Successful Brady/Napue Cases – Suppression of Evidence

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SUCCESSFUL BRADY/NAPUE CASES
(Updated September 6, 2017)
* capital case
I. UNITED STATES SUPREME COURT
*Wearry v. Cain
136 S.Ct. 1002 (2016) (per curiam)
United States Supreme Court summarily reverses Louisiana court’s denial of postconviction relief
on Brady claim, holding that state prejudicially failed to disclose material evidence including
inmates’ statements casting doubt on the credibility of the testimony of the state’s key witnesses.
Wearry was convicted by a jury of capital murder and sentenced to death, largely on the basis of
testimony of two inmates, Scott and Brown, both of whose testimony was significantly different
from the various statements they had provided to law enforcement prior to trial. There was no
physical evidence linking Wearry to the crime and Wearry presented an alibi defense at trial. After
Wearry’s conviction became final, he obtained information that the prosecution had withheld (1)
police reports that indicated that one inmate had reported that Scott “wanted to make sure [Wearry]
gets the needle cause he jacked over me” and another inmate lied to investigators at Scott’s urging,
stating that he had witnessed the murder; (2) information that Brown had twice sought a deal to
reduce his sentence in exchange for testifying against Wearry, and that the police had told him they
would talk to the DA; and (3) medical records on Hutchinson, an individual whom Scott had
reported ran into the street to flag down the victim on the night of the murder, pulled the victim out
of the car, and shoved him into the cargo space and got into the cargo space himself. The medical
records indicated that nine days before the murder Hutchinson had undergone knee surgery and
would not have been able to run, bend, or lift substantial weight. The new evidence is sufficient to
undermine confidence in the guilty verdict. “The State’s trial evidence resembles a house of cards,
built on the jury crediting Scott’s account rather than Wearry’s alibi.” 136 S.Ct. at 1006. “Scott’s
credibility, already impugned by his many inconsistent stories, would have been further diminished
had the jury learned that Hutchinson may have been physically incapable of performing the role
Scott ascribed to him, that Scott had coached another inmate to lie about the murder and thereby
enhance his chances to get out of jail, or that Scott may have implicated Wearry to settle a personal
score. Moreover, any juror who found Scott more credible in light of Brown’s testimony might
have thought differently had she learned that Brown may have been motivated to come forward not
by his sister’s relationship with the victim’s sister—as the prosecution had insisted in its closing
argument—but by the possibility of a reduced sentence on an existing conviction.” Id. at 1006-07.
The Louisiana court improperly evaluated the materiality of each piece of withheld evidence rather
than all of them cumulatively.
*Smith v. Cain,
565 U.S. 73 (2012)
In Louisiana death penalty case, reversing denial of post-conviction relief where the prosecution
failed to disclose statements by the only eyewitness to the five murders that he was unable to
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describe or identify any of the three assailants. The suppressed evidence was material given that
the eyewitness provided the only evidence linking the defendant to the murders and the
undisclosed statements directly contradicted the eyewitness’ emphatic identification of the
defendant at trial as the first gunman to enter the room where the killings occurred. That the
eyewitness made inconsistent statements on the night of the murder suggesting that he could
identify the first gunman did not render the undisclosed statements immaterial. Nor did the
State’s speculation that the undisclosed statements could have been made because of the
eyewitness’ fear of retaliation. (Dissent by Thomas.)
*Banks v. Dretke,
540 U.S. 668 (2004)
Texas death row inmate was entitled to habeas relief from his death sentence due to the
prosecution’s suppression of evidence of a trial witness’s informant status where that witness’s
testimony was key to the prosecution’s claim of future dangerousness and the witness was not
otherwise effectively impeached. Petitioner established cause for his failure to present the
evidence establishing the Brady violation to the state court in that petitioner reasonably relied on
the government’s pre-trial promise to disclose all Brady material, and the state had continued to
deny that the witness was an informant at state post-conviction proceedings.
*Kyles v. Whitley,
514 U.S. 419 (1995)
Reversing denial of habeas relief as to capital conviction and death sentence where state withheld
eyewitness and informant statements, and a list of license numbers. Withheld evidence is to be
evaluated collectively, not item-by-item, and the standard is a “reasonable probability” of a
different result. The Court also made clear that “the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government’s behalf in the case,
including the police.” 514 U.S. at 437.
Giglio v. United States,
405 U.S. 150 (1972)
Government failed to disclose impeachment evidence of a promise of immunity in exchange for
testimony. Prosecutor’s knowing creation of a false impression requires new trial “if there is any
reasonable likelihood that the false testimony could have affected the verdict.”
*Miller v. Pate,
386 U.S. 1 (1967)
Illinois death row inmate entitled to habeas relief where prosecution knowingly misrepresented
paint-stained shorts as blood-stained, and failed to disclose the true nature of the stains.
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*Brady v. Maryland,
373 U.S. 83 (1963)
Suppression of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith of the
prosecution. (Here, the state court had concluded that Brady was entitled to resentencing because
of the prosecution’s failure to disclose an extrajudicial statement by the co-defendant where he
admitted to being the actual killer. The Supreme Court affirmed the state court’s ruling that
Brady was not entitled to a new guilt-innocence trial.)
Napue v. Illinois,
360 U.S. 264 (1959)
“When reliability of a given witness may well be determinative of guilt or innocence,”
nondisclosure of immunity deal with witness violates Due Process. In addition, “a conviction
obtained through use of false evidence, known to be such by representatives of the State, must
fall under the Fourteenth Amendment.” See Mooney v. Holohan, 294 U.S. 103; Pyle v. State of
Kansas, 317 U.S. 213. And “[t]he same result obtains when the State, although not soliciting
false evidence, allows it to go uncorrected when it appears.” See Alcorta v. State of Texas, 355
U.S. 28.
II. UNITED STATES COURTS OF APPEALS
United States v. Cessa,
861 F.3d 121 (5th Cir. 2017)
In conspiracy to launder drug proceeds case, appeals court vacates judgment of district court on
Brady claim and remands for further consideration of the claim. Defendant was indicted and
charged with counts of conspiring to launder drug proceeds with the Zetas, a Mexican gang, by
buying, training, and racing quarter horses in the U.S. and Mexico. He was convicted and
sentenced to 200 months in prison and forfeiture of his personal property and a $60 million money
judgment. Prior to trial, he moved that the government provide all interview memoranda, and the
district court granted the motion. The court reviewed the interview memoranda and denied
defendant access to those relating to a particular witness, stating that nothing in them was helpful
to the defense. The Court of Appeals holds that the district court did not consider all three prongs
of Brady when determining not to disclose the memos; it is clear both from the court’s language
and its timing that it considered only whether the interview memos were favorable, not whether
they were material. Materiality of impeachment evidence may become clear only during or after a
witness’s testimony and materiality of exculpatory evidence may become clear only upon a full
review of trial evidence. Furthermore, the district court clearly erred in finding that the interview
memos were not favorable to the defense. Some of the witness’s statements were exculpatory: they
supported defendant’s theory that he did not buy the horses using Zeta money and instead bought
the horses with his own money and gave them to the Zetas as gifts because he feared the Zetas, and
that he did not join the conspiracy at all. Some of the witness’s statements in the memos were
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inconsistent with his trial testimony that the Zetas delivered money to defendant and that defendant
was “friends” with one of the Zetas rather than afraid of him. Instead of addressing the second and
third prongs of Brady (suppression and materiality), the Court of Appeals remands for full
assessment of the memos and the interview notes associated with them (which the government
contends not to have thoroughly reviewed).
*Thomas v. Westbrooks,
849 F.3d 659 (6th Cir. 2017) (cert. pet. filed Aug. 17, 2017)
Court of Appeals reverses district court’s denial of Thomas’s habeas corpus petition filed under 28
U.S.C. § 2254 challenging his Tennessee conviction and death sentence. Thomas was convicted of
felony murder arising from the shooting of an armored truck driver in the course of a robbery.
Prior to his trial on this case, he was tried and convicted in federal court of interfering with
interstate commerce, carrying a firearm in relation to a crime of violence, and being a felon in
possession of a firearm, all stemming from the same event. Thomas’s girlfriend testified at both
trials, indicating that Thomas was present at the scene of the shooting and connecting him to other
circumstantial evidence in the case. After the federal case, but before the state case, the FBI paid
Thomas’s girlfriend $750, and this information was contained in the file the FBI provided to the
state prosecutors, but it was not provided to the defense. Thomas’s girlfriend testified at trial that
she did not receive any reward money, and the prosecutor emphasized to the jury that she testified
simply because it was the right thing to do. On appeal, the state conceded that the prosecution
suppressed the information about the $750 payment and that the information was favorable to
Thomas, but argued that it was not material evidence and so the suppression was not prejudicial.
The Sixth Circuit holds that the district court’s conclusion that the evidence was not material
because there was substantial evidence linking Thomas to the crime is a mischaracterization of
Brady requirements – the question is whether the guilty verdict is worthy of confidence in the
absence of the suppressed evidence, and the court concludes that it is not. Thomas’s girlfriend’s
testimony was vital to the prosecution’s case because she provided the only information linking
Thomas to the scene, to his codefendant, and to transactions cited as circumstantial evidence of his
involvement in the shooting. Without the evidence of the $750 payment, Thomas had no basis
upon which to impeach her on the basis of her financial interest. “[I]f the jury had been presented
with evidence of an unusual payment to an individual who can be fairly characterized as an
accessory after the fact, it might well have chosen to disregard her testimony against Thomas as
untrustworthy and unreliable.” 849 F.3d at 665.
*Dennis v. Sec’y, Pa. Dep’t of Corr.,
834 F.3d 263 (3d Cir. 2016) (en banc)
In post-AEDPA capital murder case, Third Circuit affirms grant of habeas corpus relief by district
court on Brady claim. Third Circuit holds that Pennsylvania state court unreasonably disregarded
the impeachment value of a receipt that discredited a government’s key witness’ testimony
concerning when she saw Dennis, unreasonably applied Brady in concluding that the documents
suggesting that a third party committed the murder were immaterial, and acted contrary to clearly
established federal law in adding an admissibility requirement to Brady where none exists. Dennis
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was convicted of killing a high school student, based largely on eyewitness testimony. Dennis
presented an alibi defense, along with evidence of mistaken identity and good character. He and
others testified that he was on a bus and at singing practice at and around the time of the murder.
The prosecution withheld (1) a time-stamped receipt concerning when a witness picked up her
welfare benefits, which corroborated the time which the defense theorized the witness saw Dennis
on a bus; (2) a police activity sheet that indicated that one of the eyewitnesses who testified against
Dennis had provided information inconsistent with her testimony; and (3) documents regarding a
tip from an inmate that stated that a third party had identified himself as the killer. The
Pennsylvania Supreme Court’s decisions denying the Brady claims rested on unreasonable
conclusions of fact and unreasonable applications of clearly established law, or were contrary to
Supreme Court precedent for the following reasons:
(1) With regard to the receipt, the state court’s findings that the receipt was cumulative of other
testimony and also had no bearing on the alibi were unreasonable determinations of fact
and an unreasonable application of Brady. The state court failed to recognize the
impeachment value of the receipt, which provided documentary evidence that the witness’s
trial testimony about the time she saw Dennis was false. It would have corroborated
Dennis’s testimony that he saw the witness when he got off the bus – the witness’s correct
testimony “would have strengthened Dennis’s and his father’s testimony that Dennis had
been with his father that afternoon and was on the bus at the time of the murder.” 834 F.3d
at 287. This was sufficient to demonstrate the receipt’s favorability under Brady,
particularly because this was the only disinterested witness who otherwise corroborated the
testimony of Dennis and his family and friends. The receipt was material – “Transforming
. . . a disinterested individual with documentary support, into a defense witness, meets the
requirements of Brady materiality because it would have necessarily bolstered Dennis’s
alibi defense narrative and ‘put the whole case in . . . a different light.’” 834 F.3d at 295.
The police had the receipt and therefore so did the prosecution; the defense had no
affirmative due diligence obligation under Brady to obtain the receipt independently when
the prosecution team had it: “the concept of ‘due diligence’ plays no role in Brady
analysis.” 834 F.3d 291.
(2) With regard to the police activity sheet, one of the eyewitnesses made a statement to her
aunt and uncle that she recognized the perpetrators from high school, and this statement
was not disclosed to the defense at trial. The state court’s denial of the Brady claim
articulated the correct standard for materiality but applied the standard inconsistently with
Supreme Court precedent. The statement could have been used as impeachment to
undercut the eyewitness’s credibility in a manner not duplicated by other challenges the
defense was able to level at trial and the prosecution argued that the eyewitness’s testimony
was “enough to convict” Dennis. 834 F.3d at 299. “Armed with the activity sheet, defense
counsel could have impeached [the witness] in a manner that very well may have led her to
admit she recognized the perpetrators from her high school,” 834 F.3d at 301, as well as to
challenge the adequacy of the police investigation and to mount an “other suspect” defense
at trial.
(3) With regard to the documents relating to an inmate’s statement that a third person had
confessed to the killing, the state court’s conclusion that the documents were not material
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was an unreasonable application of Brady, and its conclusion that the documents were
inadmissible was contrary to clearly established law, which does not have an admissibility
requirement for disclosure purposes. The statement that someone else committed the crime
was exculpatory. The statement “was not fruitless [as found by the state court], it was
simply not rigorously pursued.” 834 F.3d at 307.
The cumulative materiality of the withheld documents “commands” relief. 834 F.3d at 311-12.
NOTE: This case also interprets Richter’s “gap-filling” of theories upon which the state court
denied relief as “reserved for those cases in which the federal court cannot be sure of the precise
basis for the state court’s ruling. . . . It does not permit a federal habeas court, when faced with a
reasoned determination of the state court, to fill a non-existent ‘gap’ by coming up with its own
theory or argument, let alone one, as here, never raised to the state court.” 834 F.3d at 282 (citing
Premo v. Moore, 562 U.S. 115 (2011)). “[W]hen the state court pens a clear, reasoned opinion,
federal habeas courts may not speculate as to theories that ‘could have supported’ the state court’s
decision.” 834 F.3d at 283.
Fuentes v. Griffin,
829 F.3d 233 (2d Cir. 2016)
Second Circuit reverses denial of habeas corpus relief by district court in non-capital case charging
rape and sodomy of the first degree, which had held that the New York state court’s denial of
Fuentes’ Brady claim was neither contrary to nor unreasonable application of clearly established
federal law. Second Circuit holds that Fuentes’ Brady claim should have been granted on the
ground that the state court’s rejection of the Brady claim was an unreasonable application (under
28 U.S.C. §2254(d)(1)) of the materiality standard established by Kyles v. Whitley, 514 U.S. 419
(1995). The prosecution suppressed a record of a psychiatric evaluation of the complainant that
impeached her testimony and supported the defendant’s version of events. The record was relevant
because the issue was not whether an alleged rapist was the defendant, but rather whether the event
was a consensual sexual encounter rather than a sexual assault. It was material because the
complainant provided the only evidence that what occurred was a crime and the withheld
document was the only evidence by which the defense could have impeached the complainant’s
credibility as to her mental state. The suppressed psychiatric record indicated that the complainant
reported depression, suicidal thoughts, frequent crying spells, and family problems dating back two
years and cannabis abuse for a year before the alleged assault. That record could have confirmed
Fuentes’ testimony that the complainant was acting erratically on the night of their encounter and
also explained the complainant’s crying during her testimony. “Based on clearly established
fundamental rights and principles, we think it indisputable that if the prosecution has a witness’s
psychiatric records that are favorable to the accused because they provide material for
impeachment, those records fall with Brady principles, and that the Supreme Court has so
recognized.” 829 F.3d at 247 (citing, e.g., United States v. Abel, 469 U.S. 45, 52 (1984); Williams
(Michael) v. Taylor, 529 U.S. 420, 427 (2000)). The trial court’s determination that the record did
not contain anything exculpatory, and the state appellate court’s conclusion that the report
supported the prosecution’s case because it corroborated the complainant’s testimony that she was
upset that she had put herself in danger by walking home alone, were unreasonable because they
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relied upon a misreading of the withheld report, which indicated that the complainant’s symptoms
were long-standing and not caused by immediate events, and that they may have provided an
explanation for the complainant’s reporting the incident as a crime that corroborated the defense
theory that the complainant was angry and upset about being rejected. The state’s conclusion that
the suppression of the report was not prejudicial because the evidence against the defense was
overwhelming was also unreasonable because the evidence against the defendant was not
overwhelming, as there was no physical or medical evidence that the complainant had been
subjected to force, and the complainant’s testimony was contrary to that of others in several
respects.
Carrillo v. City of Los Angeles,
798 F.3d 1210 (9th Cir. 2015), cert. denied, 136 S.Ct. 1671 (2016)
Ninth Circuit affirms district court’s denial of officer-defendants’ motion to dismiss plaintiffexonerees’ § 1983 lawsuit on qualified immunity grounds where “first, the law at the time of the
investigations clearly established that police officers had to disclose material, exculpatory evidence
under Brady, and second, that any reasonable officer would have understood that Brady required
the disclosure of the specific evidence allegedly withheld.” 798 F.3d at 1213. The evidence
withheld included both impeachment and exculpatory evidence. The impeachment evidence
included statements to police officers by a testifying eyewitness that the eyewitness saw the
shooter only in profile, asked to be hypnotized because he could not remember what the shooter
looked like, and recalled the shooter did not have a mustache unlike every person in the photo
lineup; statements to police officers by another testifying eyewitness that he selected the defendant
in the lineup because of his face, but the hair of the perpetrator was curlier; statements by another
eyewitness that he selected several other photographs from a “gang book” before selecting
defendant’s, and that the officer had told him the others could not be the perpetrator but defendant
was. The exculpatory evidence included evidence of a previous attempt on the victim’s life by
another perpetrator.
Comstock v. Humphries,
786 F.3d 701 (9th Cir. 2015)
In post-AEDPA case involving conviction for possession of stolen property, Comstock was
entitled to habeas relief due to the prosecution’s failure to disclose a material and exculpatory
statements made by the alleged victim, Street. The state’s theory was that Comstock or another
person stole Street’s wrestling championship ring and Comstock pawned it; the defense at trial was
that Comstock found the ring outside Street’s apartment. Comstock was sentenced to 10-15 years
under Nevada’s habitual offender statute. Street testified at trial that he never loaned the ring, it
never fell off accidentally, and although he had misplaced it in his apartment, he did not recall
losing it outside, and that Comstock was a maintenance worker and had been inside his apartment.
In a presentencing statement, Street wrote that he had told the prosecutor and investigating
detective prior to trial that he was not sure the ring had been stolen at all; he remembered having
taken the ring off outside his apartment and putting it on the ground or air conditioner, and that he
didn’t remember putting it back on. The prosecution had not disclosed this fact to the defense, and
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argued in the opposition brief to the defense motion for new trial that Street had told the
prosecution only that it was “possible” he could have taken the ring off, but that in fact that did not
happen. The trial court denied the motion for new trial. The Court of Appeals held that Street’s
statements were favorable to Comstock: they impeached Street’s credibility about how he handled
his ring and cast serious doubt as to whether there was a crime at all (the Nevada Supreme Court
did not make a clear determination about this). The statements were suppressed—there is no
evidence to the contrary, only the prosecution’s arguments in the opposition to the motion for new
trial (the Nevada Supreme Court did not make a factual finding regarding what the state knew prior
to trial). The statements were material, both as impeachment of Street’s testimony and as
exculpatory, particularly in light of the prosecution’s closing argument. Defense counsel attempted
to cross-examine Street about the possibility he had dropped the ring, but the cross-examination
fell flat, and the disclosure of Street’s pretrial statements would have transformed this cross. The
prosecution argued that Street never would have lost the ring because it was too important to him,
and that therefore there must have been a crime; but Street’s pretrial statements called that into
question as well, and would have made the prosecution’s case significantly weaker. The Nevada
Supreme Court’s findings to the contrary were an unreasonable application of Brady.
Armstrong v. Daily,
786 F.3d 529 (7th Cir. 2015)
Seventh Circuit affirms district court’s denial of officer-defendants’ motion to dismiss plaintiffexoneree’s § 1983 lawsuit on qualified immunity grounds where the officers intentionally
destroyed evidence:
Though Brady did not announce a duty to preserve evidence, a duty to refrain from badfaith destruction flows necessarily, and obviously, from its familiar holding that
suppression of material exculpatory evidence violates due process. [Citing Brady.] Brady
would mean nothing if, as [the officer] argues, a prosecutor could comply with its
command by deliberately destroying exculpatory evidence and then disclosing the fact of
destruction to the defense. [¶] Under [the officer’s] argument, a reasonable police
investigator could have believed in 1980 that if he possessed exculpatory evidence, he had
an obligation to disclose it to the defense unless he deliberately destroyed it first. No
reasonable police officer or prosecutor could have believed that in 1980. That is not a
reasonable interpretation of Brady, and neither [the officer] nor the partial dissenting
opinion has directed us to any courts that have adopted it. Under the law in 1980, including
at least Killian and Brady, prosecutors had a clearly established legal duty not to act in bad
faith to destroy evidence, which if suppressed or destroyed, “creates a reasonable doubt that
did not otherwise exist.” See United States v. Agurs, 427 U.S. 97, 112-13 (1976).
Bies v. Sheldon,
775 F.3d 386 (6th Cir. 2014)
As in Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014), the Sixth Circuit affirmed the grant of relief
in this formerly capital case from Ohio, finding that the prosecution violated Brady by failing to
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disclose favorable, material information which undermined confidence in petitioner’s convictions
for the murder and attempted sexual assault of a ten year old boy in an abandoned building.
Lacking any physical evidence to connect him to the crime, “[t]he State’s case against Bies rested
almost entirely upon an unrecorded statement that Bies allegedly made to the police following a
prolonged and highly suggestive custodial interrogation.” 775 F.3d at 388. Discovery conducted
during petitioner’s federal habeas proceedings yielded “hundreds of pages of evidence,” including
“a substantial collection of tips, leads, and witness statements relating to other individuals who had
been investigated for the murder – two of whom had apparently confessed to the crime [including
one suspect named Roger Cordray], and neither of whom was ever ruled out as the perpetrator.”
775 F.3d at 394-95. After Bies was granted abeyance to present the new Brady claim to the state
court, the state court declined to adjudicate the claim on the merits, resulting in de novo review in
federal court. After noting that the first two elements of the Brady analysis – suppression and
favorability – were not disputed, the Sixth Circuit quickly determined that the previously
undisclosed information had also been “material” under Brady. The facts regarding Cordray alone,
had they been disclosed, would have provided a compelling counter-narrative to the State’s theory
of the case and could have created a reasonable doubt as to Bies’ guilt in the minds of the jurors.
“Considering the evidence collectively,” the court concluded, “it is painfully clear that the result of
the trial would likely have been different had the suppressed evidence been disclosed to the
defense.” Id. at 403.
Gumm v. Mitchell,
775 F.3d 345 (6th Cir. 2014)
The Sixth Circuit affirmed the grant of relief in this formerly capital case from Ohio, finding that
the prosecution violated Brady by failing to disclose favorable, material information, and that the
prosecutor committed additional misconduct by eliciting and emphasizing unreliable evidence of
petitioner’s propensity to engage in violent and distasteful acts. Petitioner and his co-defendant,
Michael Bies (see Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014)), were convicted and sentenced to
death (both men’s death sentences were later set aside pursuant to Atkins v. Virginia) in connection
with the 1992 murder and attempted sexual assault of a ten year old boy in an abandoned building
in Cincinnati. Because there was no physical evidence linking petitioner to the crime, the
prosecution’s case was built upon witness testimony placing him near the scene around the time of
the crime and a confession provided after extensive interrogation. Examining petitioner’s claim de
novo because it had been disposed of in state court on the basis of lack of subject matter
jurisdiction, the Sixth Circuit began by describing a vast array of undisclosed evidence related to
other individuals who had been investigated for the murder, including evidence that Roger Cordray
had confessed to the crime. Although some of this evidence would have been inadmissible at trial,
much of it, including Cordray’s confession and law enforcement’s apparent failure to pursue a
wide array of leads, would have been admitted. With regard to materiality, the Sixth Circuit found
that, “[c]onsidering the quality and quantity of the evidence that the state failed to disclose, the
potential for that evidence to have affected the outcome of Petitioner’s trial is inescapable.” 775
F.3d at 370. The prosecutor also committed misconduct by eliciting specific language from two
lay witnesses in an “intentional and deliberate manner,” including claims that petitioner had
“‘fucked a horse’” and had been “‘so hard up he’d do it to anyone,’” – and by using that language
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to build an unreliable and improper propensity argument. The court concluded that “the case
against petitioner was so weak and the prosecutor’s misconduct so ‘pronounced and persistent’ that
it … had a ‘probably cumulative effect upon the jury which cannot be disregarded as
inconsequential.’” Id. at 385 (quoting Berger v. United States, 295 U.S. 78, 89 (1935)).
Amado v. Gonzalez,
758 F.3d 1119 (9th Cir. 2014)
In gang-related homicide case where petitioner was convicted under an aiding and abetting
theory, he was entitled to habeas relief due to the prosecution’s failure to disclose that the key
eyewitness against petitioner was on felony probation for a robbery and had been a member of a
gang affiliated with the targeted victims. The state appellate court’s finding that the evidence
about the witness was not newly discovered was an unreasonable determination of the facts in
light of the evidence before it. In addition, the state appellate court’s ruling that petitioner was
required to show that he could not have discovered the evidence through the exercise of due
diligence was contrary to clearly established Supreme Court precedent. “Especially in a period
of strained public budgets, a prosecutor should not be excused from producing that which the law
requires him to produce, by pointing to that which conceivably could have been discovered had
defense counsel expended the time and money to enlarge his investigations. No Brady case
discusses such a requirement, and none should be imposed.” Because the witness had been
prosecuted by the same district attorney’s office that prosecuted petitioner, the witness’s criminal
history was deemed available to the prosecution. That the witness had been impeached at trial by
cross-examination about his weak vision did not defeat a finding of materiality as to the
undisclosed evidence. Importantly, the eyewitness provided the only evidence that petitioner
brought a gun to the crime scene. Without this testimony, it was unlikely that the jury could have
found the requisite mental state.
*Lambert v. Beard,
537 Fed.Appx. 78 (3rd Cir. 2013) (unpublished), cert. denied, 134 S.Ct. 1938 (2014)
On remand from the Supreme Court for further consideration of Brady claim under §2254(d),
adhering to prior judgment, and finding that alternative grounds for state court decision
identified in Supreme Court’s opinion (Wetzel v. Lambert, 132 S.Ct. 1195 (2012)) were
unreasonable under § 2254(d)(1) and (d)(2). Lambert was convicted and sentenced to death for
his alleged participation in a 1982 robbery and double murder with another man, Reese. Lambert
and Reese came to the attention of law enforcement through the claims of one Bernard Jackson,
who fingered them after receiving word that an eyewitness had identified him as one of the
robbers, and Jackson’s statements and trial testimony were a central component of the state’s
case. See 633 F.3d at 131 (“It is undisputed that without Jackson’s statements to the police, the
Commonwealth could not have indicted Lambert on these charges.”). At the joint trial of
Lambert and Reese, Jackson’s credibility “was savaged” with numerous inconsistent statements
and his ready admission that he was testifying to benefit himself. Id. Despite the devastating
impeachment, Jackson “somewhat proudly” concluded his testimony by emphasizing that he had
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always been consistent in identifying Lambert and Reese as the two robbers. Id. However a
“Police Activity Sheet” discovered during state post-conviction proceedings established that this
claim was also inconsistent with a prior statement by Jackson. When presented with Lambert’s
Brady claim based on the prosecution’s suppression of the Police Activity Sheet, the state postconviction courts denied relief on the ground that any additional impeachment value it may have
provided was merely cumulative, and that the suppressed information was therefore immaterial.
In subsequent federal habeas proceedings, the district court “did not mention the Police Activity
Sheet ….” 633 F.3d at 132. After describing its role under § 2254(d), the Third Circuit examined
and rejected the Pennsylvania Supreme Court’s conclusion that the suppressed evidence was
immaterial. Relying on “the logic of” Napue v. Illinois, 360 U.S. 264 (1959), as “extended to the
Brady context” in Banks v. Dretke, 540 U.S. 668 (2004), the Third Circuit observed that “it is
patently unreasonable to presume – without explanation – that whenever a witness is impeached
in one manner, any other impeachment becomes immaterial.” 633 F.3d at 134. The Third Circuit
went on to explain as follows:
What is critical here is that the undisclosed statement by Jackson that there was
another participant – a “co-defendant,” to use his word – was not just one more
piece of impeachment material to be placed in a “so what” category because
Jackson had already been so thoroughly impeached. Rather, the undisclosed
Police Activity Sheet would have opened an entirely new line of impeachment,
and would have done far more than simply allow the defense to point out – as it
did – that Jackson was inconsistent and often changed his story. The way we
know that … is that by not disclosing it, the prosecution was able to rely on
Jackson’s consistency in naming Reese and Lambert as the perpetrators, the only
point on which he was consistent at trial. The Supreme Court has instructed that
we may take the Commonwealth at its word that this was important. … Here, the
prosecution’s closing argument emphasized Jackson’s consistency in naming
Lambert and Reese as the perpetrators. No more, in our view, need be said to
make clear that finding that Lambert had not met the requirements of Brady was
an unreasonable application of clearly established Supreme Court precedent.
633 F.3d at 135.
Dow v. Virga,
729 F.3d 1041 (9th Cir. 2013)
In robbery case, habeas relief is granted under Napue where prosecutor elicited and then failed to
correct false testimony by a detective who stated that petitioner (rather than his attorney) had
asked that each of the participants in a lineup wear a bandage under his right eye at the location at
which petitioner had a small scar under his. The prosecutor then capitalized on the false
testimony during argument by telling the jury that petitioner had demonstrated consciousness of
guilt by trying to hide his scar in order to prevent the sole eyewitness from identifying him. In
finding the misconduct harmless, the state court applied a standard that was “contrary to” the
harmlessness standard required by Napue. (The state court asked whether it was reasonably
probable that a result more favorable to petitioner would have occurred absent the misconduct,
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rather than whether there was a reasonable likelihood that the false testimony could have affected
the judgment.) But even presuming the correct standard had been applied, the state court’s
application of that standard would have constituted an “unreasonable application” of clearly
established Supreme Court law. The evidence of guilt was weak and had resulted in a hung jury
at the first trial. The eyewitness’s identification of petitioner was inconsistent but was bolstered
at the retrial by the detective’s false testimony and the arguments made in reliance on it.
Aguilar v. Woodford,
725 F.3d 970 (9th Cir. 2013), cert. denied, 134 S.Ct. 1869 (2014)
In murder case where eyewitness identification testimony was subject to challenge and the
defense presented evidence that a third party was the actual shooter, the prosecution violated
Brady v. Maryland by failing to disclose information demonstrating the unreliability of the
“scent dog” it relied upon to connect petitioner to the shooting. The California Court of
Appeal unreasonably applied Brady in concluding that the information was not material. In
support of this claim, petitioner attached the transcript from another case in which the trial
court excluded scent identification evidence after the prosecution stipulated to mistakes
made by the dog, and a letter, dated sixth months prior to trial, in which LA County Public
Defender informed the DA of the problems with the dog’s work and specifically identified
that information as material subject to disclosure under Brady. The knowledge conveyed
from the Public Defender to the DA was “imputed” to the prosecutor who tried petitioner’s
case. Even if the DA’s office had been ignorant, the knowledge possessed by the Sheriff’s
Department about the mistakes would also have been sufficient to constitute suppression.
The suppressed information could have had supported a powerful argument for excluding
the scent identification testimony and at the very least it provided powerful impeachment
material.
*Browning v. Trammell,
717 F.3d 1092 (10th Cir. 2013)
The Tenth Circuit affirmed the grant of guilt-or-innocence phase relief on petitioner’s Brady v.
Maryland claim in this Oklahoma capital case. Petitioner was convicted and sentenced to death
for killing the adoptive parents of his former girlfriend, Tackett, who was also wounded in the
alleged attack and served as the prosecution’s central witness at trial. The defense theorywas that
Tackett and petitioner’s co-defendant, Pethel, had conspired to frame petitioner so that Tackett
could inherit the deceased victims’ property. Prior to trial, Tackett’s own attorney provided the
prosecution with Tackett’s mental health records, but later insisted the records were privileged,
had been disclosed by mistake, and should not be made available to the defense. The trial court
reviewed the records in camera pursuant to Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and
found that they were covered by state law privilege, and that their content was neither favorable
nor material. The court therefore refused to disclose them to the defense, and the Oklahoma
Court of Criminal Appeals (OCCA) later upheld that ruling. Petitioner then raised his Brady
claim again in federal habeas proceedings. The district court conducted its own in camera review
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of Tackett’s mental health records, disagreed with the state court’s assessment of their content,
ordered them disclosed to habeas counsel, and later granted relief. After determining that “a
Brady claim resolved through the process established in Ritchie has been ‘adjudicated on the
merits’ for purposes of § 2254(d),” 717 F.3d at 1103, the Tenth Circuit observed that “neither the
state trial court nor the OCCA gave any reasoned explanation” for concluding that Tackett’s
mental health records contained nothing favorable or material, id. at 1104, and then found those
conclusions unreasonable. The court noted that the “State does not contest the favorability” of the
records, then found as follows:
On the exculpatory side, [Tackett’s] records describe her as hostile, assaultive,
combative, and even potentially homicidal. Such evidence tends to show that a
person with a motive to kill might even have a disposition to kill. ¶ On the
impeaching side, Tackett’s psychiatric evaluations evinced, among other things,
memory deficits, magical thinking, blurring of reality and fantasy, and projection
of blame onto others. This is classic impeachment evidence. … ¶ Accordingly,
we agree with the district court’s disposition of the favorability question: “There
is no reasonable argument or theory that could support the [Oklahoma courts’]
conclusion that the sealed material contained nothing favorable to Browning’s
defense.”
717 F.3d at 1105.
With regard to materiality, the Tenth Circuit observed that, “[b]y rejecting Browning’s materiality
argument, the Oklahoma courts necessarily concluded that Tackett’s mental health records – had
they been available for use at trial – could not have put the trial in a ‘different light’ and
‘undermine[d] confidence in the verdict.’” 717 F.3d at 1106 (quoting Kyles v. Whitley, 514
U.S. 419, 435 (1995)). After framing the “question for … review [a]s whether the Oklahoma
courts reached that conclusion unreasonably,” id. the Tenth Circuit concluded that they did:
Tackett was the prosecution’s indispensable witness, and all sides knew that
Browning’s fate turned on her credibility. In case that was not obvious to the jury,
the prosecution made it abundantly clear at closing argument[.] * * * If, as the
prosecution told the jury at the time, Browning’s only defense was to discredit
Tackett – and this was really the only possible defense in light of her powerful
eyewitness testimony – then it is difficult to see how the Oklahoma courts could
reasonably conclude there was nothing material about a recent diagnosis of a
severe mental disorder that made her hostile, assaultive, combative, and even
potentially homicidal, or that Tackett was known to blur reality and fantasy and
project blame onto others.
717 F.3d at 1106. The court went on to consider the state’s argument that the impact of the
mental health records would have been offset by other evidence corroborating Tackett’s trial
testimony, but found it insufficient. “In any event,” the Tenth Circuit concluded, “whether
the jury necessarily would have reached an alternate conclusion is not the appropriate inquiry.
We only inquire whether the Oklahoma courts could have reasonably decided that the mental
health evidence would not have mattered. The answer is no. This evidence would have
mattered, even in light of the State’s corroborating evidence.” Id. at 1107.
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*Milke v. Ryan,
711 F.3d 998 (9th Cir. 2013)
The Ninth Circuit granted relief in this Arizona capital case, finding that the prosecution violated
Brady v. Maryland by failing to disclose a substantial body of information undermining the
credibility of Phoenix police detective Armando Saldate, whose uncorroborated claim that
petitioner had confessed constituted the only evidence against her. Petitioner was convicted and
sentenced to death for her alleged participation in a conspiracy to kidnap and murder her own
four year old son. The murder was actually carried out by two men, Styers and Scott, but neither
implicated petitioner or testified against her, and no physical evidence connected her to the crime
scene. The prosecution’s case therefore rested on Det. Saldate’s testimony that, during a thirty
minute, unrecorded interrogation, petitioner had given him a full confession to participation in
the conspiracy. Petitioner consistently denied confessing to Saldate, contended that he had ignored
her request for counsel and his own superior’s directive to record the interrogation, and pointed
out that Saldate failed to even secure her signature on a Miranda waiver. Recognizing
the importance of challenging Saldate’s account, petitioner’s trial counsel attempted to subpoena
his “entire personnel file,” but the prosecution successfully moved to quash that request, and the
defense acquired nothing with impeachment value. After her convictions and sentence were
affirmed on direct appeal, petitioner sought state postconviction relief alleging, among other
things, that the prosecution had violated Brady by failing to disclose documents establishing that
Saldate had a history of misconduct and dishonesty. In support of her claims, petitioner supplied
the state post-conviction judge (who had also presided over her trial) with hundreds of pages of
records from other cases in which Saldate had committed various forms of misconduct, including
lying under oath, violating suspects’ rights during interrogations, and abusing his authority with
female suspects. “[D]espite this trove of undisclosed impeachment evidence, the post-conviction
court rejected Milke’s claim that she’d been denied access to impeachment material.” 711 F.3d at
1005. The Arizona Supreme Court subsequently denied a petition for review. Petitioner then
sought federal habeas relief. After ordering the state to disclose Saldate’s personnel files – which
yielded only two years’ worth of files from a twenty-one year career – the district court denied
relief. After determining that the state post-conviction court’s denial of relief was both contrary
to federal law, and based on an unreasonable determination of the facts in light of the state court
record, the Ninth Circuit proceeded to the merits of petitioner’s Brady claim. The court first
reviewed the wealth of “favorable” evidence documenting Saldate’s misconduct and dishonesty
to his superiors and to courts. See 711 F.3d at 1012-16. With regard to “suppression,” the court
explained that Saldate’s involvement in petitioner’s case coincided with a number of other
controversies involving his misconduct in other cases – all of which were handled by the
Maricopa County Attorney’s Office – such that “it must have occurred to … someone in the
prosecutor’s office or the police department (or both) that Saldate was also the keywitness [in
this case]. Yet no one saw fit to disclose … Saldate’s misconduct to Milke’s lawyer.” Id. at 1017.
The court also noted that although the “court documents showing Saldate’s misconduct were
available in the public record,” the state remained obligated to disclose them because defense
counsel lacked the information to find them independently. Id. The court explained that
Milke was able to discover the court documents detailing Saldate’s misconduct only after a team
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of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting
through court records. … The team worked eight hours a day for three and a half months, turning
up 100 cases involving Saldate. Another researcher then spent a month reading motions and
transcripts from those cases to find examples of Saldate’s misconduct. A reasonably diligent
lawyer couldn’t possibly have found these records in time to use them at Milke’s trial. 711 F.3d
at 1018. With regard to “prejudice,” the Ninth Circuit summed up the impact of the suppressed
information as follows:
Milke’s alleged confession, as reported by Saldate, was the only direct evidence
linking Milke to the crime. But the confession was only as good as Saldate’s
word, as he’s the only one who claims to have heard Milke confess and there’s no
recording, written statement or any other evidence that Milke confessed. Saldate’s
credibility was crucial to the state’s case against Milke. It’s hard to imagine
anything more relevant to the jury’s – or the judge’s – determination whether to
believe Saldate than evidence that Saldate lied under oath and trampled the
constitutional rights of suspects in discharging his official duties. If even a single
juror had found Saldate untrustworthy based on the documentation that he
habitually lied under oath or that he took advantage of women he had in his
power, there would have been at least a hung jury. Likewise, if this evidence had
been disclosed, it may well have led the judge to order a new trial, enter judgment
notwithstanding the verdict or, at least, impose a sentence less than death. The
prosecution did its best to impugn Milke’s credibility. It wasn’t entitled, at the
same time, to hide the evidence that undermined Saldate’s credibility. ¶ Also at
issue was Saldate’s claim – again, unsupported by evidence – that Milke waived
her Miranda rights and didn’t ask for a lawyer. Beyond its effect on Saldate’s
credibility, evidence of Saldate’s falsifications and his disregard of Miranda,
would have been highly relevant to the determination of whether Milke’s alleged
confession had been lawfully obtained. The suppression of evidence of Saldate’s
lies and misconduct thus qualifies as prejudicial for purposes of Brady and Giglio.
711 F.3d at 1018-19.
The Ninth Circuit went on to remand the case with instructions that the district court not only to
issue the writ, but also require the state to disclose all of Saldate’s personnel records, and then
“provide a statement under oath from a relevant police official certifying that all of the records
have been disclosed and none has been omitted, lost or destroyed.” 711 F.3d at 1019. The court
further directed that, in the event such a certification is not produced, the district court “shall hold
an evidentiary hearing to determine whether any records have not been produced, and, if so,
why.” Id. Finally, the court directed that the “clerk of our court shall send copies of this opinion
to the United States Attorney for the District of Arizona and to the Assistant United States
Attorney General of the Civil Rights Division, for possible investigation into whether Saldate’s
conduct, and that of his supervisors and other state and local officials, amounts to a pattern of
violating the federally protected rights of Arizona residents.” Id. Chief Judge Kozinski (who also
wrote the opinion for the court) added a separate concurring opinion expressing further
skepticism of Saldate’s testimony, criticizing Arizona officials for “having given free rein to a
lawless cop to misbehave again and again,” 711 F.3d at 1024, and noting that he would have also
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reversed the district court’s determination that petitioner had knowingly waived her Miranda
rights, see id. at 1025.
Munchinski v. Wilson,
694 F.3d 308 (3rd Cir. 2012)
The Third Circuit affirmed the district court’s grant of the previously authorized second habeas
petition in this Pennsylvania double murder case known as the “Bear Rock Murders,” noting the
state’s concession on the merits of petitioner’s Brady v. Maryland claims and rejecting its
contentions that the claims were barred as untimely, defaulted, and not sufficiently supported to
warrant consideration in a second federal petition. After one jury hung, the prosecution’s theory
at the second trial was that petitioner, a co-defendant, and one Bowen – who became the key
witness after contacting law enforcement from prison and offering his assistance – went to see
the victims about a drug transaction, and that petitioner and the co-defendant raped the victims,
then shot them. Aside from Bowen’s testimony, the prosecution presented testimony from three
acquaintances and a jailhouse informant who claimed that petitioner had made inculpatory
remarks to them. Through years of investigation and court-ordered discovery, three state postconviction proceedings, and two federal habeas proceedings, petitioner amassed an array of
material, previously suppressed information, including doctored investigative reports,
inconsistent statements, witness-coaching, and wilful non-compliance with post-conviction
orders for evidence production. Among other things, the new information established that “the
murders could not have happened as the Commonwealth proposed at trial” because “the
Commonwealth’s timeline is inconsistent with the physical evidence,” and “Bowen, the only
witness who could provide any details supporting the Commonwealth’s theory of the case, was
not even in Pennsylvania the night of the murders ….” 694 F.3d at 335-36; see also id. at
336 (noting that the witnesses who claimed to have heard petitioner confess had a clear
“motivation to fabricate”). After rejecting the state’s various procedural defenses, the Third
Circuit noted that the state had “expressly and rightly conceded” that the state court’s denial of
relief involved an unreasonable application of Brady. The court then concluded with the
following observation: “It seems that the Commonwealth’s decision to appeal the District
Court’s judgment may have been motivated by considerations external to this particular case,
because it is difficult to discern any significant justification on this record for continuing to
defend what is now acknowledged by all to be a badly tainted and highly suspect conviction.”
Id. at 339.
*Wolfe v. Clarke,
691 F.3d 410 (4th Cir. 2012)
The Fourth Circuit affirmed the grant of relief in this Virginia murder-for-hire capital case,
finding that the prosecution violated Brady v. Maryland by suppressing a police report
impeaching its key witness, and that petitioner had shown cause and prejudice to overcome the
default of the Brady claim resulting from his failure to present it to the state courts. Petitioner’s
convictions arose out of the murder of a drug dealer. While it was undisputed that the murder
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was actually committed by one Barber, the theory underlying the prosecution of petitioner was
that he had hired his friend, Barber, to carry out the killing. Barber testified to that effect – in
exchange for a sixty year sentence – at petitioner’s trial, and petitioner was convicted of capital
murder, conspiring to distribute marijuana, and a related firearms count. After petitioner’s state
post-conviction proceedings were complete and his federal habeas petition had been filed, Barber
signed an affidavit recanting his testimony against petitioner. Acting on that development,
petitioner immediately amended his federal petition to include a Brady claim, and an argument
that the claim should be reviewed on its merits via the Schlup v. Delo, 513 U.S. 298 (1995),
actual innocence gateway; he later added requests for discovery and an evidentiary hearing. The
district court denied relief without a hearing, but the Fourth Circuit remanded for further
consideration of petitioner’s entitlement to a hearing, discovery and merits review. On remand,
the district court held that petitioner had satisfied Schlup, then granted discovery and a hearing.
During the “contentious” discovery proceedings that followed, the prosecution grudgingly
disgorged the “Newsome report” (among many other favorable documents) which showed that
Detective Newsome had suggested the murder-for-hire theory involving petitioner to Barber as
a way for Barber to improve his own bargaining position. After an evidentiary hearing at which
Barber recanted his testimony against petitioner under oath, the district court found a series of
Brady violations and granted relief from all of petitioner’s convictions. On appeal, the Fourth
Circuit found it unnecessary to look beyond the suppressed Newsome report, which it described
as “[t]he single, plainly momentous item of suppressed Barber impeachment evidence ….” 691
F.3d at 417. After rejecting several procedural arguments asserted by the state, the court observed
that the absence of an adjudication on the merits by the state court rendered § 2254(d)
inapplicable, then held that petitioner had satisfied all three components of the Brady test. The
Newsome report was “favorable” because it was “indubitably impeaching, in that it establishes a
motive not only for Barber to implicate someone else, but to point the finger specifically at
Wolfe.” Id. at 423. After noting that “[t]he Commonwealth did not contest the suppression
issue,” and that the “willfulness or inadvertence” of the prosecution’s nondisclosure is irrelevant
under Brady, the Fourth Circuit made clear that, in this case, “the Commonwealth’s suppression
… was entirely intentional.” Id.; see also id. at 424 (quoting district court’s criticism of
prosecutor’s description of his disclosure policy, and adding that, “We sincerely hope that the
Commonwealth’s Attorney and his assistants have finally taken heed of those rebukes”). The
Fourth Circuit also had no difficulty finding materiality, explaining that, “[i]n these
circumstances, where ‘the jury had to believe that Barber was credible and that his version
of events was in fact truthful and accurate in order to support [Wolfe’s] conviction,’ the
materiality of the Newsome report is manifest.” Id. at 424 (quoting district court order). Finally, a
majority of the Fourth Circuit panel upheld the district court’s determination that the Brady
violation resulting from suppression of the Newsome report warranted a grant of relief from
petitioner’s drug conspiracy and firearms convictions as well as his capital murder conviction.
While the majority acknowledged that the conspiracy and firearm convictions were supported by
admissions made during petitioner’s own testimony, it also accepted his contention that those
admissions had been made necessary only because of the circumstances created by the Brady
violation. The majority explained:
Because the Commonwealth concedes that Wolfe’s trial testimony was central to
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his drug conspiracy conviction and sentence, and because the Commonwealth
cannot prove that Wolfe would have testified if the Newsome report had not been
suppressed, we agree with the district court that Wolfe is entitled to vacatur of all
three of his state convictions.
691 F.3d at 426.
*Guzman v. Secretary, Dept. of Corrections,
663 F.3d 1336 (11th Cir. 2011)
The Eleventh Circuit affirmed the grant of guilt-or-innocence phase relief in this Florida capital
case, finding that the state violated Giglio v. United States when its key witness (Cronin) and its
lead investigator (Sylvester) testified falsely about the existence of a deal between the state and
Cronin, and did not disclose that Sylvester had paid Cronin a $500 reward shortly before she
testified to the grand jury that indicted petitioner. Although Sylvester testified at petitioner’s
state post-conviction relief hearing that she never informed the prosecutor of the payment (and
the prosecutor corroborated that assertion), the Eleventh Circuit agreed with the Florida
Supreme Court that, pursuant to Kyles v. Whitley, 514 U.S. 419 (1995), “Sylvester’s knowledge
of this evidence was imputed to the prosecutor.” 663 F.3d at 1349. The Eleventh Circuit began
its assessment of the state courts’ denial of relief on petitioner’s Giglio claim by agreeing with
their conclusion that, given the extent to which Cronin was actually impeached at trial, “[t]he
addition of the truthful testimony about the $500 reward would not have made a material
difference in Cronin’s credibility to the finder of fact.” 663 F.3d at 1350. Despite this finding,
however, the Eleventh Circuit went on to determine that the Florida Supreme Court’s failure to
account for the impact of the $500 payment on the motivation of Cronin – a prostitute and crack
addict to whom $500 was a lot of money – to lie rendered its decision defective. The Eleventh
Circuit then identified “several reasons” why the Florida Supreme Court’s decision did not
prevent a grant of federal habeas relief: (1) while the state court emphasized that another
informant had also implicated petitioner, and that the victim’s wounds were consistent with a
knife possessed by petitioner, the other informant had recanted before petitioner’s trial, and the
knife wound evidence was not particularly strong; (2) the state court also discounted the extent
to which the trial was a credibility contest between petitioner and Cronin, and the possibility
that, had the $500 payment – and the timing of that payment – been disclosed, petitioner’s own
(not implausible) account would have prevailed; (3) the state court “either did not consider or
unreasonably discounted the import of the fact that both Cronin and Sylvester testified falsely,”
which deprived petitioner’s defense counsel of the opportunity not only to mount a stronger
challenge to Cronin, but also to impugn the credibility of the state’s lead investigator. 663 F.3d
at 1351-52. The court further noted that the evidence against petitioner at trial “was
circumstantial and far from overwhelming”:
There were no eyewitnesses or unbiased observers who testified as to the murderrobbery. Guzman never confessed to law enforcement. Both witnesses who
testified that Guzman had confessed, Cronin and Rogers [the jailhouse
informant], recanted their testimony at one time or another prior to trial. There
was no blood or fingerprints on the sword recovered from [the victim’s] room. …
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As a result, Cronin’s and Detective Sylvester’s testimony was the crux of the
State’s case …, and it was thus objectively unreasonable to discount the effect of
bias on that crucial body of evidence under the totality of the circumstances in this
case.
663 F.3d at 1354.
Finally – and without specifically explaining why it was necessary in light of the prior
determinations that the state court had unreasonably applied Giglio’s materiality standard, and
that petitioner’s claim was meritorious – the Eleventh Circuit examined whether the error was
harmless under Brecht, and concluded that it was not. See 663 F.3d at 1355-56.
*Sivak v. Hardison,
658 F.3d 898 (9th Cir. 2011)
In pre-AEDPA robbery-murder case, Idaho death row inmate was entitled to habeas relief as to
his death sentence based on prosecutor’s knowing presentation of perjured testimony by jailhouse
informant regarding his motives for testifying and his expectations of receiving preferential
treatment from the State. Both Sivak and his co-defendant had admitted being present when the
crime occurred but each man claimed that the other was responsible for the robbery and murder.
The informant, who was in jail facing burglary and escape charges, testified that Sivak confessed
to being the actual killer. The informant claimed that he was testifying because he had a wife
and kids out on the streets and he didn’t want anything to happen to them. He denied seeking
favoritism from State authorities. He stated that his escape charge was dismissed after the
preliminary hearing and that a charge pending in another city was dismissed but the informant
denied knowing whether the prosecutor’s office was involved in the dismissals. The informant
also denied that he was presently free because of his testimony against Sivak and a man charged
with murder in Kansas, claiming he had traveled to Kansas for “personal” reasons. Through
federal discovery Sivak obtained evidentiary proof of his allegation that false testimony had
knowingly been presented concerning the informant’s expectation of benefits: (1) a letter from
the county prosecutor to the prosecutor in a neighboring county where the escape charge was
pending urging dismissal of the charge in light of the informant’s willingness to testify against
several inmates facing murder charges; (2) a letter from the same prosecutor a few days later to
the chairman of the state Commission for Pardons and Parole recommending that the informant
be given additional consideration for parole at an upcoming hearing based on the informant’s
cooperation in several murder trials and a murder investigation; (3) a letter from the informant to
a Kansas prosecutor complaining that an Idaho investigator had said the informant would receive
assistance but the informant wasn’t receiving any and adding that he wanted $6000 in cash as
witness fees; and (4) a subsequent letter from the Idaho investigator to the informant telling him
his witness fees should arrive shortly, recounting that the informant had earlier been told after
requesting a deal there could not be an guarantee of assistance but also setting out the
“arrangements” that were made in anticipation of testimony in three murder trials: (a) the
dismissal of criminal charges in two jurisdictions, (b) a reduced sentence, and (c) a parole from
the Idaho State Correctional Institute. The fourth letter closed with a statement that the
informant would still be in prison without the prosecution’s intervention. The false testimony
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was not prejudicial as to the murder conviction in light of strong evidence of guilt under either a
direct felony-murder theory or an aiding-and-abetting felony-murder theory. It was prejudicial as
to sentence, however. Had the informant’s testimony been rejected, a second informant’s
testimony would have been called into doubt. And without Sivak’s purported confessions, the
aggravating factors were significantly weakened.
LaCaze v. Warden Louisiana Correctional Institute for Women,
645 F.3d 728 (5th Cir. 2011), cert. denied, 132 S.Ct. 1137 (2012)
In murder case where the actual killer was the lover of LaCaze, who was the victim’s wife, and
the killer testified that he killed the victim at LaCaze’s request, LaCaze was entitled to habeas
relief because of the prosecution’s failure to disclose that the prosecutor had assured the killer
that his son would not be prosecuted for his role in the killing. (The son had driven his father to
and from the scene of the killing. LaCaze’s defense was that the victim had arranged for the
killer to take his life because of the victim’s failing health.) That there was not an enforceable
deal concerning the son did not defeat the Brady claim given that the killer received an assurance
from the prosecutor that the son would not be prosecuted and the killer believed the prosecutor.
The Louisiana Supreme Court employed an improper legal standard when it determined that the
undisclosed agreement regarding the son was immaterial because the main source of bias and
motivation to lie, i.e., the killer received a forty year sentence for a manslaughter plea, had been
disclosed. “The materiality inquiry does not turn on which of two competing sources of bias a
court, in hindsight, determines the jury would have considered more important. Rather, the
inquiry is whether an undisclosed source of bias—even if it is not the only source or even the
‘main source’ could reasonably be taken to put the whole case in a different light.” The state
court also used the incorrect standard when it found the non-disclosed agreement to be
immaterial because there was sufficient evidence to support LaCaze’s conviction. Given that the
killer’s testimony was the only direct evidence of LaCaze’s intent, disclosure of his bias to the
jury might have put the whole case in a different light. Notably, in its opening statement, closing
argument, and rebuttal, the prosecutor argued that the killer had no reason to lie. “In
circumstances like these, where ‘the jury’s estimate of the truthfulness and reliability of [the
witness] may well be determinative of guilt or innocence,’ the failure to disclose Brady
information is material.”
Houston v. Waller,
420 Fed.Appx. 501, 2011 WL 1496350 (6th Cir. April 20, 2011) (unpublished)
Habeas relief granted to petitioner convicted of selling cocaine and aggravated assault where
government withheld exculpatory evidence showing that federal agent Howell who was in charge
of petitioner’s case had been using cocaine and taking cocaine from controlled buys, and was
later indicted for tampering with evidence and possession of controlled substances. Brady v.
Maryland required disclosure of Howell’s drug use because he was a key witness and his cocaine
use “impact[ed] his credibility and recollection of events” and constituted material impeachment
evidence affecting the cocaine amounts purchased.
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*Breakiron v. Horn,
642 F.3d 126 (3rd Cir. 2011)
Habeas relief granted as to robbery conviction based on prosecution’s suppression of evidence
that would have impeached a jailhouse informant who testified that Breakiron had admitted to
hiding in the bar’s bathroom until the other patrons left and then attacking the bartender before
taking her to his father’s house where he finished her off. This testimony contradicted
Breakiron’s account of the bartender striking him first and then his blacking out before
discovering the victim with a knife in her back. According to Breakiron, he only stole money
from the bar as an afterthought when attempting to cover up the killing. (The district court had
granted relief as to the murder conviction due to the Brady violation – the Commonwealth had
failed to disclose that the informant had a prior conviction for assault with intent to rob, had
sought a deal in exchange for his testimony against Breakiron, and was a suspect in an
investigation pending at the time he testified. The Commonwealth did not appeal the grant of
relief as to the murder charge.) The robbery-related Brady claim was reviewed de novo
because it was not adjudicated on the merits by the state court. The informant’s testimony was
held to be material to the robbery charge as well as the murder charge in that: (1) it suggested
that the incident as a whole was a premeditated and intentional plan; (2) Breakiron “finishing
off” the victim at another location suggested that the money was taken prior to the victim’s
death; and (3) Breakiron’s credibility in general was was undermined by the informant’s
contrary account of the incident.
United States v. Kott,
432 Fed.Appx.736, 2011 WL 1058180 (9th Cir. March 24, 2011) (unpublished)
Conviction vacated and case remanded for new trial where newly disclosed evidence, viewed
collectively, is material and prosecution’s failure to disclose it violated Brady. There was no
doubt “prosecution suppressed evidence favorable to” defense, and only inquiry is whether
prejudice ensued. Newly disclosed evidence of police department files suggesting key
prosecution witness Allen sexually exploited minors and attempted to conceal behavior by
soliciting perjury was both admissible and not cumulative because it could have been used to
impeach Allen’s testimony, undermine his credibility, and aid defendant’s testimony. The new
evidence also documented multiple “prior inconsistent statements” about payments defendant
“allegedly received”and reasons for them which could have undermined Allen’s credibilitywhile
bolstering that of defendant.
Maxwell v. Roe,
628 F.3d 486 (9th Cir. 2010), cert. denied, 132 S.Ct. 611 (2012)
In murder case, habeas relief granted on Brady claim and claim that false evidence was presented
where both claims related to jailhouse informant whose testimony was crucial to the prosecution.
