CASES REMANDED/EVIDENTIARY HEARINGS/DISCOVERY ORDERED ON BRADY CLAIMS

 

UNITED STATES SUPREME COURT

 

DeMarco v. United States
415 U.S. 449 (1974) (per curiam)

Remanded for evidentiary hearing to determine whether plea bargain was made with witness before or after his testimony. If it was made prior to testimony, then reversal of conviction was required under Giglio and Napue.

Banks v. Dretke
124 S.Ct. 1256 (2004)

Texas death row inmate was entitled to a certificate of appealability related to a claim of Brady error concerning suppression of evidence that a witness had been coached, where the claim was not included in the actual federal habeas petition, but it was debatable amongst jurists of reason whether Fed.R.Civ.Pro. 15(b) applied to habeas proceedings. (Rule 15(b) treats issues tried by implied consent of the parties as if they had been raised in the pleadings. Evidence of the coaching had been admitted in the district court without objection by the government.)

Youngblood v. West Virginia
126 S.Ct. 2188 (2006) (per curiam)

In case where defendant was convicted of sexual and firearm offenses, and his defense was that the sex was consensual, the case is remanded for the West Virginia Supreme Court to resolve the Brady claim which was premised on discovery of a note apparently written by the victim’s friends, who were witnesses against defendant, which indicated that the sexual encounter was indeed consensual. The note was said to have been shown to the state trooper investigating the allegations against defendant, who read it and then returned it to the person who found it with instructions to destroy it. When Youngblood learned of the note, he moved for a new trial. The trial court denied the motion, without discussing Brady, on the grounds that it provided impeachment evidence only, that the officer had attached no importance to it, and the prosecutor could not be faulted for failing to provide the note to Youngblood given that the trooper never gave it to the prosecutor. The West Virginia Supreme Court affirmed, simply finding that the trial court had not abused its discretion, again without discussing Brady.

 

 

UNITED STATES COURTS OF APPEALS

United States v. Disston
582 F.2d 1108 (7th Cir. 1978)

Habeas petitioner entitled to evidentiary hearing where government never disclosed codefendant's informer status, and where government, despite pretrial request, failed to disclose eavesdropping tapes.

United States v. Sternstein
596 F.2d 528 (2nd Cir. 1979)

Where government argued that defendant prepared fraudulent tax returns in order to satisfy customers, an IRS special agent's report indicating that a substantial number of defendant's returns showed no errors was relevant to defense's argument that innocent mistakes had been made and was subject to examination under Brady. Remanded.

Sellers v. Estelle
651 F.2d 1074 (5th Cir. 1981), cert. denied, 455 U.S. 927 (1982)

Remanded where defendant alleged that confession of a second person at the scene, who claimed to be the shooter, was withheld. If defendant was indeed denied such a report, then new trial is required.

Baumann v. United States
692 F.2d 565 (9th Cir. 1982)

Although defendant did not show that any exculpatory evidence was suppressed, his claim was not so frivolous or incredible as to justify summary dismissal of his PCR petition. Remanded for an evidentiary hearing on the issue.

United States v. Griggs
713 F.2d 672 (11th Cir. 1983)

Remanded for in camera review of files to detect suppression where there was some merit to defendant's contention that if arguably exculpatory statements were in prosecutor's file and not produced the failure to disclose would indicate the "tip of the iceberg" of evidence that should have been revealed.

United States v. Torres
719 F.2d 549 (2nd Cir. 1983)

Remand for supplementation of the record to determine whether failure to introduce exculpatory FBI report was the result of IAC or Brady violation.

United States v. Peltier,
 731 F.2d 550 (8th Cir. 1984)

Remanded for hearing to consider any evidence relevant to the meaning of an FBI teletype stating that the recovered rifle contained a different firing pin than the murder weapon. Court must then rule on whether the evidence supports defendant's contention of a Brady violation.

United States v. Lehman,
756 F.2d 725 (9th Cir. 1985), cert. denied, 474 U.S. 994 (1985)

Remand required where defendant made specific discovery request, government neither produced the report nor denied that it had such report, and district court failed to order government to respond to request. Defendant was thereby precluded from showing that the government had the report and that it contained exculpatory information.

Haber v. Wainwright
756 F.2d 1520 (11th Cir. 1985)

Remand was appropriate for determination of whether there was understanding between government and key government witness as to his future prosecution, whether state failed to disclose any such understanding, and whether this failure violated petitioner's right to fair trial.

Government of Virgin Islands v. Martinez
780 F.2d 302 (3rd Cir. 1985)

Remand necessary to determine whether defendant's knowledge of his confession, which he claimed contained exculpatory evidence, and his failure to disclose confession to his attorney, barred his claim of Brady violation where it was possible that defendant might not have understood his English-speaking lawyer's role at trial and whether evidence was material.

Anderson v. United States
788 F.2d 517 (8th Cir. 1986)

District court did not fully discharge its duty under Brady and the Jencks Act. Remand was required to permit district court to review in camera tapes of conversations involving government witness and statements made by witness during polygraph examination.

United States v. Kelly
790 F.2d 130 (D.C.Cir. 1986)

District court's failure to develop any evidentiary record to make any findings in support of denial of motion for a new trial based on newly discovered evidence of Brady violations was an abuse of discretion and required reversal.

Barkaukas v. Lane
878 F.2d 1031 (7th Cir. 1989)

Remanded where court found it unlikely that the prosecutor was unaware that an eyewitness had identified its key witness as the triggerman in a lineup shortly after the crime.

Stano v. Dugger
901 F.2d 898 (11th Cir. 1990)

Habeas proceeding remanded under Brady for evidentiary hearing on suppression of evidence of collusion between police, defense attorney and defense psychologist concerning plans to later write a book about the case.

