UNITED STATES COURTS OF APPEALS

 

Barbee v. Warden,
331 F.2d 842 (4th Cir. 1964)

In A.W.I.K. and unauthorized use of automobile case, wherein defendant's gun was offered for ID purposes only and several witnesses made partial ID of gun as being used in shooting, reports of ballistics and fingerprint tests made by police, which tended to show that different gun was used and to exculpate defendant, were relevant and prosecution should have disclosed their existence.

United States ex rel. Thompson v. Dye, 
221 F.2d 763 (3rd Cir.), cert. denied, 350 U.S. 815 (1955)

Conviction reversed where state failed to inform defense counsel that arresting officer smelled alcohol on defendant at the time of arrest. Absent state's deceit, jury may have believed defendant's physical and mental state evidence.

Levin v. Katzenbach, 
363 F.2d 287 (D.C. Cir. 1966)

Claim for relief based on breach of prosecutor's duty to disclose is not dependent on whether a more able, diligent or fortunate counsel might possibly have discovered the evidence on his own.

Jackson v. Wainwright, 
390 F.2d 288 (5th Cir. 1968)

In racial misidentification case, failure of prosecutor to reveal misidentification requires reversal even though defense counsel had name and address of the witness.

United States ex. rel. Raymond v. Illinois, 
455 F.2d 62 (7th Cir. 1972), cert. denied, 409 U.S. 885 (1972)

Defendant entitled to new trial even though exculpatory evidence had been revealed to defendant himself, but not to defense counsel.

United States v. Deutsch, 
475 F.2d 55 (5th Cir. 1973), overruled on other grounds, United States v. Henry, 749 F.2d 203 (5th Cir. 1984)

Prosecution found to be in possession of information which was in the files of the Postal Service. Availability of information is not measured by how difficult it is to get, but simply whether it is in possession of some arm of the state.

United States v. Gerard, 
491 F.2d 1300 (9th Cir. 1974)

Convictions reversed where defendants were deprived of all evidence of promise of leniency by prosecutor, and prosecutor failed to disclose that witness was in other trouble, thereby giving him even greater incentive to lie.

Washington v. Vincent, 
525 F.2d 262 (2nd Cir. 1975), cert. denied, 424 U.S. 934 (1976)

Conviction reversed where key prosecution witness lied about his deal with the state, and prosecutor took no action to correct what he knew was false testimony. This case was reversed despite the fact that there was evidence that the defendant and his counsel knew of the perjury as it happened but took no steps to object.

United States v. Pope, 
529 F.2d 112 (9th Cir. 1976)

Conviction reversed where prosecution failed to disclose plea bargain with key witness in exchange for testimony and compounded the violation by arguing to the jury that the witness had no reason to lie.

Norris v. Slayton, 
540 F.2d 1241 (4th Cir. 1976)

Habeas granted where state failed to furnish to rape defendant's counsel copy of lab report showing no hair or fiber evidence in defendant's undershorts or in victim's bed.

Boone v. Paderick, 
541 F.2d 447 (4th Cir. 1976), cert. denied, 430 U.S. 959 (1977)

Petitioner prejudiced where prosecutor failed to disclose deal with accomplice/witness for leniency. Prosecutor knew or should have known that false evidence was being presented where witness denied deal at trial.

United States v. Sutton, 
542 F.2d 1239 (4th Cir. 1976)

Reversed where prosecutor concealed evidence that key prosecution witness was coerced into testifying against defendant, and then went on to falsely assure the jury that no one had threatened the witness.

Annunziato v. Manson, 
566 F.2d 410 (2nd Cir. 1977)

Habeas granted where one of two key prosecution witnesses testified falsely that he received no promise of leniency when in fact he had made a deal to avoid prison on pending charges, and prosecutor knew or should have known of this fact.

