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Freddie Lee Wright, Petitioner
V.
______Haley, Respondent.
Statement of The Case
This is a case involving the rampant suppression of exculpatory and impeachment material which, had it been disclosed, would have altogether crippled the states capital murder case against Freddie Lee Wright. After a jury had voted 11 to 1 to acquit Mr Wright at his first capital murder trial, the State suppressed key evidence regarding the troubled psychiatric history of its main witness at the second trial. It also suppressed evidence that someone other than Mr. Wright had committed these murders. Finally, it suppressed evidence that the testimony of at least one of Mr. Wright's two co-defendants had been included by a secret arrangement in which that co defendant would serve no time in prison for his role in these murders.
Having secured a tainted and unreliable conviction by suppressing this evidence throughout Mr. Wright's direct appeal and state post conviction proceedings, the state now argues that its own successful misconduct prevents this recently discovered evidence from being considered by the Federal Courts. It also argues that none of this highly exculpatory and devastating impeachment material can be "material." What the State conveniently ignores, among other things, is the admission by the former District Attorney who prosecuted both of the cases against Mr. Wright that this was Brady material that should have been turned over to the defense. As the following facts demonstrate, no other conclusion is possible.
On December 1, 1977 a
Western Auto store in Mount Vernon, Alabama was robbed.
The owners, Warren and Lois Greene, were tied up and murdered with a .38
caliber handgun.
Just prior to the
robbery, a customer named Mary Johnson was leaving the Western Auto store
when a man passed her on his way into the store. Mrs. Johnson had
a good opportunity to observe the man, who turned out to have been the
lead member of the robbery team.
After the robbery was reported on the news, Mrs. Johnson contacted the police. From a police photo spread, she identified the man she had seen entering the store as Theodore Otis ''Beat the WorId") Roberts. On the basis of Mrs Johnson's impartial eyewitness identification of Roberts, he was arrested a few days later whIle drivIng a blue car that Mrs Johnson identified as having been parked outside the store just prior to the murders. After Roberts was arrested, Mrs. Johnson picked him out of a lineup and later identified him again at his preliminary hearing. Id.
The Mobile County Police then obtained a search warrant for a .38 calibre handgun traced to Roberts. In support of the application for a search warrant, Mobile County Detective Albert Stroh executed a Search Affidavit (the "Stroh Affidavit") in which Detective Stroh swore under oath that he had spoken with Robert's girlfriend, that Roberts girlfriend had been with Roberts twenty-four hours a day, and that Roberts' girlfriend had told Detective Stroh that Roberts handgun was in fact the weapon used in the double murders.
A search warrant was then
issued. Pursuant to that warrant, the police recovered a .38
caliber handgun which Alabama State toxicologist James
Small subsequently identified as positively being the
murder weapon. This corroborated the inculpatory statement
which Roberts' girlfriend had made to Detective
Stroh. On the basis of this evidence -- Mrs. Johnson's identification
of Roberts and his car, the statements by Roberts' girlfriend
incriminating Roberts and the ballistic identification of Roberts'
handgun as being the murder weapon --Roberts was indicted for the murder
of the Greens and bound over for trial.
The State Suppresses the Evidence Against Roberts
In the summer of 1978, the police received information that an inmate at Parchman State Penitentiary in Mississippi named Roger McQueen had knowledge of the murders. The police then interviewed McQueen in Mississippi. After having interviewed McQueen, the police then arrested Mr. Wright as well as two other individuals - Percy Craig and Reginald Tinsley. McQueen and Craig eventually were to testify that McQueen (not Roberts) was the first member of the robbery team to enter the Western Auto store. They disclaimed any involvement by Roberts and implicated Mr. Wright as the triggerman instead. Following these arrests, all charges against Roberts were dropped.
Prior to Mr. Wright's trial, his defense counsel Al Pennington, Esq. moved for and obtained a May 28, 1979 Court Order directing the State to produce "Any material information which the State has which tends to negative the guilt of the accused," as well as any agreements between the State and any witnesses against Mr. Wright.
Notwithstanding the Court's Order and its independent constitutional obligations to produce exculpatory material, the State withheld Mrs. Johnson's identification of Roberts as well as the Stroh affidavit from Mr. Wright. (RB - 42, 43). The only evidence they produced was Mr. Small's earlier identification of another unspecified handgun (Roberts' gun) as the murder weapon.
When Mr. Pennington questioned representatives of the State as to whether they had any other evidence against Roberts, they misled him by falsely representing that the gun was the extent of their case against Roberts. 1(R8 - 55, 56). At no time was Mr. Pennington ever informed of the heart of the case against Roberts, including Mrs. Johnson's identification of him and the incriminatIng statements which Roberts' girlfriend had made to the police.
The Initial Mistrial
The case against Mr. Wright
then went to trial before a mixed race jury in April 1979.
Mr. Wright is black and
the Greens were white. It was the first capital murder trial for
the newly elected Mobile County District Attorney Chris Galanos, who had
just taken office two months earlier.
The evidence against Mr. Wright was weak. The foundation of the State's case was the testimony of McQueen and Craig, both of whom had criminal records and were themselves admitted culpable participants in the robbery. (Tinsley did not testify) . The State also introduced ballistic testimony from Mr. Small to the effect that a handgun traced to Mr. Wright was ''consistent with'' the murder weapon. This was far weaker than the positive identification which Mr. Small had previously made of Roberts' handgun as being not just "consistent with" -- but as definitely being the murder weapon.