United States v. Khoury
901 F.2d 948 (11th Cir. 1990)

Remand for hearing to determine whether investigatory report was Brady material where district court's implicit factual finding that investigatory report containing exculpatory material was fictitious was supported only by unsworn that were not reliable evidence.

Cornell v. Nix
921 F.2d 769 (8th Cir. 1990)

Evidentiary hearing required on habeas claim that prosecution witness recanted testimony of defendant's confession but state did not disclose the recantation to petitioner at time of state PCR.

United States v. Perdomo
929 F.2d 967 (3rd Cir. 1991)

Remanded where Brady required disclosure of criminal record of key prosecution witness, even though jury had opportunity to evaluate credibility through other impeaching evidence.

Williams v. Whitley
940 F.2d 132 (5th Cir. 1991)

On second habeas petition, petitioner was entitled to evidentiary hearing on a police report indicating that the only eyewitness had been to a methadone clinic (on drugs) within two hours of the time of the crime. Petitioner claimed nondisclosure of this fact was a violation of Brady.

United States v. Yizar
956 F.2d 230 (11th Cir. 1992)

Defendant entitled to evidentiary hearing on claim that Brady required prosecutor to volunteer statement of codefendant that defendant was innocent of arson charge.

United States v. Reid
963 F.2d 383 (10th Cir. 1992)
(unpublished)

Remanded to determine whether nondisclosure of cooperation agreement with key prosecution witness was material---whether the suppression undermined the outcome of the case.

Tate v. Wood,
 963 F.2d 20 (2nd Cir. 1992)

Habeas petitioner entitled to evidentiary hearing because it was possible he had a valid Brady claim concerning failure to disclose evidence that victim was the initial aggressor.

Thomas v. Goldsmith
979 F.2d 746 (9th Cir. 1992)

Because of 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 in an actual innocence habeas petition. Remanded to determine if evidence existed.

United States v. Bernal-Obeso
989 F.2d 331 (9th Cir. 1993)

Remand to determine if informant lied about homicide convictions because lies about this would be material exculpatory evidence discoverable under Brady.

United States v. Carreon
11 F.3d 1225 (5th Cir. 1994)

Where most government witnesses against conspiracy defendant were defendant's coconspirators, district court's failure to review the witness' pre-sentence reports for material exculpatory or impeachment material required remand for these findings.

United States v. Thomas
12 F.3d 1350 (5th Cir. 1994)

Remand to determine if Brady violation existed where record of District Court's in camera findings was unclear concerning notes of federal agents discovered by defense during trial.

Parkus v. Delo
33 F.3d 933 (8th Cir. 1994)

In Missouri capital case involving a prison killing, petitioner was entitled to an evidentiary hearing on his claim that the prosecution suppressed prison records documenting Parkus' abuse by other prisoners, and which contained information that Parkus’ uncle abused him during childhood. "Confidence in the outcome of the proceeding is undermined by the jury's inability to consider evidence which would have been offered as proof of lack of guilt (due to lack of mental element), and as mitigating evidence at sentencing." The failure of the prosecution to provide these documents to Parkus’ trial attorney provided the "cause" necessary to overcome the procedural default of the claim.

United States v. Hanna
55 F.3d 1456 (9th Cir. 1995)

Remand for an evidentiary hearing warranted on defendant's claim that government failed to disclose Brady materials, in light of inconsistencies between arresting officer's police report and officer's testimony at trial.

United States v. Frost,
125 F.3d 346 (6th Cir. 1997), cert. denied, 552 U.S. 810 (1999)

Evidentiary hearing required where government represented to defense that the substance of a witness' testimony would be adverse to the defendant, but in fact the testimony would have been exculpatory.

Grisby v. Blodgett
130 F.3d 365 (9th Cir. 1997)

Case remanded for an evidentiary hearing where district court applied incorrect standard in determining whether the prosecution failed to disclose that a deal had been made with its key witness.

Paradis v. Arave
130 F.3d 385 (9th Cir. 1997)

In successive habeas petition, exhaustion requirement waived where subsequent state court proceedings would not serve interests of comity, federalism and justice. Were relief not granted by state court, 28 U.S.C. § 2244(d)(1)(D) (1996), as added by AEDPA, would bar habeas review of the claim. Case remanded for an evidentiary hearing to determine whether prosecution withheld the notes taken during a meeting with the pathologist which would have allowed the defense to impeach the doctor's testimony.

United States v. Mejia-Mesa
153 F.3d 925, 929 (9th Cir. 1998)

The court reversed the district court's denial of §2255 relief and remanded for an evidentiary hearing to determine whether petitioner had procedurally defaulted his claim "that the government withheld, suppressed or destroyed a page or pages from the deck log of . . . the vessel carrying the cocaine [which formed the basis of one of petitioner's convictions]," and if so, whether he could show cause and prejudice sufficient to overcome the default.

Walton v. Stewart
1999 WL 57427 at *13 (9th Cir. Feb. 5, 1999) (unpublished)

The court reversed the district court's denial of relief in this Arizona capital case and remanded for an evidentiary hearing to explore, among other issues, petitioner's contention that an informant who gave important testimony for the prosecution had been given incentives beyond the limited benefits he acknowledged at trial. The court reasoned: "Because [petitioner] could not fully confront [the informant] about the agreements [the informant] made in exchange for his testimony, and because [the informant]'s testimony was pivotal in [petitioner]'s guilt and penalty phases, [petitioner] is entitled to an evidentiary hearing on his Brady claim."

In Re Sealed Case No. 99-3096
185 F.3d 887, 896 (D.C.Cir. 1999)

The court remanded this case and instructed the district court to require the U.S. Attorney's office to review the records in the possession of the prosecution team for evidence indicating that a government informant who provided information leading to the defendant's arrest had a deal with the prosecution. In the course of reaching this conclusion, the court observed that it is "irrelevant . . . that the requested records may have been in the possession of the Metropolitan Police Department, of the FBI or DEA, rather than the U.S. Attorney's Office."

