the FBI crime laboratory used
shoddy practices, that some its agents testified falsely, that errors in testing had occurred, and that
flawed scientific reports had been issued. The circuit court erroneously looked only to testimony
favorable to the state and then concluded that ample evidence supported petitioner’s convictions
exclusive of the testimony of the FBI agents. On remand, the circuit court is to hold an
evidentiary hearing or evaluate the weight of the newly discovered evidence and all the evidence
presented at trial.
Taylor v. State,
848 So.2d 410 (Fla. App. 2003)
Petitioner who pleaded guilty to driving under the influence manslaughter was entitled to a
remand on her Brady claim where the lower court summarily denied the claim even though there
was nothing in the record (at least as provided to the appellate court) to conclusively refute the
petitioner’s allegations. Petitioner set forth a viable Brady claim by alleging that the state failed to
reveal the results of the blood test from the other driver involved in the accident which would
have shown that the driver had alcohol and drugs in her system, as well as statements by a witness
that indicated the driver of the other car was intoxicated, driving erratically, and talking on a cell
phone at the time of the offense. Petitioner further alleged that she would not have entered the
guilty plea but for the state’s suppression of the favorable evidence.
Patel v. State,
108 S.W.3d 82 (Mo. App. 2003)
Petitioner who was convicted of various counts of assault and armed criminal action was entitled
to an evidentiary hearing on his claim that the prosecution failed to disclose the full extent of its
bargain with the key prosecution witness (who was the man petitioner allegedly hired to kill two
people). A parole revocation transcript did not conclusively refute petitioner’s allegation that the
witness received a concurrent sentence in an unrelated case as part of his agreement to testify
against petitioner. (The witness received a 20-year sentence for his role in the crimes for which
petitioner was charged, a fact known to petitioner’s jury. The witness was also sentenced to 7
years in separate parole revocation proceedings with that sentence to run concurrent to the
Habeas Assistance and Training 09/09 16 Remand or Hearing on Brady/Napue Claim
20-year sentence.) Given the importance of the witness’s credibility in the prosecution’s case
against petitioner, the court finds a reasonable probability of a more favorable verdict had “the
jury had been informed that, as alleged, the state recommended a seven-year sentence from an
unrelated case be served concurrently with the twenty-year sentence.”
Bergren v. State,
2003 WL 446813 (Minn.App. Feb. 25, 2003) (unpublished)
Petitioner was entitled to an evidentiary hearing on his claim that the prosecution violated Brady
by failing to disclose a quid pro quo plea agreement with his accomplice where: although the
victim’s identification of petitioner as the shooter was equivocal, the accomplice’s testimony on
this point was absolute; the accomplice denied at trial that his plea agreement required his
testimony against petitioner; and at a post-trial proceeding the accomplice’s attorney asserted that
the guilty plea had indeed been “negotiated around” the state’s desire to obtain the accomplice’s
testimony against petitioner.
*State v. Reynolds,
2002 WL 46988 (Ohio App. 7 Dist Jan. 8, 2002) (unpublished)
Ohio death row inmate was entitled to an evidentiary hearing on his allegation that the state
withheld information relating to bias of two witnesses at petitioner’s trial. Petitioner submitted
evidence supporting his allegation that the two key prosecution witnesses had, contrary to their
trial testimony, agreed to testify only after being promised money by the state. Assuming the
suppressed deals can be established, there is a reasonable probability of a more favorable outcome
given that the evidence against petitioner was circumstantial, and the state’s case rested primarily
on the “colorful and incriminating” testimony of the two witnesses. Further, the alleged deals cast
doubt on the testimony of other prosecution witnesses. The trial court erred by evaluating the
Brady claim under a sufficiency of the evidence test.
*Floyd v. State,
808 So.2d 175 (Fla. 2002)
Florida death row inmate Floyd was entitled to an evidentiary hearing on claims that the
government withheld exculpatory evidence where the record did not conclusively refute Floyd’s
factual allegations. (Floyd alleged that the State withheld the following information: (1) a
witness’s statement that she saw several white men force their way into the victim’s house around
the time the State estimated the victim had died; (2) evidence that the man who accompanied
Floyd when he was arrested provided deceptive responses on his polygraph; and (3) evidence
which would have been used to impeach one of Floyd’s former cellmates who testified that Floyd
confessed to the crime.)
Gorman v. State,
619 N.W.2d 802 (Minn. 2000)
Habeas Assistance and Training 09/09 17 Remand or Hearing on Brady/Napue Claim
Post-conviction relief petitioner was entitled to an evidentiary hearing on his claim that, he was
prejudiced in his murder trial, at which he claimed self-defense, by the state’s nondisclosure of
evidence that the victim had another name and a prior criminal history under that name; the
evidence that the victim was boasting that he had just been released from prison would have been
admissible to bolster petitioner’s credibility, and the evidence might have changed petitioner’s
decision to testify.
State v. Lindsey,
715 So.2d 544 (La. App. 1998)
Petitioner, who had been convicted of second degree murder, was entitled to an evidentiary
hearing on his Brady claim where apparently undisclosed police statements by prosecution
witnesses supported petitioner’s defense of intoxication and conflicted with the witnesses’ trial
testimony.
Dalbosco v. State,
960 S.W.2d 901 (Tex. App. 1997)
Trial court erred in failing to include for appeal the personnel file of a police officer who testified
against appellant. Appellant alleges the file contains information indicating the officer was
dismissed for lying and thus may have been material impeachment evidence. Case abated to trial
court to include file.
Roberts v. State,
881 P.2d 1 (Nev. 1994)
Trial judge’s failure to review confidential informant file before ruling on defendant’s Brady claim,
that the file contained material information relevant to entrapment defense and state should have
disclosed file, required remand for in camera review of file.
Duncan v. State,
575 So.2d 1198 (Ala.Crim.App. 1990), cert. denied, 575 So.2d 1208 (Ala. 1991).
State’s failure to disclose, despite specific request, legal pad on which police department
employees recorded information about the case violated due process to the extent that the pad
contained exculpatory information. Remanded for determination.
State v. Pollitt,
508 A.2d 1 (Conn. 1986)
Fact that claimed Brady material was disclosed during, and not after, trial did not preclude the
application of Brady obligation to disclose, which declared the right to material and favorable
evidence was part of the fundamental right to a fair trial. Remanded for hearing on Brady issue.
Habeas Assistance and Training 09/09 18 Remand or Hearing on Brady/Napue Claim
*Smith v. Zant,
301 S.E.2d 32 (Ga. 1983)
Petitioner entitled to hearing on his claim that Napue and Giglio were violated where prosecution
told jury that witness was not promised anything for his testimony when in fact he was threatened
with death penalty if he failed to testify, and given life sentence in exchange for his testimony.

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