Maxwell was convicted, inter alia, of two murders and sentenced to life without parole. The only
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evidence linking Maxwell to one murder was a palm print found on a public bench near the
victim’s body in an area Maxwell often visited, some muddy and consistent footprints, and a
generic Bic lighter found in Maxwell’s pocket at the time of his arrest. (The age of the palm
print–the State’s “best physical evidence”–could not be determined.) Evidence linking Maxwell
to the other murder was the in-courtroom voice identification of Maxwell by a witness who had
been unable to pick Maxwell out of an earlier lineup in which he spoke, and Maxwell’s
possession of a knife consistent with the victim’s stab wound. Without physical evidence, the
state “rested its case” on informant Storch who testified Maxwell had showed him an article
about the killings that referenced the palm print and then stated that the mistake Maxwell had
made by leaving the print was unusual for him. (The prosecution argued that Maxwell’s remarks
implicated him in all ten of the murders Maxwell was charged with having committed, although
Maxwell was ultimately convicted of only two.) A hearing was held in state court on Maxwell’s
claim that Storch gave false testimony. The state court ruled that while Storch later became a
sophisticated informant and established liar, Storch was a “neophyte” jailhouse informant at the
time of Maxwell’s trial and had not lied regarding Maxwell’s confession. The federal district
court denied Maxwell relief, concluding “Storch’s lies about the deal he received from the
prosecution and about his informant history did not prejudice Maxwell” and that any “withheld
information was neither material nor prejudicial.” Regarding the false testimony claim, the court
of appeals held that the state court’s finding that Storch had not lied about Maxwell’s confession
was an unreasonable determination of the facts in light of the evidence before the state court.
The appeals court first noted the numerous undisputed lies that Storch had told at the trial,
including false statements about his motivation for coming forward and a false denial about
whether his public defender had worked out a plea agreement before Storch personally negotiated
a more favorable deal in exchange for his testimony against Maxwell. The court of appeals also
observed that Storch had misrepresented his sophistication and experience as an informant at the
time of the Maxwell trial. In addition, the record contained evidence about Storch’s signature
modus operandi for “booking” fellow inmates – gaining physical access to a high-profile
defendant, obtaining media accounts of the case, and then contacting the District Attorney or law
enforcement with an offer to testify. The appeals court then noted the numerous times Storch
had lied under oath in other cases, which ultimately led to a perjury indictment. After
determining that Storch had lied about the confession, the appeals court applied circuit precedent
under which knowledge by the prosecution of the false testimony need not be shown to establish
a due process violation. Because the state court’s rejection of the claim was premised on an
unreasonable determination of the facts as to whether Storch lied, the appeals court assessed the
issue of materiality de novo. Given the paucity of evidence implicating Maxwell, the content of
Storch’s testimony, the prosecutor’s emphasis on Storch’s testimony during argument, and the
fact that the jury asked to see Storch’s testimony during deliberations, materiality was found. As
to the Brady claim, because no state court issued a reasoned decision for denying the claim, the
court of appeals reviewed the “factual record de novo to determine whether the California
Supreme Court’s summary denial of the claim constituted an unreasonable application of Brady.”
It then found “that the state court could not have reasonably determined that the suppressed
evidence relating to the deal Storch received and Storch’s prior cooperation with law
enforcement as an informant was not material.” While Storch admitted during cross-examination
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that he had received a reduced sentence of sixteen months on pending charges as a result of his
testimony against Maxwell, he lied about the fact that his public defender had earlier negotiated a
less favorable deal for him. “[T]he fact that Storch pursued an additional benefit to himself—
independent of and subsequent to the agreement worked out by his public defender— would have
provided Maxwell with impeaching evidence relevant to Storch’s motivation for testifying and of
a different character than the other impeachment evidence which came to light.” In addition, “the
details of Storch’s plea negotiations would have helped to establish Storch’s sophistication and
directly contradicted the naivete he professed at trial.” The appeals court found: “The
prosecution’s failure to correct Storch’s false testimony about his prior deals was prejudicial.” In
addition, the prosecution failed to disclose that although Storch had never testified for the district
attorney, he “had on several occasions aided in investigations and acted as an informant on
numerous previous occasions.” Viewed cumulatively, “[t]he prosecution’s failure to disclose this
impeachment evidence undermines confidence in the outcome of Maxwell’s trial, and the
California Supreme Court’s decision to the contrary was an
unreasonable application of Brady.”
Goudy v. Basinger,
604 F.3d 394 (7th Cir. 2010)
Habeas relief granted in case involving murder and attempted murder convictions where
prosecution withheld three police reports detailing eyewitness statements that: (1) implicated the
key prosecution witness in the crime and conflicted with the version of events he testified to; (2)
contradicted an eyewitness’s statement at trial that Goudy was the shooter on the driver’s side of
the vehicle; and (3) conflicted with another eyewitness’s description of the gunmen. State court
agreed prosecution suppressed exculpatory evidence, but concluded the new evidence was not
material. In reaching that conclusion, the state court erred in two ways. First, although the state
court initially identified the correct legal principle for determining materiality, its actual analysis
required Goudy to prove the new evidence “would have” established his innocence–a burden
“diametrically different” than the clearly established federal law in Kyles v. Whitley, 514 U.S.
419 (1995). Second, also contrary to Kyles, the state court failed to recognize and then assess the
cumulative materiality of the suppressed evidence, but instead dismissed “each piece of
suppressed evidence in seriatim.” In denying relief, the state court unreasonably applied clearly
established federal law.
Robinson v. Mills,
592 F.3d 730 (6th Cir. 2010)
Prisoner convicted of first degree murder and sentenced to life imprisonment was entitled to
habeas relief where prosecution withheld material impeachment evidence “likely [to] have
altered” the outcome of proceedings, i.e., evidence that the key prosecution witness was a
confidential informant. Robinson and Smith were indicted for the murder of Irwin, a drug dealer.
Robinson had agreed to meet Irwin to repay monies he owed to him. Smith agreed to accompany
Robinson and provided him with a small handgun. At the arranged meeting, Irwin was driving a
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car and armed with a 357 magnum. Sims was in the front seat passenger. Robinson got in the
car and sat in the back seat. According to Robinson, Irwin threatened him and his family, and
pointed the gun at him. Robinson then shot Irwin in self defense. Robinson testified Smith was
not involved in the killing and Smith’s statement to police corroborated Robinson’s fear of Irwin.
At the preliminary hearing, Sims testified that she did not see what happened when the shooting
occurred and did not know if Irwin reached for his gun, but that Robinson told her “that he had to
kill Irwin or Irwin would have killed him.” Sims’ trial testimony “differed significantly.” Sims
testified that after picking up Robinson, Irwin turned slowly into a parking lot while eating a
sandwich, “making it unlikely” Irwin “grabbed his gun with his right hand.” Sims also testified
Robinson was “‘smiling,’” “paint[ing] Robinson as cold and calculating” and contradicting “his
assertion that” the shooting “was self-defense rather than murder.” Unknown to Robinson at the
time of trial was that Sims was “a paid confidential informant” for the police. Sims informed on
Irwin’s sister and worked and received payment on “at least seven other occasions.” Just 18 days
before Robinson’s trial, Sims helped a detective by making a “controlled buy” from a witness
who later appeared at Robinson’s trial. The undisclosed impeachment evidence of Sims was not
“merely” cumulative; it was “different in kind because the suppressed material would have
offered insight into why Sims’ testimony differed from her testimony at the preliminary hearing.”
The new information was “material,” demonstrating Sims’ “pro-prosecution bias” at trial.
*Simmons v. Beard,
590 F.3d 223 (3rd Cir. 2009), cert. dismissed, 130 S.Ct. 1574 (2010).
Under AEDPA, habeas relief granted due to state’s failure to disclose impeachment evidence
related to the two primary witnesses who tied the petitioner to the crimes. The victim was an
elderly woman killed in her home. Three neighbors identified the petitioner as the person last
seen with the victim asking to use her phone. These witnesses were all connected as they lived in
the same house. They only came forward identifying the petitioner after his arrest and pictures
had been publicized. Another witness testified that she had been robbed and sexually assaulted
by a man described similarly shortly after the murder but before the body was found and her
attacker referenced the murder. While she reported the assault on the day it occurred, she made
no mention of the statement referencing the murder and she only identified the petitioner in a
photo array after the murder and his picture had been publicized. She identified him a second
time in a lineup requested by defense counsel. The petitioner’s girlfriend, who had initially made
statements to police that would have provided the petitioner with an alibi defense, contradicted
the asserted alibi in her trial testimony. The state had failed to disclose four items from the
defense. First, the petitioner’s girlfriend was a suspect and was threatened with arrest if she did
not cooperate with police. She cooperated and all of her in-person or phone conversations with
the petitioner were recorded. Second, the other assault victim had attempted to buy a pistol soon
after the assault and lied on the forms to avoid disclosing her 1951 felony conviction for
burglary, which made her ineligible to purchase a weapon. The lie made her subject to
prosecution for perjury. She was charged with the weapons charge, but the prosecutor and
detective in this case dismissed the charges against her and did not forward the information as
they did in other cases where persons were suspected of perjury. Third, lab reports of evidence
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collected following her assault report showed no blood or seminal fluid and the hairs that were
examined were consistent with the assault victim but not the petitioner. Finally, at some point
prior to trial, the assault victim was shown a mug book containing the petitioner’s picture but did
not identify him. A police officer testified in the preliminary hearing, however, that she had not
been shown a mug book. This failed identification was the only Brady issue the state court
reviewed on the merits. The Third Circuit’s review under AEDPA was complicated because
there was a four-way split in the state court decision with no ground receiving a majority support.
Because the state court found procedural bars for three of the claims, there was no adjudication
on the merits. The state court’s decision on the failed mug book identification was “an
unreasonable construction of the factual evidence” presented in state court because the court
failed to consider the undisputed fact that the defense would not have requested a lineup if this
information had been disclosed. Likewise, because the state court had reviewed the merits of
only the mug book identification claim, “the [state] court did not reach the issue of the collective
effect of multiple violations.” Conducting this collective analysis, the court found the suppressed
evidence to be material as “it calls into question the credibility of the two witnesses at the heart
of the case.” The prosecutor also recognized that the other assault victim was a “critical
witness,” beginning his opening statement describing her testimony and even calling her a
“critical” witness. “Overall the picture of what [the] trial would have been like had these four
Brady violations not occurred is vastly different from what actually happened.”
*Wilson v. Beard,
589 F.3d 651 (3rd Cir. 2009)
The Third Circuit affirmed the grant of guilt-innocence phase relief on petitioner’s Brady v.
Maryland claim in this Pennsylvania capital case. The prosecution’s case against petitioner for
the shooting death of a patron in a bar was “based almost entirely on the testimony of … three
witnesses,” 589 F.3d at 656 – Jackson (a bar patron and eyewitness), Rahming (also a bar patron
and eyewitness), and Gainer (a onetime cellmate who claimed petitioner had confessed to him).
In state post-conviction proceedings, new information about all three witnesses came to light.
Jackson’s previously undisclosed rap sheet indicated that he had been arrested for impersonating
a police officer six weeks before the shooting. A presentence report produced after that arrest
revealed six more out-of-state arrests, two of which involved impersonating a police officer, as
well as a history of skull fractures, apparent brain damage and memory loss, a distorted
perception of reality, and a strong propensity to try to assist law enforcement. With regard to
Rahming, new information indicated that on the day after he testified against petitioner, a
detective transported him to a local emergency center, where he was diagnosed with
schizophrenia. This revelation led to a review of Rahming’s rap sheet and other documents
indicating a long history of mental health problems, substance abuse, seizures, memory loss, and
hallucinations. In his testimony at petitioner’s post-conviction relief hearing, Rahming further
admitted that he had been intoxicated at the time of the shooting allegedly committed by
petitioner. As to Gainer, new information established that his longtime police handler had
provided him with interest-free loans when he acted as an informant, which contradicted that
officer’s testimony that he had “never given [Gainer] anything.” 589 F.3d at 662. After
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determining that the Pennsylvania Supreme Court’s denial of petitioner’s claim on procedural
grounds did not bar federal review, and that the absence of a merits adjudication by the state
court precluded application of § 2254(d), the Third Circuit addressed the merits. The court first
rejected the state’s contention that Jackson’s rap sheet had not been “suppressed” because it was
a matter of public record accessible to trial counsel through the exercise of due diligence. The
court explained that “it is clear that the prosecutor had the information … in her file, [yet] she
failed to disclose this information when asked by the court during a charging conference for the
witnesses’ criminal histories ….” 589 F.3d at 664. With regard to Rahming’s trip to the
emergency center and Gainer’s interest-free loans, the court had no difficulty determining that
this information was known to members of the “prosecution team” for Brady purposes. The court
also rejected the state’s argument that disclosure of Jackson’s rap sheet and Rahming’s
emergency center visit would have led to discovery of the more detailed (and damaging)
information about their histories. Emphasizing Kyles v.Whitley’s focus on what “competent
counsel” could have done with favorable information, the Third Circuit concluded that, in this
case, competent counsel would have pursued the additional information, and would have used it
at trial. Finally, the court held that the undisclosed information was material in that it would have
facilitated devastating impeachment of the three witnesses at the center of the prosecution’s case:
Although the shooting occurred in a relatively crowded bar, no other eyewitnesses
testified and the Commonwealth presented no physical evidence implicating
Wilson as the shooter. In light of the importance of the testimony of these three
witnesses and the significant impeachment value of the undisclosed information, we
conclude that Wilson’s right to due process … was violated ….
589 F.3d at 667.
United States v. Torres,
569 F.3d 1277 (10th Cir. 2009)
Distribution conviction reversed on direct appeal. The defendant was convicted of distribution to
a confidential informant during a controlled buy. Prior to trial, the government disclosed that the
informant was paid $100, cooperated with the government for approximately eight months, had
previously been a drug user but had not used in 15 months, and she had two prior felony
convictions. The defense was prohibited from cross-examining the informant with criminal
complaints for drug possession and forgery that had been dismissed in the year prior to the
defendant’s arrest. Following trial, the defense discovered evidence related to the informant that
had not been disclosed and filed a motion for new trial. The District Court improperly applied
the newly discovered evidence test and denied relief. Reversal required because the government
failed to disclose that (1) the informant had been retained by the DEA on two prior occasions and
had been de-activated following the forgery charge, which was later dismissed; and (2) she had
misidentified the defendant as his cousin.
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United States v. Price,
566 F.3d 900 (9th Cir. 2009)
Felon in possession of firearm conviction vacated due to government’s failure to disclose key
witness’ criminal record. The pistol was found under the driver’s seat of a car that was pulled
over with the defendant riding in the rear. While circumstantial evidence pointed to the
defendant, the key government evidence was the testimony of a witness that testified she had
seen the defendant with the pistol 15 minutes before the car had been stopped. Although the
defendant was aware that the witness had a prior theft conviction, the defendant was not told that
the witness had a lengthy history of convictions for theft and fraudulently using false registration
tags, as well as arrests for shoplifting. The undisclosed evidence was material as the prosecutor
relied heavily on the witness’ testimony in closing and the defendant was acquitted of the drug
trafficking charges tried at the same time. The District Court erred in finding no Brady violation
simply because the prosecutor did not personally have knowledge of the witness’ history, although
the record was clear that, at minimum, the prosecutor had requested a detective to obtain this
information.
Shortt v. Roe,
342 Fed.Appx. 331, 2009 WL 2487046 (9th Cir. 2009) (unpublished)
Habeas relief granted in murder and robbery case because the state failed to disclose that a state
witness had been given sentencing consideration in exchange for his testimony against the
petitioner and failed to correct the witness’ false testimony denying receiving consideration.
Under AEDPA, the state court’s decision was an objectively unreasonable application of both
Brady and Napue.
*Douglas v. Workman,
560 F.3d 1156 (10th Cir. 2009)
Under AEDPA, habeas relief granted to two prisoners due to state’s failure to disclose deal the
Oklahoma prosecution made in exchange for shooting victim/key witness’ testimony. The
witness, a member of the Crips, was shot in a drive-by shooting along with a teenage girl who
died. The witness initially made contradictory statements to police, but ultimately identified
Powell and Douglas as the shooters. Both were charged with capital murder. The witness had
cocaine trafficking charges pending at the time of the shooting. Prior to the preliminary hearing,
he was also charged with throwing a rock at a police car. By the time of Douglas’ trial, he pled
to a lesser offense of possession with intent to distribute and received a 10 year sentence. The
other charge was dismissed. After serving four months of his sentence he was released on preparole. That status was revoked when he was arrested for receiving stolen property. He had a
pre-parole interview for a second consideration and was notified that release would not be
recommended just three days before he initially met with the capital prosecutor. During his
testimony in Douglas’ trial, he denied any deals or help from the prosecutor in exchange for his
testimony. The prosecutor even elicited his testimony that he had never asked the prosecutor for
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help. His testimony was the “linchpin” in the state’s case, which culminated with the state’s
closing argument emphasizing his trustworthiness. Just one day after Douglas’ trial, the
prosecutor sent a detailed letter to the parole board in support of the witness’ parole application
and referencing the witness’ testimony in the upcoming Powell trial. The witness was granted
pre-parole status again but was reincarcerated following another violation. The witness
contacted his mother, who called the prosecutor, who then contacted the sentence administration
auditor just a week before Powell’s trial. Without disclosure of any of this information, the
witness again served as the key witness for the state. He again denied any deals or assistance and
the state again elicited his testimony that he had not even asked for help. A month after Powell’s
trial, the prosecutor contacted the prison warden who approved the restoration of 400 days credit
to the witness, effectively discharging his sentence and getting him released from prison. While
Powell and Douglas sat on death row, the prosecutor’s assistance to the witness continued.
Assault with a deadly weapon charges for shooting someone were dismissed due to “insufficient
evidence of identification.” Drive-by shooting charges were dismissed “due to lack of
cooperation from the victims.” The witness had an assault and battery charge for beating his
girlfriend with a baseball bat and trafficking in cocaine charges. Even though the capital
prosecutor was no longer in the district attorney’s office, he contacted the prosecutor on the
witness’ behalf. The witness was also arrested for murder charges in Texas. The witness was
sentenced to 15 years on the assault case and was then allowed to plead to the trafficking charge
for a five year (“unusually lenient”) concurrent sentence. The witness was allowed to plead to a
reduced aggravated robbery charge in Texas and received a twelve and a half year sentence
concurrent with his Oklahoma sentences. While Powell and Douglas were pending in federal
habeas, the witness disclosed that he had been unable to identify any of the shooters. He said that
he would not testify against either defendant unless the state assisted him with his then-pending
trafficking case. Thereafter, the prosecutor continued to assist him because he threatened to
reveal his perjury in the trials. The district court granted relief to Powell but denied relief to
Douglas. The Tenth Circuit held that both men were entitled to habeas relief. For Douglas,
whose appeal had been pending in the Tenth Circuit when the witness recanted his testimony and
revealed the deal, there were some complicated procedural holdings resolving statute of
limitations and possibly second petition/successor issues in Douglas’ favor prior to reaching the
merits. De novo review was applied because the state court never addressed the Brady claims on
the merits. The court found that the witness’ identification of the petitioners was “indispensable”
as the “only direct evidence linking [the petitioners] to the murder.” If the juries had discounted
his testimony as not credible, they almost certainly would have acquitted the petitioners. While
defense counsel attempted to impeach the witness on the issue of his motive to testify, they were
“stonewalled” by the witness’ repeated denials and “stymied from rebutting those denials” by the
state’s failure to disclose the relevant impeaching evidence. While there was less evidence of a
deal prior to Douglas’ trial, the evidence still supported a finding that the state was offering
assistance to the witness in exchange for his testimony. Two witnesses testified in the trial that
the witness told them he had made a deal with the prosecutor in exchange for his testimony. The
witness was not charged with drug or weapons offenses, even though the prosecutor knew that
the witness was in possession of a loaded gun and crack cocaine at the time of the shooting. And
the prosecutor sent a letter to the parole board just one day after trial. In light of the continued
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assistance to the witness long after the trials were over and even after the prosecutor left the
district attorney’s office, “the reasonable inference [of a deal prior to trial] becomes inescapable.”
Even if the deal was tacit, disclosure was required. “A deal is a deal–explicit or tacit. There is
no logic that supports distinguishing between the two.” Id. at 1186.
Harris v. Lafler,
553 F.3d 1028 (6th Cir. 2009)
Under AEDPA, habeas relief granted in second-degree murder case due to the state’s failure to
disclose three statements made by police officers to the state’s primary witness. The witness and
the petitioner were in a bar fight. Later that night, a vehicle followed the car in which their
opponent rode and shots were fired into that vehicle killing two passengers. The witness and the
petitioner were arrested a month later. The witness testified at the preliminary hearing that he
drove the vehicle and the petitioner fired into the other vehicle. Defense counsel asked him six
times whether any promises or deals had been made in exchange for his testimony. The witness
said no. This testimony was read into the trial evidence, after the witness invoked his Fifth
Amendment rights. The state failed to disclose to the defense that police officers had told the
witness: (1) his girlfriend would be released if they were satisfied with his statement; (2) he would
be released if he testified at the preliminary hearing consistent with his statement; and (3) he
should tell no one that police had promised him anything in return for his statements or testimony.
These statements were material because they could have been used to cast doubt on the witness’
credibility. The state had also “featured” the witness’ “eyewitness account” in closing arguments.
The court rejected the state’s request for remand for an evidentiaryhearing because the state had
never before challenged the factual accuracy of the witness’ post-conviction statements. “The
time to submit evidence or seek an evidentiary hearing is before factual allegations become the
basis for a decision against the State, not after.”
Drake v. Portuondo,
553 F.3d 230 (2nd Cir. 2009)
Habeas relief granted in double murder case on Napue claim because the prosecution knowingly
presented false testimony from a prison psychologist. No deference was given to the state courts’
conclusions because the state court refused to permit development of the factual record. Two
high school students were killed while in a car parked near a junkyard. The couple had been
using the location as a lovers’ lane. Drake, another high school student, had dressed in military
fatigues and fired into the car. According to his statement, he was out looking for abandoned
cars to shoot at the junkyard and was not aware the car was occupied when he opened fire on it.
Upon finding the couple, Drake stabbed the male victim because he was groaning and Drake was
in a panic. Drake took the bodies to a dump in a neighboring town but was spotted by police.
While the male victim was clothed, the female victim was not. The prosecutor ultimately
developed a theory that the crime had a sexual motivation. The female victim had a bruised
rectum and also had post-mortem bite marks on her breasts. (At trial, a forensic odontologist
testified that such bite marks are often present in sexually-related crimes.) In addition, initial
reports indicated that traces of semen believed to have come from Drake were found on a slide
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from the female victim’s rectal cavity. Shortly before trial, however, the prosecutor learned this
report was not accurate. When the prosecutor informed the forensic odontologist that semen
evidence did not exist, the odontologist recommended that the prosecutor consult a “prison
psychologist” in Michigan. The prosecutor did so two weeks before trial. After an hour long
call, the “expert” said he needed to think about the case before he could give an opinion. He later
informed the prosecutor he believed “picquerism” was involved, which he explained was a
syndrome or criminal profile in which the perpetrator realizes sexual satisfaction from
penetrating a victim by sniper activity or by stab or bite wounds. The prosecutor waited until the
day before the expert testified to notify the defense of the intent to call him. This late notice
prevented defense counsel from finding a competing expert and preparing for cross-examination.
In his testimony, the expert gave a long list of impressive credentials. He then testified that he had
been provided with information only the day before and immediately formed his opinion,
which was this was a clear case of picquerism. The defense requested a two-week continuance to
allow time to find a rebuttal expert, but this request was denied. After Drake’s convictions were
affirmed, he discovered that the expert had exaggerated and lied about his credentials. In a
federal deposition, the extent of his untruthfulness was revealed. It was also established that he
had given false testimony about the extent and timing of contact he had with the prosecution
about the case. Clearly established Supreme Court precedent applicable to this case required
Drake to show that the prosecutor actually knew that the expert’s testimony was false. The
district court’s finding that Drake failed to show the requisite knowledge was clearly erroneous.
The prosecutor had to have known that the expert’s statements about the contact the two had was
not true. And the prosecutor knew that, contrary to the expert’s trial testimony, the expert had
not initially arrived at an opinion. Even without the depositions, the prosecutor’s delayed notice
to the defense about the expert and the prosecutor’s resistance to a continuance led to an
inference of knowing complicity in the false testimony. The record also strongly suggested that
the prosecutor knew that the expert’s testimony about his scholarship was intentionally
misleading. The prosecutor’s notes revealed that he knew the expert had not “published” any
papers so he asked the expert instead if he had “written” any papers. (Notably, the prosecutor
asked another expert about writing and publication.) The false testimony was material because
the expert’s deception about how quickly he had arrived at his conclusion, and his lie about what
case information he had been exposed to, permitted him to offer testimony that appeared
credible. In fact, the expert “had two weeks to conjure up his quackery. His direct testimony on
picquerism, which spans twelve pages of trial transcript, consisted largely of uninterrupted and
prolix exposition, weaving the complicated facts of the case into a seemingly coherent narrative,
all pointing to the symptoms of the fictive syndrome called picquerism.” The false testimony
went directly to the only issue in the case, which was intent, and the Court could not conclude
that there was no reasonable likelihood the false testimony could have affected the judgment of
the jury.
United States v. Banks,
546 F.3d 507 (7th Cir. 2008)
In cocaine possession case, government’s withholding of evidence impeaching government
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chemist’s expert testimony with evidence she misused her government credit card warranted
granting defendant’s new trial motion. Although presence of cocaine not at issue given that
another chemist “allegedly tested” substance and concluded it was cocaine and there was “great
deal of evidence” presented against defendant that included police surveillance, the accusations
of expert’s misappropriation of funds and pending disciplinary proceedings against her were
relevant to bias. While “acquittal may have been less likely than conviction” even if
impeachment evidence had been disclosed, district court did not abuse discretion in finding
evidence about government witness material.
United States v. Triumph Capital Group, Inc.,
544 F.3d 149 (2nd Cir. 2008)
In racketeering, racketeering conspiracy, bribery, wire fraud and obstruction of justice case,
district court abused its discretion by denying motion for new trial where prosecution failed to
disclose notes taken by FBI special agent during attorney proffer and the notes supported an
alternative version of an important conversation that was entirely at odds with the government’s
theory of the case at trial. Defendant could have used the proffer notes not merely to support his
version of the conversation with the witness, but also to impeach the witness’s credibility.
Toliver v. McCautry,
539 F.3d 766 (7th Cir. 2008)
Where petitioner was convicted of first degree intentional murder based on brother’s murder of
roommate, Brady was violated when state failed to disclose letter received before trial that
“tended to show” petitioner’s brother acted alone when shooting victim and petitioner attempted
to stop his brother from killing roommate. Letter’s author, Smith, offered to testify at petitioner’s
trial about contents of letter if prosecutor would ask Smith’s prosecutor about favorable
treatment on Smith’s pending charges. Smith would have testified that two witnesses to the
murder told him petitioner tried to stop his brother’s actions, and when he asked why petitioner
was being charged, a witness said prosecutor wanted to prosecute both brothers, and told
witnesses if they did not cooperate, they would be charged with murder. Smith said prosecutor
replied to letter, stating he could not help Smith because Smith’s pending prosecution was in
another county, and Smith’s information “did not shed any new light” on case. State court denial
of relief unreasonable application of clearly established law because undisputed evidence “would
have bolstered…defense” and “enhanced significantly … chances of jury’s accepting” petitioner’s
account of facts, and might have created reasonable doubt on whether petitioner “intentionally
aided and abetted in murder” or “attempted to prevent it.”
*Jells v. Mitchell,
538 F.3d 478 (6th Cir. 2008)
Denial of habeas relief on Brady claim reversed in case where petitioner convicted of felony
murder and sentenced to death on theory that petitioner randomly kidnapped victim and her
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child, and later killed victim. Although case was under AEDPA, Brady claim reviewed de novo
because state court failed to address merits of four items of evidence the suppression of which
petitioner had properly raised in state court. (Other items were not raised in state court and were
not considered by the federal court.) The withheld evidence involved: (1) victim visited longtime friend on night of her murder, victim had a drink and was tipsy, friend walked victim to van,
saw victim’s son in the van but could not see person driving, (2) victim’s sister stated victim
would not take ride from stranger, and victim drinking when sister last saw her on night
murdered, (3) victim’s boyfriend who indicated victim arrived at bar around 11:00 p.m. to
retrieve key to apartment, and appeared to have been drinking and “was high,” and (4) police
report from anonymous person later identified who called twice within 30-minutes, stating
she and father saw man grabbing female and young boy about 11:00 p.m. Withheld
documents refuted prosecution’s theory of random kidnapping and duress, and impeached
credibility of witness who believed altercation with victim was abduction, but admitted in
telephone call she couldn’t see man well. Impeachment of that witness, together with
information that victim voluntarily accompanied petitioner, bolstered credibility of another
witness who testified witnessed incident but did not call police because he believed victim
and man knew each other. Evidence victim intoxicated undercut aggravating factor threejudge panel found supporting death: that petitioner deprived victim of freedom in methodical
manner. Petitioner entitled to habeas relief as to his death sentence.
Mahler v. Kaylo,
537 F.3d. 494 (5th Cir. 2008)
In manslaughter case, reversing denial of habeas relief because prosecution violated Brady when
it failed to provide defense with pretrial witness statements that supported defense and could
have been used to impeach several witnesses’ trial testimony about fight between two groups of
people. State post-conviction court unreasonably applied clearly established federal law when it
found statements not material. Although state court applied right standard, it “focused solely and
unreasonably” on whether trial testimony provided jury “sense that ‘a struggle’ or ‘a series of
struggles’” occurred at some time between two groups. But “heart of” defense was whether
struggle was ongoing or had ended and victim had turned away from petitioner when shooting
occurred. State’s case against petitioner “depended on reliability of the very witnesses whose
pretrial statements were suppressed,” and those statements directly undermined the prosecution
witnesses’ testimony that struggle had ended, and victim turned away when petitioner shot him.
United States v. Aviles-Colon,
536 F.3d 1 (1st Cir. 2008)
Reversing denial of new trial motion in drug conspiracy case where prosecution withheld DEA
reports that could have been important for impeachment purposes at trial by helping defendant
advance his defense that he was not part of a certain drug conspiracy but rather a member of a
rival conspiracy.
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United States v. Chapman,
524 F.3d 1073 (9th Cir. 2008)
In securities-related case, district court did not abuse its discretion by dismissing indictment
following flagrant prosecutorial misconduct, i.e., reckless discovery violations and
misrepresentations to the court.
White v. McKinley,
519 F.3d 806 (6th Cir. 2008)
In §1983 action initiated against former wife and investigating police officer following plaintiff’s
prosecution, conviction, and later acquittal of allegedly molesting his daughter, plaintiff had right
under Brady to disclosure by police officer of his romantic relationship with plaintiff’s wife and
to preservation of potentially exculpatory evidence contained in plaintiff’s daughter’s diary.
“[N]o reasonable police officer” under these circumstances “could have believed he could
deliberately misrepresent the nature and length of his relationship with [plaintiff’s wife], or that
he could deliberately fail to preserve a child victim’s diary containing potentially exculpatory
information.”
*Tassin v. Cain,
517 F.3d 770 (5th Cir. 2008)
Petitioner who was sentenced to death for capital murder committed during armed robbery was
entitled to habeas relief based upon prosecution’s failure to disclose prosecution witness’s plea
bargain. Petitioner denied plan to rob two men who, along with a third person, were looking for
drugs. Petitioner’s wife, indicted on same charges, pleaded guilty and received 10-year sentence.
At petitioner’s trial, wife testified petitioner planned robbery. Defense requested disclosure of
deals for lenient treatment in exchange for wife’s testimony, but State denied any deal, wife
testified no promises were made in exchange for her testimony, and State argued wife had no
reason to lie because she faced potential 99-year sentence. Petitioner learned of deal postconviction when inmate forwarded him letter wife wrote to another inmate discussing possible
sentencing deal. Wife’s attorney later averred judge “indicated” would sentence wife to 15 years,
and possibly only 10, if she waived marital privilege. Wife testified in post-conviction
proceedings she believed she would receive 10-year sentence. Relief denied by state court
because trial judge, defendant’s wife and the wife’s attorney denied a final agreement existed.
Federal court found that state court ruling requiring petitioner prove judge “promised” wife
lenient sentence was contrary to clearly established Supreme Court law because “suppressed
bargain need not have been [] firm promise” in order to mislead jury about wife’s credibility, and
State never disclosed bargain. State had duty to disclose witness’s expected financial treatment
even absent a “‘firm promise,’” and “nondisclosure of the understandings” violated Brady.
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*Jackson v. Brown,
513 F.3d 1057 (9th Cir. 2008)
Affirming grant of habeas relief as to special circumstance (death eligibility) finding and death
sentence where prosecutor violated Napue by failing to correct false testimony by jailhouse
informants about expected benefits from testifying against petitioner. The “materiality” element
of Napue was satisfied with respect to the jury’s special circumstances finding given importance
of informant’s testimony on question of whether petitioner acted with the requisite “intent to
cause death.”
United States v. Garner,
507 F.3d 399 (6th Cir. 2007)
In carjacking case, prosecution violated Brady by failing to timely turn over records from the
victim’s cell phone which was used to make and receive calls by the hijacker or hijackers. The
records supported defendant’s theory that he had been framed by the codefendant, the
codefendant’s friend, and the codefendant’s ex-girlfriend. Because of the late disclosure, defense
counsel did not have time to investigate records to determine their value.
U.S. v. Jernigan,
492 F.3d 1050 (9th Cir. 2007) (en banc)
Reversing denial of motion for new trial in case where defendant was convicted of robbing three
banks and prosecution had failed to reveal that while defendant was awaiting trial, two more
banks in area were robbed by a woman bearing an “uncanny physical resemblance” to defendant.
The defense had been misidentification and the reliability of a surveillance video was contested.
(The appeals court agreed that the video failed to identify defendant as the robber.) The
suppressed evidence was material because it “substantially erode[d] the already questionable
value of eyewitness identifications,” there was a “similar modus operandi in all” robberies, and
the suppressed evidence magnified the “significance of gaps and inconsistencies” in the
prosecution’s case, which lacked any physical evidence tying defendant to the crimes.
“[C]onsidered collectively” the withheld evidence was material and defendant was denied fair
trial.
*Graves v. Dretke,
442 F.3d 334 (5th Cir.), cert. denied, 549 U.S. 943 (2006)
Prosecution violated Brady by failing to disclose statements by its critical witness, the alleged coperpetrator, one of which also implicated the witness’s wife in the murders, and the other of
which exonerated Graves. (The only statement disclosed to Graves was one implicating both the
witness and Graves. Graves had also been informed that the witness was found to have lied
during a polygraph exam when he denied that his wife was involved in the crime.) The statement
by the witness claiming to have committed the offense by himself would have undercut the
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prosecution’s explanation for the witness’s failure to implicate Graves before the grand jury –
that Graves had threatened the witness. Even more egregious than the suppression was the fact
that the prosecutor knowingly elicited false and misleading testimony from the witness and a
police investigator that the witness had always implicated Graves except in his grand jury
testimony where he’d denied either men had been involved in the crimes. That Graves was aware
of the polygraph results did not establish that he failed to exercise due diligence in seeking out
the statement implicating the witness’s wife in the murder since Graves had no reason to believe
such a statement had been made. Further, the prosecutor’s questioning of the witness at trial, as
well as the prosecution’s discovery responses, reinforced defense counsel’s view that if the wife
was involved at all, it was only after the fact. The statement about the wife’s involvement was
exculpatory because it fit with the defense theory that two people committed the offense, not
three as the prosecution theorized. It also provided a basis for arguing that the witness was
blaming Graves in order to save his wife. The statements were material because theywould have
allowed defense counsel to argue persuasively that (1) the murders were committed by the
witness alone or with his wife and (2) the witness’s plan from the beginning was to exonerate his
wife but since a story that he acted alone was not believable, he falsely implicated Graves. That
the statements did not fit completely with the defense that was presented at trial did not render
them immaterial because counsel may have acted differently had the statements not been
suppressed.
*Silva v. Brown,
416 F.3d 980 (9th Cir. 2005)
In pre-AEDPA capital case, prosecution violated Brady where although it disclosed that murder
charges had been dropped against the co-defendant in exchange for his testimony against Silva, it
did not reveal that part of the deal was that the co-defendant, who had previously been in a
motorcycle accident and sustained severe brain damage, would forgo a psychiatric evaluation.
The primary evidence against Silva was the testimony of the co- defendant. Although the codefendant’s story was corroborated in some respects, it was his testimony alone that provided
proof that Silva was the triggerman. The suppressed evidence was material given that the codefendant’s testimony was crucial, and the fact that the prosecutor was concerned about the jury
finding out about the witness’s mental state was evidence of the weakness of the remainder of the
case. The suppressed evidence was not cumulative to other impeachment evidence. While
evidence of dropped charges offered an incentive to testify falsely, it did not offer a possible
explanation for the co-defendant’s confused account of events. The suppressed evidence would
have diminished the credibility of the witness, and the prosecution’s desire to hide the evidence
would have diminished the overall credibility of its case. Finally, the fact that the jury acquitted
Silva of one of the two charged murders did not indicate that impeachment of the co-defendant
had been effective.
Conley v. United States,
415 F.3d 183 (1st Cir. 2005)
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Prosecution violated Brady by failing to disclose evidence that the primary witness had expressed
a desire to have his memory hypnotically enhanced, which went to his ability to recall the events.
The petitioner was a police officer who was charged with perjury for his testimony about the
circumstances surrounding the brutal beating of an undercover officer who had been mistaken for
a fleeing suspect. The witness at issue, another police officer, had originally told internal affairs
that he had seen the undercover officer chasing the actual suspect, as well as an unidentified
police officer behind the undercover agent. (This contradicted the petitioner’s account whereby
he claimed to have chased and captured the suspect without ever seeing the undercover agent or
his beating.) Later, the witness recanted his statement that he had seen a police officer behind the
undercover agent. In his grand jury testimony, which was disclosed to the defense, he explained
that he had made the earlier statement about seeing someone behind the undercover agent
because he felt guilty about not having seen everything and felt like he should have. What was
not disclosed was a statement to the FBI where the witness said that he knew and liked the
undercover agent, felt badly that he could not say what had happened, and so he convinced
himself he’d seen something. He then expressed a desire to have his memory hypnotically
refreshed in order to “truly recall” the events preceding the beating. This evidence was material
and not cumulative of the witness’s retraction to the grand jury because the grand jury statement
impeached his motive, not his ability to recall. Counsel’s choice not to impeach the witness with
his grand jury testimony was supported by an independent strategy and was not proof counsel
would not have relied on the hypnosis statement. Finally, the other evidence at trial was weak –
the government admitted the victim’s testimony was likely impaired by the head trauma he
sustained in the beating, and the actual fleeing suspect’s testimony was impeached with his
felony convictions.
*Hayes v. Brown,
399 F.3d 972 (9th Cir. 2005) (en banc)
The prosecution’s knowing presentation of false evidence and failure to correct the record
violated Hayes’s due process rights. Napue applies to false evidence, not just perjured testimony.
The constitutional prohibition against presenting false, rather than perjured, evidence was not a
new rule under Teague. The false evidence regarding whether a deal had been made with the key
prosecution witness was material because there was a reasonable likelihood the false testimony
affected the jury’s verdicts as to first degree murder and the death sentence. Once materiality is
established, there is no need to apply Brecht.
Slutzker v. Johnson,
393 F.3d 373 (3rd Cir. 2004)
Brady violation found where prosecution suppressed a police report recounting a statement by the
neighbor of the victim that she saw someone other than petitioner speaking with the victim’s wife
outside the victim’s home after the murder. At trial, she testified that it was petitioner, who had
been having an affair with the victim’s wife, who she saw after the murder. The trial prosecutor’s
testimony that it was her normal practice to turn over all documents was insufficient to overcome
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the testimonial and circumstantial evidence indicating that the defense was not provided with the
report. The evidence was exculpatory and material because the neighbor was the most credible of
the witnesses against petitioner. Although the claim had been procedurally defaulted because it
was never presented to the state court, cause was found to overcome the default because there
was no procedurally viable way for the petitioner to exhaust the claim once the suppressed
material was discovered during federal habeas proceedings. (The ability to have federal
proceedings stayed while new claims were exhausted was uncertain at the relevant time and,
therefore, petitioner risked losing his right to adjudication of his exhausted federal claims if his
federal petition was dismissed without prejudice while he returned to state court to exhaust
the Brady claim.)
United States v. Sipe,
388 F.3d 471 (5th Cir. 2004)
In case involving border control agent’s conviction for use of excessive force and infliction of
bodily injury during arrest, district court did not err in granting new trial based on Brady
violations. The cumulative impact of the suppressed evidence satisfied the materiality prong of
Brady. The suppressed evidence involved: (1) a statement by the government’s star witness
indicating a personal dislike for the defendant, which was somewhat inconsistent with the
witness’s subsequent testimony; (2) benefits provided to testifying aliens that were more
substantial than the benefits the defense was told about; and (3) a prior charge against a witness
of filing a false police report which the witness was acquitted of.
United States v. Rivas,
377 F.3d 195 (2nd Cir. 2004)
A Brady violation occurred in this narcotics smuggling case where the prosecution failed to
disclose until after the guilty verdict that its chief witness, the defendant’s fellow seaman who
testified that defendant concealed drugs in defendant’s cabin, had told the government that he, not
defendant, had brought the package of drugs on board the vessel, purportedly believing that it
contained alcohol meant for defendant. Although this revelation was arguably consistent with the
witness’s trial testimony that the drugs belonged to defendant, it could have led the jury to
question the witness’s credibility and bolstered the defendant’s theory that the witness rather than
defendant was engaged in smuggling.
Mathis v. Berghuis,
90 Fed.Appx. 101, 2004 WL 187552 (6th Cir. 2004) (unpublished)
Grant of habeas relief affirmed in rape case where state failed to disclose that complainant had
twice made false reports to the police claiming to have been the victim of violent crimes,
including rape and armed robbery. The state court’s requirement that petitioner show that the
prosecutor was aware of the undisclosed police reports was “clearly contrary to Supreme Court
precedent.”
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Norton v. Spencer,
351 F.3d 1 (1st Cir. 2003)
In Massachusetts child sexual assault case where the alleged victim, Fuentes, was the sole
witness, the appeals court affirms the grant of relief on petitioner’s Brady claim. After trial,
petitioner discovered evidence that the prosecution had likely been off by several months in its
contention about when the assaults allegedly occurred, and petitioner had not been at the house at
the relevant time. Petitioner also learned that another alleged victim, Noel, who had been found
incompetent to testify, admitted to having fabricated the charges against petitioner at the
insistence of Fuentes. Noel further stated that Fuentes had made up his allegations and that the
prosecutor repeatedly told Noel and Fuentes how to testify even after being informed by Noel
that none of the claims were true. The state court’s denial of relief involved both an unreasonable
determination of the facts and an unreasonable application of clearly established federal law.
Castleberry v. Brigano,
349 F.3d 286 (6th Cir. 2003)
Prosecution committed Brady violation during petitioner’s robbery-murder trial by withholding:
(1) a description of the assailant by the victim which differed from petitioner’s appearance; (2) a
statement by a witness claiming to have heard the prosecution’s key witness plotting the robbery
of the victim; and (3) witness accounts of suspicious persons in the vicinity of the killing,
including descriptions of “thin” individuals. (Petitioner was 5’9″, 221 pounds at the time of the
crime.) Although the suppressed evidence would not have contradicted all of the testimony
received at trial, it was enough to create a reasonable probability of a different outcome at trial
had the Brady information been available. The state court decision denying relief was contrary to
Supreme Court precedent in that the state court analyzed the suppressed evidence for materiality
item by item rather than cumulatively.
Hall v. Washington,
343 F.3d 976 (9th Cir. 2003)
In California murder case, false and material evidence was admitted in violation of petitioner’s
due process rights. The false evidence took the form of a series of handwritten questions and
answers allegedly exchanged between petitioner and a jailhouse informant. These notes were
admitted at trial as adoptive admissions, without the testimony of the informant. In post-trial
proceedings, petitioner presented evidence – including an admission from the informant and
testimony from document experts – that the informant fabricated the jailhouse notes by changing
the questions after petitioner had written his answers.
Goldstein v. Harris,
82 Fed. Appx. 592, 2003 WL 22883652 (9th Cir. 2003) (unpublished)
Appeals court affirms grant of habeas relief in murder case where the prosecution suppressed
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evidence related to the credibility of its two key witnesses. First, it failed to disclose a deal with
the jailhouse informant. Second, it did not reveal that police investigators were impermissibly
suggestive during the eyewitness’s identification of petitioner in a photo lineup, or that it advised
the eyewitness that he need not retake the stand to clarify his testimony after he realized that he
may have recognized petitioner because he had met him prior to the murder. Further, the
prosecution violated Napue v. Illinois by failing to correct the informant’s false testimony about
not having received benefits for his assistance in this and other cases.
Bailey v. Rae,
339 F.3d 1107 (9th Cir. 2003)
In case involving convictions for sexual abuse and sexual penetration, the prosecution violated
Brady by failing to disclose therapy reports concerning the victim’s mental capacity. The reports
were “exculpatory” because the crimes for which petitioner was charged required that the victim
be incapable of consent due to a mental defect and the reports indicated that the victim
understood both what type of physical contact was not okay and that she could say “no.”
Unhelpful passages in the reports did not negate their exculpatory nature since, taken as a whole,
they were favorable to the defense. The state post-conviction court’s finding that the reports were
not exculpatory was an unreasonable applicable of Supreme Court precedent. The suppressed
evidence was material despite the fact that the victim’s trial testimony was consistent with the
findings in the report. “Cumulative evidence is one thing. Unique and relevant evidence offered
by a disinterested expert is quite another. By summarily dismissing the Ford reports as
cumulative, the state court fundamentally mischaracterized their nature and significance. Setting
aside for a moment the substance of the reports, it is implausible that one could equate a
statement made by a teenage complainant whom the State has labeled intellectually deficient
with a clinical assessment provided by a disinterested professional therapist who had been
treating the victim over a period of years.” The state court’s denial of the Brady claim on
materiality grounds was both “contrary to” and an “unreasonable application of” clearly
established Supreme Court precedent. It was contrary to Supreme Court precedent because it
required that the suppressed evidence “be such as will probably change the result if a new trial is
granted.” The state court’s denial of the Brady claim was also objectively “unreasonable” in that
“the state court’s analysis of prejudice amounted to little more than a blanket assumption that,
because [the] reports were cumulative, they would have had little impact on the trial’s outcome.”
The appeals court “conclude[s] that the Supreme Court’s Brady jurisprudence requires more than
simply labeling the evidence as cumulative without placing it in context.”
Monroe v. Angelone,
323 F.3d 286 (4th Cir. 2003)
In evaluating a Brady claim in a post-AEDPA case, deference to the state court’s rejection of the
claim is only required as to the suppressed evidence that the state court considered. Brady
material that was discovered for the first time in federal court is subject to de novo analysis. And
because materiality is assessed collectively, rather than on an item-by-item basis, the federal
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court “must make an independent assessment of whether the suppression of exculpatory
evidence–including the evidence previously presented to the state courts–materially affected
Monroe’s first-degree murder conviction.” Given the thin, circumstantial case against defendant,
the prosecution committed reversible error under Brady when it failed to disclose information
that could have been used to impeach its key witness, as well as other witnesses, and information
that could have supported the defense theory that someone else killed the victim. (The district
court found, among other things, that the prosecution suppressed evidence that its key witness
was offered assistance in obtaining a sentence reduction in an unrelated case and that this witness
had previously supplied information to the police.) As for respondent’s contention that there was
no duty to disclose the material because the “substantive equivalent” was heard by the jury, the
court states: “the prosecution has a duty to disclose material even if it may seem redundant.
Redundancy may be factored into the materiality analysis, but it does not excuse disclosure
obligations.”
*Scott v. Mullin,
303 F.3d 1222 (10th Cir. 2002)
State’s suppression of evidence of a third party’s confession to the capital murder provided cause
to overcome the default of petitioner’s Brady claim by the state court, and petitioner was entitled
to relief on the claim. The first two prongs of Brady were satisfied because the suppressed
evidence was known by police investigators prior to trial and it was clearly favorable to
petitioner. The third prong – a reasonably likelihood of a more favorable result – was also
satisfied even if, as the government contended, the confession could only have been used to
impeach the third party. Had the third party’s credibility been called into question by the
confession, doubt about the testimony of other prosecution witnesses who claimed to be with the
third party at the time of the killing could have been raised.
Mendez v. Artuz,
303 F.3d 411 (2nd Cir. 2002), cert. denied, 537 U.S. 1245 (2003)
Petitioner who was convicted of, among other things, the attempted murder of Johnny Rodriguez,
was entitled to habeas relief based on the prosecution’s failure to disclose evidence that another
individual had placed a contract on the life of Johnny Rodriguez prior to the shooting. The
evidence was “favorable” because it directly contradicted the motive theory testified to by the
prosecution witnesses. That the evidence did not suggest an alternative shooter did not mean it
was not favorable, given the absence of evidence connecting petitioner to the individual who
allegedly took out the contract. And although Johnny Rodriguez identified petitioner as the
shooter, trial evidence raised questions about the identification. Materiality is further established
by the fact that the suppressed information could have been used by petitioner “to challenge the
thoroughness and adequacy of the police investigation.”
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Sawyer v. Hofbauer,
299 F.3d 605 (6th Cir. 2002)
In sexual assault case, the state court unreasonably applied Brady by failing to correctly identify
the evidence that was suppressed. Petitioner was entitled to relief on his Brady claim given the
State’s failure to reveal test results establishing that petitioner was not the source of a semen stain
on the victim’s underwear. This was material given evidence in the record suggesting that the
perpetrator could have cleaned himself with the victim’s underwear following oral sex.
United States v. Gil,
297 F.3d 93 (2nd Cir. 2002)
In mail fraud case, conviction vacated under Brady where the government withheld a
memorandum indicating that the defendant was authorized to obtain payment for his
extra-contractual work by submitting inflated subcontractor invoices, thus showing that he did
not deceive or defraud municipal entity.
*Jamison v. Collins,
291 F.3d 380 (6th Cir. 2002)
Brady violation occurred both in the suppression of exculpatory evidence by the prosecution, and
in the failure of the prosecutor to weigh the evidence for purposes of Brady disclosure which was
the result of an Ohio police policy to withhold potentially exculpatory information from the
prosecutor. The following suppressed items are found, collectively, to be material to petitioner’s
defense requiring the grant of habeas relief as to the capital conviction: (1) a positive
identification of different suspects by an eyewitness to the crime; (2) prior statements by the
accomplice (who was also the key prosecution witness) that omitted dramatic details provided
during the accomplice’s trial testimony; (3) an eyewitness account that could have impeached the
accomplice’s testimony; (4) descriptions of the suspects that undermined the accomplice’s claim
that he and petitioner committed the crime together and supported petitioner’s argument that
other suspects were overlooked; (5) evidence pointing to another suspect’s involvement in the
crime; and (6) an offense report indicating that the victim of a similar robbery had been unable to
identify her attacker at the time of the offense.
*Benn v. Lambert,
283 F.3d 1040 (9th Cir.), cert. denied, 123 S.Ct. 341 (2002)
In case under AEDPA, the panel unanimously affirms the grant of habeas relief to Washington
death row inmate based on Brady violations. The prosecution failed to disclose numerous pieces
of impeachment information that could have undermined the credibility of the jailhouse
informant who was the key prosecution witness as to premeditation, the aggravating
circumstance of common scheme or plan, and motive. The withheld evidence related to: (1) the
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witness’s history of misconduct while acting as an informant; (2) the witness made a false
allegation implicating petitioner in a notorious unsolved murder; (3) the witness’s exposure to
prosecution in other cases; and (4) the witness’s history as an informant. An independent basis
for habeas relief is the prosecution’s failure to disclose evidence that a fire at petitioner’s trailer
was accidental. This was material because the prosecution’s theory was that the trailer fire was
arson, and that the capital murders were related to insurance fraud connected to the arson.
Killian v. Poole,
282 F.3d 1204 (9th Cir. 2002), cert. denied, 123 S.Ct. 992 (2003)
State court unreasonably applied the law to the facts in determining that petitioner was not
prejudiced by the suppression of evidence, some of which came into existence post-trial, where
the evidence exposed the motivation of the key prosecution witness to lie and tended to show that
he did in fact lie at petitioner’s trial.
DiLosa v. Cain,
279 F.3d. 259 (5th Cir. 2002)
State court applied a rule of law contrary to Supreme Court precedent when it assessed the
materiality of suppressed evidence by weighing the existing evidence against the excluded
evidence, rather than asking whether the excluded evidence “could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at
435. Further, the state court’s ultimate legal conclusion cannot be reconciled with Kyles and
Brady. Given that the defense to the murder charge was that unknown intruders killed
petitioner’s wife, and the prosecutor highlighted the absence of evidence corroborating
petitioner’s account, the State’s failure to reveal evidence potentially pointing to intruders in the
house and statements indicating potential intruders in the neighborhood undermines confidence
in the verdict.
Boss v. Pierce,
263 F.3d 734 (7th Cir. 2001)
State appellate court’s apparent assumption that suppressed evidence must be exculpatory to
satisfy the requirements of Brady, rather than merely impeaching, was contrary to clearly
established Supreme Court precedent. State court unreasonably applied Brady in finding that
defense counsel would have discovered the suppressed information by exercising due diligence
given that the source was a defense witness, where nothing about the witness’s role in the case
(an alibi witness) suggested that she had knowledge about statements made by the key
prosecution witness around the neighborhood. “Holding that reasonable diligence requires
defense counsel to ask witnesses about matters of which counsel could not have reasonably
expected a witness to have knowledge is inconsistent with the aim of Brady and its progeny.”
State court unreasonably applied Brady in finding that evidence uncovered after disclosure of the
witness’s statement was simply cumulative, where: (1) the new witnesses were neutral and
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disinterested, in contrast to the defense witnesses at trial; and (2) the new witnesses recounted
confessions by the key prosecution witness, which was significantly different than the eyewitness
testimony of trial witnesses.
*Mitchell v. Gibson,
262 F.3d 1036 (10th Cir. 2001)
In case where the government did not dispute the district court’s finding that petitioner’s rape and
sodomy convictions were constitutionally infirm due to the prosecution’s failure to disclose
exculpatory test results, and its presentation of false testimony by Oklahoma City police chemist,
Joyce Gilchrist, the Tenth Circuit concluded that petitioner was also entitled to habeas relief as to
his death sentence. The district court erred in using standard of Romano v. Oklahoma is assessing
whether the Brady violation required vacated of death sentence. (The appeals court noted,
however, that because the Brady violation in this case deprived petitioner of his right to
cross-examination and to present mitigating evidence, petitioner would still be entitled to relief
under Romano without having to demonstrate that the entire sentencing was rendered
fundamentally unfair.) Applying Kyles, the appeals court found that petitioner was entitled to
relief even though there may have been sufficient evidence to justify the jury’s death verdict,
given that the rape and sodomy convictions “impacted all three of the aggravating circumstances
found by the jury: that the murder was heinous, atrocious and cruel; that it was committed to
avoid arrest for the rape and sodomy; and that Mr. Mitchell posed a continuing threat to society.”
Further, the defense presented considerable mitigating evidence.
Leka v. Portuondo,
257 F.3d 89 (2nd Cir. 2001)
In this non-capital New York murder case, the Second Circuit granted relief, finding that the
prosecution’s failure to disclose the name of a crucial eyewitness with information favorable to
the defense “until three business days before trial,” and failure to disclose the substance of the
witness’ knowledge at all, violated Brady. Petitioner was convicted strictly on the questionable
testimony of two eyewitnesses, each of whom gave post-trial statements recanting, to varying
degrees, their identifications of petitioner. The suppressed evidence consisted of the eyewitness
account of an off-duty police officer, who saw the shooting from above, and gave an account
which differed in important respects from that of the witnesses who testified at trial. In finding
the suppressed evidence “material,” the Second Circuit observed that “[i]t is likely that [the
witness’] testimony at trial would have had seismic impact.” And in concluding that the
prosecution suppressed the information notwithstanding the fact that it disclosed the witness’
name three days before trial, the court explained that “the prosecution failed to make sufficient
disclosure in sufficient time to afford the defense an opportunity for use.”
Boyette v. LeFevre,
246 F.3d 76, 93 (2nd Cir. 2001)
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The Second Circuit reversed the district court’s denial of relief in this New York robbery, arson
and attempted murder case, finding that the prosecution violated Brady in failing to disclose
several documents. The prosecution’s case rested solely on the victim’s identification of
petitioner, the credibility of which was bolstered at trial by the victim’s claim that she recognized
her attacker immediately. The undisclosed documents revealed that the victim had not, in fact,
identified the perpetrator immediately, and tended to undermine the credibility of her memory by
contradicting her claim that her attacker had smeared some type of fire accelerant on her face.
Petitioner’s first trial ended when the jury hung 9-3 in favor of acquittal, and his defense at both
trials centered on a relatively strong alibi supported by the testimony of multiple witnesses who
placed petitioner out-of-state at the time of the crime. The court summed up its conclusion that
petitioner was entitled to relief as follows: “Because this very close case depended solely on [the
victim’s] credibility, the [state appellate court] applied Kyles in an objectively unreasonable way
when it concluded – without any analysis – that [petitioner] was not prejudiced.”
Finley v. Johnson,
243 F.3d 215 (5th Cir. 2001)
In this Texas kidnapping case, petitioner made a sufficient showing of actual innocence to permit
him to overcome procedural default of his Brady claim by showing that the Brady material in his
case – evidence that a restraining order was issued against his kidnapping victim two days after
the kidnapping – was highly probative of petitioner’s defense of “necessity,” because it supported
his claim that his actions were immediately necessary to protect others from being harmed by the
kidnapping victim, and if accepted by the jury, would have resulted in petitioner’s acquittal.
Paradis v. Arave,
240 F.3d 1169 (9th Cir. 2001)
The Ninth Circuit affirmed the district court’s grant of relief in this former Idaho capital case
(death sentence commuted to life) on petitioner’s claim that the state violated Brady v. Maryland
by failing to disclose a prosecutor’s notes taken at a meeting with law enforcement and the
medical examiner. The notes contained, among other things, information regarding the condition
of the victim, time of death, and the medical examiner’s opinions based on that information, all of
which would have been useful to petitioner in impeaching the medical examiner’s testimony
indicating that the victim died in Idaho, rather than in Washington. If successful, this would have
negated Idaho’s jurisdiction to prosecute petitioner for murder.
*Nuckols v. Gibson,
233 F.3d 1261 (10th Cir. 2000)
The Tenth Circuit granted relief in this Oklahoma capital case, finding that the state failed to
disclose material evidence impeaching a key prosecution witness. The undisclosed evidence
indicated that the witness – a deputy sheriff whose testimony provided the only support for the
admissibility of petitioner’s confession, which itself was the only piece of evidence linking
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petitioner to the crime – had been strongly suspected of stealing from the sheriff’s office, and had
been tangentially involved in a second murder, for which petitioner was also under arrest at the
time of his confession. The evidence was impeaching and material because it would have
allowed petitioner to raise questions about the witness’ motivation for testifying that petitioner
reinitiated questioning which led to his confession, thereby turning what had been a close
credibility contest between petitioner and the witness in petitioner’s favor, and securing the
suppression of petitioner’s confession.