United States v. Butler, 
567 F.2d 885 (9th Cir. 1978)

New trial required where government failed to disclose whether the witness had been promised a dismissal of the charges against him, and the witness testified falsely in this regard. The standard is whether the false testimony could in any reasonable likelihood have affected the judgment of the jury.

Jones v. Jago, 
575 F.2d 1164 (6th Cir. 1978), cert. denied, 439 U.S. 883 (1978)

Habeas granted under Brady and Agurs where state withheld, despite defense request, a statement from coindictee who, prior to trial, had been declared material witness for prosecution, and against whom all charges were then dropped. State's claim that witness' statement made no express reference to defendant and was therefore neutral was unsuccessful.

United States v. Beasley, 
576 F.2d 626 (5th Cir. 1978), cert. denied, 440 U.S. 947 (1979)

Conviction reversed due to failure of government to timely produce statement of key prosecution witness where not only was the witness critical to the conviction, but defense and prosecution argued his credibility at length, and the statement at issue differed from witness' trial testimony in many significant ways.

United States v. Herberman, 
583 F.2d 222 (5th Cir. 1978)

Testimony presented to grand jury contradicting testimony of government witnesses was Brady material subject to disclosure to the defense.

Campbell v. Reed, 
594 F.2d 4 (4th Cir. 1979)

Where co-defendant denied existence of agreement with prosecution during testimony, prosecution had a duty to correct. Jury was entitled to know about it and prosecution's deliberate deception was fundamentally unjust.

United States v. Antone, 
603 F.2d 566 (5th Cir. 1979), cert. denied, 446 U.S. 957 (1980)

For Brady analysis, no distinction is drawn between different agencies under the same government --- all are part of the "prosecution team."

Monroe v. Blackburn, 
607 F.2d 148 (5th Cir. 1979)

Armed robbery conviction reversed where, despite specific request by defendant, prosecutor withheld a statement given by the victim to police which could have been useful in attacking victim's testimony at trial. Because the request was specific, the standard of review was "no reasonable likelihood that evidence would have affected judgment of the jury."

United States v. Gaston, 
608 F.2d 607 (5th Cir. 1979)

Reversed where trial court failed to conduct an in camera review of Brady material despite defendant's request for specific documents relating to interviews of two named witnesses, no evidentiary hearing was conducted, nor were the documents produced. The reports were sought not only for impeachment, but for substantive exculpatory use.

DuBose v. Lefevre, 
619 F.2d 973 (2nd Cir. 1980)

Reversed where state encouraged witness to believe that favorable testimony would result in leniency toward the witness. Failure to disclose was not justified by fact that promise of state had not taken a specific form. Questions about a deal arose during examination of the witness, but nothing about the deal was disclosed.

Martinez v. Wainwright,
 621 F.2d 184 (5th Cir. 1980)

Brady violated where state prosecutor was unaware that FBI rap sheet was in possession of the medical examiner.

United States v. Auten, 
632 F.2d 478 (5th Cir. 1980)

Prosecutor's lack of knowledge of witness's criminal record was no excuse for Brady violation.

Chavis v. North Carolina,
 637 F.2d 213 (4th Cir. 1980)

Conviction reversed where prosecution suppressed an amended statement by a key witness, information concerning the witness's favorable treatment by authorities, and records of the witness's mental deficiencies.

United States v. Muse, 
708 F.2d 513 (10th Cir. 1983)

Prosecutor must produce Brady material in personnel files of government agents even if they are in possession of another agency.

Anderson v. State of South Carolina, 
709 F.2d 887 (4th Cir. 1983)

Conviction reversed where prosecution withheld police reports despite general and specific requests from defense counsel, and failed to furnish autopsy reports upon counsel's request. There is no general "public records" exception to the Brady rule.

United States v. Holmes, 
722 F.2d 37 (3rd Cir. 1983)

District court abused its discretion by denying defendant's request for adjournment to permit counsel to complete examination of Jencks Act material, which was a stack of paper at least eight inches thick provided on the morning of the day before trial.