On the basis of this evidence, the mixed race jury voted eleven to one to acquit Mr. Wright. A mistrial was then declared. This placed the District Attorney in an embarrassing position. First, it had been in the awkward position of having to dismiss the capital murder charges against Roberts. Second, after having dismissed the charges against Roberts, it had come within one vote of losing the case against Mr. Wright.
The Second Trial
The second trial went forward about a month later. Having come within one vote of acquittal before a mixed race jury, this time the State used virtually all of its preemptory challenges to keep all blacks off of the jury at the second trial. Out of the ten peremptory challenges exercised by the State, at least seven of the sC!uck jurors were black and oflig a one was white. This ensured an all white jury.
In addition to excluding all blacks from the all white jury at the second trial, the State searched for some new evidence that could spell the difference between victory and defeat. This new evidence came in the form of a witness named Doris Lacey Lambert, who ha4 not testified at the first trial.
Ms. Lambert was a former girlfriend of Mr. Wright who had borne him a child out of wedlock before he left her for another woman. At Mr. Wright's second trial, Ms. Lambert testified that Mr. Wright had purportedly confessed his role in the killings to her. The impeachment of Ms. Lambert on cross-examination consisted of nothing more than a minor shoplifting conviction as well as whatever jealousy she may have harbored toward Mr. Wright. Other than Lambert, the case against Mr. Wright remained essentially the same as at the first trial. No mention was made of Roberts, or the evidence inculpating Roberts, at the first or second trials.
With Ms. Lambert being the only difference in the presentation of the State's case between the first and second trials, the all-white jury convicted Mr. Wright of capital murder at the second trial and he was then sentenced to death.
The Suppression of Doris Lambert's Psychiatric Records
I Unknown to Mr. Wright,
at the time Doris Lambert was called to the stand, the State was in possession
of impeachment material that would have effectively destroyed her credibility
had it been produced to the defense. This consisted of five
years' of psychiatric records which the District Attorney's
office had obtained from the Mobile County Community Health Clinic where
Ms. Lambert had been receiving treatment. These psychiatric
records cast severe doubt on Ms. Lambert's mental health and her reliability
as a witness. Among other things these records reflected that:
- she
suffered from auditory hallucinations, and believed she was having
conversations with a father who had been dead since she was seven years
old;
- she had been diagnosed as borderline retarded by the professionals treating her;
- she had a history of entertaining homicidal fantasies and suicidal ideations of her own;
- she had a history of drug use, including THC and cocaine;
- she had been on psychiatric medication for years.
- she had been described as "manipulative" by the professional that treated her; and
In addition to suppressing
evidence of Roberts' role as the murderer and the mental instability
of its key witness, the State also concealed a secret and lenient deal
between itself and Roger McQueen.
The State Suppresses An Undisclosed Deal With Roger McQueen
After
Mr. Wright was convicted and sentenced to death in July 1979, McQueen himself
went to trial for the murder of the Greens in the fall of 1979.
On October 4, 1979, McQueen was convicted of second degree murder
and received a twenty-year sentence that was to run consecutively with
the thirty-year sentence for armed robbery which he was already serving
in Mississippi.
Both
McQueen and Craig had testified at Mr. Wright's trial that they intended
to plead guilty to first degree murder. Undoubtedly this testimony enhanced
their credibility. Whatever distaste the jury had for their criminal
backgrounds and their role in the murders was ameliorated by their willingness
to accept responsibility for their own actions by pleading guilty to a
first degree murder charge that carried a heavy sentence.
This facade turned out
to be a lie. Three weeks after his conviction, McQueen tiled a notice
of appeal and a motion for a new trial. In his motion for a new trial,
McQueen claimed that the State had violated a secret deal pursuant to which
it would reward his testimony against Mr. Wright by prosecuting him only
for robbery, and by promising him that any sentence he received on the
robbery conviction would run concurrently with his Mississippi sentence.
One would have expected a strong and vigorous response from the State denying such a clandestine arrangement. Instead, the State never refuted McQueen's allegations or opposed the motion. Nor did a court ever rule upon the motion. Instead, less than a month after the motion was filed, McQueen mysteriously withdrew both his notice of appeal and his motion for a new trial for no apparent reason.
In support of this motion McQueen proffered an affidavit by his co-defendant Percy Craig stating not only that McQueen had been offered this deal, but that Craig too had been promised he would only be prosecuted for robbery in return for his own testimony against Mr. Wright.
Thirteen years later -- in the summer of 1992 -- McQueen was released from Parchman State Prison without being returned to Alabama to serve a day for his role in the murders of the Greens. This was entirely consistent with what McQueen had claimed in his motion that the State was promising him all along.
It was not until McQueen was later arrested on unrelated federal charges, and his release from prison was reported in the local media, that an embarrassed State of Alabama attempted to procure his return to Alabama by claiming inexplicably that his release from Mississippi had been a mistake and issuing a belated detainer for his return. However, when the State was eventually ordered in this federal habeas corpus proceeding to produce a detainer showing that it had attempted back in 1979 to assure McQueen's return to Alabama upon the completion of his sentence in Mississippi, the State could not produce one.
The Impact the suppressed Evidence Would Have Had at Trial
In sum, the State's
case against Mr. wright rested largely on two pillars: (1)
the combined testimony of the coparticipants McQueen and Craig; and (2)
the testimony of Doris Lambert. Both McQueen and Craig both had criminal
records and were themselves culpable participants it the robberies.
Their testimony alone had been insufficient... for the State to obtain
a
conviction at the first
trial, even with the jury having been deceived into believing that McQueen
and Craig were accepting responsibility for their actions by pleading guilty
to first
degree murder,
instead of being informed that McQueen
(and apparently Craig as well) had received a lenient deal in which McQueen
would not serve a day in prison in exchange for his testimony against Mr.
