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
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 victimís 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.
COURTS OF APPEALS
United States v. Disston,
582 F.2d 1108 (7th Cir.
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.
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
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.
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
United States v. Torres,
719 F.2d 549 (2nd Cir.
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.
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
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
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,
F.2d 302 (3rd Cir. 1985)
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
Anderson v. United States,
788 F.2d 517 (8th
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.
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
Barkaukas v. Lane,
878 F.2d 1031 (7th Cir.
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.
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
United States v. Khoury,
901 F.2d 948 (11th Cir.
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.
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.
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.
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.
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)
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.
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.
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
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.
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.
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 Parkusí 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 Parkusí trial attorney provided the "cause"
necessary to overcome the procedural default of the claim.
United States v. Hanna,
55 F.3d 1456 (9th Cir.
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,
F.3d 346 (6th Cir. 1997), cert. denied, 552 U.S. 810
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
Grisby v. Blodgett,
130 F.3d 365 (9th Cir.
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.
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. ß 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.
153 F.3d 925, 929 (9th Cir. 1998)
The court reversed the district court's
denial of ß2255 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
Walton v. Stewart,
1999 WL 57427 at *13 (9th Cir. Feb. 5, 1999)
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)
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.
Moore v. Gibson
195 F.3d 1152 (10th Cir. 1999),
cert. denied, 530
U.S. 1208 (2000)
State courtís conclusion that capital
petitionerís allegations failed to meet Bradyís 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 Stateís case against petitioner. Petitionerís 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
Fed. Appx. 869, 2001 WL 1521315 (10th Cir.
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.
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 defendantís 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 petitionerís
claim of a Brady violation related to prosecutionís failure to
disclose a deal with the key prosecution witness to delay a psychiatric
evaluation until after petitionerís trial.
Newell v. Hanks
283 F.3d 827 (7th Cir.
In drug case, the court remands for further consideration of
petitionerís Brady claim which was based on the prosecutionís
failure to disclose pretrial statements by a nontestifying witness which
exonerated petitioner, as well as that witnessís cooperation agreement.
Petitioner had stated a colorable Brady claim given that the
prosecutionís case depended almost entirely on a police officerís
testimony that the nontestifying witness had claimed to have received
cocaine from petitioner. The court soundly rejected the governmentís
argument that the suppressed evidence wasnít material because the
witness did not testify. In sending the case back, the appeals court
noted that 28 U.S.C. ß 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
courtís 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 petitionerís Brady
claim. The new evidence might have impeached two trial witnesses and
suggested a sequence of events that was consistent with petitionerís
grand jury testimony. Given that the district court has twice before
ruled in petitionerís 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
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 facilityís 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
United States v. Anderson
2003 WL 21544241 (D. Kan.
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
governmentís contention that it had no knowledge of such a relationship
at the time of petitionerís 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 witnessís relationship
with law enforcement. Because the FBI assisted in the prosecution, any
knowledge possessed by the FBI was imputed to the
Piggie v. Cotton
344 F.3d 674 (7th Cir.
In prison disciplinary case, district court erred by applying 28
U.S.C. ß 2254(d) as a barrier to relief, since "prison disciplinary
boards are not Ďcourtsí for purposes of 28 U.S.C. ß 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
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)
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.
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.
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 victimís
death Ė kerosene lamp fluid Ė was not present in the victimís home and
had to have been brought to the scene by petitioner thereby showing
Kelly v. Dretke,
2004 WL 1777082 (5th Cir. 2004)
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 ďluckyĒ 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 prosecutionís 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 petitionerís 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 petitionerís motion to amend his petition to
include a Brady claim based on the governmentís alleged failure to disclose exculpatory
information before petitionerís 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-defendantís 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 petitionerís otherwise
uncorroborated confession. Notably, the prosecutor referred to the importance of the
witnessís 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 witnessís 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
Commonwealthís 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 witnessís 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 petitionerís 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,
petitionerís statement referred only to the possibility of a future indictment. Another
claim involved a hair found on the victimís 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 Stateís request for DNA
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
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.
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.
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.
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)
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 Floydís 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,
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 petitionerís 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 stateís 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 victimís
identification of petitioner as the shooter was equivocal, the
accompliceís 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 accompliceís attorney
asserted that the guilty plea had indeed been "negotiated around" the
state's desire to obtain the accompliceís testimony against
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 petitionerís 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
petitionerís 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 witnessís credibility
in the prosecutionís 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
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 petitionerís 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 petitionerís 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
petitionerís 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 officerís 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 heíd 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 victimís 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-defendantís 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
governmentís 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 victimsí
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 victimsí 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 victimsí 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 complainantís probation records and then
releasing to defendant relevant information pertaining to the
complainantís 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
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 jurisdictionsí approaches to post-conviction
Polk v. State
906 So.2d 1212 (Fla. 2005)
In sexual abuse case, remand for consideration of petitionerís 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), revíd 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 defendantís car
and witnesses described suspicious actions of a man, Cedric Bridges, in and around
defendantís 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 officerís file (although the court noted the age of the incident should be considered in
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 courtís denial of defendantís 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 ďneed
only demonstrate a substantial basis exists for prejudice from the nondisclosureĒ
State ex re. Walker v. State
920 So.2d 213 (La. 2006)
Petitionerís 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
defendantís trial of information undercutting its theory of the case Ė that defendant and
his indicted co-defendant committed two murders together. Shortly after defendantís
conviction, the prosecution moved to dismiss the indictment in the co-defendantís 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
ďwithout faultĒ in delay of bringing claim. Underlying claim involves two medical
records indicating that because victimís 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 petitionerís 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 prosecutionís 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. ďIn 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
DISTRICT COURT CASES
2001 WL 1772140 (M.D. Ala. Dec. 5, 2001)
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
2001 WL 1691546 (D. Virgin Islands Dec. 10, 2001)
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
F.Supp.2d 140 (D. N.H. 2003)
In case involving charges of sexual abuse of
a minor, the state courtís 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." Lavelleeís 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 courtís finding that the records were
cumulative, and therefore not material, was not contrary to Supreme
Court precedent or involving an unreasonable application of such
Reid v. Vaughn
2003 WL 924080 (E.D. Pa. March 4,
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 courtís 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
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 petitionerís 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.