White v. Helling,
194 F.3d 937 (8th Cir. 1999)
The Eighth Circuit granted relief in this 27 year old robbery/murder case due to the state’s
nondisclosure of several documents strongly suggesting that a witness whose testimony severely
undermined petitioner’s defense of coercion had initially identified someone other than petitioner
as the person who took his wallet during the crime, and that the witness had been coached to
such an extent that, had the evidence been revealed earlier, the trial might have excluded the
witness’ testimony altogether.
Spicer v. Roxbury,
194 F.3d 547 (4th Cir. 1999)
A majority of the Fourth Circuit panel affirmed the district court’s grant of habeas relief in this
post-AEDPA, non-capital habeas case from Maryland. The majority agreed with the district
court’s conclusion that the prosecutor violated Brady v. Maryland by failing to appreciate and
disclose to the defense a serious discrepancy between the descriptions of a key witness’
knowledge as told to the prosecutor by the witness himself, and as told to the prosecutor by the
witness’ lawyer, who had contacted the prosecutor about the witness’ knowledge in hopes of
working out a plea deal. While the witness told his lawyer several times that he had not seen
petitioner on the day petitioner allegedly attacked a bar owner, and the lawyer communicated this
information to the prosecutor, the witness himself subsequently told the prosecutor, and later
petitioner’s jury, that he had seen petitioner on the day of the attack, and that petitioner was
running away from the crime scene while being chased by an employee of the victim’s restaurant.
Love v. Freeman,
1999 WL 671939 (4th Cir. Aug. 30, 1999) (unpublished)
The Fourth Circuit granted federal habeas corpus relief in this North Carolina child sexual assault
case, finding that the state violated Brady by failing to disclose: evidence that the alleged victim
twice denied she had been sexually abused; numerous inconsistencies in the alleged victim’s
account of the sexual assault; evidence of the alleged victim’s “perhaps pathological lying
history” and self-destructive and attention-seeking behavior; a tape recording and transcript of a
social worker’s interview of the alleged victim, during which the social worker utilized
suggestive interviewing techniques and supplied the alleged victim with information that
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subsequently became part of her story; complete records of the alleged victim’s hymenal
examination; information suggesting the alleged victim’s mother ceased supporting petitioner’s
claim of innocence as a result of coercion by the department of social services; and information
indicating that the alleged victim had previously been raped by two boys.
Crivens v. Roth,
172 F.3d 991 (7th Cir. 1999)
The Seventh Circuit granted relief in this non-capital murder case on the ground that the state
violated Brady by failing to disclose the entire criminal record of its key witness. In so holding,
the court rejected the state’s contention that no Brady violation occurred because the
nondisclosure was not deliberate, but was instead a result of the witness having used aliases,
thereby making parts of his criminal record more difficult to locate. The court reasoned:
“Criminals often use aliases, but the police are able to link the various names to a single
individual through a variety of means. If the state indeed asked for the criminal history records . .
., we find it difficult to accept that the Chicago Police Department had not or could not have
discovered [that the witness had been arrested under more than one name].” The court further
concluded that, in light of the witness’ demonstrated propensity to lie, the fact that petitioner had
been afforded an opportunity to question him concerning his criminal record was not enough to
render the state’s nondisclosure immaterial. Finally, the court characterized the state’s failure to
disclose the witness’ record in the face of a direct request and a court order “inexcusable,” and
concluded that “[t]he atmosphere created by such tactics is one in which we highly doubt a
defendant whose life or liberty is at stake can receive a fair trial.”
Schledwitz v. United States,
169 F.3d 1003 (6th Cir. 1999)
The government violated Brady by failing to disclose that its key witness, who was portrayed as a
neutral and disinterested expert during petitioner’s fraud prosecution, had for years actually been
actively involved in investigating petitioner and interviewing witnesses against him. In granting
relief, the court noted that, although “[t]aken individually, none of the [undisclosed evidence,
which included items other than the nature of the expert’s involvement] would appear to raise a
‘reasonable probability’ that [petitioner] was denied a fair trial,” this evidence, viewed
collectively, entitled petitioner to relief.
United States v. Scheer,
168 F.3d 445 (11th Cir. 1999)
The court granted relief in this bank fraud case on the ground that the government violated Brady
by failing to disclose that the lead prosecutor in the case had made a statement to a key
prosecution witness, who was himself on probation as a result of a conviction arising out of the
same set of facts, “that reasonably could be construed as an implicit — if not explicit — threat
regarding the nature of [the witness’] upcoming testimony . . ..” 168 F.3d at 452. In granting
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relief, the court made clear that, to succeed, the appellant was not required to prove that the
witness actually changed his testimony as a result of the prosecutor’s threat, nor was he required
to establish that, had evidence of the threat been disclosed, the remaining untainted evidence
would have been insufficient to support his conviction.
Seiber v. Coyle,
1998 WL 465899 (6th Cir. July 27, 1998) (unpublished)
The court granted relief on petitioner’s claim that the state violated Brady in two instances. The
first violation resulted from the state’s failure to disclose that a member of the prosecution team
had promised one of two key witnesses that his probation would be transferred to another
jurisdiction after his testimony against petitioner. The second violation arose out of the state’s
nondisclosure of a preliminary crime scene report indicating that the perpetrator of the burglary
for which petitioner was later convicted was approximately half petitioner’s age, and that no other
information identifying the perpetrator was known. The contents of this report sharply
contradicted the testimony of the prosecution’s only other key witness, a police officer who
described the perpetrator in minute detail at trial, and identified petitioner as fitting the
description.
United States v. Service Deli, Inc.,
151 F.3d 938 (9th Cir. 1998)
The court reversed the defendant government contractor’s conviction for filing a false statement
with the United States Defense Commissary Agency because the government failed to disclose
notes taken by one of its attorneys during an interview with the state’s most important witness.
The notes contained “three key pieces of information” useful in impeaching the witness: (1) the
witness’ story had changed; (2) the change may have been brought on by the threat of
imprisonment; and (3) that the witness explained his inconsistent stories by claiming that he had
suffered “a stroke which affected his memory.” This information was material, the court
explained, because “the government’s entire case rested on [the] testimony” of the witness who
was the subject of the undisclosed notes, and that witness’ credibility “essentially was the only
issue that mattered.” Finally, the court rejected the government’s contention that the undisclosed
impeachment evidence was merely cumulative because the defendant had gone into the same
areas on cross examination of the witness. The court explained: “It makes little sense to argue
that because [defendant] tried to impeach [the witness] and failed, any further impeachment
evidence would be useless. It is more likely that [defendant] may have failed to impeach [the
witness] because the most damning impeachment evidence in fact was withheld by the
government.”
Singh v. Prunty,
142 F.3d 1157 (9th Cir.), cert. denied, 525 U.S. 956 (1998)
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The court granted habeas relief in this murder-for-hire case on the ground that the prosecution
violated Brady by failing to disclose an agreement with its star witness, pursuant to which the
witness avoided prosecution on several charges, and received significantly reduced sentences on
other charges. The undisclosed information was material, in the court’s view, because “[i]t is
likely the jury had to believe [the witness’] testimony in order to believe the prosecution’s theory.
For these reasons, [the witness] was the key witness who linked [petitioner] to the murder-forhire scheme,” and his “credibility was vital to the prosecution’s case.”
*Clemmons v. Delo,
124 F.3d 944 (8th Cir. 1997), cert. denied, 523 U.S. 1088 (1998)
Petitioner was convicted of murder and sentenced to death for the killing of a fellow prison
inmate. Habeas relief granted as to conviction based on prosecution’s failure to disclose an
internal prison memo generated the day of the incident which indicated that someone saw a
second inmate commit the murder. While petitioner did present other inmates to testify at trial
that this second inmate committed the murder, the prosecution argued that these witnesses were
not believable because the person they were implicating was “conveniently dead,” thus the
outcome of the proceeding was sufficiently undermined.
*East v. Johnson,
123 F.3d 235 (5th Cir. 1997)
Habeas relief granted as to death sentence where prosecution failed to disclose the criminal
record of key witness used to establish future dangerousness with testimony that petitioner had
raped and robbed her. If this witness’ prior record had been disclosed, defense would have
discovered a mental competency evaluation which reflected that the witness suffered from
bizarre sexual hallucinations. District court erred in applying a sufficiency of the evidence test
rather than considering whether impeachment of the witness would have undermined the jury’s
sentencing recommendation.
United States v. Vozzella,
124 F.3d 389 (2nd Cir. 1997)
Conviction for conspiring to extend extortionate loans reversed where prosecution presented
false evidence and elicited misleading testimony concerning that evidence which was vital to
prove a conspiracy.
*Carriger v. Stewart,
132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133
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Habeas relief granted as to conviction and death sentence where prosecution withheld from
defense the Department of Correction file of the state’s star witness. Because the witness had a
long criminal history, the prosecution had the duty to turn over all information bearing on his
credibility. The DOC file contained not only information that the witness had a long history of
burglaries (the crime the witness was now blaming on the defendant), but also that he had a long
history of lying to the police and blaming others to cover up his own guilt.
United States v. Fisher,
106 F.3d 622 (5th Cir. 1997), abrogated on other grounds by Ohler v. United States, 529
U.S. 753 (2000)
New trial ordered where government failed to disclose FBI report directly contradicting
testimony of a key government witness on bank fraud charge. Because the witness’ credibility
was crucial to the government’s case, there was a reasonable probability that the result would
have been different if the report had been disclosed.
Duran v. Thurman,
106 F.3d 407 (9th Cir. 1997) (unpublished)
Habeas corpus relief granted where state prosecutor told murder defendant’s counsel that charges
against state’s key witness had been dismissed, when witness actually had a pending
misdemeanor charge. The court rejected the state’s contention that defense counsel should have
known about the pending charge, stating counsel was entitled to believe the prosecution’s
representations to be truthful. The undisclosed charge was material because the witness provided
the only testimony contradicting petitioner’s theory of self-defense, and his credibility would
have been lessened had the jury known that charges were pending against him.
United States v. Pelullo,
105 F.3d 117 (3rd Cir. 1997)
Denial of § 2255 motion reversed where government failed to disclose surveillance tapes and raw
notes of FBI and IRS agents. The notes contained information supporting defendant’s version of
events and impeaching the testimony of the government agents, who provided the key testimony
at defendant’s trial for wire fraud and other charges.
United States v. Steinberg,
99 F.3d 1486 (9th Cir. 1996), disapproved on other grounds, 165 F.3d 689 (9th Cir.
1999) (en banc)
New trial ordered where prosecution failed to disclose information indicating that its key witness,
an informant, was involved in two different illegal transactions around the time he was working
as a CI, and that the informant owed the defendant money, thus giving him incentive to send the
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defendant to prison. Although the prosecutor did not know about the exculpatory information
until months after the trial, nondisclosure to the defense of this material evidence required a new
trial.
Guerra v. Johnson,
90 F.3d 1075 (5th Cir. 1996)
Grant of habeas relief affirmed where district court made detailed, legally relevant factual
findings indicating that police had intimidated key witnesses to murder of police officer and
failed to disclose material information regarding who was seen carrying the murder weapon
moments after the shooting.
United States v. Cuffie,
80 F.3d 514 (D.C. Cir. 1996)
Undisclosed evidence that prosecution witness, who testified that defendant paid him to keep
drugs in his apartment, had previously lied under oath in proceeding involving same conspiracy
was material where witness was impeached on basis that he was a cocaine addict and snitch, but
not on basis of perjury, and where his testimony provided only connection between defendant
and drugs found in witness’ apartment.
United States v. Smith,
77 F.3d 511 (D.C.Cir. 1996)
Dismissal of state court charges against prosecution witness, as part of plea agreement in federal
court, was material and should have been disclosed under due process clause, even though
prosecutor disclosed other dismissed charges and other impeachment evidence was thus
available, and whether or not witness was intentionally concealing agreement. Armed with full
disclosure, defense could have pursued devastating cross-exam, challenging witness’ assertion
that he was testifying only to “get a fresh start” and suggesting that witness might have concealed
other favors from government.
United States v. Lloyd,
71 F.3d 408 (D.C.Cir. 1995)
Defendant who was convicted of aiding and abetting in preparation of false federal income tax
returns was entitled to new trial where prosecution: (1) withheld, without wrongdoing, tax return
of defendant’s client for year which defendant did not prepare returns; and (2) failed to disclose
prior tax returns for four of defendant’s clients. The first item would probably have changed the
result of the trial, and the second group of items were exculpatory material evidence.
United States v. David,
70 F.3d 1280 (9th Cir. 1995) (unpublished)
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New trial ordered where defendant had been convicted of operating a continuing criminal
enterprise solely on the strength of testimony of two prisoners serving life sentences in the
Philippines. Subsequent to the conviction, these two prisoners were released, and defendant
discovered previously undisclosed evidence of a deal between the government and the two
prisoners.
United States v. O’Connor,
64 F.3d 355 (8th Cir. 1995), cert. denied, 116 S.Ct. 1581 (1996)
Brady violation occurring when government failed to inform defendant of threats by one
government witness against another and attempts to influence second government witness’
testimony was reversible error with respect to convictions on those substantive drug counts and
conspiracy counts where testimony of those government witnesses provided only evidence;
evidence of threats, combined with undisclosed statements from interview reports, could have
caused jury to disbelieve government witnesses.
United States v. Boyd,
55 F.3d 239 (7th Cir. 1995)
Trial court did not abuse discretion by granting new trial based on government’s failure to reveal
to defense either drug use and dealing by prisoner witnesses during trial or “continuous stream of
unlawful” favors prosecution gave those witnesses.
*Banks v. Reynolds,
54 F.3d 1508 (10th Cir. 1995)
Habeas relief granted to capital murder petitioner where failure of prosecution to disclose to
defendant that another individual had been arrested for the same crime violated defendant’s right
to a fair trial. Relief is granted on the Brady claim despite possible knowledge by defense counsel
of withheld material because “the prosecution’s obligation to turn over the evidence in the first
instance stands independent of the defendant’s knowledge.”
Smith v. Secretary of New Mexico Dept. of Corrections,
50 F.3d 801 (10th Cir.), cert. denied, 116 S.Ct. 272 (1995)
Habeas granted where material evidence relating to a third person/suspect was not disclosed,
prosecutor’s lack of actual knowledge was irrelevant because police knew, and prosecution’s
“open file” was not sufficient to discharge its duty under Brady.
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United States v. Alzate,
47 F.3d 1103 (11th Cir. 1995)
Failure of prosecutor to correct representations he made to the jurywhich were damaging to
defendant’s duress defense, despite having learned of their falsehood during the course of the
trial, was Brady violation and required granting of new trial motion.
United States v. Robinson,
39 F.3d 1115 (10th Cir. 1994)
District court did not abuse discretion in ordering new trial where, in violation of Brady,
government failed to disclose evidence tending to identify former codefendant as drug courier;
conviction was based largely on testimony of codefendants and defendant had strong alibi
evidence.
United States v. Kelly,
35 F.3d 929 (4th Cir. 1994)
Kidnapping conviction reversed where government failed to furnish an affidavit in support of an
application for a warrant to search key witness’s house just before trial, and failed to disclose a
letter written by same witness which would have seriously undermined her credibility.
United States v. Young,
17 F.3d 1201 (9th Cir. 1994)
New trial granted where detective’s testimony regarding location of incriminating notebooks was
false, regardless of whether government presented the evidence unwittingly. Reasonable
probability existed that result would have been different absent the false testimony, which was
highly prejudicial in light of government’s otherwise weak case.
Demjanjuk v. Petrovsky,
10 F.3d 338 (6th Cir.), cert. denied, 115 S.Ct. 295 (1994)
Prosecutorial misconduct where government attorneys failed to disclose to petitioner and court
exculpatory materials during denaturalization and extradition proceedings of alleged “Ivan the
Terrible.” They acted with “reckless disregard.”
United State v. Udechukwu,
11 F.3d 1101 (1st Cir. 1993)
New trial granted to remedy prosecutorial misconduct of failing to disclose salient information
concerning defendant’s theory that she had been coerced into being a drug courier. Prosecutor
argued during closing that there was no evidence to support defendant’s claim when in fact he
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knew that source defendant named existed and was a prominent drug trafficker.
United States v. Kalfayan,
8 F.3d 1315 (9th Cir. 1993)
Where defense counsel had made Brady request about whether key witness had signed
cooperation agreement, and later request for missing witness instruction foundered because
defense counsel did not know of the deal, Brady required government to disclose its
existence.
Ballinger v. Kerby,
3 F.3d 1371 (10th Cir. 1993)
Failure to produce exculpatory photograph, which would have undermined co-defendant’s
already flimsy credibility, violated Due Process.
United States v. Brumel-Alvarez,
991 F.2d 1452 (9th Cir. 1993)
Brady violation where government failed to disclose memo indicating that informant lied to
DEA, had undue influence over DEA agents, and thwarted investigation of evidence crucial to
his credibility.
United States v. Kojayan,
8 F.3d 1315 (9th Cir. 1992)
Where government failed to disclose agreement with potential witness and later request for
missing witness instruction was denied because counsel was unaware of the agreement, Brady
required disclosure.
United States v. Gregory,
983 F.2d 1069 (6th Cir. 1992) (unpublished)
Government suppressed audio from a videotape of marijuana plants being destroyed. The
information in the audio would have significantly reduced defendant’s sentence. This was a
Brady violation.
Hudson v. Whitley,
979 F.2d 1058 (5th Cir. 1992)
Habeas petitioner, in fourth petition, claimed that state suppressed crucial evidence that its only
eyewitness had originally identified a third party, and that third party had been arrested.
Petitioner demonstrated “good cause” because state failed to disclose the info despite repeated
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requests.
Thomas v. Goldsmith,
979 F.2d 746 (9th Cir. 1992)
State obliged to turn over to petitioner any exculpatory semen evidence for use in federal habeas
proceeding in which petitioner sought to overcome state procedural default through miscarriage
of justice exception, for colorable showing of actual innocence, and duty was not extinguished by
petitioner’s failure to argue existence of such obligation in district court; due to obvious
exculpatory nature of semen evidence in sexual assault case, neither specific request nor claim of
right by petitioner was required to trigger duty of disclosure.
United States v. Brooks,
966 F.2d 1500 (D.C. Cir. 1992)
Prosecution’s Brady obligation extends to search of files in possession of police department and
internal affairs division.
United States v. Minsky,
963 F.2d 870 (6th Cir. 1992)
Government improperly refused to disclose statements of witness that he did not make at trial.
Disclosure could have resulted in loss of credibility with jury based on false statements to FBI.
United States v. Spagnoulo,
960 F.2d 990 (11th Cir. 1992)
New trial ordered on basis of Brady violation where prosecution failed to disclose results of a
pre-trial psychiatric evaluation of defendant which would have fundamentally altered strategy
and raised serious competency issue.
Jacobs v. Singletary,
952 F.2d 1282 (11th Cir. 1992)
Brady violated where state failed to disclose statements of witness to polygraph examiner which
contradicted her trial testimony.
Brown v. Borg,
951 F.2d 1011 (9th Cir. 1991)
Brady violated where prosecutor knew her theory of the case was wrong but misled the jury to
think the opposite was true through her presentation of testimony.
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Jean v. Rice,
945 F.2d 82 (4th Cir. 1991)
Audio tapes and reports relating to hypnosis of rape victim and investigating officer were
material under Brady, and should have been disclosed to defense where they had strong
impeachment potential and could have altered case.
Ouimette v. Moran,
942 F.2d 1 (1st Cir. 1991)
Due process violated by state’s failure to disclose long criminal record of, and deals with, state’s
chief witness where evidence against petitioner came almost entirely from this witness.
Campbell v. Henman,
931 F.2d 1212 (7th Cir. 1991)
Inmates do not forfeit right to exculpatory material before disciplinary proceeding simply
because they forego option of assistance of staff representative who would have access to such
material.
United States v. Tincher,
907 F.2d 600 (6th Cir. 1990)
Prosecutor’s response to Jencks Act and Brady request was deliberate misrepresentation in light
of knowledge of testimony of government agent before grand jury. Reversal was required since
misconduct precluded review of the agent’s testimony by the district court.
United States v. Wayne,
903 F.2d 1188 (8th Cir. 1990)
Government’s failure to disclose Brady material required new trial where drug transaction
records would have aided cross-exam of key witness.
United States v. Tincher,
907 F.2d 600 (6th Cir. 1989)
“Deliberate misrepresentation” where prosecutor withheld grand jury testimony of cop, after
defense requested any Jencks Act or Brady material and prosecutor responded that none existed.
Convictions reversed.
Reutter v. Solem,
888 F.2d 578 (8th Cir. 1989)
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Prosecution’s failure to inform defense that key witness had applied for commutation and been
scheduled to appear before parole board a few days after his testimony required habeas relief.
Violation was compounded by prosecution’s statement to the jury that the witness had no
possible reason to lie.
United States v. Weintraub,
871 F.2d 1257 (5th Cir. 1989)
Impeachment evidence which was withheld would have allowed defendant to challenge evidence
presented as to amount of narcotics sold, was material to sentencing and required remand for new
sentencing hearing.
McDowell v. Dixon,
858 F.2d 945 (4th Cir. 1988), cert. denied, 489 U.S. 1033 (1989)
Black petitioner’s due process rights violated where state suppressed key witness’s initial
statement that attacker was white and prosecutor added to the deception at trial by allowing
witness to testify that she “had always described her attacker as a black man.”
Jones v. City of Chicago,
856 F.2d 985 (7th Cir. 1988) [Civil case]
In successful § 1983 action against police officers by plaintiff who had been charged with murder,
court notes that while Brady does not require police to keep written records of all their
investigatory activities, attempts to circumvent the rule by keeping records in clandestine files
deliberately concealed from prosecutors and defense, which contain exculpatory evidence, cannot
be tolerated.
United States v. Strifler,
851 F.2d 1197 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989)
Information in government witness’ probation file was relevant to witness’ credibility and should
have been released as Brady material. Criminal record of witness could not be made unavailable
by being part of probation file. District court’s failure to release these materials required reversal.
Miller v. Angliker,
848 F.2d 1312 (2nd Cir.), cert. denied, 488 U.S. 890 (1988)
Habeas granted where state withheld evidence which indicated that another person had
committed the crimes with which petitioner was charged. Same standard for Brady claim
evaluation applies for defendant who pled not guilty by reason of insanity as for defendant who
pled guilty.
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Carter v. Rafferty,
826 F.2d 1299 (3rd Cir. 1987), cert. denied, 484 U.S. 1011 (1988)
Lie detector reports of test given to important prosecution witness were material where witness’
testimony was the only direct evidence placing petitioner at scene of crime. Fact that other
contradictory statements of the witness had been disclosed did not remove the “materiality” of
the lie detector results.
*Bowen v. Maynard,
799 F.2d 593 (10th Cir.), cert. denied, 479 U.S. 962 (1986)
Violation where prosecution failed to disclose that they considered Crowe a suspect when Crowe
better fit the description of eyewitnesses, was suspected by law enforcement in another state of
being a hit man, and carried the same weapon and unusual ammunition used in the murders. This
met even the strictest standard under Agurs.
United States v. Severdija,
790 F.2d 1556 (11th Cir. 1986)
Written statement defendant made to coast guard boarding party should have been disclosed
under Brady, and failure to disclose warranted new trial. The statement tended to negate the
defendant’s intent, which was the critical issue before the jury.
Brown v. Wainwright,
785 F.2d 1457 (11th Cir. 1986)
Habeas granted under Giglio where prosecution allowed its key witness to testify falsely, failed
to correct the testimony, and exploited it in closing argument. Standard is whether false
testimony could in any reasonable likelihood have affected the judgment of the jury.
Lindsey v. King,
769 F.2d 1034 (5th Cir. 1985)
Brady violated where prosecution, after a specific request, suppressed initial statement of
eyewitness to police in which he said he could not make an ID because he never saw the
murderer’s face. His story changed after he found out there was a reward.
United States v. Fairman,
769 F.2d 386 (7th Cir. 1985)
Prosecutor’s ignorance of existence of ballistic’s worksheet indicating gun defendant was accused
of firing was inoperable does not excuse failure to disclose.
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Walter v. Lockhart,
763 F.2d 942 (8th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986)
State held, for over twenty years, a transcript of a conversation tending to exculpate petitioner
insofar as it supported his claim that the cop shot at him first.
United States v. Alexander,
748 F.2d 185 (4th Cir. 1984), cert. denied, 472 U.S. 1027 (1985)
Government’s equivocation in making critical factual representations to defense counsel and to
district court regarding its possession of Brady materials requested in connection with new trial
motion fatally compromised integrity of proceedings on the motion so that district court’s denial
of the motion could not stand.
*Chaney v. Brown,
730 F.2d 1334 (10th Cir.), cert. denied, 469 U.S. 1090 (1984)
Conviction affirmed but death sentence reversed where evidence, admissible under Eddings,
which contradicted prosecution’s theory of the murder and placed petitioner 110 miles from the
scene, was withheld by prosecution.
United States v. Holmes,
722 F.2d 37 (3rd Cir. 1983)
District court abused its discretion by denying defendant’s request for adjournment to permit
counsel to complete examination of Jencks Act material, which was a stack of paper at least eight
inches thick provided on the morning of the day before trial.
Anderson v. State of South Carolina,
709 F.2d 887 (4th Cir. 1983)
Habeas relief granted where prosecution withheld police reports despite general and specific
requests from defense counsel, and failed to furnish autopsy reports upon counsel’s request.
There is no general “public records” exception to the Brady rule.
United States v. Muse,
708 F.2d 513 (10th Cir. 1983)
Prosecutor must produce Brady material in personnel files of government agents even if they are
in possession of another agency.
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Chavis v. North Carolina,
637 F.2d 213 (4th Cir. 1980)
Habeas relief granted where prosecution suppressed an amended statement by a key witness,
information concerning the witness’s favorable treatment by authorities, and records of the
witness’s mental deficiencies.
United States v. Auten,
632 F.2d 478 (5th Cir. 1980)
Prosecutor’s lack of knowledge of witness’s criminal record was no excuse for Brady violation.
Martinez v. Wainwright,
621 F.2d 184 (5th Cir. 1980)
In homicide prosecution, deceased’s rap sheet, which prosecution failed to provide to defense
pursuant to defense request, was “material” within meaning of Brady to the extent it served to
corroborate petitioner’s testimony with respect to shooting incident. That the rap sheet was in
possession of the medical examiner, not the prosecutor, did not defeat the claim.
DuBose v. Lefevre,
619 F.2d 973 (2nd Cir. 1980)
Habeas relief granted where state encouraged witness to believe that favorable testimony would
result in leniency toward the witness. Failure to disclose was not justified by fact that promise of
state had not taken a specific form. Questions about a deal arose during examination of the
witness, but nothing about the deal was disclosed.
United States v. Gaston,
608 F.2d 607 (5th Cir. 1979)
Reversed where trial court failed to conduct an in camera review of Brady material despite
defendant’s request for specific documents relating to interviews of two named witnesses, no
evidentiary hearing was conducted, nor were the documents produced. The reports were sought
not only for impeachment, but for substantive exculpatory use.
Monroe v. Blackburn,
607 F.2d 148 (5th Cir. 1979)
Habeas relief granted in armed robbery case where, despite specific request by petitioner,
prosecutor withheld a statement given by the victim to police which could have been useful in
attacking victim’s testimony at trial. Because the request was specific, the standard of review was
“no reasonable likelihood that evidence would have affected judgment of the jury.”
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United States v. Antone,
603 F.2d 566 (5th Cir. 1979), cert. denied, 446 U.S. 957 (1980)
For Brady analysis, no distinction is drawn between different agencies under the same
government — all are part of the “prosecution team.”
Campbell v. Reed,
594 F.2d 4 (4th Cir. 1979)
Where co-defendant denied existence of agreement with prosecution during testimony,
prosecution had a duty to correct. Jury was entitled to know about it and prosecution’s deliberate
deception was fundamentally unjust.
United States v. Herberman,
583 F.2d 222 (5th Cir. 1978)
Testimony presented to grand jury contradicting testimony of government witnesses was Brady
material subject to disclosure to the defense.
United States v. Beasley,
576 F.2d 626 (5th Cir. 1978), cert. denied, 440 U.S. 947 (1979)
Conviction reversed due to failure of government to timely produce statement of key prosecution
witness where not only was the witness critical to the conviction, but defense and prosecution
argued his credibility at length, and the statement at issue differed from witness’ trial testimony in
many significant ways.
Jones v. Jago,
575 F.2d 1164 (6th Cir.), cert. denied, 439 U.S. 883 (1978)
Habeas granted under Brady and Agurs where state withheld, despite defense request, a statement
from coindictee who, prior to trial, had been declared material witness for prosecution, and
against whom all charges were then dropped. State’s claim that witness’ statement made no
express reference to petitioner and was therefore neutral was unsuccessful.
United States v. Butler,
567 F.2d 885 (9th Cir. 1978)
New trial required where government failed to disclose whether the witness had been promised a
dismissal of the charges against him, and the witness testified falsely in this regard. The standard
is whether the false testimony could in any reasonable likelihood have affected the judgment of
the jury.
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Annunziato v. Manson,
566 F.2d 410 (2nd Cir. 1977)
Habeas granted where one of two key prosecution witnesses testified falsely that he received no
promise of leniency when in fact he had made a deal to avoid prison on pending charges, and
prosecutor knew or should have known of this fact.
United States v. Sutton,
542 F.2d 1239 (4th Cir. 1976)
Reversed where prosecutor concealed evidence that keyprosecution witness was coerced into
testifying against defendant, and then went on to falsely assure the jury that no one had
threatened the witness.
Boone v. Paderick,
541 F.2d 447 (4th Cir. 1976), cert. denied, 430 U.S. 959 (1977)
Petitioner prejudiced where prosecutor failed to disclose deal with accomplice/witness for
leniency. Prosecutor knew or should have known that false evidence was being presented where
witness denied deal at trial.
Norris v. Slayton,
540 F.2d 1241 (4th Cir. 1976)
Habeas granted where state failed to furnish to rape defendant’s counsel copy of lab report
showing no hair or fiber evidence in petitioner’s undershorts or in victim’s bed.
United States v. Pope,
529 F.2d 112 (9th Cir. 1976)
Conviction reversed where prosecution failed to disclose plea bargain with key witness in
exchange for testimony and compounded the violation by arguing to the jury that the witness had
no reason to lie.
Washington v. Vincent,
525 F.2d 262 (2nd Cir. 1975), cert. denied, 424 U.S. 934 (1976)
Habeas relief granted where key prosecution witness lied about his deal with the state, and
prosecutor took no action to correct what he knew was false testimony. Petitioner was entitled to
relief despite the fact that there was evidence that petitioner and his counsel knew of the perjury
as it happened but took no steps to object.
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United States v. Gerard,
491 F.2d 1300 (9th Cir. 1974)
Convictions reversed where defendants were deprived of all evidence of promise of leniencyby
prosecutor, and prosecutor failed to disclose that witness was in other trouble, thereby giving him
even greater incentive to lie.
United States v. Deutsch,
475 F.2d 55 (5th Cir. 1973), overruled on other grounds, United States v. Henry, 749 F.2d
203 (5th Cir. 1984)
Prosecution found to be in possession of information which was in the files of the Postal Service.
Availability of information is not measured by how difficult it is to get, but simply whether it is
in possession of some arm of the state.
United States ex. rel. Raymond v. Illinois,
455 F.2d 62 (7th Cir.), cert. denied, 409 U.S. 885 (1972)
Defendant entitled to new trial even though exculpatory evidence had been revealed to defendant
himself, but not to defense counsel.
Jackson v. Wainwright,
390 F.2d 288 (5th Cir. 1968)
In racial misidentification case, failure of prosecutor to reveal misidentification requires habeas
relief even though defense counsel had name and address of the witness.
Barbee v. Warden,
331 F.2d 842 (4th Cir. 1964)
In A.W.I.K. and unauthorized use of automobile case, wherein defendant’s gun was offered for
ID purposes only and several witnesses made partial ID of gun as being used in shooting, reports
of ballistics and fingerprint tests made by police, which tended to show that different gun was
used and to exculpate defendant, were relevant and prosecution should have disclosed their
existence.
*United States ex rel. Thompson v. Dye,
221 F.2d 763 (3rd Cir.), cert. denied, 350 U.S. 815 (1955)
Habeas relief granted where state failed to inform defense counsel that arresting officer smelled
alcohol on petitioner at the time of arrest. Absent state’s deceit, jury may have believed
defendant’s physical and mental state evidence.
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III. UNITED STATES DISTRICT COURTS
Floyd v. Vannoy,
2017 WL 1837676 (E.D. La., May 8, 2017), warden’s appeal pending, (5th Cir. 17-30421)
In post-AEPDA second degree murder case, district court grants habeas corpus relief on Brady
claim. Petitioner Floyd was charged with two murders of homosexual men, and he had confessed
to both crimes, but after a bench trial the court found Floyd guilty only of one of the murders
because the evidence showed that the other had been committed by a black man with Type A
blood; Floyd is white with Type B blood. 2017 WL 1837676 at *3. The Louisiana Supreme Court
did not cite Brady in denying Floyd’s claim that material exculpatory evidence had been
suppressed. The district court finds that the state court’s denial of Floyd’s Brady claim was an
unreasonable application of federal law because among the suppressed items were test results for
fingerprints located in one of the victims’ hotel room and in his car that indicated that the prints
were NOT Floyd’s and not the victim’s, but a third party’s, “an obvious alternative suspect that the
defense may point to as the true killer.” 2017 WL 1837676 at *9. The district court considers this
evidence material, even though Floyd was in fact acquitted of the murder of that victim, because
Floyd’s confession to that victim’s homicide was very similar to his confession to the homicide of
the other victim, there was no physical evidence linking Floyd to either crime, there were
fingerprints of a third party found at the scene involving the other victim, Floyd had been drinking
when he made his confessions, the interrogating officers beat him, and Floyd was susceptible to
coercion. The similarity of the two murders also suggests that one person committed both crimes.
“Evidence tending to show that an unknown third party—and not Floyd—killed [one victim]
therefore also points to the same unknown third party—and not Floyd—as [the other victim’s]
killer.” 2017 WL 1837676 at *11. The district court also finds that a statement that a witness
provided to a detective but not disclosed to the defense was favorable and material—the detective
reported that the witness said that one of the victims had sex with both black and white men, but
the witness actually said the victim had sex with black men, and did not mention white men. This
information was favorable because it suggested that the killer was black and because it impeached
the detective’s testimony that the victim had sex with black and white men. “Considering the full
trial record, the Court finds that the withheld fingerprint results are—standing on their own—
material to Floyd’s guilt, and that no reasonable application of clearly established federal law could
support a contrary conclusion. Even if the prints alone were not enough, [the witness’s] statement
to [the detective] provides additional exculpatory evidence.” 2017 WL 1837676 at *16.
United States v. McClellon,
___ F.Supp.3d ___, 2017 WL 2115681 (S.D. Mich, May 16, 2017), appeal dismissed, 2017 WL
4317149 (6th Cir. 2017)
District court grants McClellon’s motion for new trial following a conviction for felon in
possession of a firearm and possession of a stolen firearm, where prosecution failed to disclose that
officer who testified against him (and was the prosecution’s principal witness) was suspended by
the Detroit Police Department the day after he testified against McClellon pending investigation
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into charges that the officer made false reports of felony charges for weapons possession, and that
the officer was criminally charged for this misconduct. McClellon’s attorney learned about the
charges and asked the government’s attorney for “Giglio materials” and the government’s attorney
informed counsel that the officer’s disciplinary records were clear, but the government’s attorney
later learned that pending internal disciplinary investigations were confidential, so he had not been
informed of the investigation against the officer. The court holds that although the government’s
attorney “cannot be faulted here for nondisclosure,” because he did not actively suppress the
information against the officer, nevertheless, the government’s attorney had a duty to learn of any
favorable evidence, and the officer himself clearly knew that he had been suspended with
investigation into his misconduct, and this information is imputed to the prosecutor. The withheld
information about the officer was favorable to McClellon because it impeached the testifying
officer’s credibility. The information was material, because the officer had testified at McClellon’s
trial that he had pursued McClellon on foot during which he saw a handgun tucked into
McClellon’s waistband and the officer was the only one who testified that he saw McClellon pull
out the gun and toss it away. The officer’s “testimony is the only basis that clearly connected the
dots between . . . circumstances to make an unassailable presentation,” and “[i]f that testimony is
placed in serious doubt, then the case is put into a much different light.” 2017 WL 2115681 at *3.
Although there was other evidence to support a conviction, “sufficiency of the evidence” is not the
touchstone. Id. at *4 (quoting Kyles v. Whitley, 514 U.S. 419, 435 n.8 (1995)).
Castellanos v. Kirkpatrick
2017 WL 2817048 (E.D.N.Y., June 29, 2017), warden’s appeal pending, (2nd Cir. 17-2341)
In post-AEDPA case involving conviction for committing a criminal sexual act in the first degree
and sexual abuse in the first degree, district court grants habeas relief on Brady claim. Following
Castellanos’s conviction, the defense obtained materials related to the interrogating officer who
obtained Castellanos’s confession, including documents containing information that the officer had
obtained a confession in another case from a suspect in which a different individual later confessed
to the crime, and the officer’s internal affairs tracking sheet showing that the officer had been
investigated on six different occasions. The state court denied relief on the grounds that defense
counsel obtained some of the information about the officer independently from another case file,
therefore it was not suppressed, and that the information was irrelevant because Castellanos did not
allege that the officer physically mistreated him in order to secure the confession. The state court’s
decision was an unreasonable application of clearly established federal law. In an earlier order, the
district court had determined that Castellanos met the first and second prong of Brady (suppression
and favorability) but had not had sufficient facts to determine materiality/prejudice. In the instant
opinion, the district court bases the materiality conclusion on its in camera review of the
suppressed documents, as well as the officer’s personnel file. The court concludes that trial
counsel could have impeached the testimony of the officer with his prior bad acts contained in the
materials, and also that the withheld documents were relevant to the defense theory that the
confession was false. The fact that trial counsel may have had information about the officer’s
misconduct from another case (a fact that counsel denied) did not defeat Castellanos’s claim
because there were additional withheld documents that also strengthened the inference of the
defense theory that the confession was false. The suppression of the documents related to the
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officer’s history for coercing and falsifying confessions was prejudicial to Castellanos because they
could have been used to attack the validity of Castellanos’s confession. The six-year-old alleged
victim’s statements and unsworn testimony alleging that Castellanos sexually abused him were
insufficient alone to support the conviction, the medical findings did not establish that Castellanos
sexually abused the child, and the only remaining evidence was Castellanos’s confession.
Williams v. Williams,
232 F.Supp.3d 1318 (S.D. Ga. 2017), warden’s appeal pending (11th Cir. 17-10988)
Adopting Magistrate Judge’s Report and Recommendation to grant habeas relief on Brady/Giglio
claims in case involving, inter alia, felony-murder committed by two assailants. At trial,
Williams’s co-defendant was identified as one of the shooters by three eyewitnesses, none of
whom identified Williams as the second shooter. There was additional testimony, however,
concerning a prior identification of Williams made through a photo lineup by one of these
eyewitnesses – Fitzgerald. There was also testimony about Fitzgerald’s fear of telling authorities
what had happened and intimidation of Fitzgerald by Williams. Although Fitzgerald had a
pending drug and firearm case, he denied that he had received a plea offer in exchange for his
testimony. Undisclosed to the defense was the fact that the prosecutor had told Fitzgerald that if he
testified against Williams, she would inform the ADA in the drug/firearm case of Fitzgerald’s
cooperation and the ADA could consider that in making a plea offer to him. Following Williams’s
conviction, the prosecutor made good on her promise. She sent an email to the ADA in charge of
Fitzgerald’s prosecution asking her to take into consideration Fitzgerald’s testimony in Williams’s
case, which was given in spite of threats against him, and informing the ADA that she “didn’t think
there would have been a conviction against Williams had [Fitzgerald] not testified.” In subsequent
dealings with Fitzgerald’s defense attorney, the ADA expressly referenced Fitzgerald’s
cooperation in Williams’s prosecution when providing favorable offers on Fitzgerald’s case. The
failure of Williams’s prosecutor to disclose the promise she had made with Fitzgerald and to
correct his false testimony about the absence of an incentive to testify violated Brady and Giglio.
The state court’s finding of no deal and no materiality was unreasonable. The prosecutor’s failure
to disclose the “leniency incentive” she provided to Fitzgerald undermines confidence in the
verdict even though some other circumstantial evidence linking Williams to the shooting existed.
Alvarado v. Warden, Ohio State Penitentiary
2017 WL 878686 (N.D. Ohio, Feb. 7, 2017), adopting R&R, 2017 WL 843997 (N.D. Ohio,
March 3, 2017)
Magistrate recommends that Alvarado’s motion to stay his mixed petition be granted under Rhines
v. Weber, 544 U.S. 269, 275 (2005), in order for him to exhaust his Brady and Giglio claims in
state court. Alvarado was convicted of murder in state court in Ohio and sentenced to 15 years to
life. Alvarado demonstrated good cause for his failure to exhaust the claim in state court prior to
filing his federal habeas petition because the basis for his Brady claim is primarily the recantation
affidavit of a witness who at trial identified Alvarado as the person who killed a victim during a bar
fight, but in his affidavit, obtained two years after conviction, indicated that the prosecution told
him who to identify (coached him and persuaded him to lie on the stand) and promised him
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leniency in his own case in exchange. Although recantation affidavits are viewed with skepticism,
this witness was the key witness against Alvarado, and the court cannot say that the Brady and
Giglio claims are plainly meritless. There is no evidence that Alvarado has engaged in dilatory
tactics because he filed his petition one month after the witness executed his recantation affidavit.
Garcia v. Hudak et al.
156 F. Supp. 3d 907 (N.D. Ill. 2016)
Plaintiff’s conviction for possession of cocaine with intent to deliver was reversed and plaintiff
brought action under 42 U.S.C. § 1983, alleging that defendant officers violated his right to due
process by failing to disclose material, exculpatory evidence before he pleaded guilty. District
court holds that plaintiff stated a claim under Brady because he alleged that the state suppressed
evidence that the officers had fabricated the evidence used to prosecute him (they planted drugs on
him), and this evidence was favorable to him because it demonstrated his innocence—that he was
not in possession of narcotics when he was arrested. “The Individual Defendants did not falsely
testify about the facts in the criminal matter. Instead, they fabricated a new reality—one in which
Plaintiff possessed narcotics with the intent to distribute them—and then testified accordingly.
This alleged behavior deprived Plaintiff of his right to receive Brady material and consequently,
the Individual Defendants are not entitled to absolute immunity for their role as witnesses in
Plaintiff’s criminal case.” 156 F. Supp. 3d at 917.
Bailey v. Lafler
209 F. Supp. 3d 955 (W.D. Mich. 2016), cross-appeals pending, (6th Cir. 16-2474 & 16-2429)
In post-AEDPA murder case, district court grants habeas relief on Brady claim. Petitioner Bailey
was charged with first-degree premeditated murder and first degree felony murder arising from
killing of 79-year old woman. An FBI profile report was prepared linking this murder with a
murder that occurred years earlier, concluding that one individual was likely responsible for both
because of “signature” similarities between the crimes, including that both victims were elderly,
white females who lived alone in the same general area of a small town and left the door unlocked;
both suffered multiple stab wounds and fractures; both had an electrical cord around the neck or
head that did not appear to cause death or injury; the murder weapons were from the victims’
homes; no apparent theft motive in either case; no evidence of sexual assault of either. Bailey
sought to introduce the report to demonstrate that he was not likely the perpetrator of either
murder, as he had been only 10 years old at the time of the earlier murder, but the trial court
excluded the report and all references to the earlier murder. On appeal, the state argued that the
excluded profile report was not exculpatory and in fact supported a conclusion that Bailey was
responsible for both murders, including the one that occurred when he was 10. But the prosecution
possessed, and failed to disclose, information that latent prints at the earlier murder scene excluded
Bailey as the perpetrator. The state court’s decision that the suppressed fingerprint report from the
earlier murder was irrelevant and the connection between it and the crime for which Bailey was
convicted is speculative is based on an unreasonable determination of the facts and contrary to
clearly established federal law. A Brady analysis requires the court to analyze whether the
withheld evidence puts the whole case, not part of a case, in a different light. Here, the fingerprint
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analysis and the FBI profile reports together are directly exculpatory as to both murders, because
together, they lead to the conclusion that a third person—not Bailey—is likely responsible for both.
The suppression of the fingerprint evidence denied Bailey a meaningful opportunity to present a
complete defense. The prosecution’s case was based largely on circumstantial evidence that was
not cumulatively strong.
*Sears v. Chatman
2016 WL 1417818 (N.D. Ga., Apr. 8, 2016) (unpublished)
District court finds that Sears has established cause and prejudice to overcome procedural bars to
merits consideration of his Brady claim. Sears was convicted by a Georgia jury of capital murder,
kidnapping with bodily injury, and armed robbery in connection with the death of victim Wilbur,
and sentenced to death. While Sears’ federal habeas corpus petition was pending, the U.S.
Supreme Court granted cert from the denial of state habeas corpus relief, vacated the state habeas
court ruling, and remanded for further proceedings. The state court once again denied relief,
finding Sears’ Brady claim procedurally defaulted. Sears concedes that the claim is defaulted but
argues there is cause for the default and he will suffer prejudice if the court does not excuse it. The
prosecution knew but did not disclose that the primary witness against Sears, Williams, had been
convicted of battery for a premeditated assault while incarcerated, despite Sears’ repeated requests
for Williams’ criminal history. Because Sears was entitled to rely upon the prosecution’s “open
file policy” to conclude that no more adverse information about Williams existed, and because the
suppressed records may have allowed Sears to undermine Williams’ testimony that Sears initiated
the kidnapping that resulted in the murder, and may have discredited testimony of an officer that
Sears rather than Williams was the worst inmate at the detention center, cause and prejudice is
established. Court permits Sears to proceed in federal habeas on this claim.
United States v. Hampton
109 F. Supp. 3d 431 (D. Mass. 2015), appeal dismissed (1st Cir. 15-1836, Jan. 20, 2016)
Hampton pleaded guilty to one count of knowingly and intentionally conspiring to distribute 50 or
more grams of cocaine base. Before the plea hearing, the government provided him with
certificates of analysis reflecting that the substances recovered from controlled purchases in which
he was involved contained cocaine base. At the plea hearing, Hampton did not plead to any
particular transaction or amount of cocaine base; at sentencing, based on an agreement with the
prosecution, he was sentenced to the mandatory minimum of 10 years followed by 60 months of
supervised release, based on the government’s calculation that the substance attributable to
Hampton exceeded 280 grams. The lab chemist, Annie Dookhan, who tested 14 of 18 samples of
the drugs seized from Hampton, was discovered to have taken evidence from a safe, removed drug
samples from the lab, and forged a coworker’s initials on an evidence log, and after she went on
administrative leave she was charged and pled guilty to crimes including perjury, obstruction of
justice, tampering with evidence, and falsely claiming to hold a degree. Following Hampton’s
conviction, he filed a petition to vacate his sentence under 28 U.S.C. § 2255, requesting relief
because the prosecutor’s failure to disclose Dookhan’s misconduct violated Brady and made his
sentencing inherently unreliable. Although other cases involving guilty pleas and Dookhan’s
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misconduct have not resulted in vacation of the plea, in this case, “Hampton’s habeas petition is
not about his own behavior in making a plea but is about the actual evidentiary basis provided by
the government for the imposition of a mandatory minimum” sentence. 109 F. Supp. 3d at 437.
Although there is no evidence that Dookhan tampered with evidence in Hampton’s case, the fact
that the trial judge reluctantly imposed the sentence based on the mandatory minimum
corresponding to 280 grams (and mandatory minimums are now unconstitutional) demonstrates
that there is a reasonable probability that if the judge had known of the Dookhan scandal, the
outcome of sentencing would have been different. The court determined that it is reasonable to
“infer that, in the unique circumstances of this unusual case, [that] Dookhan was a member of the
prosecution team” “in light of the government’s refusal to confront the issue by way of evidence or
even briefing.” 109 F. Supp. 3d at 440. (The court made this determination because when it asked
the government to retest and see whether the 280 grams was actually the correct weight, the
government refused.)
United States v. Christian
2015 WL 13228001 (E.D.N.Y., Dec. 18, 2015)
District court orders disclosure of materials that are potentially discoverable under Brady to the
court for in camera review. Christian was convicted of racketeering crimes, include the murder of
victim Estella, based in part through testimony of cooperating witnesses. Christian had repeatedly
requested intelligence records from the NYPD and FBI suggesting that the victim was killed at the
instruction of the Wu Tang Clan, a noted rap music group, rather than by order of Christian and his
racketeering organization. The court concludes that no documents provided at trial demonstrated
this, but that by way of a 1999 FBI report that defendant received in response to a FOIA request,
the defense has made sufficient showing that there may be material in the broader investigative
files that was not previously disclosed that show that the murder was at the direction of people not
related to Christian’s criminal enterprise. The government seeks to avoid disclosure by arguing
that the defense has not sufficiently identified materials it seeks, and the court, in balancing
interests, orders the government “to conduct a comprehensive review of relevant files under its
control and submit for the Court’s in camera review material relating to reported connected
between the Wu Tang Clan and [the cooperating witnesses] with respect to their actions in
targeting either [the victim in another case] or Estella with the Wu Tang Clan.” 2015 WL 1322800
at *4.
United States v. Beech
307 F.R.D. 437 (W.D. Pa. 2015)
This discovery order includes helpful language about the timing of disclosure of Brady material in
federal cases:
[C]ases by the Third Circuit have reiterated and encouraged adherence to the long-standing
policy of promoting the early production of all types of Brady material, including
impeachment and so-called Higgs [United States v. Higgs, 713 F.2d 39 (3d Cir. 1983)]
materials. [Citations omitted.] The government’s early production of Higgs-type
impeachment materials may well overlap with its subsequent production under the Jencks
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Act and provide defendant with ‘advanced’ notice of certain witnesses the government
intends to use at trial. Nevertheless, the court notes that after disclosure is made defense
counsel can more fully advise his client regarding the appropriate development of the case,
including consideration of any plea agreement offered by the government. In light of all of
the circumstances, the government is encouraged to disclose all Brady impeachment
material without further delay, and in any event it will be ordered to produce all such
material no later than ten business days prior to trial. 307 F.R.D. at 442.
Johnson v. Han et al.
2015 WL 4397360 (D. Mass., July 17, 2015) (unpublished)
District court denies defendant-lab chemist supervisor’s motion to dismiss plaintiff-defendant’s §
1983 claim that she permitted her staff to fail to disclose exculpatory test results. Court holds that
the state-employed lab chemists were members of the prosecution team with respect to the tests
they conducted in Johnson’s criminal case and that a supervisor of the offending chemists may be
liable for failing to disclose Brady materials.
Caminata v. County of Wexford
2015 WL 6472645 (W.D. Mich., Oct. 27, 2015) (unpublished)
District court denies defendant-officers’ motions for summary judgment on plaintiff-exoneree’s §
1983 lawsuit based on their suppression of material exculpatory evidence demonstrating that
exoneree was not responsible for setting a fire that destroyed his girlfriend’s home (arson of a
dwelling house). Evidence alleged to have been withheld included missing photographs that
“clearly contradicted [prosecution expert’s] theory that a board covered a thimble hole at the time
of the fire” and that the investigating officers were aware that the photographs directly contradicted
the validity of the prosecution expert’s reconstruction of the location of the fire and cause thereof.
United States v. Jones
2015 WL 6872358 (W.D.N.Y., Nov. 9, 2015) (unpublished)
This discovery order includes helpful language about the timing of disclosure of Brady/Jencks
materials in federal cases:
This Court believes that fundamental fairness and the constitutional due process
requirements which underlie Brady mandate that the Court have some discretion with
respect to the timing of the disclosure of such information, even if it may be considered
combined Brady/Jencks material. Indeed, even with respect to purely Jencks Act materials,
the Second Circuit has stated that “pretrial disclosure will redound to the benefit of all
parties, counsel and the court, . . . sound trial management would seem to dictate that
Jencks Act material should be submitted prior to trial . . . so that those abhorrent lengthy
pauses at trial to examine documents can be avoided.” U.S. v. Percevault, 490 F.3d 126 (2d
Cir. 1974); U.S. v. Green, 144 F.R.D. 631 (W.D.N.Y. 1992).
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Here, the Court concludes that disclosure of such inculpatory [sic] and impeachment
material, if any exists, in accordance with the common practice in this district (prior to trial
so long as it is disclosed in sufficient time for the defendants to have a fair opportunity to
utilize the information at trial) is sufficient. 2015 WL 6872358 at *2.
Robinson v. Morrow
2015 WL 5773422 (M.D. Tenn., Sept. 30, 2015) (unpublished)
District court grants summary judgment and relief on Robinson’s claim in his 28 U.S.C. § 2254
habeas corpus petition that the prosecution violated Brady when it withheld evidence in connection
with DNA testing conducted on the knife used to kill the victim. Robinson was convicted of firstdegree premeditated murder in Tennessee and sentenced to life in prison. He presented a defense
at trial that although he did stab the victim and inflict the fatal wounds, he did not intend to kill her
and stabbed her after she cut him with the knife first. After rejecting other claims procedurally
defaulted by the state court, the district court addresses the Brady claim as a claim “that arise[s]
from facts learned through discovery in this action,” and which the court holds is not defaulted.
(Later in the opinion, the court notes that Robinson has established cause and prejudice for not
raising the claim in state court—the cause was the suppression, and prejudice is that the suppressed
evidence was favorable and material, satisfying the elements of the Brady claim itself and also
overcoming the statute of limitations and procedural default.) Prior to trial, the prosecution sent
the butcher knife for DNA testing, but the prosecution provided no specific instructions for the
testing, and the analyst assumed the purpose of the testing was to determine whether the butcher
knife was used to stab the victim. She tested only one small spot on the knife, away from the
cutting edge, and determined that the spot contained the victim’s blood. Had she known that it was
important to test for the defendant’s blood as well, she would have tested more areas on the knife.
The report disclosed to Robinson at trial stated only that the blood tested matched the victim’s; it
did not also include the information that only one spot was tested and that it was not on the cutting
edge of the knife. At trial, the prosecution’s theory was that Robinson’s claim that the victim had
cut him was false and that instead he had cut himself with another knife after cutting the victim.
The prosecutor argued that Robinson’s blood was not on the butcher knife. After Robinson’s
conviction, during proceedings on his federal habeas corpus petition, the federal court granted
discovery and Robinson obtained the documentation stating that only one spot on the knife was
tested. The federal court granted Robinson’s motion to conduct further DNA testing, which proved
that Robinson’s blood was on the tip of the knife on both sides, mixed with the victim’s blood, and
was the major contributor of DNA on one side of the knife tip. The evidence was suppressed
because the analyst knew that only one spot was tested and that knowledge is imputed to the
prosecutor. Robinson properly relied on the prosecutor’s express statement that there was no
exculpatory evidence that had not been disclosed, and was not required to request or conduct
additional testing on the knife with the limited information provided to him. The withheld
evidence was favorable because it both impeached the testimony of the analyst by calling into
question the thoroughness of her analysis and because it undercut the prosecution’s theory that
Robinson lied about being attacked by the victim. It was material because it undercut the
erroneous construction of the DNA report as proof that Robinson’s blood was not on the knife,
which “was one of the lynchpins of the prosecutor’s premeditation theory at trial and was an
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important factor in the state court decisions that followed.” 2015 WL 5773422 at *25.
United States v. Blankenship
2015 WL 3687864 (S.D. W.Va., July 12, 2015) (unpublished)
In this discovery order, district court finds that government “does not comply with the requirement
of Brady by merely including all known Brady material within the four million plus pages of
discovery” and orders the government to “specifically designate any known Brady material as such
and disclose the same to defense counsel.” 2015 WL 3687864 at *6.
*Washington v. Beard,
2015 WL 234719 (E.D. Penn., Jan. 16, 2015), appeal withdrawn, (3rd Cir. 15-99001, Dec. 1,
2015)
This capital habeas petitioner was entitled to relief on a Brady claim, and on grounds that the
prosecutor’s improper argument violated Bruton v. United States, 391 U.S. 123 (1968). Petitioner
was convicted and sentenced to death for the murder of an unarmed security guard who was shot
and killed during an armed robbery at a Save-A-Lot store in Philadelphia. Witnesses to the crime
recounted that two men came into the store and purchased a bag of potato chips; one of the men
pulled out a gun and demanded money; and then the two assailants ran away followed by the
security guard. Witnesses heard shots fired outside but did not witness the shooting. Two
witnesses positively identified petitioner’s co-defendant, Derek Teagle, as the robber with the gun.
Teagle’s fingerprints were also found on the bag of potato chips left on the counter. Teagle gave a
statement to law enforcement in which he implicated petitioner as the other robber and suggested
that petitioner was the shooter. Neither petitioner nor Teagle testified at their joint trial. Over
petitioner’s objection, Teagle’s statement was read into evidence and petitioner’s name was
replaced with the word “Blank.” The trial court instructed the jury not to use this statement against
petitioner. First, the State violated Brady by failing to disclose witnesses’ descriptions of the
robbers recorded shortly after the crime and evidence that witnesses inside the store failed to
identify petitioner from a photo array. The state conceded that none of these items were disclosed
to the defense prior to trial. This evidence was material because the identity of the shooter was
contested; the withheld evidence went directly to the issue of the shooter’s identity; and, the
withheld evidence was consistent with Teagle being the only assailant seen with a gun. The
undisclosed evidence would have supported the defense theory at trial and bolstered petitioner’s
motion to sever his trial from Teagle’s. Moreover, the prosecutor committed misconduct by
“trash[ing]” the trial court’s instructions during his closing argument by repeatedly referring to
Teagle’s statement and specifically filling in the “blanks” with references to Petitioner.
Washington, 2015 WL 234719 at *16. The trial judge’s attempt to fix this error with a curative
instruction was “tantamount to the wizard telling Dorothy to pay no attention to the man behind the
curtain.” Id. Apart from Teagle’s statement, there was no evidence that petitioner was armed.
The prosecutor’s improper argument most certainly had a substantial and injurious effect on the
outcome of the case, and petitioner was entitled to relief on this ground as well.