Wright. Had this deal been disclosed to the jury it would certainly
have obliterated whatever credibility the purportedly remorseful McQueen
and Craig had.
This would have left the State's case resting upon Doris Lambert. She had been largely unscathed during cross-examination, with her "impeachment" consisting of nothing more than a minor shop lifting conviction as well as her position as a disappointed former girlfriend. Had the jury known of her five-year psychiatric history, as well as her drug use, it would have crippled her credibility
Not orily would the suppressed Brady material have destroyed the credibility of the key fact witnesses directly linking Mr. Wright to the crime, but it would have presented the jury with the following evidence against an alternative murder suspect (Theodore Otis Roberts) : (1) the identification of an impartial eyewitness placing Roberts and Roberts' car at the crime scene; (2) the statement by Roberts' girlfriend to a Mobile County detective that she was with Roberts twenty-four hours a day and that his handgun was in fact the murder weapon; (3) ballistics evidence conclusively establishing Roberts' handgun as the murder weapon. 4
The State had once considered this enough to indict Roberts for capital murder. Certainly this would have been enough -- when coupled with the impeachment evidence destroying the credibility of Lambert and McQueen -- to raise more than a reasonable doubt as to Mr. Wright's guilt.
The State Habeas Corpus proceedings
In June 1987,
Mr. Wright filed a state collateral challenge to his
conviction in the Alabama state courts. During the course of this
proceeding his state postconviction counsel obtained a copy of the preliminary
hearing transcript of Mrs. Johnson's testimony in the Roberts proceeding.
This was the first time this evidence had come into Mr. Wright's possession,
and even then it was
obtained from Roberts lawyer and not from the State. Mr. Wright
then argued in the state postconviction proceeding that the State had suppressed
the transcript of Mrs. Johnson's testimony in violation of Brady v. Maryland,
373 U.S. 83 (1963), and that trial counsel
had been ineffective in not conducting an investigation
into the reasons, why Roberts had been indicted for the very same murder
as Mr. Wright.
The Alabama state courts rejected this petition by finding that: (1) the transcript of Mrs. Johnson's testimony had not been "suppressed" because information about Roberts' case had been reported in the local newspapers (albeit seven months before Mr. Wright was arrested); and (2) her identification of Roberts was not "material" because it did not eliminate the possibility of.Mr. Wright having also been present at the robbery. The courts also found that Mr. Pennington had made a strategic decision not to investigate why someone else 'had been indicted for the same murders as Mr. Wright -- notwithstanding his denial that he made such a strategic decision and the lack of any countervailing evidence that he had. The Alabama Court of Criminal Appeals affirmed this holding, and certiorari was denied by both the Alabama Supreme Court as well as by this Court.
The Federal District Court Habeas Corpus Proceeding
On September 15, 1994 Mr. Wright filed a petition for a writ of habeas corpus in the Southern District of Alabama. It was not until the federal proceeding that the remaining Brady material was uncovered. Both the Stroh Affidavit and the secret deal between McQueen and State were uncovered by new counsel for Mr. Wright shortly prior to the filing of the federal habeas corpus petition. Neither of these items had been produced by the State.
The District Court granted
Mr. Wright an evidentiary hearing, which was scheduled for October
1, 1996. Shortly prior to that evidentiary hearing, the Mobile
County District Attorney
produced its file on
this matter to Mr. Wright's counsel. Included in the materials produced
by the District Attorney just prior to the evidentiary hearing were the
five years' of mental health records for Doris Lambert. This
was the first time these records were ever produced by the State to Mr.
Wright, and they were not finally produced until seventeen years, after
Mr. Wright had been tried
and sentenced to death on the basis
of Ms. Lambert's testimony.
Among the witnesses called
by Mr. Wright at the federal evidentiary hearing was his trial counsel
Mr. Pennington. Mr. Pennington testified that none of the Brady
material in this case -- Mrs. Johnson's eyewitness identification of Roberts,
the Stroh Affidavit,' the secret deal with McQueen, or the mental health
records of Doris Lambert -- were ever produced to him at any time. He also
denied that he had ever made a "strategic decision" not to investigate
why someone else had been indicted for the murder of the Greens.
Far from having made a strategic decision not to investigate why someone else had been indicted for the murders, Mr. Pennington testified that he had questioned state law enforcement representatives as to their evidence against Roberts and was misleadingly assured that the gun was all they had. (One witness for the State denied making such a statement and the other simply could not remember) . The State never informed him of Mrs. Johnson's eyewitness identification of Roberts or the statements by Roberts' girlfriend to the police.
Roger McQueen also testified at the federal evidentiary hearing. In a dramatic recantation of his trial testimony, McQueen testified that Mr. Wright had not killed the Greens and even apologized to Mr. Wright from the witness stand. He also testified about the deal between himself and the State. Although the District Court stated on the record at the hearing that McQueen was not credible (this being the same McQueen for whose credibility the state had vouched by calling him as a witness at both of Mr. Wright's murder trials), the Court's subsequent written opinion contained no such-finding and accepted McQueen's testimony that there was a secret deal between him and the State.
The state. could not produce a single witness who could testify that any of this material was ever turned over to the defense. On the contrary, former District Attorney Galanos admitted repeatedly on the stand that all of the foregoing was Brady material that should have been disclosed to the defense (although he denied the existence of a secret deal between the State and McQueen). He also agreed that his office was not relieved of its Brady obligations simply because a piece of information appeared somewhere in the newspapers.
Notwithstanding the admission
by the very prosecutor who had tried both cases against
Mr. Wright that this
was all Brady material, the District Court denied relief.