Moore v. Gibson
195 F.3d 1152 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000)

State court’s conclusion that capital petitioner’s allegations failed to meet Brady’s materiality prong involved an unreasonable application of Brady where petitioner alleged that the prosecution suppressed evidence that hairs and fibers were planted by the police, and the hair and fiber evidence was crucial to the State’s case against petitioner. Petitioner’s evidence indicating that inculpatory hairs and fibers had been planted by the investigating detectives was of sufficient substance to establish good cause for discovery on his Brady claim.

Bramlett v. Champion
28 Fed. Appx. 869, 2001 WL 1521315 (10th Cir. 2001)(unpublished)

Where petitioner brought forth evidence that the prosecution suppressed evidence that four witnesses informed police prior to trial that defendant was not the shooter, and that these individuals were coerced into testifying/identifying defendant as the shooter, petitioner was entitled to an evidentiary hearing.

United States v. Schwarz
259 F.3d 59 (2nd Cir. N.Y. 2001)

In case involving a police officer convicted of assaulting an arrestee and conspiring to obstruct justice, the case is remanded for the district court to consider defendant’s Brady claims in light of new materials in the record. After the trial, the appeals court had supplemented the record with internal affairs records and FBI reports that had not been disclosed during the trial. As a result of access to these materials, defendant obtained an affidavit from an officer which called into question the testimony of a key witness who placed defendant in a position whereby it could be inferred that he was one of two officers who committed the assault.

Silva v. Woodford
279 F.3d 825 (9th Cir. 2002), cert. denied, 123 S.Ct. 342 (2002)

In capital case from California, district court erred in denying an evidentiary hearing and relief on petitioner’s claim of a Brady violation related to prosecution’s failure to disclose a deal with the key prosecution witness to delay a psychiatric evaluation until after petitioner’s trial.

Newell v. Hanks
283 F.3d 827 (7th Cir. 2002)

In drug case, the court remands for further consideration of petitioner’s Brady claim which was based on the prosecution’s failure to disclose pretrial statements by a nontestifying witness which exonerated petitioner, as well as that witness’s cooperation agreement. Petitioner had stated a colorable Brady claim given that the prosecution’s case depended almost entirely on a police officer’s testimony that the nontestifying witness had claimed to have received cocaine from petitioner. The court soundly rejected the government’s argument that the suppressed evidence wasn’t material because the witness did not testify. In sending the case back, the appeals court noted that 28 U.S.C. § 2254(e) would not be an impediment to an evidentiary hearing because the claims were undeveloped in state court through no fault of petitioner.

Drake v. Portuondo
321 F.3d 338 (2nd Cir. 2003)

In case involving Napue claim, state court’s finding that petitioner had failed to establish that the prosecution knew or should have known that its expert had misrepresented his credentials was not entitled to deference given that the state court did not permit development of the record on this issue. The case is remanded for discovery, and for an evidentiary hearing should the district court conclude that one is necessary.

Conley v. United States
323 F.3d 7 (1st Cir. 2003) (en banc)

In case involving federal perjury and obstruction of justice charges against a state police officer, the case is remanded for an evidentiary hearing on petitioner’s Brady claim. The new evidence might have impeached two trial witnesses and suggested a sequence of events that was consistent with petitioner’s grand jury testimony. Given that the district court has twice before ruled in petitioner’s favor and been reversed both times for legal errors, the case is to be reassigned to a new district court for a comprehensive review of the Brady allegations.

Ellsworth v. Warden
333 F.3d 1 (1st Cir. 2003) (en banc)

In case involving charges of sexual abuse of a minor by an employee of a residential school and treatment facility for children with emotional, behavioral, and neurological impairments, the case is remanded to the district court for further proceedings concerning a claim of Brady error. The suppressed evidence at issue was an intake note written by the facility’s program director indicating that the purported victim alleged that he was abused by staff members at the hospital where he previously stayed, that the purported victim expressed concern that he would be sexually assaulted at the new facility, and that the facility would need to take special precautions to protect staff members from false accusations if the child enrolled. The document also noted that someone from the hospital had informed the program director that the prior accusations were false. The case is remanded for a determination of whether there exists admissible evidence that the purported victim made demonstrably false accusations at the hospital under similar circumstances and whether petitioner was not otherwise aware of these allegations at the time of the first trial.

United States v. Anderson
2003 WL 21544241 (D. Kan. 2003)

In case involving conspiracy and Medicare kickbacks, petitioner was entitled to an evidentiary hearing on his claim that the prosecution violated Brady by failing to disclose that a prosecution witness had an ongoing relationship with the FBI at the time of trial. The government’s contention that it had no knowledge of such a relationship at the time of petitioner’s trial fails to defeat the claim because it did not establish that the government fulfilled its obligation at the time of trial to affirmatively investigate the witness’s relationship with law enforcement. Because the FBI assisted in the prosecution, any knowledge possessed by the FBI was imputed to the prosecution.

Piggie v. Cotton
344 F.3d 674 (7th Cir. 2003)

In prison disciplinary case, district court erred by applying 28 U.S.C. § 2254(d) as a barrier to relief, since "prison disciplinary boards are not ‘courts’ for purposes of 28 U.S.C. § 2254(d)." In prison disciplinary proceedings, an inmate is entitled to disclosure of material, exculpatory evidence unless should disclosure would unduly threaten institutional concerns. On the record before it, the appeals court is unable to determine whether petitioner was entitled to view the videotape of the cell extraction, during which he was found to have committed a battery on an officer. On remand, the district court must decide whether the state had a valid security reason for failing to disclose the tape, and, if not, did the tape contain exculpatory information.