Chaney v. Brown, 
730 F.2d 1334 (10th Cir. 1984), cert. denied, 469 U.S. 1090 (1984)

Conviction affirmed but death sentence reversed where evidence, admissible under Eddings, which contradicted prosecution's theory of the murder and placed defendant 110 miles from the scene, was withheld by prosecution.

Carey v. Duckworth, 
738 F.2d 875 (7th Cir. 1984)

Prosecution cannot avoid Brady by keeping itself ignorant or compartmentalizing information about different aspects of the case.

United States v. Alexander, 
748 F.2d 185 (4th Cir. 1984), cert. denied, 472 U.S. 1027 (1985)

Government's equivocation in making critical factual representations to defense counsel and to district court regarding its possession of Brady materials requested in connection with new trial motion fatally compromised integrity of proceedings on the motion so that district court's denial of the motion could not stand.

Walter v. Lockhart, 
763 F.2d 942 (8th Cir. 1985), cert. denied, 478 U.S. 1020 (1986)

State held, for over twenty years, a transcript of a conversation tending to exculpate the defendant insofar as it supported his claim that the cop shot at him first.

United States v. Fairman, 
769 F.2d 386 (7th Cir. 1985)

Prosecutor's ignorance of existence of ballistic's worksheet indicating gun defendant was accused of firing was inoperable does not excuse failure to disclose.

Lindsey v. King, 
769 F.2d 1034 (5th Cir. 1985)

Brady violated where prosecution, after a specific request, suppressed initial statement of eyewitness to police in which he said he could not make an ID because he never saw the murderer's face. His story changed after he found out there was a reward.

Brown v. Wainwright, 
785 F.2d 1457 (11th Cir. 1986)

Habeas granted under Giglio where prosecution allowed its key witness to testify falsely, failed to correct the testimony, and exploited it in closing argument. Standard is whether false testimony could in any reasonable likelihood have affected the judgment of the jury.

United States v. Severdija, 
790 F.2d 1556 (11th Cir. 1986)

Written statement defendant made to coast guard boarding party should have been disclosed under Brady, and failure to disclose warranted new trial. The statement tended to negate the defendant's intent, which was the critical issue before the jury.

Bowen v. Maynard, 
799 F.2d 593 (10th Cir. 1986), cert. denied, 479 U.S. 962 (1986)

Violation where prosecution failed to disclose that they considered Crowe a suspect when Crowe better fit the description of eyewitnesses, was suspected by law enforcement in another state of being a hit man, and carried the same weapon and unusual ammunition used in the murders. This met even the strictest standard under Agurs.

Moore v. Kemp, 
809 F.2d 702 (11th Cir. 1987), cert. denied, 481 U.S. 1054 (1987)

Whether a key prosecution witness was incarcerated at the time of his testimony against a capital defendant, or had been promised immunity for his testimony, would be material if not disclosed.

Carter v. Rafferty, 
826 F.2d 1299 (3rd Cir. 1987), cert. denied, 484 U.S. 1011 (1988)

Lie detector reports of test given to important prosecution witness were material where witness' testimony was the only direct evidence placing petitioner at scene of crime. Fact that other contradictory statements of the witness had been disclosed did not remove the "materiality" of the lie detector results.

Hyman v. Aiken, 
824 F.2d 1405 (4th Cir. 1987)

Court recognized defense counsel's error in failing to cite Giglio as authority to cross-examine witness about promise of immunity in context of IAC claim.

Miller v. Angliker,
 848 F.2d 1312 (2nd Cir. 1988), cert. denied, 488 U.S. 890 (1988)

Habeas granted where state withheld evidence which indicated that another person had committed the crimes with which defendant was charged. Same standard for Brady claim evaluation applies for defendant who pled not guilty by reason of insanity as for defendant who pled guilty.