In the course of denying
the petition, the District Court was extraordinary critical of the
State's conduct. After stating that "the apparent misfeasance,
of the State in this case raises a good deal of concern" (R4 - 71 - 15),
the Court wrote in its conclusion that "numerous
imperfections in the state court proceedings were' revealed," that "some
of these imperfections -- like the State's failure to disclose certain
exculpatory materials -- do not in any way deserve the blessing of this
Court," and that "the State should feel fortunate that it will not have
to retry a
case nearly twenty years
after the fact ... (Id. at 39-40).
The Eleventh Circuit Decision
The District Court had found that Mr. Wright's Brady claims arising from the Stroh Affidavit, the Lambert mental health records, and the McQueen agreement had been procedurally defaulted because Mr. Wright did not raise them before the state courts. However, the District Court properly found that the State's suppression of these records constituted 'cause' for any procedural default. Having found that there was "cause" for procedural default, he nevertheless found that there was no "prejudice" to Mr. Wright because these materials would not have been "material" under Brady and its progeny.
At no time throughout
the District Court proceeding did the State ever deny that suppression
of this material would have constituted "'cause" for a procedural default.
On appeal, however, the State argued for the first time that the suppression
of this material did not constitute "cause" because -- even though it was
indisputably suppressed at trial -- there was no showing that the State
had prevented Mr. Wright's state postconviction counsel from discovering
this evidence during the state postconviction
proceeding. The Eleventh Circuit agreed, finding that
"Wright presented no evidence indicating that the State's postconviction
counsel did anything to suppress the above-referenced items or did anything
to impeach Wright 'from learning about these items of evidence during the
State postconviction proceeding." (totally ignoring the fact that
the states failure to raise this argument before the District Court had
made it unnecessary for Mr. Wright to even attempt to make such a showing)
. (Opinion at 12). The Court also found that there was no "prejudice"
excusing any procedural default, because not a single item of this information
would have been "material" under Brady.
|
REASONS FOR GRANTING THE
WRIT
I THIS COULD SHOULD DECIDE
THE QUESTION LEFT OPEN IN
|
A claim that was never
presented to the state courts is procedurally barred from federal habeas
corpus review unless the petitioner can demonstrate "cause" for flis failure
to raise the a
claim in the state courts
as well as "actual prejudice".
Coleman v. Thompson,
501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989);
Wainwright v. Sykes,
433 u.s. 72 (1977).
This Court has defined
"cause" as something "external to the petitioner, something that cannot
fairly be attributed to him." Coleman, 501 U.S. at 753. Thus "the
existence of cause. . .
must ordinarily turn
on whether the prisoner can show that some objective factor external
to the defense impeded counsel's efforts to comply with the State's procedural
rule." Ibid., quoting Murray v. Carrier, 477
U.S. 478, 488 (I~986). That external factor may consist of
"a showing that the factual or legal basis for a claim was not reasonably
available to counsel . . or that "'some interference
by Officials . . . made compliance impracticable
II Strickler V. Greene, No. 98-5864 (June 17, 1999), slip op. at 10 n. 24 quoting Carrier, 477 U.S. at 488.
In Strickler, this court held that a habeas corpus petitioner had established cause for failing to raise a Brady claim prior to a federal habeas corpus proceeding where
"(a) the prosecution
withheld exculpatory evidence;
(b) petitioner reasonably
relied on the prosecution's open file
policies fulfilling the prosecution's duty to disclose such evidence;
and (c) the Commonwealth confirmed petitioner's reliance on
the open file policy by asserting during state habeas proceedings
that petitioner had alteady received 'everything known
to the government.'"
· Slip op. at 32. The Court then stated that "We need not decide in this case whether any one or two of these factors would be · sufficient to constitute cause, since the combination of all three surely suffices." Ibid.
That question is presented
here. It is a question of serious constitutional importance
which puts the Eleventh Circuit's decision in conflict not only with at
least two other Circuits, but with the Eleventh Circuit's own prior precedent.
In Julius V. Jones, 875 F.2d 1520 (11th Cir. 1989)
[add cert. denied), an earlier Eleventh Circuit
panel had held that the prosecutor's
suppression of Brady
material at trial alone provided "cause" for a procedural default.
Defense counsel in Julius had not asked the State for Brady material either on direct appeal or in a prior habeas corpus proceeding, because they assumed that the District Attorney's office had complied with the Constitution by providing all Brady material at trial -- an expectation that should not be considered unreasonable in our system of justice. The Eleventh Circuit held that the State's Suppression of Brady material constituted "cause" for any procedural default:
This Court is unwilling to hold on the facts of this case, if the prosecutor failed to produce evidence which was required to be produced under Brady and which failure was unknown to defendant's counsel, the claim is procedurally barred because defense counsel did not ferret out the violation. Defense counsel should be able to rely on a belief that prosecutors will comply with the Constitution and will produce Brady material on request.
The Seventh and Eighth Circuits have held to the same effect. Fairchild V. Lockhart, 979 F.2d 636, 640 (8th Cir. 1992) ("the prosecution told Fairchild's attorney, that he had turned over his entire file, leading the attorney to believe that he had received everything that existed. Therefore, Fairchild had cause for not discovering this evidence earlier"); Lewis V. Lane, 832
1 They further stated that they had onty come to suspect that this might not be true when the Alabama Supreme Court reversed a conviction in another case because of the failure of the same District Attorney's office to provide clearly exculpatory materials in violation of Brady. Ex parte Womack, 547 So.2d 47 (Ala. 1988). Julius, 875 F.2d at 1525.