Graves v. Cockrell
351 F.3d 156 (5th Cir. 2003)

Texas death row inmate was entitled to an evidentiary hearing on his claim that the prosecution violated Brady by failing to disclose to Graves that his co-defendant and key prosecution witness had informed the district attorney that Graves was not involved in the charged crime on the day before he testified to the contrary at Graves' trial. (Graves learned of this from a media interview of the trial prosecutor that occurred in June 2000.)

Cooper v. Woodford,
358 F.3d 1117 (9th Cir. 2004) (en banc)

Petitioner was entitled to file a second or successive habeas petition where he made a prima facie showing of a Brady violation. At trial, there were only two pieces of physical evidence linking petitioner to the capital crime, one of which was a bloody shoe print. The shoe print was tied to petitioner by testimony that it was made by shoes that were unique to the correctional facility that petitioner had escaped from. In support of the request to file a successor petition, petitioner submitted a declaration from the former warden of that correctional facility stating that she had learned that the shoes were not unique to the prison and that she had provided that information to an officer investigating the capital murders.

United States v. Alvarez
358 F.3d 1194 (9th Cir. 2004)

Alleged drug conspirator was entitled to have district court conduct an in camera review of probation files of critical co-conspirator witnesses, and district court should have released, as Brady material, all information therein bearing on credibility of such significant witnesses.

In re Gregory Lott
366 F.3d 431 (6th Cir. 2004)

Petitioner was entitled to file a second or successive habeas petition where he made a prima facie showing that the trial prosecutor, inter alia: (1) failed to disclose that the murder victim, before dying, identified a person with a different skin color from petitioner as the assailant; (2) failed to disclose that the victim had identified his assailant as someone who he had seen at his local barbershop; and (3) falsely told the court that the instrumentality that caused the victim’s death – kerosene lamp fluid – was not present in the victim’s home and had to have been brought to the scene by petitioner thereby showing premeditation.

Kelly v. Dretke,
2004 WL 1777082 (5th Cir. 2004) (unpublished)

In Texas death penalty case, the district court erred in granting summary judgment to respondent on Brady and Napue claims where petitioner submitted an affidavit from a witness who claimed that a key prosecution witness had admitted that she testified falsely because agents of the state threatened her. The affidavit raised a material issue of fact that had to be resolved on remand, along with the question of whether the claims were procedurally defaulted.

United States v. Blanco
392 F.3d 382 (9th Cir. 2004)

In narcotics prosecution, the government violated Brady/Giglio by failing to reveal that the confidential informant received special immigration status in return for his work for the DEA. This information only came out when defense counsel got “lucky” during cross-examination of a DEA agent. That it was the DEA that had apparently failed to provide the prosecutor with the relevant information did not relieve the prosecutor of the constitutional obligation to disclose material impeachment evidence. The case was remanded with instructions to the district court to order the government to reveal all information in its possession concerning the confidential informant. The district court was ordered to fashion an appropriate remedy, including the possibility of dismissal of the indictment for outrageous government conduct.

Gantt v. Roe
389 F.3d 908 (9th Cir. 2004)

Evidence showing that the phone number written in a matchbook that was found on petitioner at the time of his arrest could not be linked to the victim was material given that it undermined the prosecution’s theory of the case. Although defense counsel could have conducted his own investigation into the matchbook, he was entitled to rely on the prosecution's representation that it was sharing the fruits of the police investigation. Remand for a determination whether the prosecution disputed that the evidence had been suppressed, and if so, to hold a hearing. If the prosecution conceded suppression, the district court was ordered to grant relief.

Pham v. Terhune
400 F.3d 740 (9th Cir. 2005)

Where petitioner’s defense at trial was to point to another suspect who had been given a gunshot residue test (GSR), and trial counsel had not been able to obtain the actual lab notes from the test, petitioner had shown good cause for discovery of the underlying notes as part of his Brady claim because the notes could show a critical error that would render the GSR test inculpatory. Remanded for discovery.

United States v. Ohiri
2005 WL 1332269 (10th Cir. June 7, 2005) (unpublished)

District court abused its discretion in denying petitioner’s motion to amend his petition to include a Brady claim based on the government’s alleged failure to disclose exculpatory information before petitioner’s guilty plea to several counts involving improper disposal of hazardous waste. United States v. Ruiz, 536 U.S. 622 (2002) is distinguished because it concerned impeachment evidence, rather than exculpatory evidence. See also McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003). Here, the co-defendant’s acceptance of responsibility which exonerated petitioner in some ways could be considered exculpatory.

Horton v. Mayle
408 F.3d 570 (9th Cir. 2005)

If there was a deal with the key witness, it was material and the failure of the prosecution to disclose it violated Brady. The key witness provided the motive for the murder plot, tied petitioner to the proceeds of the robbery, and introduced petitioner’s otherwise uncorroborated confession. Notably, the prosecutor referred to the importance of the witness’s testimony in argument, and the jury had the testimony read back. Other impeachment evidence did not render a deal immaterial because while such evidence influenced a credibility determination it did not demonstrate the witness’s incentive to testify falsely. Also, the guilty verdict indicates the other impeachment evidence was ineffective. The decision of the state court was unreasonable and contrary to established Supreme Court precedent. Remanded for determination of whether deal existed.

Walker v. Keller
195 Fed. Appx. 169 (4th Cir. Aug. 24, 2006) (unpublished) (capital case)

Following remand for reconsideration in light of Banks v. Dretke, court finds cause and prejudice to overcome procedural default of Brady claim which alleged the Commonwealth withheld police reports indicating that sole eyewitness did not actually see petitioner on the night of the murder. Petitioner reasonably relied on Commonwealth’s assurance that all Brady material had been disclosed. Case is remanded for an evidentiary hearing.