United States v. Strifler, 
851 F.2d 1197 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989)

Information in government witness' probation file was relevant to witness' credibility and should have been released as Brady material. Criminal record of witness could not be made unavailable by being part of probation file. District court's failure to release these materials required reversal.

Jones v. City of Chicago, 
856 F.2d 985 (7th Cir. 1988)

[Civil case] While Brady does not require police to keep written records of all their investigatory activities, attempts to circumvent the rule by keeping records in clandestine files deliberately concealed from prosecutors and defense, which contain exculpatory evidence, cannot be tolerated.

McDowell v. Dixon,
858 F.2d 945 (4th Cir. 1988), cert. denied, 489 U.S. 1033 (1989)

Black defendant's due process rights violated where state suppressed key witness's initial statement that attacker was white and prosecutor added to the deception at trial by allowing witness to testify that she "had always described her attacker as a black man."

United States v. Bryan, 
868 F.2d 1032 (9th Cir. 1989), cert. denied, 493 U.S. 858 (1989)

Prosecutor is deemed to have knowledge of everything in the investigation of defendant.

United States v. Weintraub,
871 F.2d 1257 (5th Cir. 1989)

Impeachment evidence which was withheld would have allowed defendant to challenge evidence presented as to amount of narcotics sold, was material to sentencing and required remand for new sentencing hearing.

Reutter v. Solem,
 888 F.2d 578 (8th Cir. 1989)

Prosecution's failure to inform defense that key witness had applied for commutation and been scheduled to appear before parole board a few days after his testimony required reversal. Violation was compounded by prosecution's statement to the jury that the witness had no possible reason to lie.

United States v. Tincher, 
907 F.2d 600 (6th Cir. 1989)

"Deliberate misrepresentation" where prosecutor withheld grand jury testimony of cop, after defense requested any Jencks Act or Brady material and prosecutor responded that none existed. Convictions reversed.

United States v. Wayne, 
903 F.2d 1188 (8th Cir. 1990)

Government's failure to disclose Brady material required new trial where drug transaction records would have aided cross-exam of key witness.

United States v. Tincher, 
907 F.2d 600 (6th Cir. 1990)

Prosecutor's response to Jencks Act and Brady request was deliberate misrepresentation in light of knowledge of testimony of government agent before grand jury. Reversal was required since misconduct precluded review of the agent's testimony by the district court.

Campbell v. Henman, 
931 F.2d 1212 (7th Cir. 1991)

Inmates do not forfeit right to exculpatory material before disciplinary proceeding simply because they forego option of assistance of staff representative who would have access to such material.

Ouimette v. Moran, 
942 F.2d 1 (1st Cir. 1991)

Due process violated by state's failure to disclose long criminal record of, and deals with, state's chief witness where evidence against defendant came almost entirely from this witness.

Jean v. Rice, 
945 F.2d 82 (4th Cir. 1991)

Audio tapes and reports relating to hypnosis of rape victim and investigating officer were material under Brady, and should have been disclosed to defense where they had strong impeachment potential and could have altered case.

Brown v. Borg, 
951 F.2d 1011 (9th Cir. 1991)

Brady violated where prosecutor knew her theory of the case was wrong but misled the jury to think the opposite was true through her presentation of testimony.

Jacobs v. Singletary, 
952 F.2d 1282 (11th Cir. 1992)

Brady violated where state failed to disclose statements of witness to polygraph examiner which contradicted her trial testimony.

United States v. Spagnoulo, 
960 F.2d 990 (11th Cir. 1992)

New trial ordered on basis of Brady violation where prosecution failed to disclose results of a pre-trial psychiatric evaluation of defendant which would have fundamentally altered strategy and raised serious competency issue.

United States v. Minsky, 
963 F.2d 870 (6th Cir. 1992)

Government improperly refused to disclose statements of witness that he did not make at trial. Disclosure could have resulted in loss of credibility with jury based on false statements to FBI.