26 1446, 1457 (7th Cir. 1987) (". . we agree with the district court that the conscious effort of these two state officials deliberately to conceal crucial information relating to petitioner's sentencing was "an objective factor external to the defense (which impeded counsel's efforts to comply with the state's procedural rules"). See also Amadeo V. Zant, 486 U.S. 214, 222 (1988) ("If the District Attorney's memorandum was not reasonably discoverable because it was concealed by Putnam County officials, and if that concealment, rather than tactical considerations, was the reason for failure of the petitioner's lawyers to raise the jury challenge in the trial court, then petitioner established ample cause to excuse his procedural default under this Court's precedents.") . Thus, the Eleventh Circuit's decision to reward the State's own wrongdoing in this case conflicts not only with the positions of two other Circuits, but with its own prior holding in Julius.
This Court should resolve
this conflict and clarify the law by holding that the State's suppression
of Brady material at a trial constitutes "cause" for a procedural default
irrespective
of whether the particular
factual circumstances of Strickler are present or not.
Any other result would seriously undermine Brady by allowing a prosecutor to reap the benefits of their own misconduct as long as they can keep the evidence hidden until state postconviction proceedings have run their course.
Recognizing the "special role" played by the American prosecutor in the search for truth in criminal trials, this Court reiterated in Strickler that the prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty . whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done." Strickler, slip op. at 9, quoting Berger v. United States, 295 U.S. 78, 88 (1935) -- a view that is apparently not shared by the State of Alabama in this case.
It is sheer effrontery
for the State to chide defense counsel for having trusted
the State to live up to its obligations
at trial, and by not repeatedly requesting the State to produce
exculpatory and impeachment material in state
postconviction proceedings. The alternative would be to assume that
prosecutors do not obey the law or prior Court discovery
orders, and
to deluge the state postconviction courts
with discovery motions seeking material that the State was already required
to produce at trial. The interests of Brady and the
court system would be ill-served by such a ruling, as this Court recognized
in Strickler:
Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor, in our opinion, should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support. Proper respect for state procedures counsels against a requirement that all possible claims be raised in state collateral proceedings, even when no known facts support them. The presumption, well established by "'tradition and 'experience,' "that prosecutors have fully" 'discharged their official duties,' "United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to asset constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.
The consequences of the Eleventh Circuit's holding are particularly harsh and cruel when juxtaposed against this Court's holdings that there is no constitutional right to counsel during state postconviction proceedings. [CITE COLEMAN]. If condemned prisoners in state postconviction proceedings are not even entitled to a lawyer at all, much less a constitutionally effective one, then how can they be expected to unearth Brady material that they were previously unable to obtain even when they did have a constitutional right to counsel ? Imposing such a burden on a petitioner in a state postconviction proceeding under these circumstances makes it all but impossible for even the most shocking Brady violations to be redressed in federal habeas corpus proceedings.
In this case the Eleventh
Circuit rewarded the State of Alabama for unconscionable derelictions of
its ConstitutionaI obligations which had earned the State a rebuke from
the District Court below. A scolding by the District Court is not
enough --only a fair consideration of the Brady claims on their merits
is enough to vindicate the bedrock Constitutional principles at
stake here. A rule
that bars valid and meritorious Brady claims from being raised simply because
defendants were too trusting of a the State would encourage prosecutorial
gamesmanship and erode the continuing vitality of Brady.
II
THE ELEVENTH CIRCUIT'S
HOLDING THAT
THE SUPPRESSION OF THE
PSYCHIATRIC
RECORDS OF THE STATE'S
KEY WITNESS,
A LENIENT DEAL WITH A
CO-DEFENDANT,
AND EVIDENCE
THAT AN ALTERNATE
SUSPECT ACTUALLY
COMMITTED THE
MURDERS, WAS NOT "MATERIAL"
UNDER
BRADY V. MARYLAND CONFLICTS
WITH
THE DECISIONS
OF EVERY OTHER
CIRCUIT TO
HAVE CONSIDERED THE
ISSUE, AS
WELL AS WITH THE
ADMISSION BY THE FORMER
DISTRICT
ATTORNEY WHO PROSECUTED
THE CASE
THAT ALL OF THIS INFORMATION
WAS
BRADY MATERIAL
In addition to finding
that there was no "cause" for a procedural default, the Eleventh Circuit
found that "prejudice" did not exist because the
suppressed information was not
"mater}al" under Brady.
However, there is no doubt that Mr. Wright has established "actual
prejudice as a result of the violation of federal law." Coleman,
501 U.S. at 750. While this
Court has never given
the prejudice standard "precise content," United States v. Frady,
456 U.S. 152, 168 (1982), it has required a showing that
the constitutional error "worked to [the
petitioner's] actual and substantial disadvantage." Murray v. Carrier,
477 U.S. 478, 494 (1986) (quoting Frady, 456 U.S. at (emphasis
in original). Such a showing is inherent in the nature of the violation
where, as here, the underlying norm (Brady) already requires a showing
of materiality, defined as "'a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different.'" Strickler V. Greene, slip op. at 9, citing Kyles
v. Whitley, 514 u.s4 419, 433-34 (1995) (quoting Bagley, 473 U.S. at 682).
Indeed, as the Court noted in Kyles, a determination of materiality "necessarily entails the conclusion that the suppression must have had 'substantial and injurious effect or influence in determining the verdict.'" Kyles, 514 U.S. at 435 (citations omitted). Where, as here, that "substantial and injurious effect" produced a manifestly unreliable capital verdict and death sentence, it assuredly worked to petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States V. Frady, 456 U.S. at 170 (emphasis in original).