United States v. Risha
445 F.3d 298 (3rd Cir. 2006)

Where district court granted a new trial under Brady based on its finding that the key prosecution witness expected consideration for his testimony against Risha and that the testimony did in fact help secure him a favorable plea agreement in unrelated state criminal proceedings, the case must be remanded for additional findings. The district court is ordered to determine: (1) whether any of the state actors involved in the state and federal proceedings knew or had reason to know of a deal or expectation involving the impact of the witness’s federal testimony on the state proceedings; and (2) whether any state actor was sufficiently involved in the federal case against Risha, or impeachment evidence was readily obtainable by the prosecutor, such that a finding of constructive knowledge is appropriate.

Apanovitch v. Houk
466 F.3d 460 (6th Cir. 2006) (capital case)

District court abused its discretion in refusing to expand the record to include evidence supporting petitioner’s Brady claims. Although all of the claims were procedurally defaulted, cause and prejudice would be established for two of them if they were found to be meritorious and the State waived the procedural default defense for the other claim. One claim involved testimony by a detective that petitioner had made a statement the phrasing of which expressed an expectation of indictment and yet in the suppressed police report, which the detective had denied included any reference to the statement at issue, petitioner’s statement referred only to the possibility of a future indictment. Another claim involved a hair found on the victim’s body which matched neither petitioner nor the victim. Suppressed was evidence about the precise location of the hair which might have supported an argument by the defense that the hair likely came from the actual killer. Also suppressed were serology results concerning the victim which could have undermined the already weak link to petitioner from the results that were disclosed. On remand, the district court was ordered to reconsider the Brady claims and to conduct an evidentiary hearing if necessary. It was also to reconsider the State’s request for DNA testing.

 

STATE COURTS

State v. Pollitt
508 A.2d 1 (Conn. 1986)

Fact that claimed Brady material was disclosed during, and not after, trial did not preclude the application of Brady obligation to disclose, which declared the right to material and favorable evidence was part of the fundamental right to a fair trial. Remanded for hearing on Brady issue.

Duncan v. State,
575 So.2d 1198 (Ala.Cr.App. 1990), cert. denied, 575 So.2d 1208 (Ala. 1991)
.

State's failure to disclose, despite specific request, legal pad on which police department employees recorded information about the case violated due process to the extent that the pad contained exculpatory information. Remanded for determination.

Roberts v. State
881 P.2d 1 (Nev. 1994)

Trial judge's failure to review confidential informant file before ruling on defendant's Brady claim, that the file contained material information relevant to entrapment defense and state should have disclosed file, required remand for in camera review of file.

Dalbosco v. State
960 S.W.2d 901 (Tex. Ct. App. 1997)

Trial court erred in failing to include for appeal the personnel file of a police officer who testified against appellant. Appellant alleges the file contains information indicating the officer was dissmissed for lying and thus may have been material impeachment evidence. Case abated to trial court to include file.

State v. Lindsey
715 So.2d 544 (La. App. 1998)

Petitioner, who had been convicted of second degree murder, was entitled to an evidentiary hearing on his Brady claim where apparently undisclosed police statements by prosecution witnesses supported petitioner's defense of intoxication and conflicted with the witnesses' trial testimony.

Gorman v. State
619 N.W.2d 802 (Minn. 2000)

Post-conviction relief petitioner was entitled to an evidentiary hearing on his claim that, he was prejudiced in his murder trial, at which he claimed self-defense, by the state's nondisclosure of evidence that the victim had another name and a prior criminal history under that name; the evidence that the victim was boasting that he had just been released from prison would have been admissible to bolster petitioner's credibility, and the evidence might have changed petitioner's decision to testify.

Floyd v. State
808 So.2d 175 (Fla. 2002)

Florida death row inmate Floyd was entitled to an evidentiary hearing on claims that the government withheld exculpatory evidence where the record did not conclusively refute Floyd’s factual allegations. (Floyd alleged that the State withheld the following information: (1) a witness's statement that she saw several white men force their way into the victim's house around the time the State estimated the victim had died; (2) evidence that the man who accompanied Floyd when he was arrested provided deceptive responses on his polygraph; and (3) evidence which would have been used to impeach one of Floyd's former cellmates who testified that Floyd confessed to the crime.)

State v. Reynolds
2002 WL 46988 (Ohio App. 7 Dist Jan. 8, 2002)

Ohio death row inmate was entitled to an evidentiary hearing on his allegation that the state withheld information relating to bias of two witnesses at petitioner’s trial. Petitioner submitted evidence supporting his allegation that the two key prosecution witnesses had, contrary to their trial testimony, agreed to testify only after being promised money by the state. Assuming the suppressed deals can be established, there is a reasonable probability of a more favorable outcome given that the evidence against petitioner was circumstantial, and the state’s case rested primarily on the "colorful and incriminating" testimony of the two witnesses. Further, the alleged deals cast doubt on the testimony of other prosecution witnesses. The trial court erred by evaluating the Brady claim under a sufficiency of the evidence test.

Bergren v. State
2003 WL 446813 (Minn.App. Feb. 25, 2003) (unpublished)

Petitioner was entitled to an evidentiary hearing on his claim that the prosecution violated Brady by failing to disclose a quid pro quo plea agreement with his accomplice where: although the victim’s identification of petitioner as the shooter was equivocal, the accomplice’s testimony on this point was absolute; the accomplice denied at trial that his plea agreement required his testimony against petitioner; and at a post-trial proceeding the accomplice’s attorney asserted that the guilty plea had indeed been "negotiated around" the state's desire to obtain the accomplice’s testimony against petitioner.

Patel v. State
108 S.W.3d 82 (Mo. App. 2003)

Petitioner who was convicted of various counts of assault and armed criminal action was entitled to an evidentiary hearing on his claim that the prosecution failed to disclose the full extent of its bargain with the key prosecution witness (who was the man petitioner allegedly hired to kill two people). A parole revocation transcript did not conclusively refute petitioner’s allegation that the witness received a concurrent sentence in an unrelated case as part of his agreement to testify against petitioner. (The witness received a 20-year sentence for his role in the crimes for which petitioner was charged, a fact known to petitioner’s jury. The witness was also sentenced to 7 years in separate parole revocation proceedings with that sentence to run concurrent to the 20-year sentence.) Given the importance of the witness’s credibility in the prosecution’s case against petitioner, the court finds a reasonable probability of a more favorable verdict had "the jury had been informed that, as alleged, the state recommended a seven-year sentence from an unrelated case be served concurrently with the twenty-year sentence."