United States v. Brooks, 
966 F.2d 1500 (D.C. Cir. 1992)

Prosecution's Brady obligation extends to search of files in possession of police department and internal affairs division.

Walker v. City of New York, 
974 F.2d 293 (2nd Cir. 1992), cert. denied, 113 S.Ct. 1387 (1993)

In a §1983 action, plaintiff's complaint alleging failure of the municipality to train its assistant DA's on fulfilling Brady obligations, with result that the DA's suppressed impeachment evidence and failed to reveal lineup misidentification, was sufficient to state a claim against the municipality.

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

State obliged to turn over to petitioner any exculpatory semen evidence for use in federal habeas proceeding in which petitioner sought to overcome state procedural default through miscarriage of justice exception, for colorable showing of actual innocence, and duty was not extinguished by petitioner's failure to argue existence of such obligation in district court; due to obvious exculpatory nature of semen evidence in sexual assault case, neither specific request nor claim of right by petitioner was required to trigger duty of disclosure.

Hudson v. Whitley, 
979 F.2d 1058 (5th Cir. 1992)

Habeas petitioner, in fourth petition, claimed that state suppressed crucial evidence that its only eyewitness had originally identified a third party, and that third party had been arrested. Petitioner demonstrated "good cause" because state failed to disclose the info despite repeated requests.

United States v. Gregory, 

983 F.2d 1069 (6th Cir. 1992) (unpublished)

Government suppressed audio from a videotape of marijuana plants being destroyed. The information in the audio would have significantly reduced defendant's sentence. This was a Brady violation.

United States v. Kojayan, 
8 F.3d 1315 (9th Cir. 1992)

Where government failed to disclose agreement with potential witness and later request for missing witness instruction was denied because counsel was unaware of the agreement, Brady required disclosure.

United States v. Brumel-Alvarez,
 991 F.2d 1452 (9th Cir. 1993)

Brady violation where government failed to disclose memo indicating that informant lied to DEA, had undue influence over DEA agents, and thwarted investigation of evidence crucial to his credibility.

Ballinger v. Kerby, 
3 F.3d 1371 (10th Cir. 1993)

Failure to produce exculpatory photograph, which would have undermined co-defendant's already flimsy credibility, violated Due Process.

United States v. Kalfayan, 
8 F.3d 1315 (9th Cir. 1993)

Where defense counsel had made Brady request about whether key witness had signed cooperation agreement, and later request for missing witness instruction foundered because defense counsel did not know of the deal, Brady required government to disclose its existence.

United State v. Udechukwu, 
11 F.3d 1101 (1st Cir. 1993)

New trial granted to remedy prosecutorial misconduct of failing to disclose salient information concerning defendant's theory that she had been coerced into being a drug courier. Prosecutor argued during closing that there was no evidence to support defendant's claim when in fact he knew that source defendant named existed and was a prominent drug trafficker.

Demjanjuk v. Petrovsky, 
10 F.3d 338 (6th Cir. 1994), cert. denied, 115 S.Ct. 295 (1994)

Prosecutorial misconduct where government attorneys failed to disclose to defendant and court exculpatory materials during denaturalization and extradition proceedings of alleged "Ivan the Terrible." They acted with "reckless disregard."

United States v. Young, 
17 F.3d 1201 (9th Cir. 1994)

New trial granted where detective's testimony regarding location of incriminating notebooks was false, regardless of whether government presented the evidence unwittingly. Reasonable probability existed that result would have been different absent the false testimony, which was highly prejudicial in light of government's otherwise weak case.

United States v. Kelly, 
35 F.3d 929 (4th Cir. 1994)

Kidnapping conviction reversed where government failed to furnish an affidavit in support of an application for a warrant to search key witness's house just before trial, and failed to disclose a letter written by same witness which would have seriously undermined her credibility.