Under Brady and
its progeny, evidence is material where "there is a reasonable probability
that, had the evidence been disclosed to the~ defense, the result of the
proceeding would have been different. A 'reasonable probability,'
is a probability sufficient to undermine confidence in the outcome."
U.S. v. Bagley 473 U.S. 667, 681 (1985). "The question
is not whether
the defendant
would more likely than not have received
a different verdict, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence." Kyles
V. Whitley, 514 U.S. at 434. In determining materiality
the suppressed evidence must be "considered
collectively, not item-by-item." Id
Not only must the suppressed evidence be viewed collectively, it must also be viewed against the backdrop in which Mr. Wright came within one vote of acquittal at his first trial. Kyles, 514 U.S. 419, 455 (Stevens, J., concurring) ("the fact that the Jury was unable to reach a verdict at the conclusion of the first trial provides strong reason to believe that the significant errors that occurred at the second trial were prejudicial"); Woodward v. Sargent, 806 F.2d 153, 158 (8th Cir. 1986) (fact that jury vote was seven to five on first vote supports finding of prejudice).
In this case, the Eleventh
Circuit's finding that this unique and shocking confluence of suppressed
material was not "material" under Brady and Bagley, and thus did not constitute
"prejudice" for any procedural default, places
it in sharp conflict with virtually every court to have dealt
with any one of these factors, let alone all three at the same time.
A. The Lambert Psychiatric Records
The Eleventh Circuit held that the psychiatric records for Doris Lambert were not material betause they would have been inadmissible under Alabama law. This was contradicted by former District Attorney Galanos, ;who admitted under cross-examination at the federal evidentiary hearing that these records were Brady material. Implicit in this telling admission is his recognition that these records would have evisterated the credibility of his star witness and that the Alabama state courts before whom his office appeared every day would have permitted cross-examination on these records.
It is well settled in the Eleventh Circuit that evidence of psychiatric problems on the part of a Government witness must be disclosed to the defense under Brady. See, e.g, United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983); Greene Vs Wainwright, 634 F.2d 272 (5th Cir. 1981); United States v. Partin, 493 F.2d 750 (5th Cir. 1974).
The same is
true in the First, Fourth, Fifth, and
Seventh Circuits, United States V. Boyd, 55 F.3d 239 (7th Cir.
1995) (prosecution was obligated to disclose a history of drug use
by one of its witnesses); United States V. Ellender, 947 F.2d 748, 57
(5th Cir. 1991) (a letter from a psychiatrist treating a government
witness "qualifies as impeachment material and therefore
Brady required the government
to disclose it"); United States V. Devim, 918 F.2d 280
(1st Cir. 1990) (disclosure of a witness's psychological and criminal
records was required); Chavis V. State of North Carolina, 637 F.2d 213,
220 (4th Cir. 1980) (suppression of psychological records of a witness
violated Brady where the prosecution's case depended "entirely" upon the
credibility of that witness).
In characterizing Ms. Lambert's mental health history as one of "depression," (Opinion at 15), the panel made no mention whatsoever of their references to Lambert's
auditory hallucinations;
suicidal ideations;
homicidal fantasies;
extensive use of cocaine
and THC;
her being borderline
retarded;
her "manipulative" qualities;
and
the fact that she had
been on psychiatric medication for years.
The Eleventh Circuit quoted McElroy's Alabama Evidence (3d ed. 1977) as standing for the proposition that psychiatric problems must rise to the level of "mental derangement or insanity" before they can be used on cross-examination. However, the Court ignored another section from that very same treatise which was cited at oral argument and which establishes that such evidence is admissible under Alabama law:
Mental capacity is deemed highly relevant to the witness' ability to perceive, recall, and narrate ...
McElroy's Alabama Evidence,
§ 140.01(10) (3d ed. 1977). Indeed, McElroy cited the Eleventh
Circuit's (and the earlier Fifth Circuit's) decisions
in Lindstrom and Partin with
approval,
further demonstrating
that Alabama law would have permitted the same vigorous cross-examination
as the federal courts would have on these, mental health records.
Such cross-examination would have been particularly admissible in Alabama because this was a capital criminal case. According to McElroy, the Sixth Amendment requires that "inquiry into mental defect, treatment or hospitalization should be permitted" in criminal matters. Accord, Baker v. State, 568 So.2d 374 (Ala. Ct. Crim. App. 1990) (greater leeway should be afforded on cross-examination where the witness is a key one for the State).
These Sixth Amendment protections are of critical importance here. The right to cross-examine Lambert about these records under Lindstrom and Partin derived not only from state law, but from the Constitution as well. The State of Alabama could not unilaterally abrogate Mr. Wright's Sixth Amendment right to cross-examine a prosecution witness on her psychiatric health records, any more than it could unilaterally preclude him from cross-examining the State's witnesses at all. However, as a fuller reading of McElroy makes clear, it does not purport to do so.
The Court also found material because trial counsel "was able to call Lambert's credibility into question" on shoplifting conviction and her jealousy toward Mr. Wright. This was simply enough to discredit such a central witness as Doris Lambert, who constituted the sole difference in evidence between the first and second trials. Her psychiatric records would have raised serious doubt not only about her bias, but about her reliability, credibility, and her mental fitness. If she heard her dead father talking to her, then surely no reasonable juror would trust her recollection of Mr. Wright's alleged confession in a capital murder case.