Taylor v. State
848 So.2d 410 (Fla. App. 2003)

Petitioner who pleaded guilty to driving under the influence manslaughter was entitled to a remand on her Brady claim where the lower court summarily denied the claim even though there was nothing in the record (at least as provided to the appellate court) to conclusively refute the petitioner’s allegations. Petitioner set forth a viable Brady claim by alleging that the state failed to reveal the results of the blood test from the other driver involved in the accident which would have shown that the driver had alcohol and drugs in her system, as well as statements by a witness that indicated the driver of the other car was intoxicated, driving erratically, and talking on a cell phone at the time of the offense. Petitioner further alleged that she would not have entered the guilty plea but for the state's suppression of the favorable evidence.

Moss v. State
860 So.2d 1007 (Fla. App. 2003)

Circuit court erred by summarily denying a motion for post-conviction relief in murder case where agents from the FBI crime laboratory were important prosecution witnesses and the motion alleged that the prosecution failed to disclose reports finding that the FBI crime laboratory used shoddy practices, that some its agents testified falsely, that errors in testing had occurred, and that flawed scientific reports had been issued. The circuit court erroneously looked only to testimony favorable to the state and then concluded that ample evidence supported petitioner’s convictions exclusive of the testimony of the FBI agents. On remand, the circuit court is to hold an evidentiary hearing or evaluate the weight of the newly discovered evidence and all the evidence presented at trial.

Guzman v. State
868 So.2d 498 (Fla. 2003)

In capital murder case where prosecution witnesses lied about the benefits received by a witness, remand for further consideration of petitioner’s Giglio claim is required because the lower court erroneously applied the less-defense friendly materiality standard of Brady. Where false testimony has been presented, the proper question "is whether there is any reasonable likelihood that the false testimony could have affected the court's judgment as the factfinder in this case. If there is any reasonable likelihood that the false testimony could have affected the judgment, a new trial is required. The State bears the burden of proving that the presentation of the false testimony was harmless beyond a reasonable doubt."

Bustillo v. Johnson
63 Va. Cir. 125, 2003 WL 22518501 (Va. Cir. Ct. 2003)

In a murder case where the defense at trial was that another party was the actual assailant, police reports that provided some corroboration to the defense theory were exculpatory and should have been disclosed. The case is remanded for a limited hearing on the question of materiality.

Abatti v. Superior Court
112 Cal.App.4th 39 (Cal. App. 2003)

Trial court erred in failing to perform in camera review of former police officer’s personnel records where the former officer was a key prosecution witness and defense counsel had obtained information that the witness had left the police department due to accusations of acts of moral turpitude rather than because of a disability as he’d claimed in an interview with the defense investigator. Defense counsel further averred that counseling records in the personnel file would document prior acts of dishonesty. The information sought by defendant was thus material under Brady because it could impeach the former police officer, who was to testify that defendant made admissions to him that would corroborate the victim’s story.

People v. Ledbetter
794 N.E.2d 1067 (Ill. App. 2003)

Lower court erred by summarily dismissing post-conviction relief petition which alleged that the prosecution violated Brady by failing to disclose that the police officer who testified that petitioner had confessed to him was under investigation for corruption at the time of his testimony.

Freshwater v. State
2004 WL 1944140 (Tenn.Crim.App. 2004) (unpublished)

Petitioner who was serving a 99-year sentence for murder was entitled to an evidentiary hearing on her claim of a Brady violation even though the statute of limitations for writs of coram nobis had expired. The petition alleged that defense counsel was not provided with, and did not know of, the portion of the statement made by a jailhouse informant which contained the co-defendant’s admission that he was the sole shooter. The statements were obviously exculpatory in nature as they corroborated the testimony of the petitioner. The court rejected the government’s argument that petitioner was at fault for not bringing the claim earlier given that she had escaped from prison and evaded capture for 32 years. It explained: "The fact that the petitioner escaped from jail and remained a fugitive for many years does not change the fact that the evidence was withheld by the State."

Manning v. State
___ So.2d ___, 2004 WL 964269 (Miss. May 6, 2004)

Evidentiary hearing was warranted on numerous claims, including claims that the prosecution knowingly presented false testimony, coerced a witness into providing false testimony, and suppressed exculpatory evidence. The false testimony/coercion allegation concerned a prosecution witness who testified that he lived across the street from the victims and observed petitioner force his way into the victims’ apartment on the day of the capital murders. Newly discovered evidence, including suppressed police reports, indicated that the witness did not live across the street from the victims’ apartment until after the murders. The witness explained in an affidavit that he was pressured by the police to implicate petitioner. Other suppressed evidence included a finding that a shoe print found in blood at the victims’ apartment was a size 8, which was too small to have been made by petitioner, and information implicating a third party in the offense.

State v. French
85 P.3d 196 (Hawai'i 2004)

Trial court abused its discretion in refusing to conduct an in camera review of the complainant’s probation records and then releasing to defendant relevant information pertaining to the complainant’s truthfulness and honesty. Although the records are confidential under state law, any statutory privilege must bow to the defendant's constitutional rights.

Freshwater v. State
160 S.W.3d 548 (Tenn. Crim. App. 2004)

In robbery-murder case where victim was shot with two different guns and the defense was that the accomplice was solely responsible for the crime which the defendant was unaware in advance would even occur, remand for evidentiary hearing on allegations that the prosecution suppressed evidence that the accomplice admitted sole responsibility to a snitch.