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Johnson v. Cain,
68 F.Supp.3d 593 (E.D. 2014)
This non-capital petitioner was entitled to relief under Brady and Giglio as a result of the State’s
misconduct prior to his murder trial for the shooting death of Richard McClarity during an
argument at a swimming pool. Petitioner admitted to shooting McClarity but claimed he acted in
self-defense or, at a minimum, heat of passion when he shot at Ira Bodere, who was attacking
petitioner’s brother, and the bullet aimed at Bodere accidentally struck McClarity. The state
suppressed a statement given by Ira Bodere to the police shortly after the shooting. At trial, the
state relied heavily on Bodere’s testimony that after he hit petitioner’s brother during an argument,
petitioner got out of his car and shot at him. Bodere claimed that he fell to the ground and
pretended to be hit, but petitioner came over and started kicking him while he was laying on the
ground. Bodere further asserted that McClarity attempted to help him up off the ground when
petitioner started to leave, but then petitioner returned and shot twice. Bodere added that petitioner
said to another witness nearby, “[i]f I had more bullets, John, I would kill you too.” Johnson, at
611. In its closing argument, the State emphasized Bodere’s testimony as evidence of petitioner’s
specific intent to kill. Bodere’s suppressed statement, however, flatly contradicted his trial
testimony and would have been useful for supporting petitioner’s defense instead. In a police
report recorded on the day of the shooting, Bodere told police that he punched petitioner’s brother
in the mouth; petitioner jumped out of his car and started shooting; Bodere fell to the ground and
then heard two more shots. In this version of events, petitioner did not kick Bodere while he was
on the ground, nor did petitioner return to shoot McClarity while he was trying to assist Bodere.
Thus, Bodere’s suppressed statement was favorable and resulted in prejudice to petitioner,
particularly considering that: (1) the jury deliberated overnight and initially informed the judge
that they were unable to come to a consensus; (2) the jury made several requests for additional
instructions on specific intent; and, (3) the state relied exclusively on Bodere’s testimony to
support is argument on that very point. (The claim was considered de novo because it was rejected
on procedural grounds by the state court. The procedural default did not preclude federal review
given that the state court’s ruling that the claim was untimely under state law was erroneous.)
*Bridges v. Beard,
941 F.Supp.2d 584 (E.D. Pa. 2013), aff’d, ___ Fed.Appx. ___ (3rd Cir. Sep. 1, 2017)
The district court granted relief in this Pennsylvania capital case, finding that the prosecution
violated Brady v. Maryland by failing to disclose impeachment evidence concerning a key guiltor-innocence witness. Petitioner was convicted under an accomplice liability theory, along with
two co-defendants, for the murder of Gregory and Damon Banks, whom petitioner believed were
responsible for an armed robbery at his home while his girlfriend was present. Petitioner
admitted going to the Banks’ home to confront them about the robbery, but maintained that he
had not intended to kill them and was surprised when a co-defendant began shooting. To counter
that claim, the prosecution presented the testimony of one George Robles, who claimed that prior
to the homicides petitioner had displayed a handgun and said he was going to kill the Banks
because they went into his house and put guns to his girlfriend’s head. The jury accepted the
prosecution’s theory, convicted petitioner, and sentenced him to death. Petitioner made an
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unsuccessful bid for state post-conviction relief – including a failed attempt at access to
information about Robles – then sought federal habeas relief, and was permitted to conduct
discovery. Through that mechanism he acquired a series of police reports showing that Robles
was a suspected drug dealer who had multiple run-ins with police, and regularly offered to
provide information in exchange for leniency. After the state court declined to review this new
information on the ground that his Brady claim had already been litigated in a prior proceeding,
petitioner returned to federal court. Observing that the procedural posture of petitioner’s claim
was “analogous to Cone v. Bell, 556 U.S. 449, 472 (2009),” the district court declined to apply §
2254(d). 941 F.Supp.2d at 602. Examining the merits de novo, the district court held that
petitioner was entitled to relief because: the police records were clearly impeaching, and thus
favorable, in that they suggested Robles’ “motivation to lie to curry favor with the police to
protect his drug business and to stay out of police custody,” id. at 605; the reports were generated
by police agencies and not disclosed to the defense; and “the cumulative prejudicial effect of the
numerous suppressed police reports about Robles shows that they are ‘material’ under Brady.”
Id. at 607. “Robles’ testimony,” the court explained, “constituted the only evidence that the
prosecution presented to show that [petitioner] had the intent to kill,” and the prosecution
“repeatedly emphasized Robles’ trustworthiness . . . [and] describe[ed] Robles as a reluctant
witness.” Id. Without the withheld evidence, petitioner could not meaningfully challenge these
claims. Finally, the withheld evidence “could have led [petitioner’s] attorneys to other witnesses
who could have testified about Robles’ activities and his character.” Id. at 608.
*Keenan v. Bagley,
2012 WL 1424751 (N.D. Ohio April 24, 2012)
The district court granted relief in this Ohio capital case, finding that the prosecution committed
multiple Brady v. Maryland violations. Petitioner was convicted of killing Anthony Klann after
his codefendant, Edward Espinoza, testified that he witnessed petitioner slash Klann’s throat
with a knife, push him into a creek, and then tell another co-defendant, Joseph D’Ambrosio, to
“[f]inish him.” 2012 WL 1424751 at *2. Petitioner unsuccessfully pursued four applications for
state post-conviction relief, raising some Brady claims, but much of the evidence at issue in his
federal proceedings did not come to light until after his co-defendant, D’Ambrosio, obtained
discovery and ultimately won relief on a Brady claim in his own federal habeas proceedings.
After determining that § 2254(e)(2) did not bar expansion of the record, the district court noted
that all of Keenan’s Brady claims were procedurally defaulted (either because he failed to raise
them in state court or because the state court dismissed them as untimely), and proceeded to
assess the merits and cause and prejudice simultaneously. Based on a review of the evidence, the
court determined that Keenan had proved suppression of material evidence in the following
categories: (1) evidence that another man, Paul Lewis, had motive to kill Klann because Klann
had information that Lewis committed a rape for which Lewis faced charges at the time of
Klann’s murder, and evidence the Lewis had information regarding the crime that was not
publicly known and had asked the police to help resolve a DUI charge against him in exchange
for his testimony; (2) evidence that police investigators believed that Klann’s murder occurred in
some other location and his body was subsequently dumped in the creek bed because there was
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no blood or evidence of a struggle near the creek where his body was found; (3) police reports
concerning, and a cassette tape containing, conversations between an informant and an inmate
who once lived with Klann in which the inmate may have implicated other persons in Klann’s
murder; (4) evidence that two of the state’s witnesses had asked the police to assist them in
relocating because they had been threatened by members of D’Ambrosio’s family; and, (5)
witness reports indicating that the crime took place at a date and time inconsistent with the state’s
theory at trial and implicating Lewis, not petitioner, in the events of the crime. The district court
determined that each of these categories individually satisfied the first two prongs of Brady and
thereby established cause and prejudice to excuse the procedural default. The court then
conducted the Brady prejudice analysis by looking cumulatively at all of the withheld evidence
and concluded that Keenan could have used this information in three ways. “First, Keenan could
have used the evidence to impeach Espinoza, and, because Espinoza was the state’s sole witness
to the crime and the only evidence linking Keenan to the murder, thereby undercut the state’s
entire case.” Id. at *43. Second, “Keenan could have used the Brady material … to impeach the
police and call into question the thoroughness and integrity of their investigation.” Id. at *44.
And third, he “could have used the suppressed information … to implicate others in the murder,
at a minimum creating a reasonable doubt regarding his participation in the crime.” Id. Viewed
collectively, the court concluded that there was a reasonable probability that the suppressed
evidence would have produced a different verdict sufficient to undermine confidence in the
outcome of petitioner’s trial.
Bies v. Bagley,
2012 WL 1203529 (S.D.Ohio April 10, 2012), aff’d, 775 F.3d 386 (6th Cir. 2014)
The district court granted relief on petitioner’s Brady v. Maryland claim in this formerly capital
Ohio murder case (petitioner’s death sentence was previously set aside by a state court under
Atkins v. Virginia). Petitioner had been convicted and sentenced to death for the kidnapping,
attempted rape, and aggravated murder of a ten-year-old boy. The evidence supporting the Brady
claim did not come to light until after petitioner’s federal habeas proceedings began, and his
effort to exhaust the claim in state court was turned away as procedurally barred. After
determining that the procedural bar was excused because the state’s misconduct had been the
cause of petitioner’s delay in discovering and asserting the claim, the district court examined the
merits. The court held that the state violated Brady by withholding evidence that another suspect
confessed to multiple people that he had killed the victim, that two other suspects had also
confessed to the crime, and that some of these suspects as well as several other sex offenders had
been known to frequent the abandoned building where the victim’s body was found. The court
further determined that this evidence, viewed collectively, was material, particularly in light of
the state’s weak case against Bies. The state had no physical evidence connecting him to the
crime, and had instead relied on a sighting of Bies at a park near the abandoned building where
the victim was found and Bies’ alleged confession to the police and a jailhouse informant. The
district court noted that “[t]he strength of the confession to police is undermined by the fact that
Bies is a mentally retarded man who repeatedly denied involvement in the murder prior to his
final unrecorded statement to police,” and that “the credibility of the jailhouse informant also can
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be attacked on several bases.” 2012 WL 1203529 at *20. The court went on to reject the
“stringent evidentiary standard suggested by Magistrate Judge Merz,” under which Bies would
have been required to prove that the withheld exculpatory material would have led to admissible
evidence at trial by offering admissible affidavits from the witnesses discussed in the police
reports. Id. at *21 (citing Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002), Castleberry v.
Brigano, 349 F.3d 286 (6th Cir. 2003), and D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008)).
The court also noted that Bies’ co-defendant had recently won relief on substantially the same
Brady claim in Gumm v. Mitchell, 2011 WL 1237572 (S.D. Ohio. Mar. 29, 2011).
Hash v. Johnson,
845 F.Supp.2d 711 (W.D. Va. 2012)
Petitioner Hash was entitled to habeas relief from his capital murder conviction due to the
prosecution’s presentation of false testimony by a jailhouse informant concerning expected
benefits from his testimony against Hash. The claim was analyzed de novo after a concession by
respondent that Hash established cause and prejudice to overcome the default. (Much of the
supporting evidence was obtained through federal discovery.) The inmate falsely denied that one
of the State investigators had agreed to speak with the U.S. Attorney on the inmate’s behalf
concerning reduction of a federal sentence and the Commonwealth’s Attorney admittedly made
false and misleading statements in his closing argument about the absence of any agreement to
assist the inmate in federal court. In finding a reasonable likelihood that the jury would have
reached a result more favorable to Hash had the false testimony not been presented, it was noted
that no physical evidence connected Hash to the crime and testimony by other witnesses
implicating Hash was contradictory. (Habeas relief was also granted on other claims, including
prosecutorial and police misconduct. It was found, inter alia, that the Commonwealth failed to
disclose exculpatory evidence. Because of the conclusion that the assorted misconduct amounted
to a due process violation, it was not determined whether a Brady violation also occurred.)
Gillispie v. Timmerman-Cooper,
835 F.Supp.2d 482 (S.D. Ohio 2011)
In case involving two separate instances of kidnapping and rape, petitioner was entitled to habeas
relief based on the prosecution’s suppression of evidence concerning petitioner’s elimination as a
suspect by the initial investigating officers and the reasons for their conclusion that petitioner
was not a viable suspect. (The reasons included a belief that a photo of petitioner did not
resemble the composite sketches of the assailant, that petitioner did not match the profile of the
assailant developed by the police, petitioner did not appear to be able to fit the pants size the
assailant was seen to have worn, and the person who raised petitioner as a possible suspect had
been exposed to the composite sketches of the assailant for a significant amount of time but only
came to the police with his suspicions about petitioner after he had a nasty fight with petitioner.)
Although the investigating officers opinions did not go directly to petitioner’s guilt or innocence,
“they clearly go to the quality of the investigation” that took place subsequent to their
investigation. In light of the total record, which included a complete absence of physical
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evidence tying petitioner to the crimes, the use by the replacement investigating officer of a
photo line-up almost two years after the offenses with a photo of petitioner styled differently than
the other photos, and an initial jury deadlock of eight to four in favor of acquittal prior to an
Allen charge, the state court’s conclusion that the suppressed evidence was not material was not
entitled to deference. Although one of the initial investigating officers became a defense
investigator for trial counsel on petitioner’s case, this did not defeat the Brady claim as the record
established that the investigator performed only discreet tasks and was unaware that information
about his work on the case had not been disclosed to trial counsel. Further, trial counsel had no
reason to believe he had not been provided with everything.
Munchinski v. Wilson,
807 F.Supp.2d 242 (W.D. Penn. 2011), aff’d, 694 F.3d 308 (3rd Cir. 2012)
Petitioner was entitled to habeas relief as to his 1986 murder convictions based on the State’s
suppression of a report that provided the names of individuals who allegedly presented a version
of events at the crime scene that was wholly inconsistent with the testimony of the key
prosecution witness, who claimed to be an eyewitness to the murders, and omitted petitioner’s
involvement entirely. Petitioner was also entitled to habeas relief because seven pieces of
suppressed evidence when considered in the aggregate presented additional, non-cumulative
methods to impeach the key prosecution witness. (The additional suppressed evidence included
samples of physical evidence from the crime scene that, when tested, failed to implicate
petitioner. The absence of any physical evidence tying petitioner to the murders supported his
position at trial that he was not present during the killings.) State court’s analysis of petitioner’s
Brady claims unreasonably applied clearly established federal law by imposing a heightened
standard of materiality and by failing to consider the suppressed evidence collectively.
Petitioner’s showing of innocence satisfied the requirements for filing a second or successive
habeas petition.
Harris v. Gov’t of Virgin Islands,
2011 WL 4357336 (D. Virgin Islands Sept. 16, 2011)
In murder of a police officer case, although defendant did not move for a new trial on the basis
that the prosecutor knowingly employed the false testimony of an eyewitness who identified
defendant as one of four assailants for the first time in court, a new trial is ordered based on plain
error. (Prior to trial, the eyewitness had only been able to identify one of the charged men in a
photo lineup, co-defendant Mosby. At trial, the eyewitness surprised everyone by identifying
defendant, not Mosby.) Notably, the lower court had found the eyewitness’s post-trial
recantation credible even though the eyewitness, who had been visited by the prosecutor’s
investigator prior to the hearing, then repudiated his recantation. The lower court cited to the fact
that the eyewitness had approached the prosecutor seven days after the trial ended and disavowed
his identification of defendant. In addition, the eyewitness later met with the defense team and
signed an affidavit acknowledging that he had been mistaken when identifying defendant at trial.
In finding that the identification was false, the court pointed to: (1) the credible recantation; (2)
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the two completely inconsistent narratives the eyewitness provided regarding how he came to
observe the four assailants; (3) his three initial statements to law enforcement that he did not see
any of the four men’s faces; (4) his failure to pick defendant out of a photo array before trial; (5)
his subsequent failure to identify co-defendant Mosby in person, despite having previously
identified his photo; and (6) defendant’s testimony regarding his non-involvement in the murder.
As for whether the prosecutor knew or should have known that the identification was false, the
court stated: “[W]e are certain that a reasonable prosecutor pursuing justice would have
recognized the substantial question arising from [the eyewitness’s] identification testimony and
would have strongly considered the possibility that this identification was made in error. . . . Here
the circumstantial evidence that [the prosecutor] knew, or should have known, that [the
eyewitness] made a mistake abounds: the government’s case against [defendant] was reed-thin;
[the eyewitness’s] inconsistent narrative and state of mind raised questions about his ability to
make an accurate identification; [the prosecutor] failed to inquire into the identification’s
veracity when the opportunity presented itself at trial; and he subsequently withheld [the
eyewitness’s] recantation from [defendant’s] counsel in violation of Brady for 15 months.” In
addition, the prosecutor was aware that the stress from the events had led the eyewitness to seek
psychiatric care. On this record, the court found the prosecutor guilty of “willful blindness”
which “satisfie[d] Agur’s prosecuorial knowledge element under the plain error standard.” It
also concluded that defendant met the plain error standard for prejudice.
*Browning v. Workman,
2011 WL 2604744 (N.D. Okla. June 30, 2011), aff’d sub nom. Browning v. Trammell, 717
F.3d 1092 (10th Cir. 2013)
The district court granted guilt-innocence phase relief on petitioner’s Brady v. Maryland claim in
this Oklahoma capital case. Petitioner “was convicted of attempting to kill his pregnant exgirlfriend; Cenessa Tackett; killing Ms. Tackett’s parents; and setting fire to their home.” 2011
WL 2604744 at *1. His defense was that “his co-defendant Shane Pethel planned and committed
these acts with Ms. Tackett, who possessed a financial motive to commit the crimes.” Id.
“Physical evidence linking [petitioner] to the crime was virtually non-existent.” Id. Instead, the
state’s case rested on Tackett, who “was the key witness and sole eyewitness in the prosecution’s
case.” Id. Prior to trial, petitioner moved the prosecution to produce Ms. Tackett’s mental health
records. After an in camera review of the records, the trial court found “that they contained no
exculpatory material that must be disclosed, absent a waiver [of the psychotherapist-patient
privilege] from Ms. Tackett.” Id. The trial court then placed the documents under seal. Petitioner
was convicted and sentenced to death in state court. On direct appeal, the Oklahoma Court of
Criminal Appeals (OCCA) also reviewed the sealed documents and found that they contained
“nothing material to either guilt or punishment” and “nothing favorable to the defendant.” Id. at
*4. Petitioner then sought federal habeas relief, asserting that “the trial court’s refusal to order
disclosure of Ms. Tackett’s mental health records, which were in the possession of the
prosecution deprived him of his right to access exculpatory evidence under the Due Process
Clause of the Fourteenth Amendment and Brady v. Maryland, 373 U.S. 83 (1963), and denied
him the rights to cross-examination and confrontation under the Sixth Amendment.” Id. at *3.
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Because the district court granted relief on the due process claim, it did not reach the Sixth
Amendment claims. The district court found that the documents showed Ms. Tackett: (1) “was
suffering from severe mental illness;” id. at *6; (2) “suffered from memory deficits, poor
judgment, trouble distinguishing reality from fantasy, was manipulative and was potentially a
danger to others,” id.; (3) “exhibited a pronounced disposition to lie,” id. at *7; and, (4) was
“dramatically impaired [in] her ability to perceive and tell the truth.” Id. The district court held
that the OCCA had “identified the correct legal principles by citing Kyles, Bagley and Brady,” id.
at *6 (internal citations omitted), but had unreasonably applied that law in two respects. First, the
district court held, “[t]here is no reasonable argument or theory that could support the OCCA’s
conclusion that the sealed material contained nothing favorable to [petitioner’s] defense.” Id. at
*7. “Second, the OCCA’s conclusion that the sealed mental health records contain nothing
material either to guilt or punishment was an unreasonable application of Supreme Court law to
the facts of this case.” Id. Given that Ms. Tackett was the sole witness against petitioner at trial,
and that “her credibility and veracity were already shown to be suspect” due to inconsistent
statements and admissions she made at trial, the district court held that the state court’s decision
was unreasonable because “a fair minded jurist could determine that the withheld favorable
evidence put the whole case in such a different light as to undermine confidence in the verdict.”
Id. at *9.
Andazola v. Woodford,
2011 WL 1225979 (N.D. Cal. March 31, 2011)
In attempted murder case, habeas relief granted due to prosecution’s failure to disclose
impeachment evidence regarding the investigating officer who testified for the prosecution that a
witness had identified petitioner as the shooter. The victim was an acquaintance of petitioner.
The victim testified that he went to petitioner’s home to clear the air after learning that petitioner
suspected him of having stolen a CD player. The victim lifted weights and smoked marijuana in
petitioner’s garage with petitioner. Several other people were present. The victim was told to
leave the garage by another acquaintance after the victim denied having stolen the CD player.
The victim initially moved towards petitioner to shake his hand but turned away when he saw
petitioner’s angry look. As he turned, he blacked out and when he regained consciousness he
realized he had been shot. Although the victim had told the investigating officers that the other
acquaintance had been behind him when he was shot in the back, he testified he was “pretty sure”
it was petitioner. The victim also stated, however, that he never saw a gun in petitioner’s hand.
Other witnesses provided conflicting reports. Police officer Salgado testified that witness
Delgado informed him that she saw petitioner shoot the victim but Delgado later denied making
any such statement. Officer Salgado further testified that following her denial, Delgado privately
repeated to him that she had indeed seen petitioner shoot the victim. At trial, Delgado admitted
being present in the garage but denied seeing the shooting occur. Petitioner’s cousin
acknowledged in his testimony that he had implicated petitioner as the shooter during a police
interview but claimed he did so only because Salgado had “threatened to arrest him if he did not
implicate someone as the shooter.” Two other witnesses testified that Andazola told them he had
shot somebody. Petitioner was entitled to habeas relief because of the prosecution’s suppression
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of evidence showing Salgado’s “pattern of falsifying police reports” and a later “criminal
investigation” undertaken “into [Salgado’s] conduct.” This evidence was material given the
prosecutor’s characterization of Salgado’s testimony “as the ‘lynchpin’ in her closing argument.”
The state courts’ denial of the misconduct claim was “contrary to, or involved an unreasonable
application of clearly established federal law.”
Gumm v. Mitchell,
2011 WL 1237572 (S.D. Ohio Mar. 29, 2011), aff’d, 775 F.3d 345 (6th Cir. 2014)
The district court granted relief in this previously capital (petitioner’s death sentence was set
aside pursuant to Atkinsv. Virginia) Ohio murder case, finding that the prosecution violated
Brady v. Maryland, petitioner’s due process rights were violated by the admission of irrelevant
prior bad act evidence, and the prosecutor’s misconduct deprived petitioner of a fair trial. Based
largely on his confession, petitioner was originally convicted and sentenced to death for the
aggravated murder, kidnapping, and attempted rape of a 10-year-old boy. After securing relief
from his death sentence under Atkins, petitioner pursued federal habeas relief from his
conviction, and the district court concluded that he was entitled to relief on three grounds. First,
the court found that the state had failed to turn over an array of Brady material, including: (a)
inculpatory statements by three other suspects; (b) information concerning local sex offenders
who were questioned about the victim’s death; (c) information concerning other individuals seen
in the area at the time of the crime; (d) information about others who were with the victim on the
night of the crime; (e) information that would have called into question the testimony of a state
witness who claimed that the victim never played in the vacant building where his body was
found; (f) evidence that was inconsistent with the prosecution’s theory about what time the
victim was killed; and, (g) information that gym shoes belonging to another suspect matched the
gym shoe marks found on the victim’s body. While the state court found that the undisclosed
evidence was not material and did not undermine confidence in the verdict, the district court held
that this conclusion involved an unreasonable application of clearly established federal law. The
court explained that although much of the undisclosed evidence was not itself admissible, it
could have led defense counsel to admissible evidence. The court went on to add that “[t]here
was no physical evidence linking petitioner to the crime. The police officers had only petitioner’s
confession which, because of his mental retardation and his heightened susceptibility to police
coercion, must be viewed with some skepticism.” Id. at *8. Second, the district court held that
petitioner was entitled to relief on his claim that the prosecution’s introduction of evidence that
petitioner once told his neighbor that he had “fucked a horse” violated his right to a
fundamentally fair trial. The state courts held that even if this evidence should have been
excluded, the prosecutor did not dwell on it and, on the whole, petitioner received a fair trial. The
district court held that the state court’s decision was based on an unreasonable determination of
the facts in light of the evidence presented. Although the neighbor’s testimony on this issue was
brief, it was “egregiously unreliable” and “among the most outrageously inflammatory evidence
this Court has ever read in a capital case transcript.” Id. at *9. Additionally, the district court held
that petitioner’s due process and confrontation rights were violated by the erroneous introduction
of hearsay statements from his medical records which, also recounted irrelevant prior bad acts,
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such as the fact that petitioner lied, became rowdy when he drank, was cruel to animals, solicited
oral sex from someone, tried to rape his sister’s friend, and burned a boy with a hot spoon. The
state court held that the records, including the hearsay statements they contained, were admissible
because petitioner’s expert witness had reviewed them in formulating his opinion. The district
court concluded that the fact that the expert reviewed the documents did not make the hearsay
statements admissible and the admission of this evidence deprived petitioner of a fair trial.
Finally, the district court held that the prosecutor’s improper pattern of misconduct, evidenced
primarily by the Brady violation and the introduction of inadmissible prior bad act evidence,
deprived petitioner of a fundamentally fair trial. The state court’s conclusions that petitioner
received a fair trial and that any errors were harmless were contrary to, or involved an
unreasonable application of, clearly established federal law.
Merritt v. Hoke,
2011 WL 198104 (N.D.W.Va. Jan. 18, 2011)
Petitioner was denied a fair trial by the State’s failure to disclose its agreement with Thacker, the
driver in the robbery petitioner was convicted of committing, that if she invoked the Fifth
Amendment the State would request immunity for her. Disclosure of the State’s “tacit pre-trial
immunity agreement” with Thacker “would have been favorable for its impeachment value.”
Although the prosecutor told defense counsel the day of Thacker’s testimony that he intended to
request immunity for her if she invoked her Fifth Amendment rights, the defense was unaware of
the pre-trial discussions about immunity. The nondisclosure was material for two reasons. First,
an “undeniable difference” exists “between the way a juror perceives the credibility of a witness
ordered to testify against her will versus a witness” following “a pre-orchestrated plan” between
the prosecution and the witness’ counsel. In the former, a juror could reasonably “attribute more
credibility to a witness forced to testify against her will” because it would “only be human nature
for a juror to expect truthful testimony from an unwilling witness.” But in the latter, a
“reasonable probability” exists that “a juror would allow” the prosecution’s involvement,
including the immunity request, to “cast at least some shadow of doubt on the witness’
motivation to testify consistent with the State’s theory….” Second, Thacker’s testimony was the
only “particularly incriminating” evidence presented. No physical evidence implicated
petitioner: no fingerprints or disguises discovered, and no money recovered. The prosecutor
“compounded the Brady violation and further undermined confidence” in the outcome by arguing
“‘in effect’ that the State had nothing to do with the deal,” and the deal had “come solely from”
the trial judge. That argument was “misleading, at best, and untrue at worst.” The State’s
“Brady violation” undermined “confidence in the outcome,” was material, and petitioner was
entitled to habeas relief.
Valentin v. Mazzuca,
2011 WL 65759 (W.D.N.Y. Jan. 10, 2011)
The district court granted relief in this New York robbery case, finding that the prosecution
violated Brady v. Maryland when it failed to disclose the criminal history of the only testifying
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eyewitness to the robbery. After agreeing with the state court’s determination that the evidence
was favorable and had been suppressed, see 2011 WL 65759 at *17-18, the district court held
that the state court had “erroneously and unreasonably performed a ‘sufficiency of the evidence’
review in deciding the materiality issue.” Id. at *20. The court went on to explain that the
prosecution’s case for guilt was “more akin to a house of cards than a foundationally sound
structure, and that it was more than reasonably possible that the only eyewitness’s criminal
record “could have been the card that toppled the house.” 2011 WL 65759 at *21.
*Hodges v. Epps,
2010 WL 3655851 (N.D. Miss. Sept. 13, 2010), aff’d on other grounds, 648 F.3d 283 (5th
Cir. 2011)
Mississippi death row inmate entitled to habeas relief as to his sentence on numerous grounds,
including claim that the prosecution presented false evidence at the penalty phase about
sentencing proceedings in Hodges’ prior burglary case. The murder victim, Isaac, was the
brother of Hodges’ ex-girlfriend, Cora. Hodges had previously pleaded guilty to repeatedly
breaking into Cora’s mother’s home to see Cora. At the time of Hodges’ plea, Cora’s mother
provided a victim impact statement asserting she did not feel safe with Hodges in her family’s
life. At Hodges’ sentencing, the DA told the judge that although Cora’s mother believed Hodges
should be punished, “her anger had subsided.” Finding that the State made no sentencing
recommendation, and Cora’s mother did not want Hodges incarcerated for a lengthy period,
Hodges was sentenced to a 7-year prison term but was only incarcerated for about six months.
Three weeks after Hodges’ release, Hodges broke into Cora’s home where he encountered Isaac
and shot and killed him. At the capital sentencing proceeding, the prosecutor asked Hodges and
his mother about Cora’s mother’s actions to keep Hodges out of prison on his earlier burglary
charge. Both denied knowledge of any such action. An assistant district attorney testified that he
had requested a 15-year prison term but that Cora’s mother told him she did not want Hodges
sent to prison. In his closing argument, the prosecutor argued that despite Hodges’ refusal to
acknowledge it, Cora’s mother had bestowed on him “a huge measure of grace” and yet he killed
her son after he was given a second chance of monumental proportions. On appeal, the earlier
plea hearing transcript was ordered and it showed the prosecution made no recommendation on
Hodges’ sentence, and Cora’s mother never requested Hodges receive probation or leniency. The
state court, however, refused to consider the transcript because it was not part of the trial court
record and the court had denied Hodges’ motion to expand the record to include it. The state
court also found the false evidence issue barred due to Hodges’ failure to object during his crossexamination and the questioning of his mother. Finally, without consideration of the plea
transcript, the state court found the requisite evidentiary basis for the questioning in the assistant
district attorney’s testimony. The state post-conviction court later barred the claim as res judicata.
The federal district court expressed skepticism about the State’s argument that the claim was
barred due to the lack of a contemporaneous objection, observing that trial counsel “had no
reason to believe” they needed “an actual transcript” of the earlier burglary plea “to correct the
State’s presentation of false evidence.” But if “cause and prejudice” were required to overcome a
procedural default, Hodges established both. The court also found Hodges was improperly
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denied a fair opportunity to present his claim by a “Catch-22″: the state court failed to consider
the plea transcript on direct appeal, and then on post-conviction review, the state court
determined the issue was “res judicata.” Considering the prior plea transcript and testimony from
an evidentiary hearing ordered by the district court, the court concluded the testimony of then
assistant district attorney (now Judge) Kitchens – that, although not on the record, the State
sought a 15-year imprisonment term, Cora’s mother “did not want [Hodges] to go to prison” and
her “wishes were relayed to the judge” – was “factually at odds” with the record, and the State
“should have known” Kitchens’ testimony at the capital trial “was false.” The record showed the
State made no recommendation, and nothing indicated Hodges’ attorney spoke to Cora’s mother
or that Cora’s mother told him she did not want Hodges sent to prison. The court concluded that
the “State seemingly unconcerned with the accuracy of the testimony to be given in a trial where
the result could be death, provided the jury with false information” “elicited to show” Hodges “is a
remorseless liar who was shown kindness that he refused to acknowledge and which he repaid by
murdering the son of the woman who extended it.” Concluding the state court decision was based
on “an unreasonable determination of the facts,” and an unreasonable application of clearly
established law, and that the facts showed a reasonable probability that “the testimony affected
the jury’s judgment,” the court concluded the State’s actions undermined confidence in the
verdict, and Hodges was entitled to a new sentencing hearing.
*Guzman v. Department of Corrections,
698 F.Supp.2d. 1317 (M.D. Fla. 2010), aff’d, 663 F.3d 1336 (11th Cir. 2011)
Death row inmate entitled to habeas relief where prosecution unwittingly presented false
testimony from the key prosecution witness and the lead detective regarding whether the witness
had received benefits for testifying against petitioner. The key witness, Cronin, lived with
petitioner at the time of the capital crime. Cronin initially denied any knowledge about the
murder but later told the lead detective that petitioner had confessed to her. At the time of the
disclosure, Cronin had an outstanding arrest warrant for a probation violation and she sought a
“deal.” Although the state attorney handling the case instructed the detective to arrest Cronin,
the detective disregarded the directive and instead took her to a hotel where she was provided
with food paid for by the police department. Cronin subsequently left the hotel without
permission and law enforcement lost contact with her while she engaged in prostitution and crack
cocaine use. She was twice arrested before testifying against petitioner before the grand jury and
at his trial. She denied receiving any benefits in exchange for the testimony but did acknowledge
being placed in a hotel room for “protection.” The lead detective denied that law enforcement or
the State Attorney’s office had offered Cronin any deals in exchange for her testimony. During
post-conviction proceedings it was learned that Cronin had received a payment. The detective
then conceded that she delivered a $500 money order payable to Cronin to the jail where Cronin
was housed eight days before Cronin’s grand jury testimony. This was a reward that had been
publicized in the media and Cronin’s mother had contacted the detective asking if the detective
could get it to Cronin. Although the detective and the prosecuting attorney further testified that
the prosecuting attorney had not been informed that Cronin received a reward, the false testimony
was nonetheless imputed to the prosecution. The state court’s finding that the false testimony
was not material was contrary to or involved an unreasonable application of Supreme Court
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precedent and was based on an unreasonable determination of the facts. That Cronin’s credibility
was significantly challenged at trial did not render the false testimony immaterial given her
importance as a witness, that exposure of the detective’s false testimony could have cast doubt on
the entire investigation, and the other evidence of guilt was not overwhelming. Petitioner was
entitled to relief under both Brady and Giglio even if the Brecht standard applied.
Blumberg v. Garcia,
687 F.Supp.2d 1074 (C.D. Cal. 2010)
Habeas relief granted in case involving convictions for attempted murder, conspiracy to commit
murder and assault with a semiautomatic firearm, with a finding that the crimes were committed
for the benefit of a criminal street gang, where key prosecution witnesses (police officer Hewitt,
deputy sheriff Foss, and purported former gang member Reyes) provided false testimony and
important impeachment and exculpatory evidence was suppressed. The prosecution theory was
that petitioner and his brother had conspired to kill a rival gang member. The defense theory was
that petitioner was no longer an active gang member, was unaware that his brother was armed
and was surprised when his brother shot the victim. To establish motive and intent, the
prosecution presented testimony from Foss linking petitioner to present gang membership.
Foss’s opinions were based in part on information he had received from the Los Angeles Police
Department (LAPD) CRASH division. The prosecution also called Reyes who claimed that
petitioner was the shooter in an incident in a park that followed a confrontation with members of
the shooting victim’s gang to which Reyes had belonged. According to Reyes, he quit the gang
after the park shooting, which occurred 11 days before the shooting in this case. In addition,
Hewitt described an incident some two years before the crime in this case where petitioner and
his brother had been arrested in a rival gang’s territory with weapons in the car. Petitioner had
been the driver and Hewitt stated he had observed the person in the front passenger seat pass a
handgun to petitioner’s brother in the back seat. Hewitt also testified that the car had a hidden
compartment. (Petitioner denied knowing any weapons were in the car and that there was a
hidden compartment.) At the time of the arrest, Hewitt was part of LAPD’s CRASH division.
After petitioner was convicted, evidence surfaced that Hewitt was terminated byLAPD for
excessive force and other charges for which he was under an internal investigation at the time of
petitioner’s trial. It was also learned that LAPD investigators had been told that Hewitt was well
known to fabricate probable cause to arrest, plant evidence and falsify reports. At least one other
officer from CRASH who Foss had relied on regarding gang information was also implicated in a
corruption scandal. Also discovered after trial was evidence that Reyes had been an active gang
member at the time of trial, contrary to his testimony. In granting relief, the district court found
that Hewitt had “falsely testified” that he found two handguns in a “false compartment” in
petitioner’s car. This false testimony was material under Napue v. Illinois, 360 U.S. 264 (1959),
because the prosecutor relied on that testimony, repeatedly telling the jury that given Hewitt’s
testimony alone, it proved petitioner lied to the jury “about everything.” The false testimony
“directly undermined the core” of petitioner’s mere presence defense. The state court’s finding
that the false testimony was not material because Hewitt’s testimony was merely rebutting
petitioner’s claim that he was no longer an active gang member was an unreasonable
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determination of the facts in light of the evidence and argument at trial. Also unreasonable was
the state court’s conclusion that Hewitt’s testimony was merely cumulative to the otherwise
“overwhelming” evidence of petitioner’s active gang membership at the time of the charged
offense. The state court’s ultimate finding of no materiality was an unreasonable application of
Napue on the law and the facts. Foss’s reliance on information from Hewitt and other later
discredited CRASH officers provided an “additional consideration which undermines confidence
in the jury’s decision,” notwithstanding testimony by Foss that his opinions would not have
changed absent the tainted information. Regarding Reyes, the district court found by clear and
convincing evidence that he provided false testimony when he claimed he quit being a gang
member after the park shooting and that the prosecution knew or should have known of the falsity
of his testimony. The district court also found a Napue violation involving Reyes’s testimony
identifying petitioner as the park shooter. Although petitioner had not established the testimony
was clearly false, the prosecution had been on notice of the real possibility that it was untrue and
yet pressed ahead without attempting to resolve the issue. Further undermining confidence in the
outcome of the trial was testimony by Foss that misled the jury into believing
that Reyes was the only percipient source of information about the shooting when in fact Reyes’s
nephew had told Foss it was too dark that night to make an identification of the shooter.
“[C]ombined effect of multiple errors” violated due process and warranted habeas relief.
United States v. McDuffie,
2009 WL 2512194 (E.D. Wash. 2009), aff’d, 454 Fed.Appx. 624 (9th Cir. 2011)
District Court granted motion for new trial in drug case due to the Government’s failure to
disclose, prior to a fingerprint expert’s testimony during trial, the presence of a detective’s
fingerprints on an electronic scale recovered from the defendant’s apartment at the time of his
arrest. The defense had asserted the scale was new and the presence of cocaine on the scale was
because the evidence had been tampered with by the detective in order to pressure the defendant
into providing favorable testimony in an unrelated murder case. The fingerprint evidence was
material because it would have supported the defense, especially because the detective in
question, who was arguably the prosecution’s key witness, was not present in the defendant’s
apartment at the time of the arrest or search. Because it was not disclosed until during the trial
itself, the defense was limited to unprepared cross of the expert and unsupported and speculative
arguments. If the evidence had been disclosed prior to trial, the defense could have presented
“affirmative evidence regarding standard police procedures that might have supported the
tampering theory.”
Cardoso v. United States,
642 F. Supp. 2d 251 (S.D.N.Y. 2009), aff’d sub nom United States v. Solano, 402
Fed.Appx. 569 (2nd Cir. 2010)
New sentencing ordered in §2255 proceeding due to government’s failure to disclose
impeachment evidence relevant to a cooperating witness in drug conspiracy case. The court
relied on this witness’ testimony in sentencing by finding the defendant was “a supervisor” and
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adjusting her advisory offence level upwards by 3. The court also relied on this testimony in
rejecting the defense argument that she was a minor participant and was eligible for a point
reduction. Because of the “supervisor” finding, which disqualified her for consideration for the
statutory “safety valve,” the court did not hear argument on the request to sentence the defendant
below the statutory minimum. Prior to sentencing, the government discovered, but did not
disclose, that the cooperating witness was actively involved in drug trafficking and actively lying
to law enforcement at the time of events in this case. Because the court had relied on this
witness’ testimony in making findings in sentence, new sentencing was ordered, even though the
defendant had been sentenced well below the guidelines range the first time.
United States v. Jiles,
2009 WL 2212152 (W.D. Va. July 24, 2009)
Motion for new trial granted in assaulting federal officer case due to the government’s failure to
disclose six disciplinary actions against one of the four officer witnesses. The disciplinary
actions, including misuse of a government credit card and making false statements, directly
concerned the officer’s credibility. The defendant asserted his actions were justified and taken in
self-defense. The evidence was material, especially in light of the government’s prior disclosure
of evidence affecting the credibility of one of the other three officers.
United States v. Gaitan-Ayala,
2009 WL 901522 (D. Hawaii April 2, 2009), aff’d, 454 Fed.Appx. 538 (9th Cir. 2010)
A portion of the convictions for conspiracy and distribution reversed following government’s
post-trial disclosure of evidence that a cooperating witness had purchased large quantities of
methamphetamine and cocaine during the period he was a cooperating witness in this case. The
defendant’s motion for new trial on some counts granted where the witness’ testimony was
material because the witness, while freely admitting his long history of using and dealing drugs
prior to his cooperation, denied continued use and dealing during his cooperation.
United States v. Friedlander,
2009 WL 320861 (M.D. Fla. Feb. 6, 2009)
Enticing a child to engage in sexual acts conviction vacated on motion for new trial due to Napue
violation. The defendant presented a psychiatrist specializing in sexual disorders. He testified
based on the DSM IV TR published in 2000. The prosecutor cross-examined him extensively in
an attempt to establish that he was relying on an outdated version of the DSM when, in fact, the
prosecutor was relying on a version published in 1994. Following the trial, the prosecutor gave
notice that she had been mistaken and the defendant filed a motion for new trial. Although this
was not a case involving the knowing use of false or perjured testimony, the prosecutor’s cross
still put false and material evidence before the jury and this evidence effectively destroyed the
credibility of the defense expert. Despite “compelling and overwhelming” evidence of guilt, the
court granted the motion for new trial because of the court’s observation of “the jury’s reaction to
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the embarrassing and humiliating cross” of the defense expert, which made it impossible for the
court “to say without any confidence, that beyond a reasonable doubt” the error “did not
contribute” to the conviction.
United States v. Fitzgerald,
615 F. Supp. 2d 1156 (S.D. Cal. 2009)
District court dismissed indictment with prejudice following grant of motion for new trial due to
Brady violation. The defendant, a CPA, was convicted of aiding and abetting a doctor in filing
false income tax returns over a two year period. The doctor was the primary witness against the
defendant. The jury acquitted the defendant on one charge and convicted on the other. The court
granted a motion for new trial because the government failed to disclose the transcripts or taped
conversations of the doctor talking to his tax attorney, which were made after the doctor became
a cooperating witness. United States v. Fitzgerald, 2007 WL 1704943 (S.D. Cal. 2007), aff’d,
279 Fed. Appx. 444 (9th Cir. 2008) (unpublished). These tapes revealed that the tax attorney
believed the returns were valid, which was also part of the defendant’s defense. By the time
these tapes were disclosed to the defense, the doctor had died. The court found that the
government, at minimum, recklessly disregarded its discovery obligations. Thus, the court found
the proper remedy for the Brady violation was dismissal of the indictment with prejudice.
U.S. v. Stanford,
2008 WL 4790782 (D.S.D. Oct. 31, 2008)
New trial granted to three defendants in drug case where prosecution did not disclose that a key
prosecution witness provided law enforcement with inaccurate information about another drug
transaction, and that the witness was involved in controlled buys in order to “work” off potential
charges against her. Witness’ “seriously misleading” testimony was material, and although other
incriminating evidence against defendants existed, there was “a reasonable probability that the
suppressed impeachment evidence would have put the case in a different light.” Although
witness did not testify about one of the defendants, her “misleading testimony bolstered the
integrity of the entire conspiracy investigation,” creating “a spillover effect” prejudicing that
defendant.
*Breakiron v. Horn,
2008 WL 4412057 (W.D. Pa. Sept. 24, 2008), rev’d in part, 642 F.3d 126 (3rd Cir.
2011) (finding Brady violation also required grant of relief on robbery conviction)
Habeas relief granted to death row inmate on murder conviction where prosecution withheld
favorable evidence that could have been used to impeach testimony of jailhouse snitch.
Although claim was procedurally defaulted, the suppression of the evidence by the State
provided cause to overcome the default. And because the claim was never raised in state court,
review was de novo. At trial, jury was charged on 1st
, 2nd and 3rd degree murder and voluntary
manslaughter, and defense “effectively conceded” guilt of 3rd degree murder when it presented
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defense that petitioner was too intoxicated to form specific intent to kill. Jailhouse snitch
testified petitioner admitted murder and described incriminating details that contradicted
petitioner’s testimony about his impaired recollection of the killing. Inmate admitted prior
assault conviction, but denied that the crime was really attempted murder and denied receiving
any benefits for testimony. Prosecutor relied on inmate’s testimony, arguing inmate credible
and received no bargain, deal or money for testimony. In fact, inmate wrote prosecutor
requesting benefits in exchange for his testimony against petitioner, i.e., relief from pending
convictions not yet final. At the time of the letters, the inmate was also a suspect in another
case. State’s contention it had no duty to disclose letters because it made no “deal” with inmate
erroneous. Inmate received requested relief when state did not appeal decision granting inmate
post-trial relief from the conviction. In addition, no charges were filed in the other case. The
inmate’s letters “had impeachment value,” and, importantly, the trial prosecutor acknowledged
that the letters would have been disclosed had they been in the file when he took over the case.
The prosecution also violated Brady by failing to disclose that the inmate’s prior conviction
was for assault with intent to rob while armed, not simply assault. Even if the prosecution was
unaware of the actual nature of inmate’s conviction, it had a duty to learn the information.
(The state court’s default of this allegation as untimely was not adequate to bar federal review.)
By “failing to disclose impeachment evidence,” petitioner’s first degree murder conviction was
rendered “unworthy of confidence” given that inmate’s testimony about petitioner’s
premeditation and planning “undeniably added strength” to first degree murder case and
suppressed evidence was relevant to: (1) inmate’s veracity when he testified had nothing to
gain; and (2) prosecution’s assertion that inmate had no reason to be biased in favor of
prosecution.
U.S. v. Hector,
2008 WL 2025069 (C.D. Cal. May 8, 2008)
New trial granted where government’s failure to investigate and disclose impeachment material
“constituted flagrant misconduct.” Despite defendant’s “numerous specific requests seeking
information,” and judge’s “abundantly clear” concerns that Government had “not sufficiently
complied with its Brady obligations,” including telling Government it had “an obligation to
affirmatively find out information” relating “to [its] informant that you can reasonable acquire,”
government “failed to make even basic inquiries about the credibility of its primary witnesses.”
Although knowing informant had lengthy criminal record, government did not speak to officers
involved in another case where informant was involved, and did not investigate informant’s
“history of informing” for over 20 years, attempts to “manipulate officials” and willingness “to
lie to help himself.” Because government’s conduct was “egregious,” defendant needed only
show “flagrant conduct had ‘at least some impact on the verdict.’” If jury heard other law
enforcement officials considered informant “manipulative and willing to lie,” “it would have
been less likely to believe him.” Court “seriously considered dismissing indictment,” but instead
granted new trial where Government will conduct “more thorough investigation….” Given its
“compromised” “credibility,” Government must “independently research this (and any other)
informant.”
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*Tassin v Cain,
482 F.Supp.2d 764 (E.D. La. 2007), aff’d, 517 F.3d 770 (5th Cir. 2008)
Habeas relief granted as to capital conviction and death sentence where critical prosecution
witness provided misleading and uncorrected testimony about the sentence she was to receive as
part of her plea agreement. She testified that she could be sentenced up to 99 years, that she did
not know whether her testimony would affect her sentencing, and that she had been made no
promises concerning her testimony. In fact, as established in state post- conviction proceedings,
the witness had been informed by her attorney that the judge had told him the witness should
expect a 10 year sentence if she testified, based on the consistency of her testimony. The state
court had denied relief because Tassin had failed to establish that an actual promise had been
made to the witness. This decision was contrary to Brady by applying “a more stringent standard
than the one established by Supreme Court precedent.” Materiality is found because the witness’s
testimony was crucial to the State’s case in that it provided the only evidence of a plan to commit
armed robbery.
Perez v. United States,
502 F.Supp.2d 301 (N.D.N.Y 2006)
In case involving prosecution for illegal reentry into the U.S., the prosecution violated Brady
because it had constructive knowledge that the defendant was a U.S. citizen at the time he was
originally deported and at the time of reentry but failed to disclose it. (The defendant had been
unaware that he automatically had become a naturalized U.S. citizen derivatively through his
mother’s successful naturalization.)
*Wilson v. Beard,
2006 WL 2346277 (E.D. Pa. Aug. 9, 2006), aff’d, 589 F.3d 651 (3rd Cir. 2009)
In barroom shooting case where the prosecution’s evidence centered on two eyewitnesses and
one long-time police informant, the prosecution violated Brady by withholding impeachment
evidence. It failed to disclose evidence that one eyewitness had a lengthy criminal history,
including impersonating a police officer, and an extensive psychiatric history as a result of
several head injuries. The prosecution further withheld evidence that the other eyewitness had an
extensive psychiatric history, including medication with antipsychotic drugs. Also not disclosed
to petitioner was that during his trial, this witness was transported by a detective from the
prosecutor’s office for emergency psychiatric care whereupon he was diagnosed with
schizophrenia. Regarding the informant witness, petitioner was not told that the officer who took
his statement had been giving the witness interest free loans for some time. This same officer at
trial had denied providing anything to the informant. (The claim was considered de novo by the
federal court because the state court had refused to reach the merits on waiver grounds but the
waiver rule was not adequate to preclude federal rule.)
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*Powell v. Mullin,
2006 WL 249632 (W.D. Okla. Jan. 31, 2006), aff’d, 560 F.3d 1156 (10th Cir. 2009)
Prosecution violated petitioner’s constitutional rights by suppressing evidence concerning
benefits provided to the sole identification witness and leaving uncorrected false testimony about
the absence of benefits. During habeas proceedings, petitioner offered evidence that the
prosecutor had written a letter to the parole board requesting leniency following the witness’s
testimony in petitioner’s co-defendant’s case, produced a letter from the witness to his mother
regarding deal negotiations, and introduced testimony regarding a phone call between the
witness’s mother and a member of the prosecution team about benefits to the witness. The
prosecutor’s testimony that he sought benefits for the witness without being asked and without
alerting the witness he had done so was rejected. (Note that co-defendant, whose trial preceded
the letter to the parole board, was denied relief. Douglas v. Mullin, 2006 WL 249663 (W.D.
Okla., Jan. 31, 2006). Although this was a post-AEDPA case, de novo review of the claim was
conducted because the state court rejected the claim based on a procedural bar that the federal
court determined was not adequate to preclude federal review.)
*United States v. Hammer,
404 F.Supp.2d 676 (M.D. Pa. 2005), appeals dismissed, 564 F.3d 628 (3rd Cir. 2009)
Petitioner was entitled to sentencing phase relief under § 2255 based on prosecution’s
suppression of evidence supporting petitioner’s version of how the murder of his cellmate
occurred. The cellmate was tied to his bed with braided sheets and strangled. Prosecution
theorized that the cellmate agreed to be tied up as part of a hostage ruse that would get him
transferred to a different prison. Petitioner pled guilty, but specifically denied the hostage ruse
scenario and that he had braided the sheets for this purpose. Prosecution failed to disclose third
party statements indicating that petitioner regularly engaged in sexual activity with other inmates
involving tying inmates down with braided sheets. Guilt-phase relief was denied because
petitioner specifically denied the sheets/hostage ruse elements of the prosecution’s case at his
plea, and yet pled guilty anyway. Penalty phase relief was appropriate because the prosecution
had relied primarily on the fact of the braided sheet tie-down scenario to prove the substantial
planning and premeditation aggravator, one of only two found by the jury, among many
mitigating circumstances.
Ramsey v. Belleque,
2005 WL 1502875 (D. Or. June 10, 2005)
In robbery and assault case, prosecution violated Brady by suppressing evidence of unrelated
drug sales by Ramsey’s alleged victim to a confidential informant which would have impeached
the victim’s testimony at Ramsey’s trial. The victim had claimed that he and Ramsey were
former drug dealing partners and that after their partnership ended, Ramsey robbed him and shot
him in the leg. The victim claimed he was no longer dealing drugs at the time of the incident. The
suppressed evidence, which was discovered shortly after Ramsey’s conviction when drug dealing
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charges were brought against the victim, could have supported Ramsey’s defense that the victim
had fronted drugs to Ramsey and that the victim was accidently shot after pulling a gun on
Ramsey during a dispute about payment for the drugs. Notably, the prosecutor had argued to the
jurors that to find for Ramsey, they would have to believe that the victim was still dealing drugs.
By refusing to grant Ramsey a new trial, the state court unreasonably applied clearly established
federal law.
*Bell v. Haley,
437 F.Supp.2d 1278 (M.D. Ala. 2005)
Habeas relief granted as to death sentence in robbery-murder case based on suppression of
evidence that could have impeached the key witnesses against Bell. The victim’s body was never
found, nor was a weapon or any forensic evidence recovered. The case against Bell was largely
based on the testimony of two witnesses, one who claimed to have been present at the murder
scene but not a participant, and another who said that Bell came to his house following the
murder and showed him the robbery proceeds. This witness also corroborated some elements of
the first witness’s story. The district court found three Brady violations. First, the State
suppressed a prior statement of the second witness that was inconsistent with his trial testimony.
Second, the State failed to disclose that the prosecutor threatened the second witness with a
habitual offender prosecution if he did not testify. Third, the State suppressed a tacit agreement
with the first witness not to prosecute him for his involvement in the case. The court found that
while evidence in the case was sufficient to show that Bell was involved in some way in the
crime, the Brady evidence was enough to establish a reasonable probability of a different
outcome at sentencing.
Eastridge v. United States,
372 F.Supp.2d 26 (D.D.C. 2005)
In case involving numerous gang members charged with killing a man, the prosecution violated
Brady by failing to disclose a grand jury transcript where two unindicted gang members falsely
denied being present at the club where the altercation began on the night of the killing. A witness
at trial had testified that he and the petitioner were not among the group that chased and killed
the victim, which was consistent with the petitioners’s account. This witness’s version of events
included the presence of the two unindicted gang members. Had the false denials by the
unindicted gang members been revealed, the testimony of the supporting witness would have
been more credible.
*Simmons v. Beard,
356 F.Supp.2d 548 (W.D. Pa. 2005), aff’d, 590 F.3d 223 (3rd Cir. 2009)
There was a reasonable probability of a more favorable result at Simmons’s capital trial had the
prosecution not suppressed evidence that would have further impeached the two main
prosecution witnesses. Simmons was charged with raping and killing an elderly woman. The
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primary evidence against him came from another elderly woman who alleged that Simmons
attacked her and said, “if you don’t shut your [expletive] mouth, you’ll get the same thing
[victim] got,” and Simmons’s girlfriend who testified about Simmons’s behavior around the time
of the crime. The prosecution suppressed evidence that (1) the girlfriend had been threatened
with charges if she did not cooperate in wiretapping Simmons; (2) the elderly woman had
purchased a gun following her assault, in violation of felon in possession of gun law, and charges
were dismissed by investigators in Simmons’s case; (3) the elderly woman perjured herself on
the gun application forms; (4) lab reports found no blood or semen on the elderly woman’s
clothes, and found hair consistent only with the victim and inconsistent with Simmons; and (5)
the elderly woman had failed to identify Simmons in a mug book. (The State had affirmatively
denied that a mug book procedure had taken place.) Evidence regarding intimidation of the
girlfriend, and disposition of gun charges against the elderly woman provided a motive for their
having lied, which was missing in the impeachment at trial. Lab reports further undermined the
elderly woman’s story, even though they did not point to another suspect. And had the defense
known about the elderly woman’s inability to identify Simmons in a mug book, it would not have
pursued a strategy of in-person identification. Cumulatively, this led to a reasonable probability
of a different outcome. The state court’s conclusion that no single piece of evidence would have
changed the outcome was an unreasonable application of Kyles.
United States v. Lyons,
352 F.Supp.2d 1231 (M.D. Fla. 2004)
Brady and Giglio violations admitted to by the government which related to a drug conspiracy
count also materially tainted the remaining counts because impeachable testimony as to the drug
conspiracy counts affected the jury’s ability to assess the character and credibility of the
defendant’s testimony about the other counts. Dismissal with prejudice of remaining counts in
the indictment was appropriate where the defendant was prejudiced by the government’s
numerous and flagrant Brady and Giglio violations, and its later denials and delay.
United States v. Hernandez,
347 F.Supp.2d 375 (S.D. Tex. 2004)
Defendant’s motion to dismiss an indictment charging him with assaulting, interfering with, and
resisting a border control agent was granted where the government acted in bad faith by allowing
the defendant’s niece to plead to a superseding indictment without notice to the defendant and
then deporting her while knowing that she was the only witness who would support the
defendant’s claim of self-defense. The Government’s action violated due process and compulsory
process by impeding the defense’s access to exculpatory and material evidence.
United States v. Koubriti,
336 F.Supp.2d 676 (E.D.Mich. 2004)
Court grants government’s motion to dismiss terrorism-related charges and grants defendants’
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motion for a new trial on document fraud charges where the government post-trial confessed that
Brady violations had occurred and an independent review of the suppressed documents by the
court confirmed that defendants’ constitutional rights were violated.
Conley v. United States,
332 F.Supp.2d 302 (D.Mass. 2004), aff’d, 415 F.3d 183 (1st Cir. 2005)
Petitioner was entitled to habeas relief based on the prosecution’s failure to disclose an FBI
memorandum which contained significant data bearing on a key prosecution witness’s inability
to recall crucial events. The court rejects the government’s argument that the memorandum
wasn’t material because defense counsel at trial embraced aspects of the witness’s testimony.
Turner v. Schriver,
327 F.Supp.2d 174 (E.D.N.Y. 2004)
In robbery case where the alleged victim was the sole witness, the prosecutor’s representation that
the victim had no criminal record, both to defense counsel and to the jury, when in fact he did,
violated petitioner’s due process rights under Brady v. Maryland. In addition, there was also a
violation of due process based upon the admission of perjured testimony which the prosecutor
should have known was false.
United States v. Park,
319 F.Supp.2d 1177 (D. Guam 2004)
In case where the government conceded that information obtained from an interview was material
to guilt, the prosecutor could not satisfy its Brady obligation by providing a summary of the
interview. “[W]here a prosecutor obtains exculpatory information from an interview with a
government witness and where the prosecutor takes notes during the interview, the government is
obligated under Brady to produce such notes.”
Government of Virgin Islands v. Fahie,
304 F.Supp.2d 669 (D.V.I. 2004)
In case involving a charge of possession of an unlicensed firearm, the prosecution violated Brady
by failing to reveal prior to trial a gun trace report that showed the weapon belonged to someone
else. The prosecution’s case was one of constructive possession in that the gun was found in a car
that defendant had been driving. The gun trace report was consistent with defendant’s claim that
the gun was not his. Had the prosecution timely revealed the report, defense counsel may have
been able to link the true owner of the gun to one of the passengers that had been in the vehicle
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before the gun was found by police. Because information about the report only came out during
cross-examination of a witness, defendant “had no meaningful opportunity to utilize the evidence
that someone else owned the weapon to his advantage.” The trial court abused its discretion,
however, in dismissing the case with prejudice as a sanction for the constitutional violation.
*Willis v. Cockrell,
2004 WL 1812698 (W.D.Tex. Aug. 2004)
Brady violation found in Texas capital case where prosecution failed to disclose that its mental
health expert had evaluated petitioner regarding future dangerousness and had written a report
with two hypothetical scenarios, one of which was favorable, one of which was not, and the
favorable scenario fit with petitioner’s absence of a history of violence. State appellate court’s
finding that no Brady error occurred by the prosecution’s failure to disclose the report was
contrary to and involved an unreasonable application of clearly established federal law because
the state court applied a sufficiency of the evidence test for materiality, erroneously stated that
the brief nature of the evidence presented at the penalty phase undermined, rather than supported,
a finding of materiality, and failed to consider that disclosure of the report would have led to the
favorable testimony of the expert.
St. Germain v. United States,
2004 WL 1171403 (S.D.N.Y. 2004)
Defendant was entitled to a new trial where the government failed, whether deliberately or
inadvertently, to disclose material exculpatory evidence in sufficient time for the defense to make
use of it. In finding that the evidence was “suppressed,” the court notes, among other things, that
the evidence was not disclosed until the eve of trial and it was in the misleading guise of Jencks
Act material. The court rejects the government’s argument that the suppressed evidence was not
material because defendant could be found guilty under an alternative theory that was consistent
with the new evidence. Materiality is evaluated based on the prosecution theory that was actually
presented at trial.