Lambert wasn't simply a marginal witness. She testified that Mr. Wright had confessed to the crime -- the best evidence the State had (and the only difference between the first two trials). Her credibility had to be attacked from every side and without limit. Credibility battles are won or lost on the weight and the extent of impeachment. To suggest that trial counsel could simply have sat down as soon as he "was able to call Lambert's credibility into question" on one or two trivial matters -- and that this makes it alright for the State to withhold the best impeachment material that existed -- is contrary to Brady and established jurisprudence, as well as to any realistic notion of modern trial advocacy.
Evidence Inculpating Theodore Otis Roberts
The Eleventh Circuit's holding that evidence of someone else's guilt is not Brady material is nothing short of shocking, in light of the well-settled body of law (beginning with Brady itself) holding that evidence of another suspect's guilt is classic Brady material. See, e.g., \Brady v'. Maryland, 373 U.S. at 86; Cannon v. Alabama, 558 F.2d 1211, 1215-16 (5th Cir. 1977), cert. denied, 434 4 u.s. 1087 (1978); Jarrell V. Balk4com, 735 F.2d 1242, 1257-8 (11th Cir. 1984), cert.~denied, 471 US. 1103 (1985); Sellers V. Estelle, 651.F.2d 1074, 1075-78 (5th dr. 1981), cert. denied, 455 U.S. 927 (1982). Even former District Attorney Galanos himself recognized this.
The State apparently believed that Mrs. Johnson's identification and the statements contained in the Stroh affidavit - along with the ballistics report of Mr. Small positively identifying Roberts handgun as the murder weapon -- were sufficient to prove Roberts' guilt beyond a reasonable doubt because they indicted him and had him bound over for trial. This is corroborated by former District Attorney Galanos' on admission during cross-examination at the federal evidentiary hearing that the evidence against Roberts was Brady that should have been disclosed to the defense.
If this evidence was sufficient to establish Roberts' guilt beyond a reasonable doubt, then it would certainly have been enough to raise a reasonable doubt about Mr. Wright's guilt. See, e.g., Ex Parte Kimberly, 463 So.2d 1109 (Ala. 1984) (government's failure to produce statement indicating that defendant may not have been at crime scene required reversal); Patterson v. State, 530 So.2d 886 (Ala. Crim. App. 1988) (failure to disclose another suspect required reversal as raising a reasonable doubt) . The contrary reasons offered by the Eleventh Circuit are in conflict with established law and do not withstand even cursory analysis.
1. Mary Johnson's
Eyewitness
Identification of Roberts
Was
Material Because It Would
Have
Critically Undermined
the
Credibility of Percy
Craig and
Roger McQueen.
The Eleventh Circuit found that Mary Johnson's eyewitness identification of Theodore Otis Roberts as the lead member of the robbery team was not material because "it did nothing to indicate that Wright was not at the crime scene, and it did nothing to contradict Craig and McQueen's testimony that Wright was the triggerman." (Opinion at 11). The issue is not whether or not Mrs. Johnson could exclude Mr. Wright physically from the crime scene, but whether she would have materially damaged the credibility of Craig and McQueen, thereby casting doubt on Mr. Wright's guilt. It is clear that she would have.
Had the jury believed
Mrs. Johnson, and been presented with evidence positively identifying Roberts'
handgun as the murder weapon, as well as Roberts' girlfriend's statement
to the
police, then they
would have had to believe that Craig and McQueen had both heavy covering
up the identity of the
true killer. This would have been by far the most powerful impeachment
material against them.
While the Court
stated that "the Johnson testimony would not have impeached
Craig and McQueen because they were each impeached on several grounds..."
if (Opinion at 11),
this impeachment involved
nothing more than the omission of one or two prior convictions during their
direct examination, as well as minor discrepancies between their preliminary
hearing and trial testimony. None of it went to the core of
their version of events. The testimony of Mary Johnson who would
have been the sole impartial eyewitness -- would
have elevated their impeachment to an altogether different plane.
It would also have strongly pointed to Roberts himself as the killer.
2. The Stroh Affidavit
The State also suppressed a Search Affidavit by Detective Albert Stroh swearing that Roberts' girlfriend had identified Roberts' gun as the murder weapon. The Court found the Stroh Affidavit to be immaterial because
[Mr. Wright] did not call Roberts' girlfriend as a witness at the federal evidentiary hearing. Therefore, it is unknown exactly what she would say, and accordingly, Wright has failed to prove that what she would say is material. A Court cannot speculate as to what evidence the defense might have found if the information had been disclosed....
(Opinion at 13). There
is nothing to leave to speculation. Had Roberts' girlfriend
been called at Mr. Wright's trial back in 1979, only one of two things
could have happened: she would have
agreed with the statements
in the Stroh Affidavit or she would have disavowed them. If
she disavowed them, then undoubtedly Detective Stroh could have been
called to the stand in rebuttal and affirmed them (having previously
sworn to their truth). Either way, the case against Roberts would have
been strengthened and the case against Mr. Wright weakened.
It does not matter what
Roberts' girlfriend would have said at a federal evidentiary hearing twenty
years later, because there is no scenario under' which her testimony could
not have helped Mr. Wright at trial in 1979.
C. The McQueen Deal
Evidence of a deal between
McQueen and the State was compelling impeachment material because it went
straight to the credibility of a key witness against Mr. Wright.
See, e.g.
Giglio
v. United States, 405 U.S. 150, 155 (1972) (in which the Supreme
Court reversed a judgment of conviction on the sole finding that
the government's witness was promised that he would not be prosecuted,
and that this promise was not disclosed to the jury). Seealso
Demps v. Wainwright, 805 F.2d 1426, 1432 (11th Cir. 1986),
cert. denied,
Demps
V. Dugger, 484 U.S. 873 (1987);.
Ross v. Heyne,
638 F.2d 979, 986 (7th Cir. 1980) (reversal
required where prosecution witness falsely denied the existence of a deal).