Osborne v. State
110 P.3d 986 (Alaska App. 2005)

Remanding for determination of whether Petitioner is entitled to post-conviction DNA testing under due process clause of state constitution. Petitioner must show (1) that he was convicted based on eyewitness testimony, (2) that there was demonstrable doubt regarding ID, and (3) that scientific evidence could resolve the issue. He must then show that the scientific evidence is newly discovered and that he pursued his claim with due diligence. Includes review of different jurisdictions’ approaches to post-conviction testing.

Polk v. State
906 So.2d 1212 (Fla. 2005)

In sexual abuse case, remand for consideration of petitioner’s claims, including Brady claim, where petitioner post-conviction obtained DNA results excluding him as source of semen found at the crime scene. Defendant had no duty to exercise due diligence in reviewing the DNA test results before the time the state actually furnished them.

Johnson v. State
617 S.E.2d 252 (Ga. App. 2005), rev’d on other grnds., State v. Johnson, 630 S.E.2d 377 (Ga. 2006)

In drug possession case where defense was that the drug was planted in defendant’s car and witnesses described suspicious actions of a man, Cedric Bridges, in and around defendant’s car, lower court needed to determine whether the confidential informant was Bridges, rather than simply a tipster. If it was Bridges, this fact would be crucial to the defense, and that it should be disclosed in the event of a retrial.

People v. Forster
2005 WL 2234760 (Cal. App. Sept. 15, 2005) (unpublished)

Where defendant was convicted of pointing a gun at a police officer based on the testimony of the officer, and defendant admitted he had a gun but claimed he was running away and that the officer falsely accused him to cover up his improper shots at defendant, the trial court failed to conduct the proper Brady analysis when it determined that an incident in which the officer shot at a suspect allegedly attempting to rob him was undiscoverable because the incident was eleven years old and had not been recorded in the officer’s file (although the court noted the age of the incident should be considered in materiality analysis).

Commonwealth v. Daniels
837 N.E.2d 683 (Mass. 2005)

In homicide case, petitioner was entitled to post-conviction discovery in connection with his motion for new trial which was premised on newly discovered information implicating another person in the murder and providing a motive for this new person and another to harm the victim. The Commonwealth had a continuing duty to disclose exculpatory information, despite the trial court’s denial of defendant’s pretrial discovery motions, especially where counsel made very specific requests for information that were related to the new information. Given the specificity of the request a lower standard for determining the appropriateness of a new trial should be used and the defendant “need only demonstrate a substantial basis exists for prejudice from the nondisclosure”

State ex re. Walker v. State
920 So.2d 213 (La. 2006)

Petitioner’s discovery of allegedly suppressed evidence allows untimely filing. Remand to determine if State has been prejudiced by events beyond its control. If not, Brady claim should be reached on merits.

State v. Seabrookes
2006 WL 1060502 (N.J. Super. April 24, 2006) (unpublished)

Remand for further proceedings where it appeared that the prosecution was aware during defendant’s trial of information undercutting its theory of the case – that defendant and his indicted co-defendant committed two murders together. Shortly after defendant’s conviction, the prosecution moved to dismiss the indictment in the co-defendant’s case based on new information indicating he was not involved. This evidence may have been material, among other reasons, because a key eyewitness had identified without hesitation both defendant and the co-defendant as the perpetrators in one of the shootings.

Armstrong v. State
2006 WL 1626726 (Tenn. Crim. App. Jun. 8, 2006) (unpublished)

Writ of coram nobis is proper vehicle for litigating Brady claim if State suppressed evidence. Remanding for determination of whether State suppressed evidence, whether claim could have been discovered with due diligence, and whether Petitioner was “without fault” in delay of bringing claim. Underlying claim involves two medical records indicating that because victim’s eyes were taped shut she never saw her attackers.

Missouri v. Parker
198 S.W.3d 178 (Mo. App. 2006)

Petitioner convicted of being an accessory in a drive-by shooting was entitled to an evidentiary hearing on his claim that the prosecution violated Brady when it suppressed statement from a witness identifying the car from which shots were fired as a car other than one petitioner was in, and statements from witnesses in the home who testified that the victims were outside and ran inside after shooting. Such evidence would have supported his claim that he was in a car that drove by the house at issue, but that shots were not fired from the car he was in and that the house was dark with nobody outside when he drove by.

Ex Parte Ramirez
2006 WL 3735390 (Tex. Crim. App. Dec. 20, 2006) (unpublished)

In burglary case, remand to trial court to consider Brady claim where prosecutor had not yet responded to petitioner’s allegation that the State suppressed evidence that a witness could not identify him as the perpetrator of the offense, and then falsely represented to the defense, and the trial court, that the witness was medically unavailable to testify.

Boyd v. United States
908 A.2d 39 (D.C. 2006)

In kidnaping-murder case where prosecution theory was that defendant was one of four assailants, and defense theory was that three men not including the defendant committed the crime, case is remanded to trial court for it to order prosecution to disclose statements by eyewitnesses to the kidnaping who saw less than four assailants. If the defendant believes the statements are material, he is to file a motion to vacate the conviction under Brady. The prosecution had withheld the statements on the ground that the witnesses may not have been in a position to see all four men. The trial court had agreed that disclosure was not required and denied a defense request to review the statements in camera, noting that the prosecution’s theory was not that the four men were standing together for anyone to see. At trial, however, one of the prosecution witnesses claimed to have seen four assailants outside the car. “In arguable cases, the prosecutor should provide the potentially exculpatory information to the defense or, at the very least, make it available to the trial court for in camera inspection. Further, when the issue appears to be a close one, the trial court should insist upon reviewing such material, and should direct disclosure to the defense if, considering (to the extent possible) the anticipated course of the trial, there is a reasonable probability that disclosure may affect the outcome.”