United States v. Robinson, 
39 F.3d 1115 (10th Cir. 1994)

District court did not abuse discretion in ordering new trial where, in violation of Brady, government failed to disclose evidence tending to identify former codefendant as drug courier; conviction was based largely on testimony of codefendants and defendant had strong alibi evidence.

United States v. Alzate, 
47 F.3d 1103 (11th Cir. 1995)

Failure of prosecutor to correct representations he made to the jury which were damaging to defendant's duress defense, despite having learned of their falsehood during the course of the trial, was Brady violation and required granting of new trial motion.

Smith v. Secretary of New Mexico Dept. of Corrections,
50 F.3d 801 (10th Cir. 1995), cert. denied, 116 S.Ct. 272 (1995)

Habeas granted where material evidence relating to a third person/suspect was not disclosed, prosecutor's lack of actual knowledge was irrelevant because police knew, and prosecution's "open file" was not sufficient to discharge its duty under Brady.

Banks v. Reynolds, 
54 F.3d 1508 (10th Cir. 1995)

Habeas relief granted to capital murder petitioner where failure of prosecution to disclose to defendant that another individual had been arrested for the same crime violated defendant's right to a fair trial. Relief is granted on the Brady claim despite possible knowledge by defense counsel of withheld material because "the prosecution's obligation to turn over the evidence in the first instance stands independent of the defendant's knowledge."

United States v. Boyd, 
55 F.3d 239 (7th Cir. 1995)

Trial court did not abuse discretion by granting new trial based on government's failure to reveal to defense either drug use and dealing by prisoner witnesses during trial or "continuous stream of unlawful" favors prosecution gave those witnesses.

United States v. O'Connor, 
64 F.3d 355 (8th Cir. 1995), cert. denied, 116 S.Ct. 1581 (1996)

Brady violation occurring when government failed to inform defendant of threats by one government witness against another and attempts to influence second government witness' testimony was reversible error with respect to convictions on those substantive drug counts and conspiracy counts where testimony of those government witnesses provided only evidence; evidence of threats, combined with undisclosed statements from interview reports, could have caused jury to disbelieve government witnesses.

United States v. David, 
70 F.3d 1280 (9th Cir. 1995) (unpublished)

New trial ordered where defendant had been convicted of operating a continuing criminal enterprise solely on the strength of testimony of two prisoners serving life sentences in the Philippines. Subsequent to the conviction, these two prisoners were released, and defendant discovered previously undisclosed evidence of a deal between the government and the two prisoners.

Spencer v. Klauser, 
70 F.3d 1280 (9th Cir. 1995) (unpublished)

Habeas case attacking guilty plea to child molestation charges remanded for evidentiary hearing where substantial evidence tended to show that medical reports indicating no signs of sexual abuse existed at time of plea but were not disclosed by the state. This nondisclosure, coupled with defendant's questionable mental competency created the danger of a guilty plea by an innocent man, and further inquiry was required.

United States v. Lloyd, 
71 F.3d 408 (D.C.Cir. 1995)

Defendant who was convicted of aiding and abetting in preparation of false federal income tax returns was entitled to new trial where prosecution: (1) withheld, without wrongdoing, tax return of defendant's client for year which defendant did not prepare returns; and (2) failed to disclose prior tax returns for four of defendant's clients. The first item would probably have changed the result of the trial, and the second group of items were exculpatory material evidence.

United States v. Smith,
77 F.3d 511 (D.C.Cir. 1996)

Dismissal of state court charges against prosecution witness, as part of plea agreement in federal court, was material and should have been disclosed under due process clause, even though prosecutor disclosed other dismissed charges and other impeachment evidence was thus available, and whether or not witness was intentionally concealing agreement. Armed with full disclosure, defense could have pursued devastating cross-exam, challenging witness' assertion that he was testifying only to "get a fresh start" and suggesting that witness might have concealed other favors from government.