United States v. Rodriguez,
2003 WL 22290957 (E.D.Pa. 2003)
In federal drug case, the prosecution violated Brady by failing to disclose numerous statements
made by the co-defendant at two proffer sessions that were favorable to the defense. First, while
the government’s theory was that the defendant, who was the co-defendant’s uncle, was involved
in a conspiracy with the co-defendant in which the defendant was the source of the heroin and
brought the co-defendant and the drugs to some of the transactions, the information from the
proffer sessions called that theory into question. Notably, the co-defendant had provided detailed
information about a drug distribution network that did not involve the defendant. Second,
contrary to the prosecution’s representation at trial, the co-defendant had implicated other family
members while denying that defendant was involved in drug dealing. Because the prosecution
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had falsely claimed that the co-defendant protected all family members in his statements, the
defense had declined to admit into evidence the co-defendant’s statement that defendant was not
involved. (This statement from the proffer session had been disclosed to defendant.) Finally, had
defense counsel been given the complete information from the proffer sessions, he would have
been able to conduct a further investigation about the sources of the co-defendant’s drugs that
may have resulted in additional exculpatory evidence.
United States v. Washington,
263 F.Supp.2d 413 (D. Conn. 2003), on reconsideration, new trial again granted based
on Brady violation, 294 F.Supp.2d 246 (D. Conn. 2003)
In case involving a charge that defendant was a felon in possession of a gun where the key
evidence was a taped 911 call by a person who was deceased by the time of trial, the prosecution
violated Brady by its belated disclosure of the caller’s prior conviction for falsely reporting a
crime to law enforcement. Although the conviction was revealed at the close of evidence on the
first day of the short trial, the late disclosure denied the defense the opportunity to weave the
conviction into its overall trial strategy.
Norton v. Spencer,
253 F.Supp.2d 65 (D. Mass. 2003), aff’d, 351 F.3d 1 (1st Cir. 2003)
In sexual assault and battery case, petitioner is to be granted habeas relief on his allegations of
Brady error unless respondent requests an evidentiary hearing. (Relief is ultimately ordered in
256 F.Supp.2d 120 (D. Mass. 2003), after respondent failed to request an evidentiary hearing.)
Because the state court failed to address the federal claim, de novo review is applied irrespective
of Early v. Packer, 123 S.Ct. 362 (2002). The court also finds that petitioner is entitled to relief
even if AEDPA is applied. Assuming the truth of petitioner’s affidavits, the prosecutor violated
Brady by failing to reveal that the alleged victim’s cousin informed the prosecutor that he made
up allegations against petitioner at the insistence of the alleged victim, and that the alleged victim
had admitted to his cousin that his accusations against petitioner were fabricated. (The cousin
had refused to answer some questions at a pretrial hearing, resulting in the dismissal of charges
against petitioner related to the alleged sexual assault on the cousin.)
United States v. Gurrola,
2002 WL 31941469 (D. Kansas Dec. 16, 2002)
New trial granted based on Brady violation where FBI agent testified that the defendant’s
daughter had informed him that defendant was distributing methamphetamine, which defendant’s
daughter denied, and the prosecution failed to disclose the agent’s reports of his interviews with
the defendant’s daughter which contained no mention of defendant. Fact that prosecution had
revealed to defense counsel prior to trial that it was not producing unrelated reports that pertained
to persons other than defendant did not “adequately put defense counsel on notice that the
government possessed reports favorable to the defendant.” The suppressed evidence was material
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given that a key issue at trial was whether the defendant “knowingly” possessed the
methamphetamine found in her home.
Mathis v. Berghuis,
202 F.Supp.2d 715 (E.D. Mich. 2002), aff’d, 90 Fed.Appx. 101, 2004 WL 187552 (6th Cir.
2004) (unpublished)
State’s failure to disclose prior police reports suggesting rape complainant had made false
accusations of rape and armed robbery in the past mandated habeas relief. In denying relief, state
court unreasonably applied clearly established federal law.
Beintema v. Everett,
2001 WL 630512 (D.Wyo. April 23, 2001)
The district court granted habeas corpus relief in this “delivering marijuana” case on the ground
that the prosecution’s failure to disclose that a police officer had threatened the state’s primary
witness that his family would be prosecuted if he refused to cooperate violated Brady.
Disagreeing with the Wyoming Supreme Court’s conclusion that the evidence was not “material,”
the district court observed that petitioner’s “trial was dependent almost entirely upon the
testimony of a single witness, . . . and as such, impeachment evidence [petitioner]’s counsel could
have used to attempt to discredit that witness or question the veracity of that witness would be
material.” In concluding that 28 U.S.C. §2254(d)(1) did not bar relief on petitioner’s claim, the
district court explained that “[t]he Wyoming Supreme Court’s opinion includes repeated
references stating that certain evidence was not material. This suggests that ‘cumulative
materiality’ was not the touchstone of the [state] court’s opinion and that it was rather a series of
independent materiality evaluations, contrary to the requirements of Bagley. This is . . . and
unreasonable application of clearly established law . . .”
Faulkner v. Cain,
133 F.Supp.2d 449 (E.D.La. 2001)
The district court granted habeas corpus relief in this murder case on the ground that the
prosecution violated Brady by suppressing the names of police officers who were first on the
murder scene, and evidence that homosexual pornography and rubber gloves were found at the
scene. This information was favorable and material because petitioner’s defense was that his
codefendant became belligerent and struck the victim in response to an unwanted homosexual
sexual advance, not pursuant to a plan with which petitioner had been involved. The victim’s
sexual orientation and the codefendant’s claim of self-defense were key issues at trial with regard
to, inter alia, petitioner’s mens rea with respect to first degree murder as a principal. The state
court’s finding that the suppressed evidence was not material because petitioner and the codefendant could have fled after the alleged unwarranted sexual advance was unreasonable in that
petitioner’s failure to run for assistance did not negate the defense that he did not harbor the
requisite intent to commit murder. (The habeas petition in this case was a successor petition that
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had been authorized by the Fifth Circuit.)
Bragg v. Norris,
128 F.Supp.2d 587 (E.D.Ark. 2000)
The district court granted relief and ordered petitioner’s immediate release in this “delivery of a
controlled substance” case, in which petitioner established “actual innocence” to permit merits
review of his Napue and Brady claims, and further established his entitlement to relief on the
merits of those claims. Both claims arose out of “highly reliable” evidence that a police drug
agent falsified notes and back-dated reports in order to build an otherwise nonexistent case
against petitioner for selling crack. The officer’s identification of petitioner as the person who
sold him crack was the only evidence supporting the conviction. Petitioner proved, however,
that: the officer’s claim that he identified petitioner by running his license plate through a state
records check could not be true, because the plate number in question was not issued to petitioner
by the state until several weeks after the officer claimed to have run his check; the officer’s claim
that he confirmed his identification by viewing a police photograph of petitioner could not have
been true because the police had no photographs of him until months after the identification
allegedly occurred; and, although the officer testified at petitioner’s trial that he had excluded
another suspect who shared a first name with petitioner by looking at photographs of that
suspect, an undisclosed set of notes written by the officer indicate the officer’s belief that the
other suspect and petitioner were, in fact, the same person. In granting relief on petitioner’s
Napue claim, the court acknowledged that the prosecuting attorneys may not have
intentionally elicited false testimony from the officer, but found that knowledge of the
contents of the officer’s notes should be imputed to the prosecutor, thereby establishing a
violation of Napue. Additionally, citing the testimony of two other prosecutors that “the case
would have been over” if the defense had been given access to the information about
the officer’s activities, the court concluded that this evidence was “material” for purposes of
petitioner’s Brady claim, such that relief was required. Finally, the court ordered petitioner’s
immediate release, and allowed petitioner to be accompanied back to the jail by his counsel “to
ensure he is out-processed as rapidly as possible” in order to satisfy the court’s desire that he “be
released from custody . . . this day.”
United States v. Peterson,
116 F.Supp.2d 366 (N.D.N.Y. 2000)
The district court granted a new trial in this federal prosecution, finding that the prosecution
violated the Jencks Act by inadvertently suppressing investigators’ notes which, if disclosed,
would have revealed discrepancies with the government’s trial testimony relating to petitioner’s
statement. These discrepancies created a significant possibility that the jury would have had a
reasonable doubt as to defendant’s guilt.
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*Benn v. Wood,
2000 WL 1031361 (W.D. Wash. 2000), aff’d 283 F.3d 1040 (9th Cir.), cert. denied 123
S.Ct. 341 (2002)
The district court granted relief from petitioner’s conviction and death sentence, finding that
although the state had been ordered to search for and disclose evidence of its confidential
informant’s prior dealings with law enforcement, it failed to conduct the search, and therefore
failed to locate and disclose a wealth of impeaching material. The undisclosed information
included: evidence that the informant had been a police snitch for fifteen years; “significant
evidence of unreliability and dishonesty in [the snitch’s] dealings with police; perjury by the
snitch in another case; protection by the prosecution from charges for other crimes; use and sale
of drugs by the snitch while staying in a hotel at government expense during petitioner’s trial.
The undisclosed information was material because the snitch, who claimed petitioner had
confided in him in jail, provided the only evidence to support the prosecution’s theory that
petitioner’s killing of the victims was premeditated, and was the result of an insurance fraud
scheme gone bad. With regard to the insurance fraud scheme, the prosecution also withheld
evidence of an official determination that a fire in petitioner’s trailer, which the prosecution
alleged to be a component of the insurance scheme, had actually started accidently.
*Jamison v. Collins,
100 F.Supp.2d 647 (S.D.Ohio 2000), aff’d 291 F.3d 380 (6th Cir. 2002)
In pre-AEDPA case, The court held that the cumulative effect of undisclosed exculpatory
evidence in this Ohio capital case raised a reasonable probability that, had it been revealed,
petitioner would not have been convicted of capital murder or sentenced to death. The evidence
included: statements by a cooperating codefendant that were significantly inconsistent with his
testimony at petitioner’s trial; statements of eyewitnesses suggesting the perpetrator did not match
petitioner’s description; and statements of eyewitnesses to robberies admitted as other acts
evidence against petitioner. This evidence was material in that it could have been used to direct
suspicion to others, including the codefendant, to impeach the codefendant’s testimony, and to
discredit eyewitness identifications of petitioner in connection with robberies admitted as other
bad acts. Although petitioner’s Brady claims were procedurally defaulted, the court found the fact
that the state continued to withhold the evidence during petitioner’s state court proceedings
constituted “cause,” and concluded further that the materiality of the undisclosed evidence under
Brady and its progeny constituted “prejudice” sufficient to overcome the default.
Watkins v. Miller,
92 F.Supp.2d 824 (S.D.Ind. 2000)
After finding that petitioner’s DNA evidence conclusively refuting the prosecution’s theory that
he alone raped and murdered the victim established a miscarriage of justice sufficient to entitle
him to merits review of his procedurally barred Brady claims, the court granted relief on those
claims. The court found that the state failed to disclose exculpatory evidence indicating that a
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witness saw the victim being abducted at a time for which petitioner had a firm alibi, and that
another potential suspect had taken and failed a polygraph examination about the victim’s
murder.
United States v. McLaughlin,
89 F.Supp.2d 617 (E.D.Pa. 2000)
The court granted defendant’s motion for a new trial in this federal tax evasion case, finding that
the government’s nondisclosure of a witness’ grand jury testimony contradicting the trial
testimony of defendant’s accountant on the critical point of whether the accountant had
knowledge of defendant’s bank account, and nondisclosure of documents supporting defendant’s
claim that certain income was legitimately entitled to tax deferred status, violated Brady.
Reasonover v. Washington,
60 F.Supp.2d 937 (E.D.Mo. 1999)
After finding that petitioner had satisfied the “miscarriage of justice” standard and permitting her
to pass through the Schlup actual-innocence gateway in order to obtain merits review of her
procedurally defaulted claims, the court granted relief in this Missouri murder case in which the
state sought, but did not obtain, the death penalty, on the ground that the prosecution committed
numerous Brady violations, including: failure to disclose two audiotapes, one containing
petitioner’s conversation with an ex-boyfriend in which she credibly asserted her innocence, and
another containing petitioner’s conversation with a snitch which is consistent with petitioner’s
claims of innocence and inconsistent with the snitch’s subsequent trial testimony; failure to
disclose the existence of an extremely favorable deal between the prosecution and its main
snitch, whose testimony was the “linchpin” of the state’s case; and failure to disclose a prior deal
between the state and its secondary snitch, who testified falsely that she had never before made a
deal with the state.
United States v. Locke,
1999 WL 558130 (N.D.Ill. July 27, 1999)
The government violated Brady in connection with defendant’s federal trial for conspiracy to
import heroin by suppressing a statement made by a co-defendant at his change-of-plea hearing,
in which the co-defendant indicated that neither he nor defendant had knowledge that their travel
abroad with another co-defendant was for the purpose of importing heroin. Noting the weakness
of the government’s case against defendant at trial, the court found this statement material and
granted defendant’s motion for new trial. In reaching this conclusion, the court rejected the
government’s contention that it did not “suppress” the statement since defendant’s attorney was
free to have attended the co-defendant’s change-of-plea hearing, at which he would have heard
the statement first hand. The court reasoned that a defendant’s counsel had not failed to act with
reasonable diligence in not attending the hearing, since such hearings do not ordinarily produce
exculpatory evidence for co-defendants.
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Cheung v. Maddock,
32 F.Supp.2d 1150, 1159 (N.D.Cal. 1998)
The state violated Brady in this attempted manslaughter case by failing to disclose medical
records indicating that the victim of the shooting of which petitioner was convicted had a blood
alcohol content substantially higher than the victim’s testimony acknowledged. This blood
alcohol evidence was favorable to petitioner in several ways: it drew into question the victim’s
identification of petitioner, rather than one of petitioner’s two companions, as the shooter; it
undermined the victim’s credibility, since his claim that he only consumed one drink on the night
of the shooting could not possibly have been true in light of his blood alcohol content; and it
undermined the credibility of the victim’s companions, who testified in corroboration of his claim
that he only consumed one drink on the night of the shooting.
Spicer v. Warden, Roxbury Correctional Institute,
31 F.Supp.2d 509, 522 (D.Md. 1998), rev’d in part on other grounds, 194 F.3d 547 (4th
Cir.
1999)
The prosecution violated Brady by failing to reveal that counsel for one of three eyewitnesses
upon whom its case rested had told the prosecutor that the witness would say he had seen
petitioner in the days before and after the crime, but not on the actual day of the crime. At trial,
however, this witness testified that he had actually seen petitioner running from the scene of the
crime. The district court concluded that this development in the incriminating quality of the
witness’ testimony was sufficiently inconsistent with how his counsel had previously described
what he knew as to render nondisclosure of counsel’s description to the prosecutor a violation of
Brady.
United States v. Dollar,
25 F.Supp.2d 1320, 1332 (N.D.Ala. 1998)
The district court dismissed charges of conspiracy and concealing the identity of firearms
purchasers as a result of the government’s repeated, egregious violations of its disclosure
obligations under Brady. These violations centered on nondisclosure of materially inconsistent
pre-trial statements of several of the government’s key witnesses. The court explained that,
“[f]rom the outset of this case, defense counsel have been unrelenting in their effort to obtain
Brady materials. The United States’ general response has been to disclose as little as possible,
and as late as possible–even to the point of a post-trial Brady disclosure. * * * [A]fter having
assured the court that it had produced all Brady materials, the United States continued to
withhold materials which clearly and directly contradicted the direct testimony of several of its
most important witnesses.”
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United States v. Colima-Monge,
978 F.Supp. 941 (1997)
Defendant’s due process rights would be violated if the INS withheld information concerning the
co-defendant which may be relevant to defendant’s motion to dismiss. Motion for protective
order denied.
United States v. Patrick,
985 F.Supp. 543 (E.D.Pa. 1997), aff’d 156 F.3d 1226 (3rd Cir. 1998)
Motion for a new trial granted when government failed to disclose evidence which would have
impeached one of its main witnesses. This evidence could not have been obtained by the
defendant through the exercise of due diligence as the government never identified the
information that was contained in the withheld documents. Thus, the defendant could not have
known of the essential facts that would have permitted him to make use of the evidence.
Ely v. Matesanz,
983 F.Supp. 21 (1997)
After an evidentiary hearing, the district court found that a plea agreement between the state and
its witness had not been disclosed to the defense. Additionally, the state failed to correct false
testimony presented by the witness that no deal existed. Writ of habeas corpus conditionally
granted.
Chamberlain v. Mantello,
954 F. Supp. 499 (N.D.N.Y. 1997)
Relief granted where police officers gave perjured testimony, even though the prosecutor was
unaware of the misconduct.
United States v. Fenech, 943 F.Supp. 480 (E.D.Pa. 1996)
New trial ordered where government’s undisclosed file on informant indicated that his motivation
for cooperating was monetary, yet prosecution elicited testimony from him at trial that he did not
cooperate for the money, but rather because he felt that he was “doing something real good for
the world.”
Banks v. United States,
920 F.Supp. 688 (E.D.Va. 1996)
Guilty plea successfully challenged where government failed to disclose information regarding
conjugal visits government allowed informant to receive; information was useful to attack
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credibility of informant and government agents and would probably have convinced defendant to
proceed to trial since defendant’s actions were only criminal when viewed in context supplied by
the agents and the informant.
United States v. Ramming,
915 F.Supp. 854 (S.D.Tex. 1996)
Motion to Dismiss for, inter alia, prosecutorial misconduct granted where, in multi-count bank
fraud indictment, government failed to disclose, despite court order to the contrary, numerous
items of evidence tending to support defendants’ claims of innocence and refute government’s
theory of the case.
*Williamson v. Reynolds,
904 F.Supp. 1529 (E.D. Okla. 1995), aff’d on other grounds, 110 F.3d 1508 (10th Cir.
1997), and abrogated on other grounds, Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.
1997)
The prosecution’s withholding of a videotaped interview of petitioner following a polygraph
examination, in which petitioner denied involvement in the murder, tainted his conviction and
death sentence. The crux of the prosecution case was alleged admissions by petitioner. “If the
1983 videotape had been accessible during trial, defense counsel could have countered the
prosecution’s testimony regarding alleged oral admissions with the powerful tool of visual
evidence of Petitioner’s denials.” Further, the videotape would have allowed defense counsel to
conduct a more thorough cross-examination of a police witness who failed to tape some of the
alleged admissions. Statements on the tape, which were consistent with petitioner’s trial
testimony, also would have assisted the case in mitigation, including by allowing defense counsel
to suggest that the codefendant played the primary role in the capital murder.
*Rickman v. Dutton,
864 F.Supp. 686 (M.D.Tenn. 1994), aff’d on other grounds, 131 F.3d 1150 (6th Cir.
1997), cert. denied, 523 U.S. 1133 (1998)
Habeas granted where prosecution permitted witness to falsely testify that he had not been
promised favorable treatment including immunity for incriminating statements and preferential
treatment during his incarceration.
Jackson v. Calderon,
1994 WL 661061 (N.D.Cal. 1994)
Habeas granted where defendant was denied the opportunity to elicit exculpatory testimony from
an anonymous informant whose identity the government failed, in violation of Brady, to disclose.
Defendant demonstrated a “reasonable possibility that the anonymous informant . . . could give
evidence on the issue of guilt which might result in [his] exoneration.”
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Xiao v. Reno,
837 F.Supp. 1506 (N.D.Cal. 1993), aff’d 81 F.3d 808 (9th Cir. 1996)
Due process was denied to alien when United States official had alien paroled into United States
to be used as witness in heroin conspiracy trial, even though official was aware that prosecutors
in Hong Kong declined to prosecute him because he may have been mistreated during
interrogations; failure to produce memorandum concerning Hong Kong officials’ concerns was
flagrant Brady violation. District court permanently enjoined government from returning him to
foreign country.
United States v. Burnside,
824 F.Supp. 1215 (N.D. Ill. 1993)
Brady requires disclosure of impeachment information of which government personnel, but not
prosecutors personally, are aware. Knowledge of warden and others at facility housing witnesses
could be imputed to prosecution.
Bragan v. Morgan,
791 F.Supp. 704 (M.D.Tenn. 1992)
Nondisclosure of plea agreement between prosecution and witness, whether or not it was quid
pro quo, required new trial for defendant where witness’s testimony that he faced life in prison,
and prosecutor’s claim in closing argument that witness faced habitual criminal count were false,
regardless of a quid pro quo arrangement and the witness was the key prosecution witness.
Ouimette v. Moran,
762 F.Supp. 468 (D.R.I. 1991), aff’d, 942 F.2d 1 (1st Cir. 1991)
Habeas relief granted where failure of prosecutor to disclose to defendant that state’s chief
witness had 24 more criminal convictions than the four disclosed by the state, or to disclose the
inducements, promises, and rewards offered to the witness for his testimony, violated defendant’s
due process rights.
Hughes v. Bowers,
711 F.Supp. 1574 (N.D.Ga. 1989), aff’d, 896 F.2d 558 (11th Cir. 1990)
Habeas granted where evidence was suppressed that the state’s sole eyewitness to the murder
stood to benefit from the life insurance policy of the victim if the defendant were shown to be the
aggressor. Court evaluated this under the standard for knowing use of perjured testimony, i.e.
whether there is any reasonable likelihood that the false testimony could have affected the jury’s
verdict.
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Orndorff v. Lockhart,
707 F.Supp. 1062 (E.D.Ark. 1988), aff’d in part, vacated in part, 906 F.2d 1230 (8th Cir.
1990), cert. denied, 499 U.S. 931 (1991).
Due process and right to confrontation violated where prosecution failed to disclose that
witness’s memory was hypnotically refreshed during pretrial investigation. Violation was
compounded by prosecutor’s statement during opening that the jury would be “amazed at the
recollections” of the witness.
Silk-Nauni v. Fields,
676 F.Supp. 1076 (W.D.Okla. 1987)
Exculpatory evidence was unconstitutionally withheld when state failed to disclose a statement
which would have revealed inconsistencies as to sequence of events leading up to shootings, and
directly related to insanity defense by showing that defendant held and acted upon certain beliefs
which lacked a foundation in reality.
Troedel v. Wainwright,
667 F.Supp. 1456 (S.D.Fla. 1986), aff’d, 828 F.2d 670 (11th Cir. 1987)
Bagley and Napue violated when prosecution pushed expert to say that, in his expert opinion,
Troedel fired the gun, despite the fact that his reports and his habeas testimony indicated that he
could not tell who really fired it. Prosecutor was found to have misled the jury in his questioning
of the expert, and the evidence was material because it was the only thing linking Troedel to the
crime.
Carter v. Rafferty,
621 F.Supp. 533 (D.N.J. 1985), aff’d, 826 F.2d 1299 (3rd Cir. 1987), cert. denied, 484 U.S.
1011 (1988)
Habeas relief granted where prosecution failed to comply with a specific request for a polygraph
report which substantially undermined witness’s testimony which was the “cracked and shaky
pillar” supporting the state’s case.
Scott v. Foltz,
612 F.Supp. 50 (E.D.Mich. 1985)
Habeas granted where a witness testified falsely that she had not entered into a plea bargain with
the prosecution before testifying, and that witness’ credibility was a key issue in the case.
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United States v. Stifel,
594 F.Supp. 1525 (N.D.Ohio 1984)
Conviction for willfully and knowingly mailing infernal machine with intent to kill another
vacated where prosecution failed to disclose evidence implicating another suspect, statement by
defendant’s girlfriend attesting to his innocence in contradiction to her trial testimony, and results
of investigation tending to show that defendant did not buy the switch used in the bomb.
Raines v. Smith,
1983 WL 3310 (N.D.Ala. 1983)
Habeas granted where the police failed to tell prosecution that, while three witnesses identified
one suspect, only one—an elderly man whose ability to accurately identify was highly
suspect—identified defendant. There was no other evidence linking defendant to the crime.
Sims v. Wyrick,
552 F.Supp. 748 (W.D.Miss. 1982)
Where promises were made to key prosecution witnesses in habeas petitioner’s firebombing case,
and those promises were unlawfully concealed from petitioner and his counsel, so that petitioner
suffered obvious prejudice of being deprived of his right to cross-examine those witnesses,
petitioner was deprived of due process and fair trial.
Anderson v. State of South Carolina,
542 F.Supp. 725 (D.S.C. 1982), aff’d, 709 F.2d 887 (4th Cir. 1983)
Habeas granted where right to fair trial was denied by prosecution’s failure to make autopsy
report and investigative notes available to trial counsel, because the withheld materials might
well have created reasonable doubt in minds of jurors, who deliberated 32 hours before returning
a guilty verdict.
United States v. Tariq,
521 F.Supp. 773 (D.Md. 1981)
Government violates defendant’s Fifth Amendment right to due process and Sixth Amendment
right to compulsory process when it acts unilaterally in a manner which interferes with
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defendant’s ability to discover, to prepare, or to offer exculpatory or relevant evidence, by
deporting a witness who is an illegal alien, if the Government knows or has reason to know that
the witness’ testimony could conceivably benefit defendant and if deportation occurs before
defense counsel has had notice and a reasonable opportunity to interview and/or depose the
illegal alien.
Blanton v. Blackburn,
494 F.Supp. 895 (M.D.La. 1980), aff’d, 654 F.2d 719 (5th Cir. 1981)
New trial ordered where state failed to fully disclose all of agreements and understandings it had
with key government witnesses and failed to correct testimony which it knew or should have
known was false, even though witnesses’ answers to questions concerning agreements were
technically direct, and even though no formal plea agreements had been entered into.
Cagle v. Davis,
520 F.Supp. 297 (E.D.Tenn. 1980), aff’d, 663 F.2d 1070 (6th Cir. 1981)
Habeas granted where, despite lack of request by petitioner for exculpatory material, fundamental
fairness required prosecutor to disclose the availability of a witness, who was “planted” in
petitioner’s jail cell soon after his arrest to interview him in violation of his constitutional rights
and who could have testified that, prior to petitioner’s alleged confession to witness, petitioner
had continually denied his involvement in victim’s murder.
United States ex rel. Merritt v. Hicks,
492 F.Supp. 99 (D.N.J. 1980)
Habeas granted where failure, despite specific request, to disclose police report which cast
substantial doubt on credibility of witness whom New York state court twice characterized as
being “in many respects unreliable,” and upon whom the state’s entire case rested, deprived
defendant of due process and fair trial.
United States v. Turner,
490 F.Supp. 583 (E.D.Mich. 1979), aff’d, 633 F.2d 219 (6th Cir. 1980), cert. denied, 450
U.S. 912 (1981)
New trial granted where DEA agent, who had entered into a leniency agreement with the defense
counsel for a prosecution witness, not only failed to correct the witness’ testimony disclaiming
any such arrangement but took the stand and buttressed the witness’ false testimony through an
affirmative material misrepresentation that no agreement existed, and such conduct was an
affront to the court’s dignity and honor and to the nation.
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Jones v. Jago,
428 F.Supp. 405 (N.D. Ohio 1977), aff’d, 575 F.2d 1164 (6th Cir. 1978), cert.
denied, 493 U.S. 883 (1978)
Habeas granted where state, despite a specific request from defense counsel, suppressed
statement of co-indictee which, though somewhat ambiguous, appeared on its face to be
favorable to the defense and was sufficiently material to compel disclosure.
United States ex rel. Annunziato v. Manson,
425 F.Supp. 1272 (D.Conn. 1977)
Habeas granted where trial court’s refusal to permit cross-examination of key prosecution witness
as to pending criminal charges to show bias and motive violated right of confrontation,
particularly in light of prosecution’s nondisclosure of impeachment information concerning
extensive immunity and aid offers to the witness.
Kircheis v. Williams,
425 F.Supp. 505 (S.D.Ala. 1976), aff’d, 564 F.2d 414 (5th Cir. 1977)
Habeas granted where state, despite a court order, failed to produce motel records tending to
exonerate defendant, and failed to inform the defense of an oral agreement with a key
prosecution witness which could have affected the witness’ credibility.
Moynahan v. Manson,
419 F.Supp. 1139 (D.Conn. 1976), aff’d, 559 F.2d 1204 (2nd Cir. 1977), cert. denied, 434
U.S. 939 (1977)
Habeas granted where prosecution’s failure to disclose that its key witness was a target of police
investigation for the same criminal scheme for which defendant stood accused, was threatened
with prosecution, but was never charged, deprived defendant of due process because it raised
reasonable doubt as to guilt.
Emmett v. Ricketts,
397 F.Supp. 1025 (N.D. Ga. 1975)
No privilege existed between chief prosecution witness and psychologist in connection with “age
regression” sessions, and since psychologist was an investigative arm of the prosecution, both he
and the DA were required to produce files for in camera inspection. Habeas granted for failure to
disclose.
Ray v. Rose,
371 F.Supp. 277 (E.D.Tenn. 1974)
Conviction set aside due to failure of prosecution to reveal that it had made a standing plea
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bargain with codefendant, who pleaded guilty only after he gave testimony during trial which
implicated defendant, which resulted in defendant’s being deprived of due process of law.
Hawkins v. Robinson,
367 F.Supp. 1025 (D.Conn. 1973)
Where government informant was the only witness who was not a law enforcement officer, and
his testimony would have been highly relevant to identification and alibi defense, defendant was
deprived of a fair trial when the trial court refused at his request to require the government to
identify informant and furnish information as to his location.
Simos v. Gray,
356 F.Supp. 265 (E.D.Wisc. 1973)
Where witnesses identified defendant from police photos six weeks after offense and never
wavered from their identifications, the state had a duty to disclose police reports which indicated
that, of the night of the offense, witnesses declined to view photos because they were sure they
could not identify the couple they saw, that five days later a witness made a mistaken
identification, and the witnesses gave inaccurate physical descriptions.
Simms v. Cupp,
354 F.Supp. 698 (D.Ore. 1972)
Conviction vacated where state suppressed original description of witness’ assailant, which
differed substantially with her trial testimony, in order to corroborate inculpatory story of
children who had been riding with defendant.
Bowen v. Eyman,
324 F.Supp. 339 (D.Ariz. 1970)
Habeas granted where trial court’s refusal to appoint expert to test seminal fluid removed from
vaginal tract of rape victim and to test petitioner’s blood type, which could have negated guilt,
denied petitioner fundamental fairness and was tantamount to a suppression of evidence in
violation of Brady.
Clements v. Coiner,
299 F.Supp. 752 (S.D.W.Va. 1969)
Police polygraph report and psychiatrist’s letter to prosecutor raising possibility of petitioner’s
defective mental condition were material to issue of limitation of criminal responsibility and
failure of prosecutor to produce documents, even though not requested, rendered conviction on
guilty plea violative of constitutional due process.
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Imbler v. Craven,
298 F.Supp. 795 (C.D.Cal. 1969), aff’d, 424 F.2d 631 (9th Cir. 1970), cert. denied, 400 U.S
865 (1970)
Petitioner was denied due process where prosecution permitted witness to give material
testimony which prosecution knew or should have known was false, suppressed an exculpatory
fingerprint, and failed to disclose negative evidence indicating that coat, which prosecution
claimed was worn by petitioner, was not petitioner’s.
Hernandez v. Nelson,
298 F.Supp. 682 (N.D.Cal. 1968), aff’d, 411 F.2d 619 (9th Cir. 1969)
Habeas granted where petitioner denied culpability in illegal sale of heroin, informer was
material witness on issue of petitioner’s guilt, and prosecution knowingly engaged in conduct
which permitted informer to be unavailable at time of trial.
IV. STATE COURTS
Moody v. Florida
210 So.3d 748 (Fla. App. 2017)
Florida appellate court reverses Moody’s denial of motion to withdraw nolo contendere plea to
two counts of child abuse and orders an evidentiary hearing to consider whether evidence
disclosed after his plea that the child’s stepmother had engaged in abuse against the minor child
was Brady material the suppression of which rendered Moody’s plea involuntary. Moody
contended that he would not have entered the plea had he had the information about the sheriff’s
investigation of a child abuse claim involving the child and her stepmother. Under state law, the
adjudication of a claim that a plea was involuntary requires an evidentiary hearing to determine
whether the defendant understood his legal rights and voluntarily entered the plea; that did not
happen here, so reversal and remand is required.
Nebraska v. Harris
693 N.W.2d 317 (Neb. 2017)
Harris was convicted on charges of first degree murder and use of a deadly weapon to commit a
felony. Nebraska Supreme Court holds that although the lower court did not err in denying relief
to Harris on his claim that the state failed to disclose exculpatory information it obtained years
after Harris’s conviction, the lower court did err in concluding that exculpatory information that
police officers knew about at the time of trial, but the prosecutor did not, was not suppressed,
because the officers’ knowledge is imputed to the prosecutor. The lower court did not consider
whether the suppressed evidence would have impeached a witness’s credibility or whether it was
exculpatory, and the Supreme Court remands for further consideration and clarification of this
point.
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State v. Coverdale
2017 WL 1405815 (Del., Apr. 18, 2017) (unpublished)
Delaware Superior Court grants motion for postconviction relief and vacates plea of guilty to four
cases involving nine counts of drug dealing and possession of a firearm by a person prohibited
because prosecution failed to disclose information that the chemist who tested the drugs related to
one of the cases had a history of failing to follow proper testing procedures, was not candid about
his errors and omissions, and did not follow protocols for avoiding sample contamination and
mislabeling. When the defense asked for information about the chemist, the prosecution insisted
there was nothing to disclose on the chemist other than that he resigned because he of problematic
turnaround time on his case work. Whether or not the prosecution had the information on the
details of the chemist’s improper procedures, the knowledge is imputed to the prosecutor. The
prosecutor “knew that the Brady materials on [the chemist] were significant to defendant, who was
facing a trial where an undisputed identification of drugs and an undisputed linking of those drugs
to defendant were essential elements of the State’s case against him.” 2017 WL 1405815 at *4.
The defense could have used the information to impeach the reliability of the chemist’s
conclusions. The defense relied on the prosecution’s misrepresentation that there was no Brady
information to be disclosed when Coverdale entered a guilty plea. The misrepresentation justifies
the withdrawal of the plea to correct a manifest injustice, because Coverdale entered a plea he
would not otherwise have entered had he had the information about the chemist—that information
would have placed him in an “entirely different plea bargaining position.” 2017 WL 1405815 at
*9.
State v. Easterling
2017 WL 588442 (Wash. App., Feb. 14, 2017) (unpublished)
Court of Appeals of Washington affirms in part and reverses in part trial court order dismissing
charges of rape of a child and communication with a minor for immoral purposes based on
allegations that Easterling had sexually assaulted sisters, 9 and 10 years old. The state failed to
disclose reports of examinations of the children upon multiple requests by Easterling, stating that
the examinations had not been performed. During trial, the prosecution learned that the
examinations in fact had been performed and provided the reports to Easterling. The reports
indicated that one of the children had submitted to a genital exam and the other had not; the child
who had been examined did not show obvious signs of sexual assault. The trial court determined
the reports were exculpatory and dismissed all the charges. The Court of Appeals holds that the
report of the examination of the child who had not submitted to genital exam was not necessarily
exculpatory and that the charges stemming from possible abuse of her should not have been
dismissed. The court holds that dismissal of the charges related to the first child was appropriate;
that the trial court considered and rejected lesser sanctions on grounds that were well-reasoned.
Felder v. Florida
198 So.3d 951 (Fla. App. 2016)
Florida appellate court reverses post-conviction court’s summary denial of Felder’s Brady claim
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and remands for further proceedings. Felder was convicted of robbery with a firearm and
aggravated battery with a deadly weapon arising from an incident in which three people attacked
two victims at gunpoint. One of the victims identified Felder as one of the perpetrators. Felder
claimed in post-conviction proceedings that the prosecution had failed to disclose favorable
impeachment evidence that the victim who had identified him to police officers had identified a
third person as her attacker. The post-conviction court denied the claim, stating that Brady was a
trial court error not cognizable in a motion for post-conviction relief, and also stating that the trial
counsel had knowledge of the identification of the third person. The District Court of Appeal
concludes both that Brady claims may be raised in post-conviction proceedings and also that the
record does not conclusively show that trial counsel was aware of the identification of the third
person by the victim.
Bosque v. Florida
202 So.3d 888 (Fla. App. 2016)
Florida appellate court reverses on Brady grounds the judgment and sentence on Bosque’s charge
of tampering with a witness/victim. Bosque was a police officer who, along with other officers,
responded to a domestic dispute regarding the custody of an infant. Bosque and the child’s father
engaged in a physical struggle, and the child’s father later went to the police station to file a
complaint against him, at which time Bosque handcuffed him, having heard that the child’s mother
complained that the child’s father tried to run over her with his car. Bosque was charged with
false imprisonment, tampering with a witness/victim, and battery, on the theory of abuse of
authority and retaliation. Following his conviction on the false imprisonment and tampering with
a witness/victim charges, the state disclosed dispatch audio recordings that demonstrated that
Bosque learned after the incident at the house of the allegation that the child’s father tried to run
over the child’s mother, establishing that when he handcuffed him at the station he had probable
cause to arrest him for aggravated assault. The audio recordings also would have served as
impeachment evidence regarding the testimony of at least one witness. They were material
because, had the jury heard them, the jury could have viewed Bosque’s arrest of the child’s father
as proper and independent of the internal affairs complaint against him.
State v. Robertson
182 So.3d 942 (La. 2016)
Supreme Court of Louisiana grants writ of certiorari, reverses decision of court of appeals, and
reinstates judgment of the trial court on the ground that the trial court had discretion to order and
conduct an in camera inspection of documents to determine whether disclosure was required under
Brady.
People v. Dimambro
897 N.W.2d 233 (Mich. App. 2016)
Michigan Court of Appeals affirms trial court’s order granting motion for a new trial based on
prosecution’s failure to disclose autopsy photographs in possession of the medical examiner.
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Dimambro was convicted of first-degree felony murder and first-degree child abuse stemming
from the death of the two-year-old child of his former girlfriend, which occurred after the child
went into a coma following a series of incidents that occurred while he was in Dimambro’s care.
Following Dimambro’s conviction, the prosecutor obtained a disk from the medical examiner
containing 32 photographs that had not previously been provided to the prosecution, the defense,
or the defense expert medical examiner. The trial court entered an order granting defendant’s
motion for a new trial. The Court of Appeals concluded that the trial court properly concluded that
a Brady violation had occurred because the photographs were withheld by the prosecutor (the
inadvertence does not matter for Brady purposes), the photographs were favorable to Dimambro,
and the photographs were material. The prosecution had an obligation to learn of the favorable
evidence known to the government, and the medical examiner, under state law, has a “duty to act
on the government’s behalf in cases involving violent or unexpected deaths” and so “(1) the
medical examiner may be understood as ‘acting on the government’s behalf’ in a particular case, .
. . and (2) responsibility for evidence within the medical examiner’s control may be imputed to the
government, even if ‘unknown to the prosecution.’” 897 N.W.2d at 215 (internal citations
omitted). The suppressed photos were favorable to Dimambro because they provided a basis for
impeaching the testimony of the medical examiner who conducted the autopsy. The medical
examiner had testified that the bruising on the child’s brain was the result of blunt-force trauma
and non-accidental inflicted trauma. But the suppressed photographs, analyzed by the defense,
demonstrated that the bruising solely resulted from medical intervention, and that the medical
evidence did not support the conclusion that the injury was intentionally inflicted. The
undisclosed photos were material because they were not cumulative to evidence that was presented
at trial by the defense pathologist, but instead “provided a basis for the defense to directly
challenge [the state’s medical examiners’] conclusion that the autopsy revealed that the child’s
injuries were intentionally inflicted.” 897 N.W.2d at 221. This was important in this case “which
involve[d] issues of abusive head trauma but include[d] no eyewitnesses, no physical evidence
confirming the cause of death, and no explicit intent to kill.” Id.
Tempest v. Rhode Island
141 A.3d 677 (R.I. 2016)
Supreme Court of Rhode Island affirms trial court’s grant of post-conviction relief and vacation of
second-degree murder conviction on Brady grounds. Tempest was convicted following a nineyear investigation of the homicide of one victim by beating and the near-homicide of another
victim who survived but whose memory was impaired. Four witnesses testified that Tempest
confessed to the crime. Seventeen days before trial, one of these witnesses told the prosecutor that
Tempest’s brother, who was a detective at the time, hid the murder weapon—a pipe—in a closet in
order to protect his brother, and that on the day of the murder, Tempest’s children were excited
about getting a puppy. The prosecutor took notes about this statement and wrote that it was new
information: “too late-don’t volunteer new info-will cause big problems.” 141 A.3d at 683. The
prosecutor clearly and intentionally failed to disclose this evidence. The witness’s statement about
the brother was inconsistent with her other statements that Tempest had said that his brother was
not aware of his involvement in the murder, and that if he learned about it, he would turn Tempest
in. Even if this statement was inculpatory, as the state contended, it nevertheless could have been
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used to impeach the witness’s credibility, which was already shaky. The statement about the
puppy also had impeachment value because it established that Tempest was not living in the same
complex at the time of the murder, and so it was unlikely that the witness could have seen
Tempest’s children and Tempest on the day of the murder as she testified. Although “the
materiality of the evidence is not germane when the prosecution’s failure to disclose the evidence
is deemed to be deliberate” 141 A.3d at 686 (citing state law), the evidence was in fact material,
because the witness was the most credible of the “four less-than-stellar witnesses” who testified
that Tempest confessed to the murder. Id.
State ex rel. Lorenzetti v. Sanders
792 S.E.2d 656 (W.Va. 2016)
West Virginia Supreme Court of Appeals denies writ brought by state challenging trial court order
permitting defendant’s counsel to review files concerning a child that are confidential under state
law but that may contain material exculpatory or impeachment information. Defendant was
charged with sexual abuse of his child. He sought to review files pertaining to the child
maintained by the Department of Health and Human Services and in the possession of the
prosecution. The trial court conducted an in camera review of the records following a request by
counsel on the grounds that they might contain information that the child recanted her accusation
against the defendant and that the child’s mother might have taken a misleading position against
the defendant in order to be reunited with her daughter. The trial court determined that the records
contained exculpatory information material to the defense including recantations, and that defense
counsel had a constitutional right to review them. The Supreme Court of Appeals notes that the
information in the files is favorable as impeachment evidence and material because it could cast
doubt on the child’s credibility as a witness, so suppression would violate defendant’s right to due
process. Although the records are generally confidential, there are statutory exceptions, among
which is when the court finds, upon review, that the evidence is relevant and material to the issues
in the proceeding and should be made available to the defendant. The trial court must conduct an
in camera review and balance the defendant’s interest in a fair trial with the state’s interest in
protecting the child’s confidentiality, and determine whether an order limiting the examination and
use of records is necessary for the child’s safety. The trial court did so in this case.
Betancourt v. Warden
2016 WL 490285 (Conn. Super. Ct., Jan. 12, 2016) (unpublished)
Superior Court of Connecticut grants habeas corpus petition on Brady claim. Betancourt was
convicted of first degree kidnapping, conspiracy to commit kidnapping, first degree burglary,
conspiracy to commit burglary, second degree robbery, and conspiracy to commit robbery. One of
the perpetrators (a codefendant) testified against Betancourt at trial, giving testimony that directly
implicated Betancourt in the kidnapping, burglary, and robbery, and the state’s case rested almost
exclusively on this codefendant’s testimony. The prosecution did not disclose any benefits given
to the codefendant, and on cross-examination, the codefendant testified falsely that he had no
intention of applying for or hopes of obtaining a sentence modification. Nevertheless, the
prosecution intended to and did present the court in codefendant’s case with an agreed-upon
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disposition reducing the codefendant’s prison term by 50% and cited his cooperation against
Betancourt as a basis for modifying his sentence. This evidence would have been a powerful
impeachment tool for the defense and therefore was material.
People v. Horton
2016 IL App (2d) 141059-U (Ill. App., Oct. 12, 2016) (unpublished)
Appellate Court of Illinois reverses trial court’s denial of Horton’s request for leave to file a
successive post-conviction petition and remands for new trial. Horton was convicted of first
degree murder and armed robbery and sentenced to life in prison. Post-conviction, he learned that
one of the prosecution’s key witnesses had two prior juvenile convictions, was on juvenile
probation at the time of his trial testimony, and had been identified although not charged as the
gunman in a shooting two weeks prior to when his cooperation in the case against Horton began.
None of this information had been disclosed to Horton pretrial. The late discovery of this
information established cause for failing to raise the claim earlier. Horton can establish prejudice
if he is not permitted to raise the claim now because the suppressed information impeached the
testifying witness by raising issues of his credibility due to his juvenile adjudications and
probationary status and also his motives to testify as he was under investigation by the prosecution
and was motivated to assist in order to obtain leniency. The witness’s testimony against Horton at
trial was central because he was the only one who testified that he arranged Horton’s purchase of
the murder weapon before the murder, that he saw Horton with the weapon after the shooting, that
Horton said he was going to rob the victims, and that Horton asked for the name and number of a
person interested in buying the gun following the murder. Furthermore, “[t]he use of a convicted
felon who was suspected of shooting at a person in an ongoing investigation would have provided
an opportunity to challenge the thoroughness and integrity of the officers and their failure to even
consider [defendant’s cousin] as an alternate suspect.” 2016 IL App (2d) 141059-U at *43.
Although ordinarily the court would remand with directions to the trial court to give leave to the
defendant to file his Brady claim, here that would be a waste of judicial resources as the state has
already admitted that the witness was involved in the prior shooting, so the court simply resolves
the claim and finds that the Horton is entitled to a new trial.
*Adams v. Nevada
2016 WL 315171 (Nev., Jan. 22, 2016) (unpublished)
On appeal of denial of post-conviction petition for writ of habeas corpus in death penalty case,
Supreme Court of Nevada remands to the trial court for evidentiary hearing to determine whether
the state’s withholding of evidence constituted good cause to overcome procedural default rules on
a Brady claim. Adams was convicted of two counts of first degree murder and burglary for the
shooting of his wife and three-year-old daughter and sentenced to death. The Nevada Supreme
Court determines that Adams has provided sufficient support for his claim that the state withheld
impeachment evidence concerning a key witness in the form of the witness’s true identity and
criminal history in order to proceed.
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Ex parte Temple
2016 WL 6903758 (Tex. Crim. App., Nov. 23, 2016) (unpublished)
Texas Court of Criminal Appeals affirms trial court’s grant of habeas corpus relief to petitioner
Temple, convicted of the murder of his wife and sentenced to life in prison, due to state’s failure to
timely disclose police reports. Investigating officers had suspected a high school student who
lived next door to the Temple family, and had questioned him, but told defense counsel that he
was not a suspect. The prosecutor had police reports that she did not disclose to the defense
because she believed she was not required to disclose favorable evidence if, in her opinion, it was
irrelevant, inconsistent, or unreliable. Defense counsel asked for police reports, knowing that it
was rumored that the high school student and his friends had some involvement in the murder, and
counsel “made every attempt . . . to develop an alternate perpetrator defense.” Many of the reports
counsel requested were not provided at all, and some were provided only during trial, when it was
too late for counsel to “strongly develop[ ] an alternative suspect theory and start[ ] it from the
very beginning of the trial,” because the trial court denied a requested continuance.
*Reynolds v. Alabama
2015 WL 5511503 (Ala. Crim. App., Sept. 18, 2015)
On appeal of dismissal of petition for post-conviction relief, Court of Criminal Appeals of
Alabama finds that Reynolds has pled a facially meritorious Brady claim and reverses and
remands with instructions for trial court to provide Reynolds an opportunity to prove his claim.
Reynolds was convicted of five counts of capital murder [note that it appears from the opinion that
there were only three victims – a couple and a small child] and sentenced to death. At trial, the
state presented testimony from West, Reynolds’ girlfriend, that she was present in the car while
Reynolds went inside the victims’ home. She heard one of the victims screaming and went in the
house and saw the body of the male victim and Reynolds stabbing the female victim, and during
her attempts to stop Reynolds, she was stabbed as well. She followed Reynolds’ instructions and
took items out of the house. West also testified that she received no benefit in exchange for her
testimony. Reynolds testified in his own defense that he did not participate in the homicides and
was not present but instead that West told him she had been stabbed trying to protect the female
victim when another perpetrator was stabbing her, and he took West to the victims’ home and left
her in the car when he went inside and saw the male and female victims, and tried to burn the
house down to cover up West’s involvement in the homicides. After his conviction, and during
appellate proceedings, Reynolds learned that West received a deal from the prosecution in
exchange for her testimony. Although West was arrested nearly a year prior to the homicides for
drug offenses, charges were not filed until a few days after the homicides. After West testified at
trial, the prosecution dismissed three of the pending drug charges against her, and she pleaded
guilty to two other charges, for which she was sentenced to three years’ imprisonment. Six
months later, the prosecution recommended that the rest of her sentence be suspended and she be
placed on probation; she was released immediately. The Court of Criminal Appeals finds that the
claim was not procedurally barred, contrary to the trial court’s conclusion, because the facts were
unknown to Reynolds until the government recommended that her sentence be suspended, after he
filed his reply brief in support of his appeal. The petition pled facts that, if true, require relief
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under Brady and Giglio, because West’s testimony was important to the state’s case—the jury’s
determination regarding Reynolds’ guilt depended upon weighing West’s testimony against
Reynolds’.
*Isom v. Arkansas
462 S.W.3d 682 (Ark. 2015)
Supreme Court of Arkansas grants petition to reinvest jurisdiction in the circuit court to consider
petition for writ of error coram nobis on grounds that state committed Brady violation in failing to
disclose evidence to capital petitioner regarding alternative suspect. Isom was convicted by a jury
of capital murder, attempted capital murder, aggravated robbery, residential burglary, and two
counts of rape, and sentenced to death, along with life and terms of years sentences, arising from
the robbery and killing of a 79-year old man and the rape and attack on his 72-year old caregiver.
The female victim identified Isom’s photo from a photo lineup on April 5, 2001. A rape-kit
examination of a hair found in the female victim’s vaginal opening concluded that the hair did not
belong to the male victim or Isom. In his petition, Isom alleged that the state withheld (1)
evidence that the female victim did not identify him as the attacker in a photo array shown on
April 4, 2001; (2) evidence that she did not identify Isom from a photo array shown on April 5,
2001; (3) investigative notes about interviews with the female victim while she was in the hospital;
(4) evidence that another witness knew that Isom was the main suspect before he identified him;
(5) evidence that that a second witness had reason to curry favor with the police; and (6) evidence
of alternative suspects. Isom also alleged that the state suppressed DNA evidence by turning over
illegible copies of documents and incomplete copies of gel strips and that the state failed to correct
the female victim’s false testimony that she was not on pain medication in the hospital and did not
make an identification without her glasses. The Arkansas Supreme Court focuses on the
suppressed evidence regarding alternative suspects, and concludes that the state suppressed
evidence that, pursuant to information provided by an inmate that a third party had stated that he
committed the crime and that a weapon could be found in a particular location, law enforcement
went to the location, found a pair of scissors and, in consideration, released the inmate who
provided the information. A law enforcement officer had testified falsely during a hearing on
pretrial motions that although the inmate provided this information, no weapon was found in the
location he named and the inmate was not released from custody. As a result of the false
testimony and suppressed evidence, the defense was precluded from presenting the officer as a
witness before the jury and developing the theory that the third party had committed the murder.
Because Isom’s Brady claims appear to be meritorious, reinvestment of jurisdiction in the circuit
court is the proper remedy.
*State ex rel. Clemons v. Larkins
475 S.W.3d 60 (Mo. 2015)
Supreme Court of Missouri grants habeas corpus petition seeking vacation of conviction of two
counts of first degree murder on grounds that the prosecution withheld evidence that could have
led to the suppression of Clemons’ confession, a critical part of the case against Clemons.
Clemons, along with three other men, was accused of raping sisters aged 19 and 20 and killing
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them by throwing them off a bridge. Initially the sisters’ male cousin was suspected by police of
having committed the offenses, and he testified that he was beaten by the police in the course of
his interrogation and before he was cleared. Clemons and one of the other men charged with the
rapes and homicides also contended that they had been beaten by investigators during their
interrogation and were forced to confess to raping the sisters in order to stop the abuse. At trial,
the officers denied beating Clemons, and although medical records and family members indicated
that Clemons had bruising to his cheek following the interrogation, other witnesses testified that he
did not, and Clemons did not testify. The trial court concluded that there was no evidence
presented about how Clemons sustained his injuries, and precluded the defense from arguing that
the police coerced Clemons’ confession. In post-conviction proceedings, Clemons presented
testimony of Weeks, a bail investigator working for the Missouri Board of Probation and Parole
who had screened Clemons less than three hours after his arrest. Weeks testified that during the
screening he observed a large bump or bruise on Clemons’ right cheek and had noted it on his
pretrial release form. He discussed the bruise with his supervisor, Lukanoff, who said that he
believed the injury occurred during Clemons’ interrogation. Weeks testified that several months
later, another supervisor, Coleman, told him that the prosecutor wanted to speak with Weeks about
his observation of the injury. The prosecutor showed Weeks photos of Clemons that did not depict
the bruising, but Weeks told the prosecutor that the photos didn’t change his mind about what he
had seen and everyone else in the room during the pretrial screening had seen the same thing. The
prosecutor seemed annoyed. Weeks was shown his pretrial release form and noted that the
reference to the bruise/bump had been edited out. The prosecutor also testified during postconviction proceedings that Weeks had made references to Clemons’ face being swollen and that
he “assumed” that a witness like Weeks would have been important to the defense. The Missouri
Supreme Court determines that Clemons established cause and prejudice to overcome the
procedural bars to the habeas claim because the state deliberately concealed Weeks’ observations
and suppressed the information in the pretrial release form by altering it. And “[t]he determination
of whether prejudice resulted from the underlying error under a cause and prejudice standard is
identical to this Court’s assessment of prejudice in evaluating Mr. Clemons’ Brady claims.” The
undisclosed evidence from Weeks, an objective, impartial witness, corroborating Clemons’
statements about being beaten by officers, was favorable—it was the most immediate account of
Clemons’ physical appearance following the interrogation, it also impeached the credibility of the
state’s witnesses who testified that Clemons did not have any injuries, and it might have led the
trial court to sustain Clemons’ motion to suppress his confession, which was the only direct
evidence that the rapes were planned, that he was on the platform when the sisters were pushed off
the bridge, and that the sisters were conscious and aware of what was happening, all of which
likely influenced the jury to vote for death. Even if the trial court did not suppress the confession,
it may have permitted defense counsel to argue that the police beat Clemons to coerce his
confession. All of the Weeks evidence (including the fact that he was urged to change his report
and that he refused but the report was changed anyway) supports a reasonable inference that
Clemons was beaten during his interrogation. It was material because the trial court made the
decision not to suppress the confession without it—indicating that Clemons was not given a fair
trial, not just at the motion to suppress but also at the trial itself, during which Weeks’ testimony
could have convinced the jury that Clemons had been beaten to confess.
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People v. Hubbard
132 A.D.3d 1013, 18 N.Y.S.3d 681 (2d Dep’t. 2015)
The Supreme Court of New York, Appellate Division, affirms grant of motion for new trial.
Hubbard was convicted of second degree murder arising from a shooting that occurred when he
was 15 years old. The crucial evidence against Hubbard at trial was his admission to the shooting,
taken by Detective Ronald Tavares, and testified to by Tavares. There was no physical evidence
connecting Hubbard to the crime and eyewitnesses could not identify him. The state failed to
disclose that Tavares had secured a false confession in a different case that led to an internal
affairs investigation and a federal lawsuit against him. This evidence was favorable to the defense,
known by the prosecutor, and material.
Buffey v. Ballard
782 S.E.2d 204 (W.Va. 2015)
West Virginia Supreme Court of Appeals reverses denial of habeas corpus petition and remands
for entry of order granting habeas relief and permitting withdrawal of Buffey’s guilty plea due to
Brady violation. Buffey was arrested and charged with robbery and sexual assault of an 83-year
old widow. Approximately a week after the assault, he was arrested for three non-violent breaking
and entering offenses at businesses and was questioned for nine hours. He admitted the burglaries
and initially denied responsibility for the offenses against the widow. At 3:25 a.m. he admitted
breaking into an old lady’s house but denied sexual assault and the limited information he
provided was inconsistent with the victim’s repeated, consistent descriptions of the event. After
more questioning, Buffey retracted his account of the incidents and said he was not responsible.
He was appointed counsel who requested the production of discoverable materials and the state
was ordered to provide them within seven days of arraignment. Six weeks prior to Buffey’s
entering a guilty plea, entered pursuant to a time-limited plea offer made by the prosecution, an
officer with the police forensic laboratory reported that Buffey was excluded as a donor of seminal
fluid recovered from the rape kit, but this report was not provided to the defense despite “repeated
inquiries.” 782 S.E.2d at 208. Following the filing of a habeas petition, new DNA testing was
conducted and concluded that Buffey was not a primary or secondary sperm contributor, and a
CODIS search indicated that the primary sperm contributor was a prison inmate who lived a few
blocks away from the victim at the time of the assault and was the victim’s paper boy. The court
notes that the United States Supreme Court has held that no Brady violation occurs when
impeachment evidence is withheld prior to the trial (during the plea negotiation stage), see United
States v. Ruiz, 536 U.S. 622 (2002), but notes that Ruiz “specifically distinguished impeachment
evidence from exculpatory evidence.” 782 S.E.2d at 213 (citing Ruiz, 536 U.S. at 630). The court
notes that there is a circuit split as well as other court split about whether exculpatory evidence
must be revealed during the plea negotiation stage, and concludes that “the better-reasoned
authority supports the conclusion that a defendant is constitutionally entitled to exculpatory
evidence during the plea negotiation stage,” 782 S.E.2d at 217, and that a defendant may seek to
withdraw a guilty plea based upon the prosecution’s exclusion of material, exculpatory evidence.
The court also concludes that the fact that the police were aware that the DNA evidence excluded
Buffey is imputed to the prosecution whether or not the prosecutor personally actually had this
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information. The DNA results were favorable to Buffey, were withheld from the defense, and
were material because both Buffey and his counsel asserted that Buffey would have pleaded not
guilty had they been aware of them.
Ex parte Carlos Flores
2015 WL 5453293 (Tex. Crim. App., Sept. 16, 2015) (unpublished)
Court grants application for writ of habeas corpus where parties agreed during post-conviction
proceedings that the state failed to disclose evidence prior to Flores’s guilty plea that the arresting
officer was suspended for 30 days for misconduct in connection with Flores’s case.