 

DISTRICT COURT CASES

Bell v. Haley,
2001 WL 1772140 (M.D. Ala. Dec. 5, 2001) (unpublished)

In Alabama death penalty case, petitioner was entitled to an evidentiary hearing on his claim that the prosecution suppressed evidence that witness Austin, who testified that petitioner confessed to committing the murder alone, had made a prior statement indicating that petitioner had claimed that prosecution witness Hubbard had fired the initial shot. Petitioner was also entitled to a hearing on his allegation that the prosecution failed to disclose a deal made with Austin in exchange for his testimony against petitioner, and on whether the state failed to correct false testimony by Hubbard and Austin. "One obvious purpose of the rule announced in [Brady and its progeny] is to prevent the prosecution from doing what it may have done here: presenting to the jury a theory of the case that it may have known was incomplete or misleading and suppressing the evidence that would enable the jury to undertake informed and meaningful deliberations." Materiality regarding the above evidence is measured by whether or not there is a reasonable probability of a more favorable sentence. Given new evidence proffered by petitioner, he is also entitled to an evidentiary hearing on his claim that the prosecution suppressed evidence of a deal with prosecution witness Hubbard. Although the claim was procedurally defaulted, cause and prejudice were established.

Herbert v. Government of Virgin Islands
2001 WL 1691546 (D. Virgin Islands Dec. 10, 2001) (unpublished)

Defendant was entitled to an evidentiary hearing on his claim that the prosecution suppressed a tape recording or transcript in which the identity of the real robber-killer was revealed. The trial court erred in denying the Brady claim on the grounds that defendant had not requested the information and that the prosecution had not been actually aware of it. The case is remanded in order to give defendant "the opportunity to establish the location of the tape or transcript, whether the Government had possession of it, whether the prosecutor knew or should have known of it and otherwise attempt to establish his Brady claim."

Lavallee v. Coplan
239 F.Supp.2d 140 (D. N.H. 2003)

In case involving charges of sexual abuse of a minor, the state court’s finding that the prosecution had no duty to produce records in the possession of the New Hampshire Department of Health and Human Services, Division of Children, Youth and Families ("DCYF") contradicted the broad language used by the Supreme Court in Kyles v. Whitley, and was "contrary to" Pennsylvania v. Ritchie, where the Supreme Court made no distinction between the prosecution and a state protective service agency that possessed exculpatory evidence sought by the defense. Although neither Pennsylvania v. Ritchie nor Kyles v. Whitley requires prosecutors to survey every state agency to determine whether the agencies possess potentially exculpatory evidence, where, as in this case, "the state has a statute pertaining to the disclosure of confidential state records, and the trial court has ordered the prosecutor to produce those records to the defense, the disclosure obligations of Brady v. Maryland, and its progeny, apply." The suppression of the relevant records until jury deliberations were in progress denied Lavallee of the opportunity to effectively utilize the materials; it is "unreasonable to suggest that Lavallee should have asked the trial court to re-open the evidence at that point for additional cross-examination." Lavellee’s motion to dismiss the indictment following revelation of the records was adequate to preserve the Brady claim. Materiality will be determined by review of the records and consideration of the entire record. Relief will be precluded, however, if the state trial court’s finding that the records were cumulative, and therefore not material, was not contrary to Supreme Court precedent or involving an unreasonable application of such precedent.

Reid v. Vaughn
2003 WL 924080 (E.D. Pa. March 4, 2003) (unpublished)

In post-AEDPA case, petitioner was entitled to an evidentiary hearing on his claim of Brady error premised on the failure of the prosecutor to reveal that a key prosecution witness had given an inconsistent description of the crime shortly before his testimony and then reverted to the original version after receiving stern warnings from the prosecutor. (The Brady claim was discovered when post-conviction counsel read of the incident in a non-fiction book.) The petitioner did not fail to develop the facts in state court given that he presented a statement written by a defense investigator who had interviewed the prosecution witness and received confirmation from him about the allegation, and petitioner had requested, but was denied, an evidentiary hearing. Petitioner was not guilty of lack of diligence simply because he did not present the state court with affidavits from the prosecutor or the prosecution witness. The state court’s ruling that petitioner was not entitled to an evidentiary hearing because he failed to present sufficient evidence to support his allegations was not imposition of an adequate state procedural rule given that the rule was not consistently applied.

United States v. Anderson
2003 WL 21544241 (D. Kan. July 2, 2003) (unpublished)

In federal criminal case involving Medicare kickbacks and conspiracy, petitioner was entitled to an evidentiary hearing on his claim that the prosecution suppressed evidence that one of its witnesses had a prior relationship with federal law enforcement officials.

Lopez v. Massachusetts
349 F.Supp.2d 109 (D. Mass 2004)

In kidnapping-murder case, petitioner was entitled to an evidentiary hearing, and was authorized to seek discovery, on his Brady claim which involved suppression of evidence about an alternative suspect.

Steward v. Grace
362 F.Supp.2d 608 (E.D. Pa. 2005)

Petitioner convicted of murder was entitled to evidentiary hearing on his Brady claim involving an allegation that the prosecution suppressed evidence that the coat allegedly belonging to the killer contained hair that did not match petitioner. It needed to be resolved whether a search warrant indicated the purpose for which petitioner’s hair was taken. If it did, petitioner would have been on notice of the testing and not entitled to relief. A request for DNA testing of the hair was denied, because it would not prove actual innocence or provide the basis for relief on any claim.

Williams v. Schriro
423 F.Supp.2d 994 (D. Ariz. 2006) (capital case)

In highly circumstantial capital murder case, petitioner was entitled to an evidentiary hearing on his claim that the prosecution violated Brady by withholding evidence regarding the existence of an alternate suspect. The state court procedural bar on untimeliness grounds was not consistently applied, and petitioner had diligently presented his claim to state court.