Former District Attorney Galanos recognized as much, when he conceded at
the federal evidentiary hearing that such a deal would have constituted
Brady
material had it existed.
Without citing any authority
whatsoever, the Eleventh Circuit then engaged in clearly erroneous
appellate fact-finding by concluding that there was no deal between Roger
McQueen and the State of Alabama -- a finding the District Court never
made.
On the contrary, the
District dourt implicitly assumed that a deal existed but then proceeded
to address the issue
of materiality.
The Eleventh Circuit's fact-finding made no mention of the undisputed facts that corroborate the existence of a deal, including:
* McQueen had gone to trial and taken a verdict of second-degree murder;
*
he then filed an appeal from that verdict as well as a motion for a new
trial premised upon the State's violation of a deal in which he would be
permitted to plead guilty to in which he would be permitted to plead guilty
to robbery and receive a sentence concurrent with
one he was already serving
in Mississippi for the same offense;
* the State never opposed the motion for a new trial;
* the appeal and the motion were mysteriously withdrawn by McQueen a few days later with no explanation;
* in August 1992 he walked out of Parchman State Prison a free man just as he claimed the State had promised him; and
* when ordered by the Court to produce a detainer prior to the evidentiary hearing in this matter, the State could not locate one.
Instead, the Court focused
on the fact that the District Attorney "later had a detainer issued"
on McQueen in1992
(thirteen years after one should have been issued) after his publicized
release from prison had become an embarrassment to the State.
(R8-175) The State's after-the-fact efforts to save face following
McQueen's release do not undermine the existence of the deal back in 1979.
In addition to not mentioning
a single one of these facts, the Court erroneously characterized
the deal itself. Specifically, the Court mischaracterized the deal as one
in which McQueen would be allowed to plead guilty to second-degree murder,
which (as his docket sheet reflects) carried a sentence of twenty years.
That was not supported by one shred of the record. The
sole characterization
of the deal was for McQueen to plead guilty to robbery, a far lesser
charge in whi&h he would not have to serve a day at all. The
State may have denied the existence of this deal (a denial which the District
Court never accepted as true in its opinion), but it never suggested that
there as a less lenient deal which would have permitted McQueen to plead
guilty to second degree (as opposed to first degree) murder.
In sum, this clearly erroneous appellate factfinding (which contravened the District Court's opinion) cannot surmount the overwhelming jurisprudence by this Court and others that evidence of secret, lenient deals between the State and its witnesses go to the heart of the witnesses' credibility and should have been disclosed under Brady and its progeny.
D. The Cumulative Effect of the suppressed Evidence
In both Kyles and
Strickler,
this Court affirmed that the materiality of exculpatory and impeachment
evidence must be viewed cumulatively, and not item by item in a vacuum.
See, e.g. Strickler at 3-4 (considering
the remaining evidence presented against the petitioner at
trial absent the testimony of the witness whose credibility would have
been damaged by the suppressed material);
Kyles v. Whitley,
514 U.S. at 419 (the materiality of suppressed
evidence must be "considered collectively, not item by item.") . In Kyles,
this Court reversed the decision below where there was "room to debate"
whether the court "made an assessment of the cumulative effect of the evidence.
. ." and the lower court's opinion contained a "repeated references dismissing
particular items of evidence as immaterial and so suggesting that cumulative
material was not the
touchstone . .
. "
In Strickler, this
Court assessed the materiality of the suppressed evidence by separately
considering the remaining evidence at trial absent the testimony of the
witness whose credibility would have been impeached by the suppressed material.
This court found that
the suppressed evidence was not material only after satisfying itself that
-- based upon the remaining evidence against the petitioner -- he had not
established a
reasonable probability
that the result below would have been different.
Yet this is precisely what the Eleventh Circuit did not do in this case After spending ten pages isolating the discrete items of Brady material into neat little compartments, and then finding each one immaterial in and of itself, the Court simply concluded in two cursory sentences that
Cumulatively,
the Stroh Affidavit, the Lambert evidence, and McQueen Agreement
do
not undermine
confidence in the. verdict. See Kyles V. Whitley, 514 U.S.
419 (1995).
Most of
the items would have been inadmissible at trial and the others would not
have
changed
the outcome of the trial . . .
· Slip
op. at 17-18. This attempt to reduce Kyles
to an afterthough does not withstand scrutiny. At no point did either
the Eleventh Circuit or the District Court or any other court consider
what would have happened if both Lambert and McQueen had been thoroughly
discredited at Mr.Wright's second trial, if evidence of a ppssible
deal with Craig (Lo which Craig swore in support of McQueen's motion for
a new trial) had been introduced as well, and if the jury had further heard
that Mary Johnson (the sole impartial fact witness available) had identified
Roberts and his car as having been at the store, that Roberts' handgun
had
been conclusively identified
as the murder weapon (which the handgun traced to
Mr. Wright was not), and that Roberts'
girlfriend had inculpated him in the murders. The chances of Mr.
Wright's not being convicted are not only "reasonably probable" (as required
by Kyles and Strickler), but almost certain.
The Eleventh Circuit's failure to consider all of the Brady material cumulatively, and to consider what the State's case would have looked like had all of the suppressed evidence come in is not only totally contrary to this Court's holding in Kyles, but underlines the need for further guidance from this Court as to the manner in which materiality is to be assessed on a cumulative basis.
CONCLUSION
For the foregoing reasons, a petition
for a writ of certiorari should be granted.
Dated: July 20, 1999
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