Danforth v. Chapman,
771 S.E.2d 886 (Ga. 2015)
Petitioner was entitled to a new trial on charges of arson and felony murder because the State
violated Brady and Giglio by failing to disclose three items of evidence which would have
impeached the testimony of Joseph White, a jailhouse snitch who testified at trial that petitioner
told him he intentionally started the fire that killed the victim. White was the only witness who
testified that petitioner had confessed to the crime. It was uncontested that the State failed to
disclose the following: (1) a video recording of an interview between White and the prosecutor
which clearly showed that White was seeking assistance from the prosecution in exchange for his
testimony – in direct contradiction to White’s testimony at trial; (2) a statement from William
Liner, whom White claimed had also heard petitioner’s confession, in which Liner stated that
petitioner never confessed and White was actively seeking help with his then-pending charges;
and, (3) one page of an otherwise disclosed written statement from White to his pastor which
contained instructions from White to “[h]old off on giving my statement to police. I want to see
what’s going on for a few days,” thereby undermining White’s trial testimony that he went to
authorities immediately and was not seeking help with his own charges. This evidence was
material to the defense and therefore the lower court did not err when it awarded petitioner state
habeas relief pursuant to Brady and Giglio.
Propes v. Commonwealth,
2015 WL 1778198 (Ky. App. 2015)
On direct appeal, defendant was entitled to a new sentencing proceeding on charges of drug
trafficking after the prosecution used incorrect testimony regarding his parole eligibility in
violation of Napue. After jurors found defendant guilty of second-degree trafficking in a
controlled substance, they were asked to fix a term of punishment. At the sentencing hearing,
defendant’s probation officer inaccurately testified that if defendant was sentenced to a ten-year
term, he would serve a minimum of 18 months under the fifteen percent rule before he would be
eligible for parole. This testimony was inaccurate because, if the jury convicted defendant of a
Class D felony (instead of a Class C felony), his parole eligibility date would be calculated using
the twenty percent rule, under which he would serve a minimum of 24 months of a ten year
sentence before becoming eligible. The Commonwealth characterized this testimony as “at best
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incomplete, or inaccurate at worst,” but the state court concluded “we discern no saving grace and
deem it necessary to vacate the sentence and remand for a new penalty phase limited to the issue
of punishment.” Propes, 2015 WL 1778198 at *4.
Lapointe v. Commissioner of Correction,
112 A.3d 1 (Conn. 2015)
Petitioner was deprived of a fair trial on charges of murder and arson because the State violated
Brady when it failed to disclose a note, authored by Detective Michael Ludlow, containing details
concerning the length of time the fire burned inside the victim’s apartment prior to being
discovered (the Ludlow note). The victim, eighty-year old Bernice Martin, was raped, bound and
murdered in her apartment, which her killer then set ablaze in an apparent effort to destroy
evidence of the crime. Petitioner, then the forty-two year old mentally impaired husband of the
victim’s granddaughter, Karen Martin, discovered that the victim’s apartment was on fire after a
relative called and asked petitioner to make the ten-minute walk to her apartment to check on her
because she was not answering her phone. Petitioner suffers from physical and mental
impairments as the result of Dandy-Walker syndrome, a congenital brain disorder known to cause
poor motor skills and cognitive impairments. Petitioner’s IQ is approximately 92. He was not an
initial suspect in the case, had no criminal record or history of violence, and did not seem
physically, mentally or temperamentally capable of the crime. However, after the murder
remained unsolved for approximately two years, the case was reassigned to Detective Paul
Lombardo, who decided to re-interview individuals who previously had been questioned by police.
On June 8, 1989, Lombardo interviewed petitioner and took a saliva sample from him (petitioner’s
blood type matched a semen stain found at the scene of the crime; petitioner is a secretor with type
A blood, as is approximately one third of the male population). On July 4, 1989, Lombardo asked
petitioner to come to the police station for questioning. Officers later acknowledged that the
intended purpose of the interrogation was to obtain a confession from petitioner. By this time,
Lombardo had become convinced of petitioner’s guilt because of his blood type, his peculiar
nature and mannerisms, and his repeated questions to police about whether he was a suspect in the
victim’s murder. Over the course of the next nine hours, petitioner gave three written statements
in which he purported to take responsibility for the crime, although he told police that he had no
recollection of the killing and stated he was confessing only because they wanted him to do so.
Based on this evidence, petitioner was convicted and sentenced to life imprisonment without the
possibility of release. It was undisputed that the Ludlow note was first disclosed to petitioner’s
habeas counsel in 1999, in connection with his state habeas proceedings. The Ludlow note
demonstrated that, a few days after the homicide, Detective Ludlow met with state fire marshals
who opined that the fire in the victim’s apartment had been burning for a minimum of 30 to 40
minutes before the first responding firefighters arrived. Petitioner’s trial counsel testified in the
habeas proceedings that if this information had been known at the time of trial, counsel would
have called petitioner’s wife, Karen, to testify that petitioner was at home when the fire first
started. Petitioner also offered opinions from two additional experts, which were consistent with
the notation contained in the Ludlow note. The State offered its own expert testimony concerning
the likely burn time of the fire. Under the far longer estimate proffered by the State’s expert,
petitioner could not establish, even with Karen’s testimony, that he was home during the entire
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period in which the fire could have started. The state habeas court found that the testimony of the
State’s expert was far more persuasive than the testimony of petitioner’s experts and thus,
concluded that the withheld information in the Ludlow note was not material because it was not
reasonably probable that, if the jury had heard the testimony of petitioner’s experts, it would have
credited that testimony and reached a different result. The interim appellate court reversed this
decision, concluding that the determination of which experts were most persuasive was an issue to
be decided by the jury at a new trial. The Supreme Court of Connecticut affirmed, holding that
“the testimony of petitioner’s experts was more than sufficient to call into question the reliability
of the petitioner’s conviction. Indeed, even if that expert testimony only tended to support the
petitioner’s claim that he could not have murdered the victim, in view of the tenuous nature of the
state’s case against the petitioner – based as it was on his suspect admissions – the state’s Brady
violation would warrant a new trial because, as the United States Supreme Court has recognized,
exculpatory evidence of even ‘minor importance’ may well be ‘sufficient to create a reasonable
doubt’ when, as in the present case, ‘the [guilty] verdict is already of questionable validity.’”
(quoting United States v. Agurs, 427 U.S. 97, 113 (1976)).
*Manning v. State,
158 So.3d 302 (Miss. 2015)
State committed Brady violation by failing to disclose that the apartment from which the State’s
key witness testified he observed defendant enter the victims’ apartment was vacant at the time of
the crime. Defendant was convicted of murdering two elderly women in Starkville, Mississippi,
and sentenced to death. Although numerous other witnesses placed defendant at the apartment
complex on the day of the murder, Kevin Lucious was the only witness to testify that he saw
defendant entering the women’s apartment shortly before their bodies were discovered. At the
time of his testimony, Lucious was a convict serving two life sentences without parole in Missouri.
No witnesses testified to seeing defendant leave the apartment. Police conducted a canvass of all
residents of the apartment complex during their investigation and recorded the results on index
cards. An entry on the cards revealed that the apartment from which Lucious testified he observed
defendant enter the victims’ apartment was vacant at the time of the crime, and neither Lucious
nor his girlfriend was listed as a resident on any of the apartments canvassed. The State conceded
this information was not disclosed to the defense prior to trial. The Supreme Court of Mississippi
concluded: (1) the evidence was favorable to defendant for impeachment of Lucious’s testimony;
(2) defense counsel could not have obtained this evidence themselves with reasonable diligence,
given that they were not even appointed to represent defendant until three-and-a-half years after
the crime; (3) the evidence was suppressed; and, (4) the evidence was material because both
defense counsel and the district attorney testified that their actions in preparing and presenting the
case would have been different had they possessed the evidence. “Any attorney worth his salt
would salivate at impeaching the State’s key witness using evidence obtained by the Starkville
Police Department.” Manning, 158 So.3d at 307. Moreover, the district attorney’s admission that
“he would have investigated the discrepancy between Lucious’s testimony and the cards is also
crucial to prong four, bolstering that a reasonable probability exists that the outcome of the
proceedings would have been different.” Id.
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Biles v. United States,
101 A.3d 1012 (D.C. 2014)
As a matter of first impression, the D.C. Court of Appeals held that Brady applies when the
government fails to disclose information material to a suppression hearing. Defendant was
arrested for peddling counterfeit DVDs at a flea market after he asked an undercover officer if the
officer wanted to buy any DVDs. In the middle of defendant’s bench trial, a police officer
revealed that police located and searched defendant’s backpack and a box of DVDs underneath the
backpack as a result of a tip from a paid confidential informant, which the officers received after
defendant was arrested, and thus the items were not retrieved incident to arrest, from the area of
defendant’s wingspan, as the police reports initially suggested. After receiving the tip, police
opened the backpack and found defendant’s identification inside and later determined that the
DVDs in the box underneath were counterfeit. Defense counsel objected that there had been no
mention of a confidential source in the pretrial discovery materials; she argued that she did not
have an opportunity to do motions or investigate this issue, and she asked the court to exclude any
evidence found as a result of the tip. The trial court denied the motion to suppress. Defendant was
later convicted again on separate charges for a subsequent offense based largely on the same
officer’s testimony that she recognized defendant’s backpack near a case of counterfeit DVDs
because of the previous search. First, the court held that “suppression of material information can
violate due process under Brady if it affects the success of a defendant’s pretrial suppression
motion.” Biles, 101 A.3d at 1019; see also, id. (“[t]he only courts we know to have squarely
addressed the issue on the merits have held that a failure to disclose information material to a
ruling on a Fourth Amendment suppression motion can constitute a Brady violation.”). “[T]he
withheld information here, which tended to show that the search could not be justified as a routine
search of a suspect’s wingspan incident to arrest, was favorable for purposes of the Brady
doctrine.” Id. at 1020. Next, this information was suppressed because the delayed, mid-trial
disclosure “foreclosed any meaningful opportunity on [defendant’s] part ‘to use the information
with some degree of forethought,’ and to frame and litigate what should have been a successful
[suppression] motion.”) Id. at 1022-23 (internal quotation omitted). The evidence was material to
both the first and second trial because defendant could have filed a timely suppression motion that
would have been granted, thus depriving the government of the most important evidence in both
cases – the DVDs and the identification cards linking defendant to them.
Mitchell v. United States,
101 A.3d 1004 (D.C. 2014)
Defendants were entitled to relief on a Napue claim where the government conceded it relied on
false testimony at trial, which was not harmless. Defendants were convicted of murder based on
two items of evidence: (1) the testimony of Eric Lindsay that he was a passenger in the victim’s
car when he witnessed defendants drive by and shoot the victim; and, (2) testimony from Detective
Ray Crawford that defendants knew the victim planned to testify against them in a different
murder trial because the defendants were present at a preliminary hearing in which Crawford
testified that the victim had identified them in connection with that crime. Crawford claimed that
he specifically identified the victim by name at the preliminary hearing. However, this testimony
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was false. The transcript of the preliminary hearing plainly showed that the victim’s name was
never mentioned in any way and he was not identified as a witness against defendants. The
government conceded a Napue violation occurred, but argued any error was harmless. The lower
court concluded that defendants failed to show a reasonable likelihood that the false testimony
affected the verdict, but the D.C. Court of Appeals reversed, noting “the burden of showing
harmlessness is on the government rather than the appellants and harmlessness must be proven by
the constitutional standard of beyond a reasonable doubt.” Mitchell, 101 A.3d at 1008. The
government was unable to meet its burden where it had previously characterized the false evidence
as “crucial to the government’s theory of prosecution,” and where “the testimony of the
government’s sole identification witness, Lindsay, was attacked in significant respects beyond the
chaotic and relatively fleeting nature of the sighting, such as the fact that Lindsay did not make a
positive identification of the killers for over a month following [the victim’s] death and the
shifting identification of the car of the killers.” Id. at 1009. The court concluded: “[n]one of this
suggests that the evidence was insufficient to convict appellants, but, in the posture of one of the
two major props of the government’s case resting on false testimony, the outcome of the case falls
significantly short of constitutional impregnability.” Id.
Clack v. Ridgeland,
139 So.3d 778 (Miss. App. 2014)
In driving under the influence/careless driving case, remand for new trial where city prosecutor
unintentionally failed to provide defendant with potentially exculpatory video evidence of the
stop by police. (The defendant had argued there had not been probable cause for the stop. The
arresting officer falsely claimed there was no video footage of the stop. Because the City failed
to file an appellee’s brief, the court was unable to affirm the lower court’s denial of relief.)
*Wright v. State,
91 A.3d 972 (Del. 2014)
In robbery-murder case at a liquor store, capital conviction and death sentence reversed due to
cumulative effect of multiple items of suppressed evidence, including one item the court
previously found not to be material when considered alone. The suppressed evidence was: (1) a
deal made by the jailhouse snitch, who claimed Wright confessed to him, in a case six months
earlier where the snitch agreed to testify against his co-defendant for reduced charges and
sentence; (2) a recent robbery indictment against two cousins (Jamison and Curtis) whom the
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defense claimed where the actual perpetrators of this crime which would have impeached
Jamison’s testimony that the two cousins were not close; (3) the delayed arrest of Jamison, which
occurred a month after the indictment against him and his cousin and two days after his
testimony in Wright’s trial; and (4) a robbery had been attempted of a nearby liquor store shortly
before the robbery-murder in this case by similar looking men also involving a handgun and
Wright had been excluded as a suspect. Even assuming that the prosecutor in Wright’s case was
unaware of the indictment of Jamison and Curtis for the unrelated robbery, “the fact that others in
the Attorney General’s Office were aware of the indictment at the time of trial suffices to make
the evidence Brady material.” That Jamison was technically a defense witness did not absolve
the State of its duty to disclose impeaching information given that his was not a typical defense
witness. And even if it would have been possible for the defense to learn of Jamison’s
indictment, “the fact that the State chose not to arrest Jamison until after his testimony at
Wright’s trial would not have been a publicly available fact at the time. Thus, the State failed to
disclose exculpatory and impeachment evidence relating to Jamison that would have been useful
to Wright.” Similarly, the prosecutor’s personal lack of knowledge about the attempted robbery
did not preclude a finding of suppression. Nor did the fact that the robbery attempt received
publicity demonstrate lack of suppression given that the media reports did not include the fact
that Wright had been ruled out as a suspect in the attempted robbery and did not reveal the
descriptions of the suspects or the existence of videotape and photographic evidence. In finding
materiality when considering the suppressed evidence cumulatively, despite Wright’s initial
confession, the court noted that the “evidence cuts across multiple, substantive bases supporting
the jury’s conviction and would have permitted Wright to attack the State’s case from every
angle.” In addition, the suppressed evidence was relevant to penalty in that it supported a
residual doubt argument.
*State v. Ziegler,
159 So.3d 96 (Ala. Crim. App. 2014)
In capital murder case, lower court did not abuse its discretion in determining that the state
violated Brady by failing to disclose evidence contradicting testimony that petitioner had been at
a party the night before the murder where he threatened the victim by referring to him as “a
walking dead man.” The witness who provided this testimony at trial recanted in the postconviction proceeding and stated that she had informed law-enforcement both before and after
her testimony that she did not know petitioner. Her post-conviction testimony was found to be
credible and was supported by her son who also stated that petitioner had not been present at the
party and that he told this to the police. The suppressed evidence was material to the issue of
intent.
J.E. v. Superior Court,
168 Cal. Rptr. 3d 67 (Cal. App. 2014)
In juvenile dependency proceeding, the court erred in refusing to conduct an in camera
inspection of a prosecution witness’s juvenile dependency file for Brady evidence. The petition
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was filed under a statute that allows a juvenile court to release information from juvenile files to
persons who are otherwise not authorized to access the confidential files. The appellate court
held that when a petitioner invokes the statute and requests that the court review a confidential
juvenile file, if the petitioner has provided a reasonable basis to support a claim that the file
contains Brady exculpatory or impeachment material, the juvenile court is required to conduct an
in camera review.
People v. Bueno,
P.3d , 2013 WL 6118364 (Colo. App. Nov. 21, 2013)
In prison killing case, trial court did not abuse its discretion in granting defendant a new trial
based on the prosecution’s failure to disclose information supporting part of the defense theory –
that the victim had been killed by white inmates. The suppressed evidence included a letter
found by a nurse at the correctional facility approximately thirty-five minutes after the victim’s
body was discovered. The letter announced that The Aryan Nation and the Neo Nazi Skin Heads
planned to exterminate white inmates who refused to “accept their proud race . . ..” While the
letter specifically targeted certain individuals, it stated those inmates were only the beginning.
The nurse prepared an employee incident report about the letter that also was not provided to
defense counsel. Two days after the letter was discovered, one of the targeted inmates died from
a pulmonary embolism; blunt force trauma to his chest was observed. The third piece of
suppressed evidence was a report by a gang intelligence officer at the prison who opined that the
two deaths were related. That the letter and report by the nurse were “available” to defense
counsel because they were permitted to review records at the correctional facility did not defeat
the Brady claim. Because it was undisputed that the letter and the report were in the prosecutor’s
file, there was an affirmative duty to disclose them.
Liggins v. State,
841 N.W.2d 356 (table), 2013 WL 5963013 (Iowa App. Nov. 6, 2013) (unpublished)
In child-murder case, post-conviction relief is granted due to the prosecution’s failure to disclose
that one of its crucial witnesses was a paid informant in drug cases. The absence of a direct
connection between the payments and the witness’s testimony in petitioner’s case was
immaterial: “What matters is the fact that payments were made. Whether in this case or another,
they provided a powerful incentive for the witness to cooperate with the State.” Also immaterial
was the supervising detective’s denial of knowledge of payments to the witness. The detective
had ample opportunity to verify the status of the witness as a paid informant prior to the witness’s
testimony and he had an obligation to do so. “[T]he State could not shirk its duty to obtain the
exculpatory evidence of the witness’s status as a paid informant by pointing to the fact that the
payments were made in other cases or by denying knowledge of the payments. The State was
obligated to unearth and disclose this critical information.” In addressing materiality, the court
rejected the State’s argument that it could not consider 77 suppressed police reports that the court
had found failed the materiality test in a prior post-conviction proceeding. “A materiality
analysis must consider all the suppressed evidence, including evidence that was addressed in a
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prior proceeding.” When considered together, along with a suppressed FBI report that was
presented in this second post-conviction proceeding, confidence in the verdict is undermined.
The reports could have, inter alia, called into question certain trial testimony, bolstered the
defense’s contention that another person had a motive to kill the victim, and cast suspicion on
another party.
Ferguson v. Dormire,
413 S.W.3d 40 (Mo. App. 2013)
Habeas relief granted in robbery-murder case where prosecution suppressed evidence of an
interview with the wife of one of the prosecution’s key witnesses at trial. “The undisclosed
evidence was favorable because it impeached [the witness’] explanation for his ability to identify
Ferguson. The undisclosed evidence was material because of the importance of [the witness’]
eyewitness identification to the State’s ability to convict Ferguson, because the evidence would
have permitted Ferguson to discover other evidence that could have impacted the admissibility or
the credibility of [the witness’] testimony, and because of the cumulative effect of the
nondisclosure when considered with other information the State did not disclose.” The other
evidence that could have been discovered absent the suppression included the fact that the police
had contacted the eyewitness while he was in prison pre-release, which would have enabled
Ferguson to argue that the witness felt threatened or intimidated, resulting in his sudden ability to
identify Ferguson and the co-defendant. Additional evidence that had been suppressed (although
discovered by the defense prior to trial) was (1) a statement by a witness as to the time a bar
Ferguson and the co-defendant had been drinking in closed that contradicted the prosecution’s
theory of the case; (2) a statement by the second eyewitness indicating her inability to identify
either Ferguson or the co-defendant; and (3) the testifying eyewitness’s sudden ability to identify
Ferguson and the co-defendant from pictures in a newspaper that the eyewitness claimed to have
received from his wife while in prison. Although Ferguson learned of these bits of undisclosed
information prior to trial, the delay in receiving the information impacted his ability to use the
evidence in his defense. Relief was required even though a co-defendant implicated Ferguson in
the robbery-murder. This was because the co-defendant’s confession was severely challenged by
Ferguson, as were the investigative and interrogation tactics employed by the State in securing
that confession.
State ex rel. Woodworth v. Denney,
396 S.W.3d 330 (Mo. 2013)
In murder, assault, burglary, and armed criminal action case with weak circumstantial evidence
and a third party culpability defense, convictions vacated due to suppressed evidence and newly
discovered evidence undermining confidence in the verdict. The first suppressed evidence was a
series of letters involving the surviving victim, the original trial judge, the local prosecutor and
the special prosecutor. Letter 1 was from the surviving victim to the judge complaining about the
local prosecutor’s handling of the case and begging the judge to remove him so that the case
against defendant could go to the grand jury. Letter 2 was from the local prosecutor to the judge
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explaining that the surviving victim had earlier been adamant that a third party, the ex-boyfriend
of the victims’ daughter, be charged with the crimes. The local prosecutor nevertheless requested
that the judge appoint the attorney general’s office to represent the State. Letter 3 was from the
judge to the special prosecutor thanking the attorney general’s office for taking the case,
enclosing Letter 1, and explaining that was what prompted the judge to initiate the grand jury
inquiry. These letters could have diminished the surviving victim’s credibility when he denied
having told others that the ex-boyfriend was the shooter and would also have assisted the defense
in demonstrating that the State’s investigation was not impartial by showing that the investigation
improperly focused on defendant rather than on the ex-boyfriend once the surviving victim put
pressure on the judge. Also suppressed were complaints by the victims’ daughter to the police
that the ex-boyfriend was violating a protection order that had issued shortly after the crimes and
that he was making threats. This information would have impeached the daughter’s deposition
testimony denying threats by the ex-boyfriend and her denial that she informed the police when
the ex-boyfriend contacted her in violation of the protection order. Finally, newly discovered
evidence called into question the credibility of the ex-boyfriend’s alibi and supported defendant’s
claim of innocence.
People v. Gutierrez,
153 Cal. Rptr. 3d 832 (Cal. App.), cert. denied, 134 S.Ct. 684 (2013)
Refusing to overturn existing precedent holding that prosecution’s duty to disclose exculpatory
evidence under Brady applies to preliminary hearings.
People v. Gayden,
111 A.D.3d 1388 (N.Y. 2013), appeal withdrawn by 18 N.E.3d 1142 (N.Y. 2014)
In murder case, defendant was entitled to have his judgment vacated due to the prosecution’s
failure to inform the defense that an essential prosecution witness was a paid informant.
Adams v. Commissioner of Correction,
71 A.3d 512 (Conn. 2013)
In gang-related murder and assault case, petitioner was entitled to habeas relief as a result of the
prosecution’s failure to correct false and misleading testimony by one of the surviving victims
(Andre) about the consideration he was receiving in two unrelated criminal cases in exchange for
his testimony against petitioner and his co-defendants. (The trial prosecutor was unaware of the
consideration because another prosecutor was handling Andre’s case and they had agreed to
create a “firewall” in order for the trial prosecutor to remain in the dark about anydeals made. It
was the judge in Andre’s case that had conducted the plea discussions. At the time, the
prosecutor of Andre believed there was no duty to disclose the deal because it was the product of
negotiations between the judge and the surviving victim, a position abandoned in this appeal.) In
finding that petitioner met the strict materiality standard applicable to Napue violations, the court
engaged in a lengthy analysis of the evidence against petitioner and its weaknesses, and noted the
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difficulty the jury had in reaching a verdict. The court acknowledged that Andre, both as a
victim of the attack and as a witness to the fatal shooting of his cousin, had reason to testify
against his assailants wholly apart from any promise of leniency. The court further acknowledged
that Andre’s veracity as a witness was tested by the vigorous cross-examination of defense
counsel. The court nevertheless concluded that is was “highly probable that Andre’s credibility
would have been further undermined, and most likely seriously so, if the jury knew, first, that he
had been promised leniency on his pending charges in return for his cooperation and, second, that
he was lying when he denied that he had been promised consideration for such cooperation.
Because a witness’ motivation to avoid prison time is invariably a strong one, the fact that
Andre’s credibility otherwise had been called into question was not a substitute for
cross-examination about the relationship that in fact existed between the leniency that he had
been promised and his testimony on behalf of the state.”
State ex rel. Koster v. Green,
388 S.W.3d 603 (Mo. App. 2012)
In capital murder case involving a sexual assault where the mentally ill petitioner confessed to
the offense, habeas court did not abuse its discretion in concluding that undisclosed evidence
could reasonably be taken to put the petitioner’s whole case in such a different light as to
undermine confidence in the verdict. The undisclosed evidence consisted of: (1) serological test
results showing that foreign semen or other biological fluids — which could not have been
deposited by petitioner or by the victim’s boyfriend or estranged husband — were found on the
robe the victim was wearing at the time of the attack; (2) internal police documents showing that
the police lab reported the exculpatory findings to the police investigating the case, and that
police relied on the undisclosed serological results to exclude suspects until they obtained a
confession from petitioner; (3) documents showing that fingerprints found at the crime scene,
which the State claimed were mere smudges unusable for comparison, were in fact usable and
excluded petitioner as the source, and were tested against numerous alternate suspects even after
police obtained petitioner’s confession; (4) a drawing of the crime scene made by petitioner,
which a detective had asked petitioner to draw to determine if his confession was credible and
which the detective concluded was not consistent with the actual layout of the crime scene; and
(5) evidence that a key State witness, whose testimony that she yelled out the victim’s name was
pivotal to corroborating petitioner’s confession, had to be hypnotized in order to provide the
certain trial testimony she offered. The suppressed serological evidence, which included a
handwritten report with an exculpatory finding that was crossed out and omitted from the final
report that was disclosed to the defense, could have been used to both bolster the defense
argument that petitioner was not the perpetrator and impeach the credibility of the investigation.
Similarly, the fact that the police had arranged to have a key prosecution witness hypnotized to
clarify her memory, which was not documented or disclosed to the prosecutor or defense
counsel, could have been used both to impeach the witness’s credibility and the integrity of the
police investigation.
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Rios v. State,
377 S.W.3d 131 (Tex. App. 2012)
In case where applicant pleaded guilty to charge of driving while intoxicated, he was entitled to
habeas relief based on the revelation that the breath results he had been informed of prior to the
plea were invalid because the technician in charge of the intoxilyzer used to test application’s
blood alcohol concentration had falsified the calibration records for that machine. The plea was
deemed involuntary because it had been induced by the invalid test result.
Ex Parte Miles,
359 S.W.3d 647 (Tex. Crim. App. 2012)
In murder and attempted murder case, applicant was entitled to habeas relief on both a Brady
claim and a claim of actual innocence. The undisclosed evidence was two police reports, one of
which expressly identified a third party as the perpetrator and the other of which disclosed an
altercation between the victims and another party five days prior to the shootings. The second
report also contained a claim by the deceased victim’s brother that the shooter was someone
named Deuce. The reports could have been used both to impeach testimony by a detective that
there were no other suspects and to develop an alternate theory of the crime. The report about
the altercation could have impeached testimony from the surviving victim that his possession of a
sawed-off shotgun was purely for personal protection and his denial of having had problems with
others before the crime. In finding the suppressed evidence material, the court found significant
the additional evidence that could have been developed had the first report been disclosed
suggesting the third party was in fact the perpetrator. The significance of the suppressed reports
was “even more obvious” when considered in the context of the trial record, which included
questionable gunshot-residue analysis, suggestive eyewitness identifications, disparities between
the descriptions of the shooter and applicant, and applicant’s alibi.
*Velez v. State,
2012 WL 2130890 (Tex. Crim. App. June 13, 2012) (unpublished)
Reversal of death sentence where prosecution presented false testimony concerning the conditions
of custody defendant would be subject to should he receive a sentence of life imprisonment
without possibility of parole rather than death. The testifying witness and the prosecutor knew or
should have known about a 2005 regulation that precluded the less restrictive conditions that the
witness testified were possible for defendant to receive. In finding that the false testimony was
not harmless beyond a reasonable doubt, the court noted: (1) the witness’s extensive credentials
that “increased his credibility as a person knowledgeable about violence in prisons and future
dangerousness”; (2) the witness’s testimony about the “horribles” that occur in prison, including
murders and his descriptions of prison as a very violent place; (3) the witness’s observation that
rules can change after conceding that life without parole inmates are not allowed out on work
detail without an armed guard; (4) the circumstantial nature of the case against defendant; (5) the
fact that the prosecution presented no psychiatric evidence supporting a
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finding of future dangerousness, nor sought to rebut the defendant’s psychiatric evidence that he
would not pose a future danger; (6) that other than a bar fight some 17 years prior to trial,
defendant’s criminal record was non-violent; and (7) that defendant had been in custody for
some time prior to trial and had a clean disciplinary record.
State v. Hollin,
970 N.E.2d 147 (Ind. 2012)
In conspiracy to commit burglary case, Brady violation found where prosecution failed to
disclose, inter alia, that there was a charge pending against the testifying former co-defendant
(Vogel) for battery with a deadly weapon in a neighboring county, that there were petitions
pending to revoke Vogel’s probation in the neighboring county as well as the county of trial,
and that Vogel’s theft conviction in the other county would be reduced to a misdemeanor if he
completed probation successfully. In finding the suppressed information was favorable, it is
noted that Vogel did not implicate Hollin in the burglary until after he was charged with
battery with a deadly weapon and two petitions to revoke his probation were filed. The
suppressed evidence was deemed material given that the case involved a credibility contest
between Vogel and Hollin.
Bunch v. State,
964 N.E.2d 274 (Ind. App.), transfer denied, 971 N.E.2d 1215 (Ind. 2012)
In felony-murder/arson case, post-conviction court clearly erred in denying petitioner’s claim that
the prosecution violated Brady by failing to disclose an ATF report that directly contradicted the
report and testimony by an ATF agent at petitioner’s trial about the presence of a heavy
petroleum distillate (HPD) on two of the ten samples that had been tested. (After obtaining the
actual gas chromatographs for the samples at issue, petitioner’s post-conviction expert evaluated
them and concurred with the findings in the suppressed report.) The post-conviction court was
incorrect when it found that the ATF report was not suppressed because it constituted work
product that was not discoverable. First, the State never claimed that the report was work
product. Second, “the Brady rule can require disclosure of evidence not otherwise discoverable
if the evidence is shown to be exculpatory.” The post-conviction court also erred in finding no
suppression because the report at issue was in the possession of the ATF and not the prosecution.
“That the ATF kept the complete file on its premises does not mitigate the State’s obligation to
disclose exculpatory evidence in that file.” The post-conviction court further erred in finding that
because petitioner had the testifying ATF agent’s report, petitioner did not demonstrate
reasonable diligence when she made no specific request for the ATF file. Here, there was
nothing in the information that petitioner possessed suggesting that the complete ATF file would
contradict what had been disclosed. On this record, the complete ATF file was suppressed for
purposes of meeting the first prong of the Brady test. As to whether the suppressed report was
favorable, although it agreed with the testifying agent’s finding of HPD on three of the samples,
the disagreement on one of the samples was significant because that sample was the only one
taken from the victim’s bedroom and the prosecution’s theory was that because HPD was found
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in both the living room and the bedroom, there were multiple, and therefore incendiary, fires. In
addition, the second sample on which there was disagreement was taken from what was
identified as a pour pattern in the living room. With a finding that it tested negative for HPD,
then the significance of the alleged burn pattern was significantly undercut. “The undisclosed
evidence is therefore exculpatory, as it directly contradicts the State’s theory of the case.” In
addition, the report could have been used to impeach the ATF’s agent at trial. Finally, because
the undisclosed report directly contradicted the trial testimony supporting fires originating in two
places, there was a reasonable probability that but for the prosecutorial failure to disclose this
evidence, the result of the trial would have been different.
*In re Bacigalupo,
283 P.3d 613 (Cal. 2012)
Habeas relief granted as to death sentence where prosecution failed to disclose evidence that
would have supported a case in mitigation at the penalty phase that petitioner committed the two
murders because of a Columbian drug cartel’s death threats against petitioner and his family.
(Under California law, having acted under duress is a statutory mitigating factor.) At trial, the
jury heard petitioner’s confession in which he claimed that he had been ordered to kill the
victims by the Columbia Mafia under threats to himself and his family. The man petitioner
claimed had ordered the killings denied having done so and the prosecutor at both phases of the
trial emphasized the absence of evidence supporting petitioner’s account of the crime. The
prosecution failed to reveal to defense counsel that a confidential informant had tied a high level
drug dealer with a connection to a Columbian drug cartel to the killings, that the informant had
been present when the drug dealer met with petitioner the night before the murders, and that the
informant had been told that the killings were a contract killing rather than for robbery as the
prosecution asserted at petitioner’s trial. That the trial court in a pre-trial ruling had concluded
that the confidential informant was not a material witness as to guilt was not dispositive of the
informant’s materiality as to the sentencing phase.
*In re Stenson,
276 P.3d 286 (Wash.), cert. denied, 133 S.Ct. 444 (2012)
In double murder case where defendant claimed one victim killed the other before committing
suicide and the key evidence implicating defendant in the killings was gun shot residue (GSR)
found in his front pants pocket and blood spatters on the pants, the State violated Brady by
suppressing an FBI file and a photograph showing how the pants had been handled prior to the
GSR testing. The file was favorable because it revealed that an FBI employee other than the one
who testified at trial had actually conducted the GSR testing. Knowledge of this would have
allowed the defense to challenge the credibility of the testifying FBI agent. In addition, the file
showed that only a few particles of GSR was found in the pocket, a fact the defense was unaware
of at the time of trial. Also suppressed was a photograph showing that prior to the GSR testing a
detective had placed his ungloved hand in the front pant pocket. Suppression was found even
assuming that a defense investigator had viewed the photograph prior to trial because there was
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no disclosure to defense counsel at the time the FBI agent testified or at any other time “that
something had gone into the pocket. . . .” In finding the suppressed evidence to be material, the
court explained: “Had the FBI file and photographs been properly disclosed here, Stenson’s
counsel would have been able to demonstrate to the jury that a key exhibit in the case—Stenson’s
jeans—had been seriously mishandled and compromised by law enforcement investigators. It is
also likely that exposure of the State’s mishandling of the jeans with regard to GSR testing would
have led to further inquiry by Stenson’s counsel into possible corruption of the blood spatter
evidence. In that regard, Stenson’s defense theory at trial could have taken into account the fact
that the jeans may have been folded over when the blood spatter was wet. Instead, the jury was
left with only one explanation for the blood spatter, which was that it could not have appeared on
Stenson’s jeans after [the victim] came to his final resting place.”
Commonwealth v. Murray,
957 N.E.2d 1079 (Mass. 2011)
In murder case, grant of new trial affirmed where prosecution failed to disclose information
known to the police regarding the gang activities of “KST,” whose members included the victim
and several eyewitnesses to the killing. This information, inter alia, could have been used for
impeachment and to show bias.
Freshwater v. State,
354 S.W.3d 746 ( Tenn. Crim. App. 2011)
Conviction for first degree murder reversed due to suppression of the portion of a statement from
a witness claiming that Freshwater’s co-defendant told him that he was the sole shooter of the
victim. Provision to the defense of another part of the witness’s statement, which appeared to be
the complete statement, misled defense counsel who could not then be faulted for failing to
discover the missing part of the statement. There was a reasonable probability that the jury, which
decided sentence at the time of the 1969 trial, would have imposed a sentence less than ninetynine years had the statement not been suppressed.
Pena v. State,
353 S.W.3d 797 (Tex. Crim. App. 2011)
In marijuana possession case, the court of appeals erred in concluding that the due process
protections afforded under Brady did not apply when the State failed to disclose or provide to
appellant, after specific request, the audio portion, containing exculpatory statements made by
appellant to police, of a videotape used by the State before the jury. The audio was favorable
because it included appellant’s denial that the plant material was marijuana and the charge
required proof that possession of the drug was intentional and knowing. It was also favorable in
that it could have impeached the arresting officer’s failure to recall whether appellant had asked
for testing of the plant material in that the audio confirmed appellant’s claim that he did. The
audio would also have precluded the prosecutor from arguing that appellant only requested testing
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of the material after he knew it had been destroyed. In finding the suppressed evidence material,
the court accepts appellant’s argument that his defense would have been different had the audio
been available in that he would have focused on lack of intent rather than on the destruction of
the evidence. Also noted is how the prosecution’s case would have had to change.
Jordan v. State,
343 S.W.3d 84 (Tenn. Crim. App. 2011)
In granting post-conviction relief in second degree murder case, the appellate court ruled that the
state’s open file policy did not discharge its affirmative duty under Brady to disclose favorable,
material evidence to the defendant and that the defendant was entitled to rely on the state’s
assertion that it provided him with its entire file. Evidence concerning the discovery of a knife
near where the victim’s body was found with a slashed throat was favorable even though the
knife was not linked to the killing because it demonstrated a failure by the police to further
investigate. In addition, defense counsel may have been able to develop exculpatory evidence
through his own investigation of the knife. Also favorable was a suppressed police memorandum
that impeached a third party suspect’s later claim that he was not in the area at the time of the
crime. Because the suspect’s denial of being in the area was the basis of his being cleared by
police after a caller implicated him in the murder, the memorandum could have been used by
defense counsel to question the reliability of the state’s investigation. After reviewing the record,
the appellate court could not be “‘reasonably confident that every single member of the jury,’
after hearing evidence impugning the police investigation, would have found the
petitioner guilty because the margin of sufficiency was so slim that any favorable evidence would
be material.”
State v. Ferguson,
335 S.W.3d 692 (Tex. App. 2011)
In aggravated sexual assault case where alleged victim was between eight and eleven years old
when the assaults occurred, trial court did not abuse its discretion in granting a new trial based on
the State’s failure to disclose a forensic sexual assault examination report that at least arguably
undermined the alleged victim’s claim to have been subjected to vaginal intercourse regularly for
more than three years and supported defendant’s assertion that no intercourse occurred. Had
defense counsel possessed the report, he could have shifted “from the defensive argument used—
that there was no physical evidence of sexual assault—to a more offensive
argument—that there was physical evidence strongly suggesting that there was no sexual assault,
or at least that the regularity reported by complainant was incredible.”
Ex Parte Ghahremani,
332 S.W.3d 470 (Tex. Crim. App. 2011)
In sexual assault case, applicant was entitled to resentencing based on the State’s presentation of
misleading testimony by the parents of one of the victims creating the false impression that the
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victim’s physical, emotional, and psychological problems resulted solely from her sexual
encounter with applicant. Undisclosed to applicant, and known by the prosecution, was evidence
showing additional sources for the victim’s problems.
Aguilera v. State,
807 N.W.2d 249 (Iowa 2011)
In second degree murder case where petitioner claimed the shooting was accidental, a Brady
violation occurred through the prosecution’s failure to disclose an Iowa Division of Criminal
Investigation (DCI) file containing several witness statements, including statements from the two
alleged eyewitnesses to the incident. Although a DCI agent had revealed in a pretrial deposition
that eyewitness Guido had at one point claimed to have been inside when he heard the shot fired,
and only then went outside where the shooting had occurred and never saw a gun, this was not
enough to allow petitioner to take advantage of the evidence as the agent did not reveal: (1) the
date the statement was made – the day after the shooting; (2) that Guido made a contradictory
statement two days later which still differed from later deposition and trial testimony on the key
issue of whether Guido saw the actual shooting; and (3) that Guido had also placed the other
alleged eyewitness, Lopez, inside the house when the shooting happened. Defense counsel
would have been able to far more effectively cross-examine Guido had he been provided the two
statements that were inconsistent not only with the deposition and trial testimony, but with each
other. Also suppressed was a statement by a witness unknown to petitioner who recounted
someone shout “they’re fighting” before hearing a gunshot. This account better supported the
testimony of Lopez that the gun went off as petitioner and the victim were struggling, as opposed
to Guido’s trial testimony that the men were two meters apart when petitioner fired the shot. The
State did not appeal the lower court’s finding that an additional statement was suppressed, a
statement expressing the belief that petitioner was extorting money from other Hispanics at work,
many of whom were present at the party where the shooting occurred. Defendant’s strategy at
trial may have changed had he been provided with the statement as it may have uncovered bias
against defendant by trial witnesses. Although the statement may not have been material in and
of itself, “when viewed in connection with the other statements the State failed to turn over, it
supports a finding if materiality.” Additional suppressed statements contributed to the
materiality finding as they made the defense theory of accidental shooting far more likely.
DeSimone v. State,
803 N.W.2d 97 (Iowa 2011)
In sexual abuse case, the prosecution violated Brady by failing to disclose a witness’s timecard
showing that the witness could not possibly have seen the events to which she testified. (The
witness, who befriended the victim prior to trial, described almost hitting a girl with her car on
the night the alleged assault occurred. This corroborated the part of the victim’s testimony about
fleeing the petitioner’s home and nearly being struck by a car.) In the post-conviction
proceeding, the trial prosecutor suggested that he had hand-delivered the timecard information to
defense counsel. Defense counsel in turn denied receiving it but admitted he had not reviewed
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the file prior to the hearing. On this record, suppression was found because: (1) it was
inconceivable that the prosecutor would have used the witness knowing that her testimony was
false and that he had provided proof of the falseness to defense counsel; (2) defense counsel
testified that he shared all material with petitioner and petitioner would have brought the
discrepancy to the attention of defense counsel; and (3) given defense counsel’s experience, it
was difficult to believe that he would not have used the timecard information if he had possessed
it. The suppression prong of the Brady test was not defeated by the fact that defense counsel had
been aware that the witness’s timecard was going to be sent to the police department. A
reasonable attorney would have concluded that the timecard had corroborated the witness’s
account rather than being exculpatory and so would not have independently sought the
information. The suppressed timecard was material because there was no physical evidence and
the case turned on the victim’s questionable credibility for which there was little corroboration.
The defense theory at trial was that the victim was collaborating with persons who disliked
petitioner in order to convict him. Bringing the false testimony into the conspiracy theory
“completes the picture.”
State ex rel. Griffin v. Denney,
347 S.W.3d 73 (Mo. 2011)
In prison killing case, petitioner was entitled to habeas relief because of the State’s failure to
disclose that within minutes of the stabbing prison guards confiscated a sharpened screwdriver
from another inmate as the inmate attempted to leave the area where the stabbing occurred. The
evidence was favorable because it supported a viable alternative perpetrator defense. In finding
prejudice, additional new evidence is discussed, including an admission by another inmate that
he was the actual killer and had been assisted by the inmate who was caught with the
screwdriver, the recantation of one of the witnesses who claimed to have witnessed petitioner
committing the stabbing and evidence that the prosecution’s other eyewitness was actually in the
law library when the stabbing occurred. (There was a dissent that contended the Brady claim
should fail because testimony by the medical examiner refuted the possibility that the screwdriver
caused the victim’s wounds.)
State ex rel. Koster v. McElwain,
340 S.W.3d 221 (Mo. App. 2011)
In case involving the murder of petitioner’s mother, grant of habeas relief affirmed in part
because of the State’s suppression of evidence that the victim had made numerous reports of
abuse by her estranged husband and evidence that the victim was so fearful of her husband that
she armed herself with a gun. In finding evidence of the abuse to be favorable, it is observed that
such evidence could have been used to attack the thoroughness and even good faith of the police
investigation. In finding prejudice, it is noted, inter alia, that the sheriff to whom the victim had
reported the abuse had denied at trial that there had been any reports of domestic abuse. In
addition, the evidence would have rebutted testimony suggesting that the victim had been
nervous and upset in the months before her death because of her fear of petitioner.
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Jackson v. State,
714 S.E.2d 584 (Ga. App. 2011)
In robbery/assault case with two co-defendants, defendant Phillips was entitled to a new trial
based on the prosecution’s failure to provide the defense with a pretrial statement by one of the
victims that contradicted the victim’s trial testimony. In the statement the victim provided to
police, he asserted that he and his mother-in-law had been robbed by two armed men. At trial,
the victim testified that not only were three men involved in the crime, but that Phillips was one
of the three men. Defense counsel had received a police report which indicated the victim had
reported three men being involved, including the driver of the getaway car. Defense counsel did
not receive a second police report that tracked the written statement. Because the witness was
the only one to identify Phillips as a participant in the robbery and the other evidence was not
overwhelming, the suppressed statement was material.
State v. Bai,
2011 Ohio 2206, 2011 WL 1782113 (Ohio App. May 9, 2011)
Conviction for gross sexual imposition is reversed due to the prosecution’s failure to disclose a
handwritten statement by the alleged victim that was prepared not long after the incident and that
presented a rather detailed recollection of the events that occurred, in contrast to her testimony
where she claimed lack of a clear memory due to intoxication. The statement was highly
probative of the alleged victim’s claimed substantial impairment and defendant’s knowledge of
her alleged impaired ability to resist or consent. It also corroborated defendant’s testimony about
the initial consensual nature of the encounter.
Flores v. Iowa,
801 N.W.2d 32 (table), 2011 WL 1376777 (Iowa App. Apr. 13, 2011) (unpublished)
Murder and terrorism convictions reversed and new trial granted in post-conviction proceedings
based on previously undisclosed FBI interview with a witness suggesting that another person was
the actual perpetrator. Although Flores’ convictions had been affirmed on direct appeal, it was
noted that the evidence of his guilt “was far from overwhelming,” and it was a close case
involving circumstantial evidence. The report was “[c]learly” favorable to the defense and its
suppression affected counsel’s trial preparation and undermined confidence in verdict.
State v. Sinha,
84 A.D.3d 35, 922 N.Y.S.2d 275 (N.Y.A.D. 2011), aff’d, 976 N.E.2d 223 (N.Y. 2012)
Invoking its “interest of justice jurisdiction,” the court reversed defendant’s conviction for
bribing a witness “because the prosecution failed to fulfill basic disclosure obligations that are
essential to a fair trial.” The prosecution possessed, but did not disclose until after its witness
(and victim) testified, emails another prosecutor sent to the victim’s mother stating she would
“do everything in [her] power’ to make” the prosecutors handling the case “see that [her son]
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deserved a break because of what had happened to him….” Another undisclosed email described
the privileges the prosecutors arranged for the victim who was incarcerated on a probation
violation, including phone privileges at the youth institution and preventing his transfer to an
adult facility. The prosecution’s “tardy” disclosure of the emails was “‘unexcusable.’”
Miller v. United States,
14 A.3d 1094 (D.C. App. 2011)
In a case involving, inter alia, charges of assault with intent to commit murder, the prosecution
violated Brady by not disclosing until the evening before opening statements that the
government’s principal eyewitness had told the grand jury that the shooter used his left hand to
shoot the victim. This was material given that the defendant was right-handed and, had defense
counsel known about the witness’s testimony earlier, evidence could have been developed
showing that an alternative suspect was likely left-handed. (Defense counsel did attempt to
present a videotape showing that the alternative suspect signed his Miranda waiver card with his
left-hand but the trial court refused to allow it because both sides had rested and instructions to
the jury had begun by the time defense counsel noticed this.) Defense counsel’s failure to simply
ask the alternative suspect, who was “a patently untrustworthy witness,” whether he was lefthanded, or to request a continuance or mistrial, did not defeat the Brady claim. “Deferral of
disclosure of what might well (and in fact did) turn out to be critically important exculpatory
information, until the night before opening statements . . . is not compatible with the
Constitution, with our case law, or with applicable professional standards.” Id. at 1108. While
not dispositive, the ABA Standards for Criminal Justice, The Prosecution Function, informed the
court’s analysis.
State v. Green,
2011 WL 709726 (N.J.Super.A.D. Mar. 2, 2011) (unpublished)
Green’s motion for discovery and new trial granted on appeal based on prosecution’s failure to
disclose pending criminal charges against its key witness, Muhammad, who implicated Green in
the kidnapping and murder of the victim, Williams. When defense counsel requested
information about any pending charges against Muhammad, the prosecutor told the judge she
would “look[] into it,” and later advised the judge she had “checked” the computer and there
were no pending charges. According to the prosecutor, Muhammad’s “rap sheet is in error,”and
“[e]verything has been disposed of.” Id., at *1. On cross-examination, Muhammad admitted
pleading guilty to drug crimes and receiving a minimum sentence. He testified that he had
reported his knowledge of Williams’ homicide to an investigator while incarcerated on drug
charges, but denied favorable treatment in exchange for information. In closing, prosecutor
emphasized that Muhammad “has nothing to gain,” and noted his testimony that he had “nothing
pending.” In fact, that was untrue. When Muhammad testified, he had pending charges against
him, including an indictment for armed robbery, possession of a handgun without a permit for
use against another, and possession of a firearm for unlawful purpose and possession of a
machine gun. The prosecution was obligated to disclose that information but failed to do so.
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The trial judge erred in finding defendant should have discovered the withheld information
“sooner than 19 years after” trial, and that even if the prosecution had disclosed the pending
charges against Muhammad, a different verdict was not probable. That was the wrong legal
standard as Green needed only to show that the prosecution suppressed favorable, material
evidence.
State v. Russell,
2011 Ohio 592, 2011 WL 494744 (Ohio App.), appeal not allowed, 951 N.E.2d 1046 (Ohio
2011)
In gross sexual imposition case, defendant was entitled to a new trial due to the prosecution’s
failure to disclose the specific dates the sexual incidents allegedly occurred. With knowledge of
the exact dates, defendant could have provided documented proof of his whereabouts on those
days.
*Johnson v. State,
44 So.3d 51 (Fla. 2010)
Three death sentences vacated in successive post-conviction proceedings where prosecutor
violated Giglio by knowingly presenting false testimony and misleading argument at suppression
hearing in order to hide agency relationship with jailhouse informant who obtained incriminating
statements from Johnson. If the true facts of the informant’s status as a government agent had
been known, his testimony would have been inadmissible in both the guilt and penalty phases.
The prosecution’s use of the informant’s testimony concerning crime details was immaterial to
the guilty verdict, however, given that the defense conceded Johnson had committed the crimes
and relied on an insanity defense. The testimony was material to sentence because: (1) the
prosecutor twice emphasized the informant’s testimony that Johnson “play[ed] like he was
crazy”; (2) there is a lesser burden of proof needed to establish mitigation; (3) the facts of the
murders were not “necessarily inconsistent” with proposed mental health mitigation; and (4) the
proposed mitigation was “extensive, consistent and unrebutted.”
Bly v. Commonwealth,
702 S.E.2d 120 (Va. 2010)
In drug distribution case, Brady violation occurred where the prosecution failed to disclose
evidence that the paid confidential informant who allegedly made controlled “buys” from
defendant had been giving false accounts to the drug task force of other alleged drug purchases.
The lower court incorrectly assumed that the trial court, having been the trier of fact, would have
convicted defendant based on other evidence even if the confidential informant’s testimony had
been entirely excluded. This failed to take into account how the suppressed evidence could have
been used to discredit the entire police investigation, thereby tainting the remaining evidence in
the case.
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Baker v. State,
238 P.3d 10 (Okla. Crim. App. 2010)
In case involving assault and battery with a dangerous weapon, the prosecution violated Brady by
failing to disclose the victim’s pending drug charges, plea agreement, and prior felony
conviction. Because the victim’s credibility was critical, defendant had made a specific request
for information that could be used to attack his credibility. In response, the “State attempted to
keep relevant information from [defendant] through the use of semantics or a play on words. . . .
This Court has repeatedly held that a criminal trial is not a game of hide and seek.” Id. at 12.
State ex rel. Engel v. Dormire,
304 S.W.3d 120 (Mo. 2010)
In armed kidnapping case, the prosecution violated Brady by failing to disclose that the chief
prosecution witness who purportedly hired petitioner to commit the crime was paid for his
testimony against petitioner and a co-defendant, that investigators coached the witness, and that
investigators sought leniency for the witness based on his cooperation in the cases. That
documents memorializing the deal did not exist at the time of trial did not defeat defendant’s
allegation of suppression – “it is enough that the evidence shows that the ‘deal’ itself already
existed, even if it had not yet been documented.” Id. at 127. And that the investigators at issue
were from outside Missouri was irrelevant since they were part of Missouri’s prosecutorial team
in the cases against defendant and the co-defendant. That the witness was impeached on other
points at trial did not defeat the Brady claim. “The unknown impeachment information,
especially when coupled with the impeachment information presented at the time of trial, could
have led the jury to a different assessment of [the witness’] credibility.” Id. at 128. Having
shown a valid Brady claim, defendant also established the cause and prejudice necessary to
overcome the procedural bar to granting him habeas relief.
State v. Piety,
2009 WL 3011107 (Tenn. Crim. App. 2009) (unpublished)
Aggravated rape conviction vacated due to state’s failure to disclose photographs taken of the
alleged victim’s “private parts” during her physical examination. The alleged victim was
engaged to the defendant and lived with him. During a fight, the defendant conceded that he beat
her and choked her. That night and the next morning, the defendant testified they had consensual
vaginal and anal sex. The alleged victim, however, testified that she was raped. Police were
called after the alleged victim’s mother and sister arrived and saw the victim’s injuries. While
there was plenty of evidence and the aggravated assault conviction was affirmed, the rape
conviction was supported only by the alleged victim and a nurse, who testified about injuries to
the alleged victim’s buttocks and vaginal area. The state failed to disclose the pictures of the
alleged victim’s buttocks and vaginal area, however, which did not reflect the injuries described
by the nurse in her testimony.
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Deren v. State,
15 So. 3d 723 (Fla. App. 2009)
Battery and disorderly conduct charges vacated due to the State’s failure to disclose workers’
compensation records detailing payments of $24,000 to the alleged victim. The charges arose out
of a disturbance between the defendant and his friend and the victim, a bar bouncer. The
evidence was material to show the victim’s financial motive to paint the defendant and his friend
as the aggressors in the initial fight.
Harris v. State,
966 A.2d 925 (Md. 2009)
Murder, conspiracy, and solicitation to commit murder convictions vacated in post-conviction
proceedings. The state’s theory was that the defendant had solicited and conspired with a codefendant to kill the defendant’s fiancee. The co-defendant went along with the plan and made
numerous statements to others as events unfolded. Ultimately, the fiancee was killed and the
defendant was shot in the leg. The co-defendant, who had pled guilty to murder in exchange for
a 50-year sentence, testified that he had changed his mind at the last minute and that the
defendant took the gun and killed the victim and then ordered the co-defendant to shoot him in
the leg which he did. The co-defendant also testified that his initial confessions to police and his
younger brother were false. The defendant denied guilt. A jailhouse snitch testified that the codefendant admitted involvement in the murder plot but claimed he was too scared to go through
with it. The snitch also testified that the defendant had twice offered to pay him if he would tell
the defendant’s lawyer that the co-defendant admitted shooting the victim. The jailhouse snitch
had also been facing a number of charges but pled guilty prior to the defendant’s trial pursuant to
a deal in which he received a 30-year sentence. Both the co-defendant and the snitch
acknowledged during testimony that they could seek a sentence reduction but denied any
promises from the state in that regard. Reversal was required because the state had, in fact,
promised not to oppose their motions for reduction if the state was satisfied with their testimony.
The co-defendant’s sentence was reduced to 30 years and the snitch’s sentence was reduced to 25
years. This evidence was material as both of these witnesses had prior criminal records and
credibility issues while the defendant had no prior record and no apparent motive to have his
fiancee killed since he was not even the beneficiary on her life insurance policy.
State v. Soriano-Clemente,
2009 WL 2432052 (Minn. App. 2009) (unpublished).
Aggravated robbery case vacated due to state’s failure to disclose the victim’s prior convictions.
The victim testified that she and her mother were robbed at gunpoint by two men in her sister’s
store. When the robbers left, the victim ran out and saw a Jeep drive away. Sometime later, the
Jeep with the license plate number provided by the victim was stopped and defendant, who had
been a passenger before running when the vehicle stopped, was arrested. The victim identified
the Mexican defendant as an assailant at trial (even though she initially described the assailant as
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Asian) but her mother could not identify the assailants. The defendant testified that he had been
in the Jeep with three other men only for the purpose of buying drugs. He waited in the Jeep
while two others went inside the store. Following conviction but prior to sentencing, defense
counsel discovered that the victim had a significant conviction history including drug possession,
perjury, use of different names and addresses during prior arrests, and multiple crimes of
dishonesty, including financial transaction fraud. While there was no evidence the prosecutor on
defendant’s case knew about this prior record, some of the victim’s prior convictions were
prosecuted by the same state office.
Sarber v. State,
2009 WL 2366097 (Minn. App. 2009) (unpublished)
Drug possession conviction vacated in post-conviction. The defendant was a passenger in the car
driven by the state’s primary witness. When police stopped the car, drugs were found either in
the console between the seats or under the driver’s seat. The defendant was the only one
charged. While the evidence of non-disclosure was not clear, it was clear that the witness had
been arrested only weeks before on a drug charge in which he attempted to shift blame to his
companion. In addition, the witness had met with a detective on numerous occasions to discuss
working as an informant in order to gain assistance with his pending charges. While defense
counsel was aware of the prior arrest and incident report, the state did not challenge the findings
that the discussions with the detective were never disclosed. Likewise, it was not disclosed that
the detective did approach the prosecutor and speak on the witness’ behalf. While there was no
formal agreement, the witness still had incentive to testify against the defendant. Because the
record was unclear, the court found alternatively that if the evidence was disclosed by the state,
counsel was ineffective in failing to impeach the witness with this information.
Ex parte Johnson,
2009 WL 1396807 (Tex. Crim. App. 2009) (unpublished)
Relief granted in post-conviction proceedings due to Brady violation in aggravated sexual assault
of a child case. The per curiam opinion does not discuss the facts but the concurrence does. The
day before the scheduled trial, the prosecutor interviewed the alleged victim who denied any
sexual abuse. Also, shortly before trial, the prosecutor’s investigator had been informed by
school officials that the alleged victim was a “great liar.” On the day of trial, the alleged victim
did not appear to testify. None of this was disclosed prior to the defendant entering a guilty plea
and later being adjudicated and sentenced to life. The complainant’s recantation was directly
exculpatory and the non-disclosure required a grant of relief.
State v. Smith,
2008 WL 5272480 (Tenn. Crim. App. 2008) (unpublished)
Rape of child convictions reversed due to state’s failure to disclose the alleged victim’s juvenile
adjudications for car theft and joyriding and her prior allegations of physical abuse by her
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grandfather that were not substantiated by social service workers.
Ex parte Toney,
2008 WL 5245324 (Tex. Crim. App. 2008) (unpublished)
Relief granted in post-conviction proceeding due to “Agreed Findings of Fact & Conclusions of
Law” of Brady violation. The per curiam opinion does not discuss the facts.
*Taylor v. State,
262 S.W.3d 231 (Mo. 2008)
In prison killing case, denial of post-conviction relief as to death sentence reversed in part due to
prosecution’s failure to disclose: (1) letters sent by the state’s jailhouse witness to the lead
investigator for the prosecutor that the investigator then destroyed; (2) a memorandum the
investigator composed memorializing one of his conversations with the jailhouse witness in
which the latter referenced the likelihood of his testimony being needed against petitioner and
contained false allegations of corruption on the part of two police officers; and (3) the state’s
intention to ask prosecutors to extend favorable treatment to the jailhouse witness on his pending
charges if he gave helpful testimony against petitioner.
People v. Hunter,
892 N.E.2d 365 (N.Y.App. 2008)
In case where defendant was charged with multiple sexual offenses against the alleged victim and
was convicted of sodomy despite his defense that what occurred was consensual, petitioner’s due
process rights were violated by the suppression of evidence that the complainant had later (but
before defendant’s trial) accused another of rape under similar circumstances, i.e., in both cases,
the alleged assaults took place in the accused man’s home. The other alleged assailant also
contended that the encounter was consensual but sometime after defendant’s trial pleaded guilty
to attempted rape. That plea, however, did not cure the due process violation that occurred from
the prosecution’s failure to reveal the accusation – “If the information known to the People when
this case was tried was ‘favorable to [the] accused’ and ‘material’ within the meaning of Brady,
defendant had a due process right to obtain it, and that right could not be nullified by post-trial
events.” And although the trial court did have the discretion to preclude the defendant from
impeaching the complainant with the second accusation, it also had the discretion to allow the
impeachment. In finding that the suppressed information was material, it was noted that the
prosecutor at defendant’s trial highlighted the implausibility of defendant’s account and that
evidence of a similar accusation may have left the jury more skeptical of the complainant. Also,
that the jury did learn of the complainant’s earlier threat to falsely accuse her own father of rape
did not render the withheld evidence cumulative.
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*In re Miranda,
182 P.3d 513 (Cal. 2008)
In capital case, habeas relief granted as to death sentence where prosecution suppressed inmate
letter tending to rebut its “star penalty phase witness” and contradicting prosecution’s suggestion
in argument that evidence that another person killed the second victim “didn’t exist.” State’s
argument that letter not material under Brady because it was inadmissible hearsay was erroneous
as inadmissible evidence may be material under Brady. The trial judge, not prosecutor, is arbiter
of admissibility, and prosecutor’s disclosure obligations do not turn on prosecutor’s view of
whether or how defense might use particular evidentiary items. Prosecutor’s disclosure
obligation depends on collective effect of all suppressed evidence favorable to defense, not effect
of evidence considered item by item.
People v. Beaman,
890 N.E.2d 500 (Ill. 2008)
In first degree murder case where evidence against petitioner was not particularly strong,
prosecution violated Brady by failing to disclose information about an alternative suspect, “John
Doe.” Doe was known to defense counsel as having been involved in a relationship with the
victim but counsel had no evidence pointing to him as the killer. The undisclosed evidence about
Doe consisted of the following: (1) Doe failed to complete a polygraph examination; (2) Doe was
charged with domestic battery and possession of marijuana with intent to deliver prior to
petitioner’s trial; (3) Doe had physically abused his girlfriend on numerous prior occasions; and
(4) Doe’s use of steroids had caused him to act erratically. That some of the undisclosed
evidence may have been inadmissible at trial did not mean it was not “favorable” given that it
could have assisted in gaining admission of critical alternative suspect evidence. First, the
undisclosed polygraph evidence would have bolstered a claim by petitioner that Doe was a viable
suspect because the circumstances of his avoidance of the exam could be viewed as evasive, and
also because the polygraph examiner indicated that Doe was specifically identified as a suspect.
The evidence that Doe was charged with domestic battery and had physically abused his
girlfriend on many prior occasions could also have been used by petitioner at a pretrial hearing to
establish Doe as a viable suspect given that Doe was in the process of renewing his romantic
relationship with the victim prior to her death. And the undisclosed evidence of Doe’s steroid
abuse may have explained his violent outbursts toward his girlfriend and supported an inference
of a tendency to act violently toward others. Finally, the undisclosed evidence that Doe had been
charged with possession of marijuana with intent to deliver could have been used by petitioner as
part of Doe’s motive to commit the murder in light of evidence that the victim owed Doe money
for drugs.
People v. Williams,
854 N.Y.S.2d 586 (N.Y.A.D. 2008)
In robbery case, defendant “substantially prejudiced” by untimely disclosure of Brady materials.
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Although victim could not identify robber, defendant was convicted based on testimony of
possible accomplice and another witness who defendant and accomplice visited later that day.
During cross-examination of police officer, defense counsel discovered defendant and
accomplice made statements that had not been disclosed, and prosecution file contained other
“potentially exculpatory material.” Motion to dismiss charges based on Brady violations denied
but trial judge instructed jury it could infer that had additional cross-examination been conducted
on one witness, witness would have been “further impeached.” This instruction failed to
ameliorate prejudice defendant suffered because jury not informed how witness’s testimony
would have been impeached or how it was different than before.
State v. Williams,
660 S.E.2d 189 (N.C.App. 2008), aff’d, 669 S.E.2d 628 (N.C. 2008)
Affirming dismissal of charges in assault on government employee case where government
officials destroyed booking photographs taken of defendant in different county before and after
the alleged assault and also destroyed a poster that had been made by prosecutors using those
same photographs. (After defendant was booked in StanlyCounty on unrelated charges, he filed
a lawsuit against a Stanley County Assistant District Attorney, as well as other Stanly County
officials. Defendant was then transferred to Union County, where the alleged assault on an
officer occurred. Defendant contended that he had in fact been the victim of assault byUnion
County officers. Defendant was transferred back to StanlyCounty where a second booking
photo was taken. The photos, according to the captions created by the prosecutors for the poster,
showed defendant “before and after” defendant filed his StanlyCounty lawsuit. The “before”
picture showed defendant at the initial booking in Stanly County. The “after” photo showed
injuries sustained by defendant during the assault incident in Union County. At the time this all
occurred, Union and Stanly Counties were in the same prosecutorial district.) The poster was
material because it would have been admissible as impeachment evidence. It was also relevant
to any defense that could have been offered, including self-defense. Noting that a judge refused
to admit testimony about the contents of the destroyed poster in the unrelated Stanly County trial,
the court found defendant was irreparably prejudiced by destruction of the poster and
photographs as to the Union County charge.
People v. Uribe,
76 Cal.Rptr.3d 829 (Cal.App. 2008)
In case where defendant was charged with various sexual crimes against his granddaughter, the
prosecution violated Brady by failing to disclose a videotape of a medical examination of the
alleged victim. In the motion for new trial, the defense expert explained how the videotape
provided further support for his trial testimony that there was no evidence of penetration, and
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contradicted the opinions offered by the prosecution experts. Knowledge of the videotape, which
was taken during an examination at a local medical center, was imputed to the prosecution given
that the medical center conducted such examination at the initiation of a police officer who was
investigating possible criminal conduct. This meant that the medical center was acting on the
government’s behalf and was part of the prosecution team for Brady purposes. The prosecution
also had greater access to records generated from the examination given that the examiner, in
accordance with law, forwarded the final report to law enforcement.
*State v. Brown,
873 N.E.2d 858 (Ohio 2007)
Where evidence established defendant was involved in deaths of two victims and the defense
theory was that defendant lacked the level of intent needed to establish “prior calculation and
design,” the prosecution breached its duty to provide all material evidence when it withheld
police reports containing statements implicating other persons in the murders, including
statements that someone other than Brown claimed responsibility for the murders. Even though
statements were “hearsay and might not be admissible,” they were material because they
suggested someone other than Brown “pull[]ed the trigger” which could have impacted the
sentencing decision. In addition, trial counsel’s decision not to contest Brown’s involvement in
the murders was based upon the evidence that had been disclosed. Had counsel known that
someone else had claimed to have fired the gun that killed the two victims, a different defense
strategy may have been employed. Undisclosed police reports “put the reliability of the verdict
in question,” and required new trial.
State v. Farris,
656 S.E.2d 121 (W.Va. 2007)
Prosecution’s failure to disclose to defendant, who was charged with sexually abusing children in
his care, evidence obtained by forensic psychologist during interview with defendant’s cousin,
that alleged victims’ mother had attempted to convince her to falsely accuse defendant of sexual
abuse, and that one of the alleged victims had inserted a toothbrush into her own vagina,
constituted a Brady violation. The undisclosed evidence provided impeachment evidence,
supported defendant’s claim that alleged victims’ mother convinced her children to lie, and
provided alternate explanation for physical evidence of vaginal penetration. The knowledge
obtained by the psychologist during the forensic examination, conducted at the request of the
West Virginia prosecution team investigating sexual abuse allegations against defendant, would
be imputed to West Virginia prosecuting authorities.
Ex Parte Elliff,
2007 WL 1346358 (Tex. Crim. App. 2007) (unpublished)
Summarily affirming grant of habeas relief in murder case where prosecution failed to disclose
the existence of a witness who possessed information indicating that someone else committed the
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offense.
State v. Youngblood,
650 S.E.2d 119 (W.Va. 2007)
Following remand from the Supreme Court for full consideration of defendant’s Brady claim,
defendant’s convictions for numerous sexual and weapons offenses are reversed and a new trial
ordered based on the suppression of a note that corroborated the defendant’s claim that the sexual
encounters were consensual and might have impeached the testimony of the alleged victim’s
friends who denied knowing about sexual activity between the defendant and the alleged victim.
Suppression is found given testimony that a police officer read the note and then urged the person
who discovered it to destroy it. Although the prosecutor was unaware of the note, a police
officer’s knowledge of it is imputed to the prosecutor.
Buchli v. State,
242 S.W.3d 449 (Mo. App. 2007)
In murder case, post-conviction relief is granted based on the State’s failure to disclose the entire
building surveillance tape which would have cast doubt on the prosecution’s timeline theory.
The complete tape would have provided petitioner “with plausible and persuasive evidence to
support his theory of innocence by supporting his theory that he did not have enough time to
commit the crime. If believed, this evidence would have established that [petitioner] had only
three and a half minutes to club [the victim] nine times with a blunt object, clean any blood from
himself, and get down 13 floors to leave the building. Although the jury was free to believe that
[petitioner] could have done all of these acts in less than four minutes, [petitioner] conceivably
could have used [the complete tape] to persuade the jury that the ‘time window’ was too brief.”
Walker v. Johnson,
646 S.E.2d 44 (Ga. 2007)
In case involving various charges, including kidnaping and robbery, the prosecution violated
Brady by suppressing taped statements by a witness who explained in detail why she believed the
victim had actually set up the crime to recover insurance monies, by the victim, and by the
defendant. Although the State did provide a one paragraph reference to the witness’s 48-page
statement, this did not comply with Brady given that these notes “omitted much of the potentially
exculpatory material contained in the complete transcript” and incorrectly reported that the
witness had offered no justification for her belief that no crimes occurred. “Rather than informing
the defense of the substantive nature of [the witness’s] statement, there is a significant likelihood
that the State’s incomplete and inaccurate response to Johnson’s discovery and Brady motions
induced defense counsel to believe either that the taped statements were not in existence or that
they contained no information beneficial to the defense.” Inconsistencies in the victim’s
statement would have assisted the defense during cross-examination. Finally, the defendant’s
statement would have been useful at trial because in it the defendant clearly told the interrogating
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officer where he was at the time of the crime and who could corroborate this, which would have
contradicted the officer’s trial testimony that the defendant never provided him with the names of
any alibi witnesses. Suppression of the defendant’s statement permitted the prosecutor to argue
that the alibi defense was recently fabricated.
Ex Parte Masonheimer,
220 S.W.3d 494 (Tex. Crim. App. 2007)
Double jeopardy under the state and federal constitutions barred a third trial of defendant charged
with murder where his prior mistrial motions were necessitated primarily by prosecution’s
intentional failure to disclose exculpatory Brady evidence with the specific intent to avoid the
possibility of an acquittal. The defendant contended that he killed the victim, who was his
daughter’s boyfriend, in self-defense. According to the defense, the victim had grown
increasingly aggressive toward the daughter due to his use of anabolic steroids. Suppressed by
the prosecution, among other things, was evidence that the victim had a hidden supply of
steroids.
Stewart v. Commonwealth,
2007 WL 89476 (Va. App. Jan. 16, 2007) (unpublished)
Brady violation found where prosecution belatedly revealed information about a third party who
could have been responsible for the check forgery that the defendant was charged with. Although
the information came out during the trial, defense counsel had cross-examined several witnesses
and the defendant had already testified in his own defense, “thus potentially compromising
whatever alternative trial strategy the evidence might have suggested.”
In re Sodersten,
53 Cal.Rptr.3d 572 (Cal.App. 2007)
In murder case where no physical evidence directly implicated petitioner, habeas relief was
granted based on the prosecution’s failure to disclose “tape-recorded statements of the two key
trial witnesses that contained inconsistent statements, as well as admissions of lying and coercive
interrogation of one of the witnesses.” The evidence was material even though other witnesses
placed petitioner at or around the victim’s residence before and after her bodywas discovered,
contrary to his alibi, given that the key prosecution witnesses were the only ones who identified
petitioner as the victim’s attacker/killer. And the fact that one of the suppressed tapes, which was
made surreptitiously when petitioner and one of the key witnesses were in custody, included
statements by petitioner that conflicted with his trial alibi did not defeat materiality because
petitioner offered an explanation for the conflict at the habeas hearing and he could have altered
his defense at trial had the tape been disclosed. That petitioner passed away before the court of
appeal ruled did not render the proceeding moot given that petitioner spent 20 years in prison for
a crime he may not have committed, and the integrity of the judicial system was undermined by
the prosecution’s actions.
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Workman v. Commonwealth,
636 S.E.2d 368 (Va. 2006)
In homicide case where defendant’s claim that victim was shot in self-defense depended on the
jury believing defendant’s assertion that victim’s friend had a gun, which the friend denied,
Brady violation occurred where prosecution failed to reveal that a witness in another case had
brought up this case during a police interview and reported having been told that the victim’s
friend had tried to pass the victim a gun during the altercation and then fled the scene with the
weapon. (The police never informed the prosecutor about this statement.) Because the police
failed to follow up on this witness’s statement, it was material because it would have been a
powerful tool to support the defense’s contention that the police investigation was inadequate. In
addition, once the defense team learned of the statement, the witness was interviewed and he
revealed personal knowledge about two recent “shoot outs” involving the victim’s friend. The
witness also led the defense to someone else who recounted a separate recent shooting by the
victim’s friend. Thus, even if the first statement was not admissible, it was material because its
disclosure would have led to exculpatory admissible evidence. There was no lack of diligence in
failing to discover the first statement even though defense counsel happened to interview one of
the officers who conducted the witness interview and that officer testified at trial. Under
Strickler, defendant could not be faulted for relying on the Commonwealth’s “open file” response
to defendant’s discovery motion. Finally, given how recent the new shooting incidents were, the
evidence could not be deemed cumulative of evidence at trial about the victim’s friend pointing a
weapon at a Deputy Sheriff four years earlier.
People v. Harris,
825 N.Y.S.2d 876 (N.Y. A.D. 2006)
Summary reversal of attempted murder and robbery convictions where prosecution failed to
disclose exculpatory material obtained by an investigator for the Monroe County District
Attorney and the subject material was Brady material because it affected the credibility of a key
prosecution witness. “Reversal of defendant’s judgment of conviction is required, moreover,
because defendant made a specific request for such material and ‘there is a “reasonable
possibility” that, had that material been disclosed, the result would have been different’”
*Riddle v. Ozmint,
631 S.E.2d 70 (S.C. 2006)
In case where the capital conviction rested almost entirely on the testimony of petitioner’s
mentally retarded younger brother, the prosecution violated Brady by failing to disclose a
statement made by the brother close to a year after his original statement which contained major
inconsistencies and the fact that three days before trial, the officers took the brother to the scene
for a re-enactment. Evidence about the trip would have underscored the defense position that the
brother was unreliable and needed to be coached. The lower court’s finding that the defense
could have found the statement by interviewing the officer who took it is rejected as “unrealistic”
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and not what Brady requires. The lower court also erred in finding that the defense could have
discovered the information through the prosecution’s “open-file” policy, given that the
prosecution routinely removed work product and other information on a “case-by-case” basis. In
addition, because the trip occurred only three days before trial, this further hindered any attempt,
even if required, to discover it. Finally, the brother testified that he had made no statements or
had any contact with officers after his first statement, and the prosecutor let this testimony go
uncorrected. The lower court was wrong to accept the State’s assertion that the brother simply
must not have understood the question or not recalled the events.
State v. Williams,
896 A.2d 973 (Md. 2006)
In murder case where key prosecution witness was a jailhouse snitch, a Brady violation occurred
by the suppression of evidence that the snitch was a paid informant and that he was seeking
leniency in another case based on his testimony in petitioner’s case, contrary to his claim on the
stand that he was testifying against petitioner solely because it was the right thing to do.
Although the particular Assistant State’s Attorney prosecuting petitioner was unaware of this
information, Brady mandated “that, under the circumstances of this case, the State’s duty and
obligation to disclose exculpatory and mitigating material and information extend beyond the
individual prosecutor and encompass information known to any prosecutor in the office.”
Defense counsel could not be blamed for failing to discover the impeachment evidence given that
the snitch’s status as a paid informant could only have been revealed by the prosecution or the
police. That defense counsel had conducted a “superb” cross-examination of the snitch failed to
render the suppressed impeachment evidence immaterial.
Sykes v. United States,
897 A.2d 769 (D.C. 2006)
Defendant convicted of robbery-murder and other charges was entitled to a new trial based on the
prosecution’s failure to timely provide grand jury testimony of two witnesses, who were
unavailable at the time of trial, which directly contradicted the confidential informant’s testimony
with respect to defendant’s alleged express and adoptive admissions. That the defendant was
permitted to introduce portions of the grand jury testimony did not cure the error because the
prosecutor was able to suggest that the witnesses had not been truthful before the grand jury and
the jury was not able to observe the witnesses’s demeanor and make a credibility determination.
State v. Anderson
2006 WL 825270 (Ohio App. Mar. 31, 2006) (unpublished)
DUI charges properly dismissed where defendant requested that videotapes taken of him and his
interaction with police be preserved and the State destroyed them. Due to the specificity of
defendant’s request, State is found to bear the burden of demonstrating that the evidence would
have been wholly inculpatory, which it could not. In addition, the destroyed videotapes would
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have resolved several matters in dispute and provided the only possible impeachment of the
officers.
*Simpson v. Moore,
627 S.E.2d 701 (S.C. 2006)
In case involving charges of robbery-murder at a convenience store, the prosecution’s failure to
disclose that a bag of money was found behind the counter violated Brady. One victim/witness
testified that after some shots were fired, petitioner took money from the cash register. Petitioner
claimed that he “chickened out” of the robbery, only shot the owner after the owner accosted
petitioner, and did not take any money from the store. The bag of money at the crime scene was
determined to be critical evidence regarding the robbery charge/aggravator. A new trial was
ordered on the robbery charge, with a resentencing to follow based on the outcome of that retrial.
State v. Larkins,
2006 WL 60778 (Ohio App. Jan. 12, 2006) (unpublished)
Indictment on robbery charges is dismissed where defendant’s initial conviction was overturned
based on the State’s failure to disclose a wealth of Brady material and the defendant now would
be unable to use the information that had been suppressed because eight defense witnesses were
now deceased and 10 had no known address.
State v. Scheidel,
844 N.E.2d 1248 (Ohio 2006)
In prosecution for kidnaping, rape and attempted rape, the prosecution violated Brady by
suppressing notes from an interview with the child victim before trial, in which the child stated
that defendant did not penetrate her vagina. Materiality is found even though the notes did not
constitute a “statement” by the victim and despite a clear description by the child of the rape to a
nurse, evidence of vaginal scarring, and testimony by a friend of the defendant who claimed on
one occasion to have walked into the child’s room and discovered the defendant with his pants
down standing over the bed of the naked, crying child.
Commonwealth v. Lykus,
2005 WL 3804726 (Mass. Super. Dec. 30, 2005)
In kidnaping and murder case where evidence against defendant included dye from ransom
money that was found in his car and on his belongings, same kind of bags that ransom money
was in were found in his truck, bullets in victim were consistent with those fired from his gun,
and several witnesses identified his voice on tapes demanding ransom money, a Brady violation
is found from the Commonwealth’s failure to disclose FBI lab reports indicating that defendant’s
voice could not be conclusively established to be the voice on the tapes. Although the prosecutor
had requested production of this evidence, supervisors at the FBI specifically directed agents not
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to produce it. The suppression of the lab reports is nonetheless imputed to the Commonwealth
because the FBI had been “intimately involved” in the investigation of the case. Even if the
suppression could not be imputed to the Commonwealth, the lab reports would then be
considered newly discovered and still provide grounds for a new trial given that the voice
identification was a “major component” of the case against defendant.
*Schofield v. Palmer,
621 S.E.2d 726 (Ga. 2005)
Despite the existence of “considerable” evidence implicating petitioner in the murders of his
estranged wife and step-daughter, habeas relief was required based on the prosecution’s
suppression of evidence that the Georgia Bureau of Investigation had paid a witness $500 for
providing information implicating petitioner. Petitioner’s nephew testified that he went to the
victims’s home with petitioner, cut the phone lines at petitioner’s request, and petitioner then
kicked in the door and shot the victims. The defense theory was that the nephew alone was
responsible for the crime. The witness at issue testified to seeing petitioner’s car parked in the
location described by the nephew. Evidence of the payment was material because it provided a
basis for impeaching the witness. Suppression of the evidence provided cause to overcome the
procedural default of the claim.
People v. Proventud,
802 N.Y.S.2d 605 (N.Y. Sup. 2005)
In attempted murder case, prosecution violated Brady by failing to disclose that the victim
identified defendant’s brother in a photo array and wrote down “looks like him.” Notably, the
conduct of the jury during trial indicated that identification was a major issue. Relief was
required despite the fact that the identification was tentative and that defendant’s brother was
incarcerated at the time of the crime.
People v. Blackman,
836 N.E.2d 101 (Ill. App. 2005)
State violated Brady when it failed to disclose the payment of $20,000 in relocation expenses to a
witness where the witness in question was one of only two to put defendant at the scene and the
only one who was not chemically impaired at the time. Nondisclosure of information prevented
defendant from the impeaching witness and making a knowing choice of jury trial over bench
trial. Court’s offer of continuance following disclosure of information insufficient to cure error.
Robinson v. Commonwealth,
181 S.W.3d 30 (Ky. 2005)
Napue violation occurred at the sentencing proceedings following defendant’s conviction for
various drug offenses when the parole officer erroneously testified that good time credits would
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be factored into the parole eligibility date and the prosecutor not only failed to correct this
incorrect information in his argument to the jury, but relied heavily on the parole officer’s
testimony in arguing that the jury should impose the maximum penalty.
People v. Garcia,
2005 WL 2387474 (Cal. App. Sept. 29, 2005) (unpublished)
In attempted murder case, the prosecution’s failure to disclose a letter requesting leniency for a
witness for his participation in the case and requesting his placement in a witness protection
program, when considered in combination with misconduct by the prosecutor during argument,
justifies a new trial. At trial, the witness had claimed that he was testifying because he received a
deal that released him from juvenile hall. The lead investigator testified that the State had
requested leniency for the witness in a separate case. With regard to another witness, the
investigator testified that she was absolutely sure of her photo identification while the witness
said she had equivocated. It is found that the suppressed information would have assisted in the
impeachment of one witness and also have damaged the credibility of the investigator with
regard to the disputed circumstances of the other witness’ photo identification.
Bowlds v. State,
834 N.E.2d 669 (Ind. App. 2005)
In case of criminal recklessness resulting in serious bodily injury, the prosecution’s suppression of
three police reports violated Brady. The reports included information about the arrest of another
suspect matching the description of the assailant, incriminating statements by another person
present at the scene, hearsay statements regarding culpability of a third possible suspect, and
prior-conviction impeachment material concerning two witnesses who identified petitioner in a
lineup.
*McCarty v. State,
114 P.3d 1089 (Okla. Crim. App. 2005), cert. denied, 126 S.Ct. 660 (2005)
Post-conviction relief granted in rape-murder case because of the conduct of forensic analyst
Joyce Gilchrist, who withheld evidence, most likely destroyed exculpatory evidence, provided
flawed analysis and documentation, testified in a manner that exceeded the limits of forensic
science, and altered lab reports to avoid detection.
*Tillman v. State,
128 P.3d 1123 (Utah 2005)
Petitioner was entitled to relief from his death sentence where, following conclusion of federal
habeas proceeding and while execution date was active, petitioner discovered partial transcripts
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of pre-trial interviews conducted with state’s star witness. Because the State had affirmatively
represented that no recordations of interviews had been made, petitioner was not under an
obligation during the first round of post-conviction proceedings to have found them and
petitioner demonstrated good cause under state common law to overcome the procedural default
of his Brady claim. The key witness, who was present at the crime scene, was granted complete
immunity and presented the only evidence against petitioner. The transcript contained indications
that the witness was not as certain about the sequence of events as she was at trial; evidence that
an officer was attempting to coach her testimony; inappropriate laughter when recounting details
of the gruesome murder; and evidence that petitioner was suicidal prior to the incident. The
evidence was material as to the sentence because discrepancies, coaching, and laughter tended to
decrease the witness’s credibility and therefore could have increased the jury’s perception of her
moral culpability. If the witness was more culpable than she indicated, the State’s attempt to
portray her as an innocent victim under the sway of petitioner would have been undermined. An
increase in her moral culpability could also have underscored to the jury the disparate treatment
of granting the witness full immunity while sentencing petitioner to death. Evidence of
petitioner’s suicidal ideation was found to be mitigating.
*Floyd v. State,
902 So.2d 775 (Fla. 2005)
In robbery-murder case with an African-American defendant, prosecution violated Brady by
suppressing statements of a neighbor who saw two white men park their truck in the victim’s
driveway and enter the victim’s house, heard “scrambling” noises while the men were inside, and
saw the men leave hurriedly, all within the time period the medical examiner had estimated as the
time of death. This was Brady evidence particularly when combined with other evidence in
police reports that was inconsistent with the State’s presentation at trial, including
inconsistencies in reports of pry marks on interior window frames, and arguments regarding the
presence of Negroid hair on the victim’s sheet despite the fact that the bed was made at the time
of the crime. Also suppressed were letters written by a jailhouse snitch seeking a bonus for his
help. The court found that the Brady evidence warranted relief, despite the fact that it did not
amount to “irrefutable evidence” or “smoking gun” for innocence. (The evidence against the
defendant included his ownership of a coat which contained a sock with the victim’s blood on it
and his having cashed a check belonging to the victim.)
Prewitt v. State,
819 N.E.2d 393 (Ind. App. 2004)
In murder case involving the death of the defendant’s husband, who the defendant claimed she
found dead in the bathroom with a gunshot wound in the head after she awoke from a blackout,
the prosecution violated Brady by suppressing evidence that could have supported a third party
guilt defense. Without the evidence, the only available defense had been suicide. A State
detective had indicated that there was no exculpatory evidence, but withheld the following
information: (1) the known presence of defendant’s son at the crime scene during a key time
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period coupled with statements that he went by a witness’s house and said that he would be going
to California if something happened that night and then left a blood trail from there back to the
bar where he was later seen; (2) a witness’s statement that the son and a friend moved the
victim’s body, which was consistent with crime scene evidence; and (3) witness statement that
the son had hired him to beat up the victim. The defendant was not guilty of lack of due diligence
in obtaining this information because the State had misrepresented the status and results of its
investigation. Although the body moving evidence was not independently material, it was found
to fall under Brady as a part of a cumulative analysis.
*Mordenti v. State,
894 So.2d 161 (Fla. 2004)
In murder-for-hire case where the prosecution’s case turned almost completely on the testimony
of petitioner’s former wife, the prosecution violated Brady by failing to turn over the ex-wife’s
date book which contradicted part of her testimony and affected the credibility of other parts of
her testimony. In addition, an entry on the date of the murder implicated the ex-wife’s then
boyfriend in the killing. The prosecution also violated Brady by failing to turn over the results of
an interview with the lawyer who had represented the victim’s husband who had been charged
with hiring petitioner to commit the murder. (The victim’s husband had committed suicide prior
to trial and the trial court, unbeknownst to defense counsel, issued an ex parte order finding that
the attorney- client privilege no longer applied and ordering the attorney to submit to an
interview with the State.) The attorney revealed in the interview that petitioner’s ex-wife and the
victim’s husband had had an affair and the victim’s husband believed that the ex-wife had
orchestrated the murder. The victim’s husband had also claimed that a phone call to petitioner
on the day of the murder was related to business and had been set up by the ex- wife. This was
consistent with petitioner’s explanation about the call. Even if the attorney’s testimony was
inadmissible hearsay, it was nevertheless material because it would have led defense counsel to
discover evidence for impeaching the ex-wife. Further, the testimony may have been admissible
for impeachment purposes. “Cumulatively, the total picture in this case-the State’s Brady
violations in failing to disclose [the ex-wife’s] date book and the undisclosed information
obtained from [the attorney’s] interview with the State, in addition to other Brady violations
where the State failed to disclose information obtained from interviews with key witnesses
coupled with misrepresentations by the prosecutor-compels us to grant Mordenti relief in the
instant case.”
Herndon v. Commonwealth,
2004 WL 2634420 (Ky. App. Nov. 19, 2004) (unpublished)
In sexual abuse case, investigating detective is found to have lied in order to mislead the jury.
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Commonwealth v. Vettraino,
2004 WL 2320319 (Ky. App. Oct. 15, 2004) (unpublished)
Grant of post-conviction relief upheld where detective remained silent when prosecution argued
that petitioner’s defense – that he only shot the two victims after the surviving victim raised his
arm revealing a silver gun – was unbelievable because no such gun was found at the crime scene.
In fact, the detective had discovered a silver gun in the male victim’s night stand. By smelling
and examining it, the detective concluded it hadn’t been fired. He also found it to be irrelevant
because he saw no blood trail leading from the kitchen, where the shooting occurred, to the night
stand. The evidence was material because defense counsel would have tested for blood between
the kitchen and night stand.
State v. Johnson,
599 S.E.2d 599 (N.C. App. 2004)
Trial court erred in violation of defendant’s rights under Brady v. Maryland in this sexual
offenses case when it failed to order that defendant be provided with Department of Social
Service records concerning the minor victim which indicated: (1) the victim’s brother had a
history of physical violence; (2) the victim and her brother suffered yeast infections at the same
time; (3) the victim and her brother were sometimes left in the house alone together; (4) the
victim admitted lying to a social worker on one occasion about injuries; and (5) the victim’s
mother believed that she could have caused at least one of the victim’s injuries.
State v. Martinez,
86 P.3d 1210 (Wash. App. 2004)
Prosecution violated Brady by withholding an exculpatory police report until shortly before it
rested its case. “The State prosecutor’s withholding of exculpatory evidence until the middle of a
criminal jury trial is . . . so repugnant to principles of fundamental fairness that it constitutes a
violation of due process.” Defendant had been charged with being an accomplice to numerous
crimes. The actual perpetrators claimed that defendant had been the mastermind and had
provided them with the two guns used in the offense – one black, one silver. A co-worker of
defendant was shown a line-up of guns and picked out the guns recovered by the perpetrators as
the guns shown to her by defendant in December 1999 which he had offered to sell to her. What
the prosecution failed to reveal until well into the trial was a police report establishing that the
silver gun had been owned by a third party who had not reported it stolen until October 2000.
Thus, the silver gun earlier possessed by defendant, which he had reported stolen in the summer
of 2000, could not have been the gun recovered by one of the perpetrators. On this record, where
the jury hung 10-2 in favor of acquittal, the appeals court concludes that the trial court did not
abuse its discretion in dismissing the refiled charges as a sanction for the prosecution’s
misconduct.
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State v. Hill,
597 S.E.2d 822 (S.C. App. 2004)
Trial court erred as a matter of law in holding that Brady and the state discovery statute did not
apply in probation revocation proceedings. The Probation Department was required to disclose
exculpatory documents in the possession of investigating agencies, even though it was a
separate entity from those agencies. The suppressed evidence was found to be material even
though it had been considered during a motion for reconsideration that was denied. The court
reasoned: “Having already found Hill violated his probation and having imposed a sentence,
we believe it would have been difficult for the court to be completely objective during the
subsequent proceeding.” Further, Hill was denied the opportunity to thoroughly cross-examine
the witnesses when armed with full information.
State v. Bright,
875 So.2d 37 (La. 2004)
Second degree murder conviction reversed where prosecution suppressed evidence of its key
witness’s criminal history, including the fact that he was on parole at the time of his
identification of petitioner, and could have been subject to parole revocation due to his drinking
at the time of the offense. In concluding that the suppressed evidence was material the court
noted that no physical evidence or other witnesses implicated petitioner, and the defense alibi
witnesses had been impeached by their prior criminal convictions.
State v. White,
680 N.W.2d 362 (Wisc. App. 2004)
In armed robbery case, petitioner was entitled to post-conviction relief based on the prosecution’s
failure to disclose the probationary status of the alleged victim/key prosecution witness. While
the alleged victim, who was a store clerk, claimed that petitioner robbed him at gunpoint,
petitioner testified that the alleged victim had willingly given him money from the cash register
to compensate petitioner for a shortfall in a prior marijuana purchase. Although the jury did learn
that the witness had a prior conviction, there was a reasonable probability of a more favorable
verdict had the jury been given evidence showing a possible motive for the witness to shape his
testimony, i.e., to avoid having his probation revoked.
People v. Richardson,
2004 WL 1879506 (Cal.App. 2004) (unpublished)
In case where defendant was charged with, among other things, resisting arrest and battery on
peace officers, the prosecution violated Brady by failing to disclose a complaint against one of
the arresting officers alleging that the officer used excessive force in arresting the complainant.
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This was material because it supported defendant’s contention that the same officer used force on
him, without provocation, and then falsely claimed that the force was justified by defendant’s
conduct. That the complainant recanted his story when ultimately interviewed by the defense did
not defeat the Brady claim.
People v. Stein,
2004 WL 1770418 (N.Y.A.D. 2004)
Defendant who had been convicted of numerous sexual offenses, as well as endangering the
welfare of a child, was entitled to a new trial based on the prosecution’s failure to disclose that
two of the complainants had filed notices of civil claims against defendant’s employer, a school
district, attempting to hold it responsible for defendant’s alleged criminal conduct. Evidence of
the civil claims was highly relevant to the issue of the complainants’ credibility. The failure to
disclose this evidence was aggravated by the prosecutor’s argument during summation that there
was no evidence that the complainants were bringing civil lawsuits.
Commonwealth v. Adams,
2004 WL 1588108 (Mass. Super. 2004)
Petitioner who had been convicted of murder and robbery was entitled to a new trial based on the
prosecution’s suppression of evidence including the prior criminal records of Commonwealth
witnesses, and police notes and reports showing prior inconsistent statements of a key
Commonwealth witness.
Toro v. State,
2004 WL 1541917 (R.I.Super. 2004) (unpublished)
Under Rhode Island’s “variable standard for applying Brady,” a new trial is granted automatically
where there was a deliberate failure to disclose by the state regardless of the degree of harm.
Here, defendant was entitled to a new trial based on an investigating officer’s failure to disclose
to the defense that an uninterested witness claimed that a key prosecution witness had admitted to
him that he had not actually seen defendant commit the murder. That the prosecutor was ignorant
about this new witness was irrelevant, as was the alleged “good faith” of the officer who claimed
to have withheld the information because he concluded it was not credible.
Babich v. State,
2004 WL 1327986 (Minn. App. 2004) (unpublished)
In drug sale and possession case, prosecution violated Brady by failing to disclose the full
statement of the key witness which contradicted trial testimony by the witness and a police
officer claiming that the witness had not mentioned petitioner’s drug activities during an initial
interview. The full statement was also exculpatory in that it contained a basis for suggesting that
someone other than petitioner could have had exclusive control over the methamphetamine
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petitioner was charged with possessing and selling.
Williams v. State,
831 A.2d 501 (Md. App. 2003)
Brady violation is found in homicide case where the prosecution failed to disclose that jailhouse
snitch was a paid police informant for a drug unit, that he received benefits in criminal cases
because of his assistance to the drug unit, and that he had requested leniency from the judge in a
pending criminal case based in part on his testimony against petitioner. Although neither the
trial prosecutor nor the homicide investigators were aware of this information, under the
circumstances of this case – which included the fact that a judge had notified the prosecutor’s
office of the informant’s requests for leniency – the appeals court finds that “it is not
unreasonable to charge the prosecution with knowledge of impeachment information about [the
informant] that, in violation of Brady v. Maryland, it failed to divulge to appellant’s counsel.”
The court explained: “When, as here, there is an obvious basis to suspect the motives and
credibility of a proposed witness for the State, it may be incumbent upon the State’s Attorney, in
an office with many Assistant State’s Attorneys, to establish a procedure to facilitate compliance
with the obligation under Brady to disclose to defense material that includes information ‘casting
a shadow on a government witness’s credibility[.]’ Moreover, the police officers who are part of
the prosecution team should be required to make some investigation into the background of the
jailhouse snitch.” (Footnote and citation omitted.) In finding that the undisclosed information
was material, the court pointed out that the snitch provided direct evidence against petitioner and
that the only other direct evidence was from a witness whose testimony was confused and
contradictory.
People v. Stokes,
2003 WL 22707339 (Cal. App. 2003) (unpublished)
Defendant was denied a fair trial in case involving charges of sexual offenses where the
prosecution failed to disclose a lengthy police report until nearly a year after the alleged victim’s
conditional examination and the report contradicted some of the testimony given by the alleged
victim during the examination. Because the victim died prior to trial, the conditional examination
was offered into evidence and defendant was unable to cross-examine the witness about the
police report.
State v. Larkins,
2003 WL 22510579 (Ohio App. 2003) (unpublished)
In robbery-murder case where no physical evidence linked defendant to the crime, the trial court
properly found a Brady violation by the prosecution’s failure to disclose, inter alia, that: (1) a
witness’s description of the assailant who was allegedly defendant, i.e., “Road Dog,” did not
match defendant; (2) this same witness claimed “Road Dog” and the codefendants were at his
home at a time when a trial witness stated she was with defendant; (3) another witness provided a
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statement which contradicted some trial testimony, implicated a third party as being “Road Dog,”
and provided a possible alibi for defendant; (4) all the eyewitness descriptions obtained from
people present at the crime scene differed from defendant’s appearance; and (5) the testifying
co-defendant lied when asked if the prosecution had promised her anything in exchange for her
testimony and about her past criminal convictions.
Ex Parte Molano,
2003 WL 22349039 (Tex.Crim.App. 2003)
In case involving conviction for bodily injury to a child, record supported trial court’s grant of
relief on Brady claim. Although there was no intentional suppression by the trial prosecutors,
police agencies and other prosecutors in the same office were aware of written statements by
witnesses that would have impeached two of the trial witnesses and supported the defense.
People v. Lee,
2003 WL 22100843 (Cal.App. 2003) (unpublished)
The prosecution violated Brady by failing to disclose a dispatch tape containing a description of
the suspect that did not match defendant. Although defendant was aware of the description
because it was mentioned in a police report, and the names of officers from various jurisdictions
were included in that report, defense counsel had been unable to find the source of the
description and so was without admissible evidence on this issue. Once he received the dispatch
tape, after defendant had been convicted, defense counsel was able to identifythe officer and
obtain favorable testimony. The court rejects the State’s argument that it met its Brady
obligations by giving defendant notice of the description and names of possible sources.
“Respondent’s position here would support a prosecutor’s disclosure of exculpatory statements,
and a list of names of possible witnesses, accompanied by a deliberate refusal to divulge which,
if any, of the listed witnesses made the exculpatory statements. This turns the important
constitutional mandate of Brady into a childish game of hide-and-seek. Reasonably diligent
defense counsel should be able to operate under the assumption that the prosecutor has complied
with Brady at least to the extent of disclosing evidence of exculpatory statements made by police
officers that were part of the investigative team in the case being prosecuted.”
*Head v. Stripling,
590 S.E.2d 122 (Ga. 2003)
In Georgia capital case, the prosecution violated Brady by failing to disclose petitioner’s
confidential parole records for his prior convictions, where the records revealed that State
officials and petitioner’s mother had characterized him as mentally retarded, that a State official
characterized an above-average IQ test result as “questionable,” and that petitioner had sub-70 IQ
score on another IQ test taken when he was 16 years old. Such evidence was material given the
prosecution’s assertion at trial that petitioner had recently concocted his mental retardation claim,
and the prosecution relied on the above-average IQ test score as direct evidence of his actual
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intelligence. That the State had an alleged good motive in keeping the records from petitioner –
the statutorily-imposed confidentiality of parole files – was irrelevant to the Brady claim. A state
statute regarding parole file confidentiality cannot trump a capital defendant’s constitutional
rights.
State v. Bennett,
81 P.3d 1 (Nev. 2003)
The prosecution committed a Brady violation where it failed to disclose a statement by a
jailhouse informant that the co-defendant had admitted that he planned the murder of the victims
during the robbery and had convinced petitioner to do the killing. Although the statement was
obtained after the jury returned a death verdict against petitioner, it was before formal sentencing
and its revelation to petitioner when it was obtained would have entitled petitioner to a new
penalty hearing. The statement was favorable at the sentencing stage in that: (1) it was relevant to
refute the aggravating circumstance that the murder was random and without apparent motive;
and (2) it provided mitigating evidence by characterizing petitioner as a follower who was
convinced by the co-defendant to participate. In finding a reasonable probability of a more
favorable result had the information been disclosed, the court notes that the statement
corroborated petitioner’s contention that he had fallen under the influence of the co-defendant
who had planned the crime, and that the prosecution also failed to disclose the prior criminal
history contained in the co-defendant’s juvenile records from Colorado, and the fact that a
prosecution witness had been a paid informant in Utah.
State v. Greco,
862 So.2d 1152 (La. App. 2003)
In non-capital robbery-murder case where the defendant had claimed self-defense, the trial court
did not abuse its discretion in finding that the defendant was entitled to relief based upon the
recantations of two prosecution witnesses and their claims that law enforcement officers and the
prosecutor’s investigator suborned perjury. The witnesses testified in post-conviction
proceedings that the prosecution’s key witness was the one who stated he planned to “roll” the
victim, and that they had falsely attributed the remark to defendant at trial because of threats by
authorities. The credibility of trial testimony by the officers regarding the circumstances of taking
defendant’s confession, in which a detective admitted paraphrasing certain statements and
omitting others, was sufficiently undermined and called into doubt the validity of other
statements and the confession, thus entitling defendant to a new trial.
Brownlow v. Schofield,
587 S.E.2d 647 (Ga. 2003)
Prosecutor violated Brady in child molestation case by failing to reveal that during an interview
10 days before trial the alleged victim shook his head negatively when asked by the prosecutor
whether the defendant had committed oral sodomy on him. The trial court erred in denying relief
on the ground that the prosecution had disclosed to the defense similar and more weighty
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exculpatory evidence, i.e., a videotape of an earlier interview with the alleged victim in which he
denied that any improper touching occurred. Given that the only evidence of defendant’s guilt
was the alleged victim’s trial testimony claiming oral sodomy had occurred, there was a
reasonable probability of a more favorable verdict on that count had the prosecutor disclosed the
second denial.
People v. Kazakevicius,
2003 WL 21190612 (Mich.App. May 20, 2003)(unpublished)
In case involving charges of criminal sexual conduct, a Brady violation occurred when the
prosecution effectively suppressed the alleged victim’s counseling records that “could be read to
indicate that the victim had suppressed her memories of the alleged sexual abuse for several
years; that it was through counseling that these memories resurfaced; that the victim still did not
have a complete memory of what allegedly happened; and that the victim’s memories may have
been triggered by a form of hypnosis during counseling.” (The records were in the possession of
the prosecution and the trial court denied defendant’s request for in camera review of the
records.) The counseling records were material given that the victim’s testimony was the
principal evidence against defendant, and the counseling records “would have allowed defendant
to explore possible alternative explanations for the origin of the allegations of sexual abuse,
including whether they were the product of outside influences affecting both the reliability of the
allegations and the credibility of the victim.”
State v. VanWinkle,
2003 WL 1798945 (Neb.App. April 8, 2003)(unpublished)
In case involving charges of burglary and criminal mischief, the prosecution violated Brady v.
Maryland when it suppressed a letter written by its key prosecution witness – who was the
alleged accomplice– which stated that defendant was innocent of the crimes. The fact that the
information was not sought by Van Winkle through a discovery request was irrelevant. And the
letter was not cumulative to other evidence which also impeached the alleged accomplice. “The
fact [the alleged accomplice] was impeached to a degree by evidence that he had lied when he
accused VanWinkle of another similar crime in Palmer, that he was an unwilling witness
testifying under the threat of prosecution for additional crimes, and that he had told [another
person] that VanWinkle was not there is not the same as a written statement to the prosecutor
that [the alleged accomplice] was lying when he accused VanWinkle of the crime.”
Keeter v. State,
105 S.W.3d 137 (Tex. App. 2003)
In case involving charges that defendant sexual abused his stepdaughter, his claim of Brady error
was properly preserved through his amended motion for new trial which was accompanied by an
affidavit from the victim’s stepmother stating that the victim had changed her story so many
times that she was not believed by the stepmother, and that the prosecutor told the stepmother
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that she would not be called as a witness in light of her disbelief of the victim. Based on the
evidence presented at the hearing on the motion for new trial, it is found that the prosecution
suppressed favorable evidence that neither the victim’s father nor her stepmother believed the
victim, that they thought she was a constant liar, and that the victim had made contradictory
statements to them about defendant. This evidence was material given that the case against
defendant rested on the testimony of the victim, and the suppressed evidence could have raised
doubts about the victim’s credibility. The court squarely rejects the argument that the evidence
did not have to be disclosed because it could have been discovered by defense counsel acting
with due diligence. “The cases do not hold that the prosecution is relieved of its duty under Brady
to disclose exculpatory evidence when defense counsel (a) knows or should know a witness
exists, and (b) might discover the exculpatory evidence if defense counsel asks the right
questions of the witness. Implementation of such a rule could effectively undermine Brady
because it would almost always relieve the prosecutor of disclosing Brady information.”
State v. Lindsey,
844 So.2d 961 (La.App. 2003)
In homicide case where the defense at trial centered on petitioner’s intoxication, the prosecution
violated Brady by failing to reveal that two witnesses who testified to petitioner’s sobriety at trial
had previously stated that he was intoxicated at the time of the shooting. Although petitioner’s
trial counsel could not be found, and so there was no definitive proof that the prior statements
had not been disclosed to him, the appellate court rejected the trial court’s conclusion that
petitioner had failed to meet his burden of establishing suppression. The trial prosecutor, who
had not been on the case throughout the proceedings, testified that she would have turned over
the statements had she been aware of them. Given that defense counsel presented an intoxication
defense but did not impeach the witnesses with the prior statements, the prosecutor presumed
that defense counsel did not receive the statements. Further, the prosecution’s file indicated that
the State’s answer to discovery was that the defense was not entitled to the witnesses’ statements.
Finally, the suppressed statements were material under Brady, contrary to the finding of the trial
court.
Hutchison v. State,
118 S.W.3d 720 (Tenn. Crim. App. 2003)
In burglary and assault case, the trial court did not err in considering a claim of Brady error that
was raised after the statute of limitations had run in light of its finding that petitioner Harper had
raised the claim within one year of learning about the existence of an exculpatory FBI report
indicating that petitioner Hutchinson’s tools had not been used in the burglary. The trial court
also properly permitted the petitioners to amend their petitions, despite a limited remand from the
appellate court, given the discovery of additional exculpatory evidence. Evidence supported the
trial court’s finding that the state, acting in good faith, unintentionally failed to disclose
exculpatory material, i.e., the FBI report and a statement by a witness which would have lent
some support to the defense theory that the assault was committed by the victim’s cousin and
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was unrelated to any burglary. The grant of post-conviction relief on the claim of Brady
violations is affirmed.
Harrington v. State,
659 N.W.2d 509 (Iowa 2003)
Approximately twenty-five years after his murder conviction, petitioner was granted postconviction relief based on the suppression of police reports that provided “abundant material for
defense counsel to argue that [a third party] had the opportunity and motive to commit the crime.”
Although trial counsel had some information about a suspicious third party, he was denied “the
‘essential facts’ of the police reports so as to allow the defense to wholly take advantage of this
evidence.” In order to show materiality petitioner was not required to establish that the police
reports would have “led to evidence that someone else committed [the] crime.” If the evidence
would create a reasonable doubt about the petitioner’s guilt, “it is material even if it would not
convince the jury beyond a reasonable doubt that [the third party] was the killer.”
People v. Martinez,
103 Cal.App.4th 1071 (Cal.App. 2002)
Habeas relief granted where prosecution failed to investigate and confirm allegations that critical
prosecution witness had prior felony convictions that had been expunged and also failed to reveal
that charges were pending against the witness at the time of trial.
Ramirez v. State,
96 S.W.3d 386 (Tex.App. 2002)
In “official oppression” prosecution, State’s knowing use of false and misleading testimony by
key witness against defendant entitled him to a new trial. The State violated the
Mooney-Pyle-Napue line of cases by permitting the witness to testify that her contact with an
attorney was not about seeking money, even though the prosecution was aware that a civil suit
had been or soon would be filed by that attorney against the city. That the witness did not know
that the lawsuit had actually been filed at the time she testified was irrelevant since the State
knew that the testimony was false or misleading.
*Ex parte Richardson,
70 S.W.3d 865 (Tex. Crim.App. 2002)
Capital conviction and death sentence reversed based on prosecution’s suppression of a diary
kept by one of the police officers who was guarding the State’s sole eyewitness to the crime. The
diary revealed the officer’s belief that the witness was not a truthful person, and also identified
five other members of the protective team who harbored the same opinion. In finding the
suppressed evidence material, the appeals court notes that the eyewitness’s credibility was the
key issue, and when her credibility was successfully challenged at the separate trials of the two
co-defendants, both were acquitted. Although petitioner did challenge the witness’s credibility at
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the time of his own trial, “nothing that [petitioner’s] attorney presented . . . could compare with a
parade of six law enforcement officers testifying that, in their opinion, [the purported eyewitness]
was not a credible witness and not worthy of belief under oath.”
Nickerson v. State,
69 S.W.3d 661 (Tex.App. – Waco 2002)
Murder conviction is reversed due to prosecution’s untimely disclosure of a videotape showing
defendant’s bizarre behavior in jail prior to trial. (The tape was revealed for the first time during
the punishment phase of the proceedings.) It was clearly favorable to an insanity defense, which
defendant had considered raising, and it was undisputed that the tape was in the possession of
agents acting on behalf of the State. In light of the uncertainty regarding defendant’s sanity, his
personal “knowledge” of the taped event had no bearing on what his attorney should have known.
The tape was deemed “material” given that two mental health experts expressed strong
reservations about their initial sanity diagnoses after their review of the videotape, and despite
the fact that two experts presented by the prosecution did not believe that the tape established
defendant’s insanity at the time of the crime.
*Conyers v. State,
790 A.2d 15 (Md. 2002)
Post-conviction relief granted regarding capital conviction and death sentence where the State
suppressed evidence that the jailhouse snitch requested a benefit when he first approached the
police and that he refused to sign his written statement absent such a commitment. That the jury
was aware that the informant later received a plea agreement in return for his testimony against
defendant did not vitiate the State’s error in withholding the other evidence. The suppressed
evidence is found to be material for a number of reasons, including: (1) the snitch was a key
witness as to defendant’s principalship in the murder and principalship directly governed
eligibility for the death penalty; and (2) the prosecution emphasized the snitch’s credibility in
argument.
Hensley v. State,
48 P.3d 1099 (Wy. 2002)
Where the state suppressed evidence which could have been used to impeach a confidential
informant, the Court held that such evidence was material and warranted a reversal of the
defendant’s conviction. The evidence at issue was an audio recording of the informant allegedly
using methamphetamine, which was inconsistent with her testimony that she was addressing her
addiction and only used methamphetamine once during the two years that she worked for the
government.
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*Martin v. State,
839 So.2d 665 (Ala. Crim. App. 2001)
Post-conviction relief granted to Alabama death row inmate in light of prosecution’s
suppression of several pieces of material evidence. The undisclosed evidence included: (1) the
fact that the sole eyewitness to defendant’s presence near the crime scene had undergone
hypnosis; (2) a statement made by the sole eyewitness while under hypnosis; (3) a description of
the perpetrator (which did not match defendant) and an identification of someone other than
defendant at a pretrial lineup by a witness who testified at trial she was unable to identify the
perpetrator because she had been focused on the gun; (4) the presence of unidentified
fingerprints on evidence related to the murder; and (5) a suggestive photo array regarding
defendant’s car.
Hoffman v. State,
800 So.2d 174 (Fla. 2001)
Where the state failed to disclose results of scientific hair analysis which excluded petitioner,
codefendant and male victim as the sources of hairs found in the female victim’s hands,
petitioner was prejudiced. In addition, under circumstances where another person also confessed
to the crime, the state’s failure to disclose information regarding the existence of other suspects
prejudiced petitioner.
State v. Barber,
554 S.E.2d 413 (N.C. 2001)
Due process violation found where prosecution failed to disclose telephone records that were not
merely corroborative, but rather lent crucial factual support to a defense witness whose
credibility was questioned by the prosecution. Evidence proffered by the petitioner to establish
materiality included affidavits from two jurors confirming that, had the phone records been
introduced at trial, it “would have” and “could have” affected the verdict.
Atkinson v. State,
778 A.2d 1058 (Del. 2001)
Defendant’s conviction of attempted unlawful sexual intercourse second degree and related
charges was reversed due to the state’s failure to disclose notes of witness interviews done by an
investigating prosecutor until that prosecutor testified as the state’s final witness. The notes
revealed that the complainant, who was the state’s main witness, had not initially described the
sexual component of the alleged assault to three of the state’s witnesses; if the notes had been
made available to defense counsel before trial, cross-examination of those witnesses may have
changed outcome of defendant’s trial.
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State v. Kemp,
828 So.2d 540 (La. 2002)
Second degree murder conviction reversed where the prosecution failed to timely reveal a taped
statement of an eyewitness which mentioned a comment by the victim that lent support to
petitioner’s self-defense contention. Although the statement came out towards the end of the trial,
reversal was still required. “[T]he details provided by [the witness] in her taped statement which
had [the victim] offering an option to ‘shoot it out’ possess such potential to give the evidence at
trial an entirely different cast that undermines confidence in this jury’s rejection of [Kemp’s] selfdefense claim. To this extent, the state’s failure to provide timely disclosure impacted the
fundamental fairness of the proceedings leading to [Kemp’s] conviction.”
*Hoffman v. State,
800 So.2d 174 (Fla. 2001)
The court reversed the denial of post-conviction relief in this Florida capital case, and remanded
for the grant of a new trial. The state violated Brady by failing to disclose the results of analysis
performed on strands of hair found in one victim’s hands; those results excluded defendant, his
co-defendant, and both victims as possible sources of the hairs, prejudiced the defense and
entitled defendant to new trial, where only other evidence linking defendant to murders was a
single fingerprint found on pack of cigarettes in victims’ motel room, and defendant’s
confessions, and where another suspect had also confessed; defendant challenged both of his
confessions at trial, and saliva samples taken from cigarette butts found at murder scene did not
match defendant’s blood type.
*State v. Huggins,
788 So.2d 238 (Fla. 2001)
The state violated Brady in this Florida capital case by failing to disclose the statement of a
witness indicating that he saw the defendant’s wife driving a vehicle similar to the victim’s
vehicle. The substance of this statement contradicted the testimony of the defendant’s wife, who
was a key prosecution witness. The court found that the state suppressed the information even
though it had provided the defense with a “lead sheet” naming the witness, because that sheet
inaccurately reflected that the witness had seen a male driving the victim’s vehicle, thereby
making the witness’ account seem unfavorable to the defense.
Spray v. State,
2001 WL 522004 (Tex.App. May 17, 2001)
The court reversed the defendant’s conviction for aggravated sexual assault of a child under
fourteen, finding that the state violated Brady by failing to disclose a Child Protective Services
report reflecting that the alleged victim’s sister, who corroborated the abuse allegations at trial,
had denied any sexual abuse when questioned by investigators. On appeal, the court concluded
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that “[c]learly the CPS report was favorable and material in that [alleged victim’s sister], the only
other witness who can corroborate the sexual assault allegations, made statements contained
therein that directly contradict her testimony at trial.”
State v. Gonzalez,
624 N.W.2d 836 (S.D. 2001)
The South Dakota Supreme Court reversed defendant’s conviction of attempted statutory rape,
finding that the state failed to disclose – in direct violation of the trial court’s order – the alleged
victim’s counseling records. Those records were favorable and material because theycontained a
version of the alleged sexual encounters that differed from that offered by the complainant – who
was the state’s only witness on this issue – with respect to the number of encounters, and the
events which took place during those encounters.
Garrett v. State,
2001 WL 280145 (Tenn.Crim.App. March 22, 2001)
The prosecution violated Brady in this arson/felony murder case by failing to disclose an
investigative report containing a statement by the first fireman to reach the victim, who was
found in a utility room in a burning house. At trial, the state contended that the utility room door
had been locked from the outside, raising the implication that the defendant locked the victim in
the room prior to setting the house on fire. The report, however, indicated that the first person to
reach the utility room found the door unlocked. The court found this information favorable and
material even though the state presented additional evidence in post-conviction proceedings
suggesting that the person who made the report had misquoted the fireman, who had actually
stated that the door was locked at the time he arrived.
Wilson v. State,
768 A.2d 675 (Md.App. 2001)
The court upheld the grant of post-conviction relief in this case involving robbery and related
charges on the ground that the state violated Brady by failing to disclose written plea agreements
between the state and two key codefendant witnesses. Although defense counsel was able to
elicit some information about the witnesses’ deals during their testimony, that testimony was not
completely accurate, and the inaccuracy was compounded by the state’s characterization of those
deals, and of the witnesses’ lack of motivation to lie, during closing arguments.
*Rogers v. State,
782 So.2d 373 (Fla. 2001)
The court granted post-conviction relief in this Florida capital case, finding that the state violated
Brady by failing to disclose: (1) a second confession by defendant’s alleged co-perpetrator, who
also testified for the prosecution, which could have been used to show that although defendant
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participated in other robberies with co-perpetrator, he had not participated in the one for which
he was being tried; and (2) an audiotape of a witness preparation session on which the
prosecution can be heard attempting to influence the testimony of its chief witness.
State v. McKinnon,
2001 WL 69214 (Ohio.App. Jan. 29, 2001)
Defendant’s rape conviction was reversed due to the prosecution’s nondisclosure of an
investigative report quoting a security guard from the apartment complex where the alleged
victim claimed to have been raped as having been told by the alleged victim that her attacker
made her take off all her clothes and do it on the floor. At trial, on the other hand, the alleged
victim testified that her attacker “tore off” her clothes. The court found the undisclosed report
favorable and material because it could have been used to undermine the alleged victim’s
credibility, and rebut the prosecution’s argument that she had been consistent in her account
of the attack every time she spoke about it – both crucial points given that the alleged victim’s
testimony was the only evidence tying defendant to the attack.
*Johnson v. State,
38 S.W.3d 52 (Tenn. 2001)
In this Tennessee capital case, the court granted sentencing phase post-conviction relief on the
ground that the state violated Brady by withholding a police report containing favorable
information material to the issue of the applicability of an aggravating sentencing factor. The
withheld police report showed that petitioner could not have fired the bullet that grazed a
customer during a grocery store robbery. The state relied on the theory that petitioner fired that
bullet to support the aggravating circumstance that he knowingly created great risk of death to
two or more persons, other than the murder victim, during the act of murder. The court found the
information in the police report material because, had it been disclosed, there was a reasonable
probability that the aggravating circumstance would not have been applied to petitioner; absent
evidence that petitioner fired the bullet in question, the state failed to prove that he placed any
other people at great risk of death.
Lay v. State,
14 P.3d 1256 (Nev. 2000)
The court granted post-conviction relief from petitioner’s murder conviction after concluding that
the state violated Brady by withholding evidence that a paramedic, who testified that the victim
identified petitioner as the shooter, had stated in several pretrial interviews that the victim did not
tell her anything while she was treating him. This information was favorable and material
because, apart from evidence of petitioner’s fingerprints on the stolen car from which shots were
fired, the paramedic was the only neutral witness to provide evidence that petitioner either fired
shots or drove the car.
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Commonwealth v. Hill,
739 N.E.2d 670 (Mass. 2000)
The court affirmed the grant of a new trial in this Massachusetts murder case, concluding that the
state violated Brady by deliberately failing to disclose a leniency agreement with a key
prosecution witness, despite requests for such information. The state’s nondisclosure deprived
defendant of his right to cross-examine the witness effectively, and the harm resulting from this
nondisclosure was exacerbated by the conduct of the prosecutor, who allowed the witness to
mislead the jury about his own sentencing expectations and his motive for testifying for the state,
and suggested in closing argument that the jury should assess credibility by considering whether
the witness had “something to lose,” and that defendant was the only witness with anything to
lose.
*Commonwealth v. Strong,
761 A.2d 1167 (Penn. 2000)
The Pennsylvania Supreme Court reversed the denial of post-conviction relief in this capital case,
finding that the state violated Brady by failing to reveal the existence of an understanding
between the state and petitioner’s co-perpetrator, pursuant to which the co-perpetrator was
offered a sentence of two years on charges of murder and kidnapping in exchange for his
testimony, and eventually received a sentence of 40 months after pleading guilty. The court found
it irrelevant that the trial prosecutor had been unaware that his superior had been negotiating the
co-perpetrator’s deal with his counsel, and found the evidence of that deal “material” because
there were obvious discrepancies between petitioner’s and the co-perpetrator’s testimony, and
because the co-perpetrator was the key witness who put the gun in petitioner’s hand at the time of
the murder.
Byrd v. Owen,
536 S.E.2d 736 (Ga. 2000)
The Georgia Supreme Court affirmed the grant of habeas relief in this drug-related murder case
on the ground that the state deprived petitioner of due process by withholding evidence that it
had reached an immunity agreement with its key witness, and by failing to correct the witness’
misleading testimony about the existence of such an agreement. The court further found that the
state’s nondisclosure deprived petitioner of his right to effective assistance of counsel at trial and
on direct appeal. Counsel testified in habeas proceedings that he would not have advised
petitioner to waive trial by jury if he had known of the state’s deal with the witness; with regard
to direct appeal, the state’s suppression of evidence of its agreement with the witness deprived
counsel of the ability to raise all meritorious issues. The state’s misconduct in this case was made
more egregious by the fact that petitioner’s direct appeal focused on the suppression of
information about deals with two other witnesses, which the appellate court held should have
been turned over pursuant to Brady before concluding that petitioner had not demonstrated
materiality.
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State v. Harris,
2000 WL 1376459 (Ohio App. Sept. 26, 2000)
The Ohio court of appeals reversed defendant’s attempted murder and felonious assault
convictions due to the prosecution’s suppression of the victim’s grand jury testimony, in which
the victim denied having a gun prior to the fight which led to his stabbing. At trial, the victim
acknowledged having had a gun prior to the fight. Although the version provided by the victim at
trial was more favorable to defendant than the version he gave to the grand jury, the court of
appeals concluded that the suppression of the grand jury testimony prejudiced defendant by
depriving him of information which would have been useful for impeaching the victim’s trial
testimony. In reaching this conclusion, the court noted that “the prosecution placed emphasis on
the veracity of [victim]’s account of losing possession of the handgun [before being stabbed] . . .
[and] challenged the jurors to contrast [victim]’s testimony against the testimony of ‘defendant
and his friends who have already lied to both the police and on the stand.'”
People v. Ellis,
735 N.E.2d 736 (Ill.App. 2000)
The appellate court reversed the denial of post-conviction relief in this murder case, finding that
the prosecutor violated Brady by failing to inform defense counsel and the jury about benefits, of
which prosecutor knew or should have known, which were orally promised to prosecution
witnesses in exchange for their testimony. In so holding, the court imputed a detective’s
knowledge of these promises to the prosecutor.
State v. Hunt,
615 N.W.2d 294 (Minn. 2000)
The prosecution violated Brady by failing to disclose that a psychological examination of its key
witness against defendant revealed that the witness was incompetent to stand trial.
Buck v. State,
70 S.W.3d 440 (Mo.App.E.D. 2000)
The state’s failure to inform defendant about five of a prosecution witness’ six convictions
prejudiced defendant at his trial for tampering with a witness; although the prosecutor told
defendant about one of the convictions, the witness was central to the prosecution’s case in that
he provided the only evidence that defendant tampered with a witness, and the other convictions
would have been useful for impeachment.
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State v. Henderson,
2000 WL 731472 (Ohio App. 1 Dist. June 9, 2000)
The state violated Brady in prosecution arising out of a drive by shooting by failing to disclose
the taped statement of another individual who claimed to have been driving the car in which
defendant was riding. This statement was significant because it contradicted the prosecution’s
two witnesses, both of whom testified that defendant was both the driver and the shooter.
State v. Larimore,
17 S.W.3d 87 (Ark. 2000)
The state’s suppression of evidence of a state medical examiner’s change of opinion concerning
time of death following his conversation with police about his initial time of death determination
providing defendant with an “iron-clad alibi” violated Brady.
State v. Nelson,
749 A.2d 380 (N.J.App.Div. 2000)
The state’s failure to reveal that one of its witnesses in this drug case had a prior sexual assault
conviction violated Brady; the witness was important to the state’s case, the trial involved a
credibility contest, the defendant was impeached with his own prior conviction, and the jury
deliberated for over two days, reaching a verdict only after hearing a read-back of witness’
testimony.
Harridge v. State,
534 S.E.2d 113 (Ga.App. 2000)
In this vehicular homicide case, the state violated Brady by failing to reveal the existence of lab
results generated by the Georgia Bureau of Investigation indicating that cocaine and marijuana
had been detected in the decedent’s urine. In reaching this conclusion, the court noted that, “[f]or
purposes of Brady, we decide whether someone is on the prosecution team on a case-by-case
basis by reviewing the interaction, cooperation and dependence of the agents working on the
case. . . . Here, the GBI laboratory was fully involved in the investigation of this case in that it
was responsible for testing not only [the decedent’s] blood and urine, but also [defendant’s]
blood. Moreover, both the medical examiner and the prosecutor were completely dependent on
the crime lab for determining the amount of drugs and alcohol present in [the decedent’s and
defendant’s] bodies. Because the GBI laboratory was part of the prosecution team and based on
[the GBI doctor’s] affidavit, we find that the state had possession of the test results showing
drugs in Smith’s urine.”
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*Mazzan v. Warden,
993 P.2d 25 (Nev. 2000)
The court granted relief in this 1979 capital murder case, finding the prosecution violated Brady
by failing to disclose numerous documents indicating that an alternate suspect with a motive had
been in the area with an associate on the night of the murder. Had this information been
disclosed, it would have supported petitioner’s claim that he heard two people running from the
murder scene. The withheld information revealed suspicion among law enforcement that the
decedent had been killed as a result of his involvement in a major drug dealing organization, and
the alternate suspect was believed by law enforcement to have been a key figure in that
organization.
State v. Sturgeon,
605 N.W.2d 589 (Wis.App. 1999)
Defendant established his right to withdraw a guilty plea to burglary due to the state’s failure to
disclose an interview transcript and an officer’s personal recollection indicating that he twice
denied any knowing involvement in the crime; the evidence was within the exclusive control of
the prosecution, and defendant established that the Brady violation caused him to plead guilty.
Robles v. State,
1999 WL 812295 (Tex.App. Oct. 7, 1999)
The court reversed defendant’s convictions for sexual assault and indecency with a child on the
ground that the prosecution acted in bad faith in misleading the trial court as to the existence of a
tape recording of the alleged victim, who recanted at trial, being interviewed, and possibly
coerced and threatened, by the prosecutor and a child protective services worker. Assuming that
the tape no longer exists, the court remanded for a development of evidence of the tape’s contents
to be followed by a determination whether, in light of the tape’s destruction, defendant can be
afforded a fair trial.
*Mooney v. State,
990 P.2d 875 (Okla. Crim. App. 1999)
Although not expressly relying on Brady, the appeals court vacates the death sentence due to the
prosecutor’s failure to timely disclose letters from the State’s star witness on the continuing
threat aggravator, where investigation into the contents of the letters would have provided
substantial evidence to effectively confront and impeach the witness concerning his motive for
testifying. He claimed in one letter, and while testifying, that his reason for coming forward was
because his grandfather had been murdered under circumstances similar to the capital offense. In
fact, his grandfather had not been killed and his true motive for testifying was to obtain
relocation within the prison system.
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State v. Castor,
599 N.W.2d 201 (Neb. 1999)
The state’s failure, despite a Brady request by the defense, to disclose statements of two
witnesses, one of which directly contradicted the state’s theory that the victim was shot in his
home, and one of which supported defendant’s theory that the victim disappeared after getting
into a brown pickup truck parked in front of the victim’s house, violated Brady, and warranted
grant of defendant’s motion for new trial.
Johnson v. State,
1999 WL 608861 (Tenn.Crim.App. Aug. 12, 1999), aff’d, 38 S.W.3d 52 (Tenn. 2001)
The state violated in connection with the sentencing phase of petitioner’s capital trial by
withholding a crime scene report indicating that a bullet which grazed a bystander could not have
been fired from the location the state contended petitioner was in at the time of the offense. This
evidence was material because the state argued to the jury that petitioner had fired that shot in
support of the aggravating circumstance of creating a great risk of death to others, which the jury
ultimately found.
*Young v. State,
739 So.2d 553 (Fla. 1999)
The Florida Supreme Court vacated petitioner’s death sentence and remanded for resentencing
due to the prosecution’s failure to disclose attorney notes indicating that one of its key witnesses
who testified to the sequence and type of gunshots he claimed to have heard during petitioner’s
altercation with the decedent had initially indicated that he was not even sure whether he had
heard gunshots or firecrackers. In addition, the prosecution withheld statements from other people
which, if disclosed, would have provided corroboration for petitioner’s theory that the decedent
had fired first and petitioner returned fire in self-defense. In the course of granting relief, the court
rejected the state’s contention that the exculpatory notes were attorney work product and therefore
exempt from disclosure. The court explained that “the [disclosure] obligation exists even if such a
document is work product or exempt from the public records law.”
People v. Torres,
712 N.E.2d 835 (Ill. App. 1999)
The court reversed petitioner’s convictions for murder and two counts of attempted murder where
the prosecution failed to disclose that two of its witnesses were promised release from probation
in exchange for their testimony, and failed to correct one witness’ false testimony that he had not
been promised leniency in exchange for his testimony. This evidence was material because, aside
from these witnesses, only two others identified petitioner as a shooter, and all of the
prosecution’s witnesses were members of a gang that was at odds with petitioner’s gang.
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Little v. State,
736 So.2d 486 (Miss. App. 1999)
The court reversed defendant’s embezzlement conviction on the ground that the prosecution
violated Brady by failing to disclose the existence and contents of a “cash receipts journal” which
documented that “the bulk” of the $96,000 he was accused of embezzling had in fact been
deposited into the company account.
State v. DelReal,
593 N.W.2d 461 (Wis. App. 1999)
Defendant’s conviction for second degree recklessly endangering safety while armed was
reversed due to the prosecution’s failure to reveal that his hands had been swabbed for gunshot
residue, but that the swabs were not analyzed prior to trial. This evidence was material both
because the results of the post-trial tests requested by defendant were negative, and because the
fact that the swabs had been taken directly contradicted the testimony of the self-proclaimed lead
investigator, who testified unequivocally that no swabs had been taken. In the context of this
case, which involved questionable eyewitness identifications of defendant and inconsistent
testimony as to the location of the perpetrator relative to others at the scene, there was a
reasonable probability of a different result had the residue evidence been revealed.
In re Pratt,
82 Cal.Rptr.2d 260 (Cal. App. 1999)
The court affirmed the trial court’s grant of state habeas relief on the ground that the state
violated Brady by failing to disclose a substantial amount of evidence indicating that the only
prosecution witness to claim that petitioner had confessed to the murder for which he was
convicted had been a long-time informant for state and federal law enforcement agents, and had
received favorable treatment in return for his cooperation with authorities. In the course of its
decision, the appellate court provided a useful discussion of how Brady claims should be
analyzed on state habeas in California.
Gibson v. State,
514 S.E.2d 320 (S.C. 1999)
The court affirmed the grant of state post-conviction from petitioner’s guilty plea to voluntary
manslaughter on the ground that the prosecution violated Brady by failing to disclose that a state
witness could not have seen the crime in the manner she claimed because the view from the
position she described was obstructed. When confronted with this fact by state authorities with
whom she visited the crime scene, the witness changed her story. If disclosed, this evidence
would have been favorable to petitioner as additional proof of the witness’ propensity to lie. The
evidence was material because, had it been disclosed, there was a reasonable probabilitythat
petitioner would have chosen to go to trial instead of pleading guilty.
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Rowe v. State,
704 N.E.2d 1104, 1109 (Ind. App. 1999)
The court granted post-conviction relief from petitioner’s convictions for murder and attempted
murder. At trial, petitioner’s “intoxication and insanity defenses were completely hamstrung by”
the testimony of his roommate/lover that petitioner had not ingested any drugs prior to shooting
several members of his own family. The state violated Brady, however, by failing to reveal that
this witness had been convicted of burglary and theft and was on probation at the time of his
testimony. This information would have been useful to petitioner in order to establish that the
witness had strong motivation to deny taking part with petitioner in the consumption of illegal
drugs — namely, admitting taking drugs would have strengthened the state’s case at the witness’
probation revocation proceeding scheduled to take place a few months after petitioner’s trial.
State v. Allen,
1999 WL 5173 (Tenn. Crim. App. Jan 8, 1999)
Defendants’ attempted rape convictions were reversed on the ground that the state breached its
Brady obligation by failing to comply with a court order to review the alleged rape victim’s
psychiatric treatment records for exculpatory information. Citing concerns for the alleged victim’s
privacy, the prosecutor never undertook the order examination, and therefore failed to uncover
and disclose evidence indicating that the alleged victim had a documented history of, among other
things, psychotic behavior. Because the outcome of defendants’ trial “primarily turned on the
credibility of the victim,” the appellate court concluded that they were entitled to relief.
Commenting on the prosecutorial inaction which led to the Brady violation in this case, the court
stated that “[a] ‘hear no evil, see no evil’ attitude is inconsistent with prosecutorial
responsibilities.”
*In re Brown,
952 P.2d 715 (Cal. 1998)
Writ of habeas corpus granted in capital case where crime lab neglected to provide the defense a
copy of the worksheet attached to defendant’s toxicology report, even though the prosecution was
unaware of the error. The prosecution was obligated to review the lab files for exculpatory
evidence and provide any such evidence to the defense. The worksheet reflected that PCP was
present in the defendant’s system at the time of the incident, which would have supported his
claim of diminished capacity.
State v. Copeland,
949 P.2d 458 (1998)
Conviction of second-degree rape reversed where prosecution failed to disclose that the
victim/witness had a prior felony conviction. Such information could have been used by the
defense to impeach this key witness, and there is a substantial likelihood that the failure to
disclose the prior record affected the jury’s verdict.
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*State v. Parker,
721 So.2d 1147 (Fla. 1998)
The court granted sentencing phase relief in this Florida capital case as a result of the state’s
suppression of evidence from a jailhouse informant indicating that a co-defendant, not petitioner,
actually shot and killed the victim. In concluding that this evidence was material, the court noted
that petitioner had been sentenced to death by a vote of eight to four, and that the only evidence
suggesting petitioner had been the shooter was the testimony of another co-defendant’s girlfriend,
who claimed petitioner admitted the shooting while the girlfriend was visiting his co-defendant
in jail. That co-defendant received a life sentence.
State v. Calloway,
718 So.2d 559 (La. App. 1998)
Defendant’s convictions for two counts of first-degree murder were reversed due to nondisclosure
by the prosecution and the trial court (which reviewed the information in camera) of statements
made by two of the prosecution’s primary eyewitnesses. These statements, which were taken
shortly after the murders occurred, contradicted the eyewitnesses’ trial testimony in several
important respects, including the height, weight, age and attire of the assailant. The court
explained that the failure to make these statements available to the defense “not only . . . deprived
[defense counsel] of the opportunity to cross examine the witnesses about these inconsistencies,
but . . . also deprived [defendant] of the opportunity to show the weakness in the [witnesses’]
identifications. Further, it might have bolstered the defense theory that the witnesses colluded to
cover up what really happened on the night in question.”
*State v. Nelson,
715 A.2d 281, 285-288 (N.J. 1998)
Defendant’s death sentence was vacated on the ground that the prosecution violated Brady by
failing to reveal that an officer wounded during defendant’s shootout with police had served
notice of, and later filed, a lawsuit against local authorities alleging that they had failed to
provide training and instruction necessary to ensure the safety of police officers in situations such
as the one that occurred in this case. The court reasoned as follows concerning the materiality of
the officer’s allegations to the sentencing phase of defendant’s trial: “Had the jury been aware that
this crucial witness, the brother of one of the dead police officers, agreed with defendant that
inadequate police training had sparked defendant’s violent reaction, it is at least reasonably
probable that an additional juror or jurors would have found the existence of one or more of
defendant’s mitigating factors.”
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State ex rel. Yeager v. Trent,
510 S.E.2d 790 (W.Va. 1998)
Petitioner was entitled to a new trial on murder charge where substantial evidence developed
post-trial indicated that a critical prosecution witness had an undisclosed plea agreement.
Little v. State,
971 S.W.2d 729 (Tex. App. 1998)
Defendant’s DWI conviction was reversed due to the prosecution’s failure to reveal to defense
counsel that its expert on blood alcohol content had lost the graphical information necessary to
assess the accuracy of the state’s blood alcohol analysis. Although this information was not
directly exculpatory, it was impeaching in the sense that “the graphical results are necessary to
analyze the reliability . . . of the results of the blood test.” In concluding that relief was warranted
under Brady, the court reasoned: “[H]ad the State disclosed the loss of the evidence as soon as it
became aware of the fact, defense counsel would have had the option of employing a different
trial strategy–one that may have resulted in exclusion of the testimony altogether. * * * The
testimony was the only quantitative evidence of appellant’s intoxication. * * * Thus, we conclude
the State’s failure to inform the defense of the lost evidence is a failure to disclose material
information which undermines confidence in the outcome of the trial.”
People v. Diaz,
696 N.E.2d 819 (Ill. App. 1998)
Defendant, a county jail correctional officer, was convicted of three charges arising out of his
alleged involvement in drug dealing within the jail. The court reversed the convictions on the
ground that the prosecution violated Brady and Napue by failing to disclose that an important
inmate witness had been given a deal resulting in an illegal concurrent sentence, and by failing to
correct that witness’ false testimony that he had not received favorable treatment in exchange for
his testimony. Rejecting the state’s contention that the witness had not been given a deal, the
court noted a clear indication in the State’s Attorney’s undisclosed file that the witness’ “illegal
sentence was ‘OK’d’ by a supervisor in the State’s Attorney’s office because [the witness] had
worked as an informant for the State’s Attorney’s public integrity unit,” and explained that “this
court does not have to ignore common sense.” “An agreement between the State and its witness,”
the court continued, “does not have to be so specific that it satisfies the traditional requirements
for an enforceable contract.” Here, the “circumstances, taken as a whole, indicate that a deal was
made between [the witness] and the State . . ..” Turning to the prosecution’s failure to correct the
witness’ false denial that a deal existed, the court stated: “We consider the State’s conduct to have
been outrageous and we will not tolerate it. . . . That [conduct] raises questions about the State’s
integrity and goes to the heart of the judicial system–confidence in the factfinding process.”
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State v. Harris,
713 N.E.2d 528 (Ohio App. 1998)
The court of appeals affirmed the trial court’s dismissal of felony possession of marijuana charges
against defendants following disclosure by a prosecution investigator during trial that he had long
possessed an airport log indicating that defendants had not been given baggage claim tickets
when they boarded the flight on which the prosecution contended the defendants were smuggling
marijuana. This evidence was consistent with defendants’, which was that a third party who
purchased defendants’ tickets and encouraged them to fly to Ohio to look for work had actually
placed the marijuana in their luggage without their knowledge. The court of appeals found that
the trial court did not abuse its discretion in dismissing the charges rather than imposing a lesser
sanction in light of the fact that the information had been purposely withheld, and continuing the
case would result in undue prejudice to the defendants.
People v. Johnson,
666 N.Y.S.2d 160 (N.Y.A.D. 1997)
In prosecution for sale of a controlled substance, prosecution erred in not disclosing lab analysis
that contained alterations testified to by a police officer. New trial ordered.
People v. Kasim,
66 Cal. Rptr.2d 494 (Cal. App. 1997)
Reversal required where prosecution withheld impeachment evidence that keywitnesses had
received deals for lenient treatment in their own criminal cases in exchange for their testimony
against defendant. Such evidence was material as the result of the trial depended in large part on
the credibility of the witnesses.
State v. Blanco,
953 S.W.2d 799 (Tex. App. 1997)
Trial court did not abuse discretion in granting a motion for a new trial due to state’s failure to
disclose in the prosecution of an aggravated assault case that the defendant’s brother had
confessed to the crime.
People v. LaSalle,
243 A.D.2d 490 (N.Y.A.D. 1997)
First degree sodomy conviction reversed due to prosecution’s failure to disclose that complainant
indicated at a prior hearing that she was unfamiliar with her attacker’s full name.
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Ware v. State,
702 A.2d 699 (Md. 1997)
Reversal required where prosecution failed to disclose that its key witnesses had a motion to
reconsider sentence pending which was being held in abeyance until the conclusion of
defendant’s trial. The Maryland Court of Appeals held that this was an implied deal which should
have been revealed.
State v. Kula,
562 N.W.2d 717 (Neb. 1997)
Murder conviction reversed and new trial ordered where prosecution failed to disclose material
evidence regarding investigation of other suspects before the first day of trial and trial court
abused its discretion and committed plain error by refusing to grant a continuance following
disclosure of the evidence to allow counsel to investigate other suspects and prepare a defense.
*State v. Phillips,
940 S.W.2d 512 (Mo. 1997)
New penalty phase ordered where state withheld audiotape containing hearsay statement
indicating that defendant’s son claimed sole responsibility for dismembering murder victim. The
statement was material because the prosecution specifically argued that defendant deserved the
death penalty because she had cut up the victim’s body herself, and the sole aggravating
circumstance found by the jury was depravity of mind, which was based upon the
dismemberment of the victim’s body.
People v. Ariosa,
660 N.Y.S.2d 255 (N.Y.Co.Ct. 1997)
Indictment for three counts of forcible rape dismissed where prosecution waited until jury
deliberations had begun to turn over an envelope it had possessed for several months containing
numerous items directly contradicting the victim’s assertions at trial, some of which were written
in the victim’s own hand. While the court expressed its belief that the prosecution’s nondisclosure
was not motivated by malice, it nevertheless decided to send a message to the state that its review
of discoverable materials must be “a pro-active, vigorous attempt to respond to the requests made
by defense counsel or to seek protective orders in circumstances they feel are inappropriate for
discovery.”
Ohio v. Aldridge,
1997 WL 111741 (Ohio App. 2 Dist. March 14, 1997) (unpublished)
Order granting relief from multiple convictions for forcible rape of a child and gross sexual
imposition of a child affirmed where prosecution failed to disclose full length report detailing:
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numerous instances of highly suggestive questioning techniques employed with child accusers;
medical evidence indicating absence of sexual abuse; inability of alleged child victim to identify
picture of defendant; and numerous threats made by police investigator against child witnesses in
the face of their denials that sexual abuse occurred. Rather than full report, defense counsel were
furnished with a redacted version which made no mention of the exculpatory and impeaching
information contained in the full length version.
Flores v. State,
940 S.W.2d 189 (Tex. App. 1996)
Murder conviction reversed where prosecution failed to disclose written and verbal statements
made by disinterested witness corroborating defendant’s contention that victim, who was
defendant’s roommate, shot herself during an argument with defendant. Because there were no
eyewitnesses to the shooting other than defendant her credibility was crucial, and undisclosed
statements fully supported defendant’s version of events such that, had they been disclosed, the
result of the trial would likely have been different.
Ex parte Mowbray,
943 S.W.2d 461 (Tex.Crim.App. 1996)
Murder conviction reversed where prosecution waited until two weeks before trial to disclose
blood spatter expert’s report tending to support defendant’s contention that victim shot himself in
bed next to her despite having received the report seven months earlier; prosecution purposely
delayed disclosure and caused defense counsel to erroneously believe that the expert who had
written the exculpatory report would be a witness for the state and be available for
cross-examination.
*Cook v. State,
940 S.W.2d 623 (Tex.Crim.App. 1996)
Defendant’s conviction and death sentence for a 1977 murder reversed where testimony of a key
prosecution witness from defendant’s first trial was introduced against defendant at his third trial
after the witness had died. The introduction of the testimony at the third trial undermined the
reliability of defendant’s conviction because the prosecution’s earlier failure to disclose the
witness’ prior inconsistent statements to police and to the grand jury had precluded the defense
from effectively investigating the witness’ testimony and impeaching him with his prior
statements.
State v. Oliver,
682 So.2d 301 (La.App. 1996)
New trial ordered where conviction hinged on credibility of two alleged victims who were key
prosecution witnesses and prosecution failed to disclose statements made by each near time of
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offense differed significantly from their trial testimony.
State v. Ponce,
1996 WL 589267 (Ohio App. Oct. 10, 1996)
Rape conviction reversed where prosecution failed to turn over a police report and records from
the county children’s services authority. The police report contained a description of the alleged
rape which was significantly inconsistent with the alleged victim’s trial testimony, and the
children’s services records revealed information supportive of the defendant’s theory at trial that
the alleged victim’s story had been fabricated. The court found that, “[c]ollectively, the
prosecution’s refusal to disclose the [materials] serve to undermine confidence in the outcome of
defendant’s trial.”
*Craig v. State,
685 So.2d 1224 (Fla. 1996)
Death sentence reversed and new sentencing hearing ordered where prosecutor elicited false and
misleading testimony from codefendant indicating that he was serving two life sentences for his
role in the crime and argued severity of codefendant’s punishment to the jury when prosecutor
knew that codefendant was already in a work release program and would soon be paroled; this
information was material because it affected codefendant’s credibility and prevented jury from
considering actual disparity between sentences of each defendant.
Carroll v. State,
474 S.E.2d 737 (Ga. App. 1996)
Defendant who pleaded guilty to homicide by vehicle and serious injury by vehicle allowed to
withdraw plea due to state’s failure to disclose that sole state expert had indicated, shortly before
defendant entered plea, that calculation of speed at which defendant was driving when she lost
control of vehicle was incorrect and that it was not possible to calculate her speed based on data
provided by investigating officer, and opined that road conditions contributed to accident.
State v. Womack,
679 A.2d 606 (N.J.), cert. denied, 519 U.S. 1011 (1996)
For purposes of defendant’s prosecution for practicing medicine without a license, evidence that
defendant told investigator his professional status as doctor of naturopathy and not medical
doctor was not probative on state’s theory regarding practice of medicine without a license, but
was probative on state’s alternative theory of holding oneself out as a medical doctor; failure to
disclose such exculpatory evidence to grand jury required dismissal of portion of indictment
asserting alternative theory.
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Frierson v. State,
677 So.2d 381 (Fla. App. 1996)
Prosecution’s failure to disclose police report and deposition of officer regarding incident
strikingly similar to shooting incident for which defendant was convicted and which indicated
that date of event was day after that indicated by witnesses required new trial; fact that witnesses
who testified were alcohol and substance affected and could have mistaken date of incident,
along with officer’s description and other undisclosed discrepancies in eyewitness testimony,
undermined confidence in jury’s verdict.
State v. Knight,
678 A.2d 642 (N.J. 1996)
Murder conviction reversed on cumulative impact of suppressed exculpatory evidence which
included: state’s alleged eyewitness got no prison time on unrelated offense carrying potential
364-day confinement period, despite prosecution’s claim that she had no incentive to lie; woman
eyewitness who claimed to have spoken to witness just prior to crime had made statement that
she was not near crime site at critical time; and FBI agent had testified that he lacked certain
information regarding case at time he interrogated defendant when teletype records showed he
had received information.
Farmer v. State,
923 S.W.2d 876 (Ark. App. 1996)
New trial ordered where prosecution failed to disclose impeachment evidence that officer upon
whose testimony state’s case was built was not a police officer at time of trial because he had
resigned shortly before after wrecking his police car and filing a false police report to cover up
his violation of police rules; prosecutor admitted that decision had been made not to ask witness
at trial where he was employed.
People v. May,
644 N.Y.S.2d 525 (N.Y.A,D. 1996)
Convictions for second degree murder, second degree attempted murder and first degree assualt
reversed where prosecution failed to disclose arrangement with witness who was promised
favorable sentence on unrelated charges in exchange for testimony against defendant, and failed
to correct witness’ false statement to effect that he had not been promised any consideration in
return for testimony; nondisclosure was not harmless in light of significance of witness’
testimony that he witnessed actions alleged in indictment.
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People v. Lantigua,
643 N.Y.S.2d 963 (N.Y.A.D. 1996)
Sole eyewitness’ recantation of identification testimony was not incredible or collateral to
defendant’s guilt or innocence in second-degree murder prosecution; credibility of eyewitness’
testimony at trial, not of her recantation, was relevant issue, and there were questions as to
conflicting testimony by eyewitness and her brother, and where eyewitness was at time of
murder, and People’s failure to disclose existence of another witness deprived defense of
opportunity to investigate what that witness might have observed and of ability to conduct
knowledgeable cross-examination of eyewitness as to her whereabouts, her view of events,
distractions caused by presence of another person, and her general credibility.
*Jiminez v. State,
918 P.2d 687 (Nev. 1996)
Post-conviction relief granted in capital case where prosecution failed to disclose evidence of
other possible suspects which was relevant to informant’s impeachment and to challenge methods
and reliability of police investigation, and failed to disclose evidence that informant had assisted
police in other cases in exchange for dismissal of charges while police witness and informant
both testified informant had no relationship with police in other cases; information could have
altered outcome where evidence against defendant was circumstantial, informants’ testimony that
he overheard defendant’s telephone conversation with his father in which he admitted to killing
was impeachable, and police did only slight investigation of other possible suspects.
Smith v. State,
471 S.E.2d 227 (Ga. App. 1996)
Conviction for selling crack cocaine reversed where special agent and probation officer had
agreement that as part of informant’s undercover work, officer would not serve outstanding
warrant on informant and informant had crucial role in drug transaction, but state failed to fully
disclose relationship with informant upon defendant’s request and special agent testified that
informant “didn’t have any charges pending or anything.”
Dinning v. State,
470 S.E.2d 431 (Ga. 1996)
New trial ordered on Giglio violation where prosecution failed to disclose evidence of immunity
agreements with material prosecution witnesses where evidence against murder defendant was
circumstantial and witnesses’ testimony was critical to state’s case; withheld evidence included
videotape of one witness’ interview with police which contained protracted discussion of
immunity in exchange for testimony.
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Shields v. State,
680 So.2d 969 (Ala.Crim.App. 1996)
Murder conviction reversed where state withheld evidence of victim’s prior conviction for assault
and other information tending to show victim was aggressive and prone to violent acts. This
information was material to defendant’s claim of self-defense.
Cotton v. Commonwealth,
1996 WL 12683 (Va.App. Jan. 16, 1996)
Statutory burglary and arson convictions reversed where state failed to timely disclose its
relationship with a key witness who was incarcerated with defendant prior to trial. In exchange
for testimony, prosecutor had agreed to make efforts on the witness’ behalf with the parole board,
and witness had been furnished with a copy of defendant’s statement to police, which he was seen
reading prior to defendant’s trial.
Brummett v. Commonwealth,
1996 WL 10209 (Va.App. Jan. 11, 1996)
Convictions on five counts of sexual crimes reversed where trial court erroneously failed to order
disclosure, after in camera review, of statements of victim and forensic evidence indicating
semen found was not that of defendant.
*Hamilton v. State,
677 So.2d 1254 (Ala.Crim.App. 1995)
Conviction and death sentence reversed where key witness perjured himself with regard to
statements he claimed were made by defendant regarding lack of remorse and pride resulting
from the murder, and falsely denied the existence of a deal for his testimony. Police had led
witness to believe he would be freed from jail in exchange for his testimony, and their actions
were taken as part of the prosecution team, despite fact that prosecutor had no knowledge of the
deal.
*Padgett v. State,
668 So.2d 78 (Ala.Crim.App.), cert. denied, 668 So.2d 88 (Ala. 1995)
Capital murder conviction is reversed due to the prosecution’s delayed disclosure of test results
calling into question whether the blood sample allegedly provided by defendant, which was tied
to the victim, had in fact come from defendant. Defendant’s opportunity to cross examine the
serologist the afternoon he found out about the second test result was inadequate to cure the
violation.
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People v. Jackson,
637 N.Y.S.2d 158 (N.Y.A.D. 1995)
State violated Brady in second-degree murder prosecution by failing for three years to disclose
statements by learning-disabled witness who, by time of disclosure, had no substantive memory
of many details of events at issue; statements’ exculpatory value was evident on their face, as
witness stated numerous times that defendant was outside apartment when shots were fired, and
witness gave leads as to other possible perpetrators of crime.
*Kills On Top v. State,
901 P.2d 1368 (Mont. 1995)
Confidence in the death sentence was undermined by the prosecution’s failure to disclose
evidence related to a key guilt-phase witness that could have been used by the defense to
challenge her credibility or argue bias. The undisclosed evidence concerned the witness’s
criminal history and her allegation that she had been raped by a jailer.
Jackson v. Commonwealth,
1995 WL 710112 (Va.App. 1995)
Conviction for abduction with intent to defile reversed where trial court erroneously failed to
order state to disclose victim’s statements to police. These statements contained information
inconsistent with victim’s testimony on several points. Because victim’s credibility was the
crucial issue in the case, nondisclosure of the statements deprived defendant of the opportunity to
explore and expose victim’s inconsistencies.
People v. Wright,
658 N.E.2d 1009 (N.Y. 1995)
Alleged assault victim’s status as police informant was material and favorable to defendant, and
prosecution’s failure, despite Brady requests, to reveal that alleged victim was informant denied
defendant due process. If information had been revealed, defendant could have presented it as
motive for police to corroborate alleged victim’s testimony and to disbelieve defendant’s claim
that she stabbed alleged victim because she believed he was going to rape her. Information also
would have refuted state’s explanation that victim did not want to go to hospital after stabbing
because police would have thought he “did something” due to of his criminal record.
People v. Curry,
627 N.Y.S.2d 214 (N.Y.A.D. 1995)
Motion to withdraw guilty plea granted where state failed to disclose information about
investigation into police corruption in violation of due process. Case would hinge on credibility
contest of defendant and cop, who allegedly stole defendant’s money during arrest, and DA had
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serious information about the cop’s criminal activities.
State v. Laurie,
653 A.2d 549 (N.H. 1995)
New Hampshire constitutional right to present all favorable evidence affords greater protection to
criminal defendant than federal Brady standard; it requires state to prove beyond a reasonable
doubt that favorable evidence knowingly withheld would not have affected verdict.
State v. Gardner,
885 P.2d 1144 (Idaho App. 1994)
Defendant entitled to withdraw guilty plea where prosecutor violated Brady by failing to disclose
eyewitness statement tending to show that collision and resulting death were caused by tire
blowout, not by defendant’s fatigue or drug use.
People v. Rutter,
616 N.Y.S.2d 598 (N.Y.App.Div. 1994), opinion adhered to on reargument, 623 N.Y.S.2d
97 (N.Y.App.Div. 1995)
Appellate counsel held ineffective for failing to raise and argue: (1) People’s disclosure, on
morning after key witness was excused, of transcript of polygraph in which this witness denied
knowledge of the homicide as Rosario and Brady violation; and (2) failure of trial court to allow
the witness to be recalled and cross-examined with the transcript.
Bowman v. Commonwealth,
445 S.E.2d 110 (Va. 1994)
Prosecution’s failure to earlier disclose police officer’s report violated Brady; had defendant been
aware of discrepancies in police officer’s report and officer’s failure to mention defendant’s facial
scars, he could have strengthened his defense of mistaken identity. Trial court abused its
discretion in refusing to review in camera police officer’s report as requested by defendant.
Jefferson v. State,
45 So.2d 313 (Ala.Crim.App. 1994)
Writ of error coram nobis granted where prosecution failed to disclose prior inconsistent
statements of two witnesses who testified to seeing defendant fleeing the scene. Earlier
statements identified the fleeing suspect as someone else.
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*State v. Gilbert,
640 A.2d 61 (Conn. 1994)
Capital murder conviction reversed where state failed to disclose, after specific defense request,
reports from victims’ family and friends in which they said that two other individuals had been in
the store earlier the same day—carrying guns and threatening to kill someone.
State v. Perry,
879 S.W.2d 609 (Mo.App. 1994)
State’s failure to disclose defendant’s girlfriend’s pretrial statement violated Brady where
statement was directly contrary to girlfriend’s trial testimony, supported claim that he was
“framed” and confessed solely in response to police beating, he specifically requested statement,
and defense did not know statement existed until after trial.
State v. Munson,
886 P.2d 999 (Okla.Crim.App. 1994)
New trial granted where state failed to disclose hypnosis of key prosecution witness, withheld
over 165 exculpatory photographs and willfully suppressed hundreds of pages of exculpatory
reports.
*Commonwealth v. Green,
640 A.2d 1242 (Pa. 1994)
Conviction and death sentence reversed where state failed to disclose two out of court statements
by co-conspirator in which she claimed she shot and killed a cop.
State v. White,
640 A.2d 572 (Conn. 1994)
State’s failure to disclose exculpatory Brady material prior to probable cause hearing mandated
reversal of convictions and new probable cause hearing even though material was disclosed to
defense during jury selection; although defendants made use of evidence, witnesses whose
statements were initially not revealed were unavailable at time of trial.
Commonwealth v. Galloway,
640 A.2d 454 (Pa. Super. 1994)
Commonwealth’s Brady violation in failing to disclose that its key witness’ recollection was
hypnotically refreshed prior to trial entitled defendant to new trial on one murder where witness
was only one to testify that she saw him possess and shoot a gun, and one of two witnesses to
testify that she heard defendant confess.
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State v. Landano,
637 A.2d 1270 (N.J. Super. App. Div. 1994)
Brady violated where cop’s handwritten notes indicating that witness rejected defendant’s photo
were suppressed, and only an official report saying witness failed to make an ID was disclosed.
State v. Florez,
636 A.2d 1040 (N.J. 1994)
Conviction reversed where state failed to disclose fact that informant had been involved in
reverse sting drug transaction, even though defendants knew he was involved in crime, but did
not know he was an informer. This was material because the informer played a central role in
setting up the drug deal.
People v. White,
606 N.Y.S.2d 172 (N.Y.App.Div. 1994)
Convictions vacated under Brady and Rosario where undisclosed statement indicated that
prosecution witness said he could not identify person who shot victim, while at trial he testified
to knowing defendant vaguely and seeing him chase victim and fire weapon at him, and link of
defendant to second murder was in significant part through ballistics evidence that same gun was
used in both murders.
West v. State,
444 S.E.2d 398 (Ga.App. 1994)
Conviction reversed where State’s failure to disclose tape recording of alleged drug deal
involving defendant prior to trial violated due process; tape was exculpatory in that it might have
shown that informant gave perjured testimony.
Jefferson v. State,
645 So.2d 313 (Ala.Crim.App. 1994)
Brady violated where undisclosed exculpatory evidence was material to murder prosecution
because it would have tended to show that someone other than defendant committed crime and
would have been relevant to impeach credibility of two witnesses who testified for prosecution.
Ex parte Williams,
642 So.2d 391 (Ala. 1993)
Brady violated where state failed to produce lineup photographs from which victim had
identified a person other than defendant, hat which had led police to that person, and statement in
which victim had failed to mention supposedly identifying raincoat found in defendant’s home.
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Burrows v. State,
438 S.E.2d 300 (Va.App. 1993)
Commonwealth’s failure, in response to murder defendant’s Brady request for exculpatory
material, to provide defendant with information respecting Commonwealth witness’ criminal past
and apparent long-standing relationship with Commonwealth’s attorneys, warranted new trial.
People v. Gaines,
604 N.Y.S.2d 272 (N.Y.App.Div. 1993)
Brady violation, which required reversal of convictions, occurred where prosecutor did not
disclose cooperation agreement reached between trial assistant’s superior and attorney for
principal prosecution witness under which witness would not be required to go to prison on
pending felony charges if he testified against defendant.
People v. Steadman,
623 N.E.2d 509 (N.Y. 1993)
Convictions reversed under Brady where trial assistants, as representatives of DA’s office, were
chargeable with knowledge of promises made by assistant DA to prosecution witness’ attorney
for purposes of duty to disclose Brady material, and assistants were obligated to clarify record
after witness falsely testified that no promises were made.
State v. Avelar,
859 P.2d 353 (Idaho App. 1993)
Prosecution’s failure to disclose that party to whom cocaine was delivered could not identify
defendant as one who delivered cocaine violated due process and required that conviction be set
aside; disclosure would likely have altered defendant’s trial strategy significantly.
People v. Garcia,
17 Cal.App.4th 1169 (Cal.App. 1993)
Habeas granted where state failed to disclose evidence that tended to impeach reliability of state’s
accident reconstruction expert, by showing that expert had used faulty methodology and made
errors in other cases.
Swartz v. State,
506 N.W.2d 792 (Iowa App. 1993)
PCR granted where state failed, in violation of Brady, to disclose evidence of alleged coperpetrator’s threatening and overbearing nature, and where rebuttal witness, who was the only
witness available to directly contradict defendant’s compulsion testimony, falsely denied
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existence of a deal for his testimony.
*Garcia v. State,
622 So.2d 1325 (Fla. 1993)
Conviction and death sentence reversed where prosecution failed to disclose statement to police
given by a key prosecution witness which corroborated defendant’s assertion that someone else
committed the murder. Violation was compounded because prosecution denied the existence of
the person defendant identified, despite the fact that police had arrested him and knew he was
going by the name defendant gave them.
State v. Lindsey,
621 So.2d 618 (La.App. 1993)
Conviction reversed where state failed to disclose a promise to give accomplice favorable
consideration if she testified credibly, and exacerbated the Brady violation by failing to correct
the witness’ assertion at trial that she was not expecting consideration.
State v. Spurlock,
874 S.W.2d 602 (Tenn.Crim.App. 1993)
Murder conviction reversed where prosecution failed to disclose: (1) statements, which had been
taken by the sheriff’s department, which stated or implied that someone else did the murder; and
(2) audio and video recordings of key prosecution witness giving statement incriminating
defendant after being promised he would be released from jail.
Jones v. State of Texas,
850 S.W.2d 223 (Tex.App.-Fort Worth 1993)
Conviction and sentence reversed where prosecution failed to timely disclose exculpatory,
material information in a victim impact statement which tended to negate the only evidence of
defendant’s intent to shoot the victim.
Funk v. Commonwealth,
842 S.W.2d 476 (Ky. 1993)
Life sentence (state did seek death penalty) reversed where state failed to turn over various pieces
of exculpatory hair and fiber evidence.
Averhart v. State,
614 N.E.2d 924 (Ind. 1993)
Negative results from gunshot residue tests that were withheld by the prosecution during trial
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were material at sentencing phase, even though they were not at the guilt phase. Although the test
results did not establish that petitioner had not failed the fatal shot, “[t]he absence of gunshot
residue . . . form[ed] part of a chain of circumstantial evidence pointing away from [petitioner] as
the triggerman. Confidence in the manner in which the jury evaluated the aggravating
circumstances with respect to [petitioner] cannot be maintained in this atmosphere.”
People v. Davis,
614 N.E.2d 719 (N.Y. 1993)
Brady violated by failure to disclose, despite specific request, hospital records of third party
whom complainant identified as one of his attackers, indicating that third party was admitted to
hospital shortly before the attack.
McMillian v. State,
616 So.2d 933 (Ala.Crim.App. 1993)
Brady violated where prosecution failed to disclose: (1) earlier statements by its key witness
claiming to know nothing about the crime and then argued to jury that witness had told same
story from the beginning; (2) statement of fellow inmate who overheard key witness discussing
plan to frame defendant.
State v. Bryant,
415 S.E.2d 806 (S.C. 1992)
Once defendant has established basis for his claim that undisclosed evidence contains
exculpatory material or impeachment evidence, State must produce undisclosed evidence for trial
judge’s inspection; trial judge should then rule on materiality of evidence to determine whether
State must produce it for defendant’s use.
*Gorham v. State,
597 So.2d 782 (Fla. 1992)
Conviction and death sentence vacated where state failed to disclose that key witness had been a
paid CI in defendant’s case and in others. The fact that the witness had received substantial
payments in other cases made the evidence material for challenging his credibility.
People v. Holmes,
606 N.E.2d 439 (Ill.App.1 Dist. 1992), appeal denied, 612 N.E.2d 518 (Ill. 1993)
Conviction reversed where prosecution told jury that chief witness was just an innocent
bystander when in fact he participated in the crime, and violated Napue by lying about the
benefits witness was to receive for his testimony.
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People v. Clausell,
182 A.D.2d 132 (N.Y.App.Div. 1992)
Due process violated where prosecution failed to disclose a buy report in a drug prosecution until
after conviction since defense specifically requested the report twice, officer’s testimony was
essential, and report contained useful impeachment material.
People v. Jackson,
154 Misc.2d 718 (N.Y.Sup.Ct. 1992), aff’d, 603 N.Y.S.2d 410 (N.Y.Sup. 1992),
appeal denied, 633 N.E.2d 487 (N.Y. 1994)
Convictions for second degree arson and six counts of felony murder reversed where detective
and fire department, despite their independent duty to disclose under Brady, failed to reveal that
it was the expert opinion of the detective that the fire was an accidental electrical fire.
Savage v. State,
600 So.2d 405 (Ala.Crim.App.), cert. denied, 600 So.2d 409 (Ala. 1992)
Manslaughter conviction reversed where prosecutor failed, in violation of Brady, to disclose
statements of two witnesses who said defendant acted in self-defense; statements were arguably
exculpatory and could have been used to impeach the testimony of the witnesses at trial.
Commonwealth v. Moose,
602 A.2d 1265 (Pa. 1992)
Murder conviction reversed where state failed to disclose deal with jailhouse snitch despite a
general request by the defense. Defendant’s failure to seek criminal records of state witnesses was
directly traceable to state’s failure to identify the prisoner.
People v. Janota,
181 A.D.2d 932 (N.Y.App.Div. 1992)
Rape conviction reversed due to prosecution’s delay in turning over notes of complainant’s initial
version of the incident which would have brought her credibility into serious question. Counsel
found out about the notes after he had cross-examined her for a day and a half, and did not recall
her for fear such a move would be seen as harassment.
State v. Knapper,
579 So.2d 956 (La. 1991)
Reversed where prosecution failed to disclose a police report in which eyewitness gave
description of murderer’s clothes which was opposite that of chief state witness. The report also
mentioned another group of men who were committing crimes that night, one of whom was
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found in possession of the murder weapon.
People v. Godina,
584 N.E.2d 523 (Ill.App. 1991), appeal denied, 591 N.E.2d 26 (Ill. 1992)
Second-degree murder conviction reversed where pending burglary prosecution of state’s witness
was material and thus subject to disclosure under Brady where the witness’ testimony assisted
state in convicting defendant.
Commonwealth v. Santiago,
591 A.2d 1095 (Pa.Super. 1991), appeal denied, 600 A.2d 953 (Pa. 1991)
Because the point of the disclosure requirement is to ensure a fair trial, the trial judge had an
obligation to disclose to the defense prior inconsistent statements made in camera by prosecution
witness.
State v. Davis,
823 S.W.2d 217 (Tenn.Crim.App. 1991)
Drunk driving conviction reversed where state failed to disclose police department memoranda
revealing knowledge of incorrect readings, malfunctions, and tampering with intoxilizer
machine; although evidence also included police observations of defendant, the intoxilizer was
central to the state’s case.
Perdomo v. State,
565 So.2d 1375 (Fla.App. 1990)
Trial court should have held Richardson hearing on potential Brady violation and its potential
to prejudice defendant where potentially exculpatory evidence might still be in state custody,
even though state did not disclose evidence because it believed it had been stolen.
*Bevill v. State,
556 So.2d 699 (Miss. 1990)
Conviction and death sentence reversed where defense was not allowed to adduce at trial whether
prosecution helped its key witness to have one of his prior convictions expunged in exchange for
his testimony.
Ex parte Adams,
768 S.W.2d 281 (Tex.Crim.App. 1989)
Conviction reversed where prosecution suppressed prior inconsistent statements of its key
witnesses. These statements seriously eroded the credibility of both witnesses.
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Ex parte Brown,
548 So.2d 993 (Ala. 1989)
Conviction reversed where state failed to disclose, until introduction at trial, physical evidence
which contradicted victim’s statement despite the granting of defense’s motion requiring
disclosure of tangible evidence expected to be introduced at trial.
Ham v. State,
760 S.W.2d 55 (Tex. App. 1988)
Conviction reversed where state failed to turn over evidence, following Brady request, of chief
medical examiner’s testimony which tended to confirm defense expert’s position and draw into
question the state’s evidence of defendant’s guilt.
*State v. Johnston,
529 N.E.2d 898 (Ohio 1988)
Conviction and death sentence reversed where prosecution failed to disclose evidence which
undermined its theory of where the murder occurred and who did it.
Ex parte Womack,
541 So.2d 47 (Ala. 1988)
Conviction reversed where prosecution failed to disclose: (1) transcript of a meeting with a
witness who recanted his grand jury testimony and attempted to implicate himself in the crime,
only to be dissuaded by his counsel and the district attorney; (2) plea arrangements with two
witnesses; (3) police reports and memos which included prior inconsistent statements and
jailhouse confessions.
State v. Smith,
504 So.2d 1070 (La. App. 1987)
Defendant should have been permitted in camera inspection of alleged prior statement of victim
for material inconsistencies or Brady information, in light of defendant’s specific requests for
such statements, which were based on differences between opening statement and victim’s
testimony.
State v. Osborne,
345 S.E.2d 256 (S.C.App. 1986), aff’d as modified, 353 S.E.2d 276 (S.C. 1987)
Nondisclosure, despite timely Brady motions prior to trial, of two recorded statements by State’s
primary witness, who was a heavy alcohol and drug user, had long criminal record, and had
changed his story to an eyewitness account in exchange for near immunity, denied defendants
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due process, where verdict was questionable, and defense counsels’ cross-exam might well have
shifted weight of evidence to establish reasonable doubt had State complied with motion.
State v. Wyche,
518 A.2d 907 (R.I. 1986)
Prosecutor’s failure to disclose existence of blood test, which indicated that sexual assault
victim’s blood-alcohol concentration was .208, was deliberate, violated due process and Brady,
and required new trial, where prosecutor knew of test results on evening before testimony of
physician, who knew about test, and where prosecutor made no disclosure of test until guilty
verdict.
Bloodworth v. State,
512 A.2d 1056 (Md. 1986)
Under Bagley, exculpatory material does not have to be in the prosecutor’s possession. Here, fact
that prosecutors were not in physical possession of detective’s report of another possible suspect
with respect to three offenses was immaterial to whether failure to disclose report to defendant
was Brady violation.
Cipollina v. State,
501 So.2d 2 (Fla.App. 1986), review denied, 509 So.2d 1119 (Fla. 1987)
State committed Brady violation by failing to inform defense counsel of name and address of
witness who obtained alibi information for defendant from codefendant in prison, even though
State had informed defense that same witness had inculpated codefendant.
People v. Buckley,
501 N.Y.S.2d 554 (N.Y.Sup. 1986)
Updated rap sheet on prosecution witness, showing disposition of a charge not appearing on
sheet given to defense was material which prosecution was obligated to disclose to defense.
Knight v. State,
478 So.2d 332 (Ala.Crim.App. 1985)
Evidence that both defendant and rape victim were A and H secretors (substances in saliva), and
that person who smoked cigarettes found ground out on victim’s card table was an H secretor, was
clearly favorable to defendant’s claim of innocence, and State’s failure to disclose such evidence
was a due process violation.
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*Binsz v. State,
675 P.2d 448 (Okl.Crim.App. 1984)
Convictions and death sentence overturned where prosecution tried to avoid telling the jury of
key witness’s leniency deal by keeping the witness ignorant of the bargain struck with her
counsel.
Commonwealth v. Wallace,
455 A.2d 1187 (Pa. 1983)
Prosecution failed to correct false statements by its key witness and suppressed parts of his
criminal record. Defense made numerous requests for full disclosure of the witness’s criminal
record and the prosecution repeatedly failed to deliver.
Granger v. State,
653 S.W.2d 868 (Tex.App. 1983), aff’d, 683 S.W.2d 387 (Tex. 1984), cert. denied, 472 U.S.
1012 (1985)
Life sentence reversed where prosecutor, judge, and witness’s counsel all failed to disclose
existence of a deal that changed witness’s sentence from death to life. Also, because prosecution
failed to correct the witness’s testimony regarding the deal, her testimony from the first trial was
not admissible at the second, after she refused to testify, because defendant’s right to
cross-examine her had been violated.
State v. Perkins,
423 So.2d 1103 (La. 1982)
Reversed under Brady where State failed to disclose statement of eyewitness, which substantially
corroborated defendant’s version of shooting, despite defendant’s request of a copy of any
statements of any person interviewed by agent of State in connection with subject matter of case.
Statement might have affected outcome as to either guilt or punishment.
People v. Angelini,
649 P.2d 341 (Colo.App. 1982)
Where defendant requested tapes of prosecution’s interviews with key prosecution witness,
prosecution’s failure to disclose that witness had been hypnotized on morning witness testified
required new trial.
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State v. Goodson,
277 S.E.2d 602 (S.C. 1981)
In prosecution for housebreaking, grand larceny and safecracking, state’s failure to disclose
existence of roll of film showing a person other defendant on premises where crime occurred
deprived defendant of a fair trial, in that film could possibly cast serious doubt on credibility of
state’s only witness implicating the defendant.
State v. Fullwood,
262 S.E.2d 10 (S.C. 1979)
Where defendant pled self-defense when victim attacked him with a knife and cut him, where
investigating officer, who was asked for disclosure, falsely told counsel that he had no
information beneficial to defendant, and where prosecutor argued several times that victim had
no knife although prosecutor had knife in his possession during the trial, concealment of the
knife deprived defendant of fundamental fairness in his trial.
Deatrick v. State,
392 N.E.2d 498 (Ind.App. 1979)
New trial ordered where, in response to defendant’s request, prosecutor and codefendant denied
existence of a “deal” for codefendant’s testimony, and on direct exam prosecutor elicited denial
from codefendant that any promises for his testimony were made. Prior to trial prosecutor made
promises and wrote a letter to parole board. This could have affected verdict, especially
considering eyewitnesses’ were inability to identify faces of perpetrators and prosecutor’s
repeated emphasis of codefendant’s sincerity.
Dozier v. Commonwealth,
253 S.E.2d 655 (Va. 1979)
Conviction reversed where prosecutrix had made written statement which did not refer to alleged
rape and did not refer to defendant by name. Statement was constitutionally material to charges,
in that it affected credibility of the witness, even though the written account of the abduction was
substantially consistent with the prosecutrix’s testimony at trial. Failure of Commonwealth to
disclose pursuant to defendant’s request required new trial.
V. MILITARY CASES
United States v. Winningham,
2006 WL 2266827 (A.F. Crim. App. July 26, 2006) (unpublished)
Brady violation found in rape case where prosecution failed to disclose identity of and statement
by a witness who was told by defendant, sometime after the alleged offense, that the sexual
Habeas Assistance and Training 09/06/17 Successful Brady/Napue Cases
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encounter had been consensual and that the victim had been awake, contraryto her allegations.
United States v. Stewart,
62 M.J. 668 (A.F. Crim. App. 2006)
Prosecution violated Brady in rape case by belatedly disclosing the alleged victim’s medical
records which indicated a wide variety of medical conditions and drugs which could have
provided an alternative explanation for the symptoms she displayed after drinking a beverage
provided by defendant. The prosecution theory was that defendant intentionally drugged the
victim and then raped her after she was unconscious. Although there was a suggestion of a type
of “date rape” drug found in the victim’s urine sample, it was too small to be considered a
“positive” result. The defense did not receive the medical records until after the prosecution’s
case in chief had concluded. The remedy offered – a new opening argument, re-cross of the
victim, and stipulated testimony by the prosecution toxicologist – was inadequate to cure the
harm in light of the defense’s explanation about the ways its strategy would have been different
had it possessed the records earlier.
United States v. Mahoney,
58 M.J. 346 (C.A.A.F. 2003)
In court-martial proceedings for use of cocaine, the government violated Brady by failing to
provide the defendant with a letter that had been written by a command staff judge advocate
criticizing the prosecution’s expert witness for his testimony in prior court-martials and
questioning whether his employment should be continued. In particular, the letter complained
about the expert’s lack of enthusiasm for the military’s drug testing program and his criticism of
studies that other forensic toxicologists rely upon. In finding that disclosure of this letter was
required, the appeals court rejected the government’s defense that the trial prosecutor did not
know of the letter. The court concluded that “it would have become known to him by the exercise
of reasonable diligence,” and that appropriate inquiry would have led to discovery of the letter.
Because the letter arguably created a significant motive for the expert to testify positively about
lab procedures and underlying scientific studies, cross-examination about the letter could have
enhanced the defense case which centered on attacking the procedural regularity and reliably of
urinalysis.
United States v. Sebring,
44 M.J. 805 (N.M.Crim.App. 1996)
Under Kyles, prosecutor’s obligation to search for favorable evidence known to others acting on
the government’s behalf extends to information concerning levels of quality control at
government’s controlled substances testing laboratory. Failure of prosecuting officer to discover
and disclose report indicating that laboratory had experienced significant quality control
problems required reversal of defendant’s conviction.

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