United States v. Cuffie, 
80 F.3d 514 (D.C. Cir. 1996)

Undisclosed evidence that prosecution witness, who testified that defendant paid him to keep drugs in his apartment, had previously lied under oath in proceeding involving same conspiracy was material where witness was impeached on basis that he was a cocaine addict and snitch, but not on basis of perjury, and where his testimony provided only connection between defendant and drugs found in witness' apartment.

Guerra v. Johnson, 
90 F.3d 1075 (5th Cir. 1996)

Grant of habeas relief affirmed where district court made detailed, legally relevant factual findings indicating that police had intimidated key witnesses to murder of police officer and failed to disclose material information regarding who was seen carrying the murder weapon moments after the shooting .

United States v. Sebring, 
44 M.J. 805 (N.M.Ct.Crim.App. 1996) [MILITARY] 

Under Kyles, prosecutor's obligation to search for favorable evidence known to others acting on the government's behalf extends to information concerning levels of quality control at government's controlled substances testing laboratory. Failure of prosecuting officer to discover and disclose report indicating that laboratory had experienced significant quality control problems required reversal of defendant's conviction.

United States v. Steinberg, 
99 F.3d 1486 (9th Cir. 1996), disapproved on other grounds, 165 F.3d 689 (9th Cir. 1999) (en banc)  

New trial ordered where prosecution failed to disclose information indicating that its key witness, an informant, was involved in two different illegal transactions around the time he was working as a CI, and that the informant owed the defendant money, thus giving him incentive to send the defendant to prison. Although the prosecutor did not know about the exculpatory information until months after the trial, nondisclosure to the defense of this material evidence required a new trial.

United States v. Pelullo, 
105 F.3d 117 (3rd Cir. 1997)

Denial of '2255 motion reversed where government failed to disclose surveillance tapes and raw notes of FBI and IRS agents. The notes contained information supporting defendant's version of events and impeaching the testimony of the government agents, who provided the key testimony at defendant's trial for wire fraud and other charges.

Duran v. Thurman, 
106 F.3d 407 (9th Cir. 1997) (unpublished)

Habeas corpus relief granted where state prosecutor told murder defendant's counsel that charges against state's key witness had been dismissed, when witness actually had a pending misdemeanor charge. The court rejected the state's contention that defense counsel should have known about the pending charge, stating counsel was entitled to believe the prosecution's representations to be truthful. The undisclosed charge was material because the witness provided the only testimony contradicting petitioner's theory of self-defense, and his credibility would have been lessened had the jury known that charges were pending against him.

United States v. Fisher, 
106 F.3d 622 (5th Cir. 1997), abrogated on other grounds by Ohler v. United States, 529 U.S. 753 (2000)

 

New trial ordered where government failed to disclose FBI report directly contradicting testimony of a key government witness on bank fraud charge. Because the witness' credibility was crucial to the government's case, there was a reasonable probability that the result would have been different if the report had been disclosed.

Carriger v. Stewart, 
132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133

Conviction and death sentence reversed where prosecution withheld from defense the Department of Correction file of the state's star witness. Because the witness had a long criminal history, the prosecution had the duty to turn over all information bearing on his credibility. The DOC file contained not only information that the witness had a long history of burglaries (the crime the witness was now blaming on the defendant), but also that he had a long history of lying to the police and blaming others to cover up his own guilt.

United States v. Vozzella, 
124 F.3d 389 (2nd Cir. 1997)

Conviction for conspiring to extend extortionate loans reversed where prosecution presented false evidence and elicited misleading testimony concerning that evidence which was vital to prove a conspiracy.

East v. Johnson, 
123 F.3d 235 (5th Cir. 1997)

Death sentence reversed where prosecution failed to disclose the criminal record of key witness used to establish future dangerousness with testimony that the defendant had raped and robbed her. If this witness' prior record had been disclosed, defense would have discovered a mental competency evaluation which reflected that the witness suffered from bizarre sexual hallucinations. District court erred in applying a sufficiency of the evidence test rather than considering whether impeachment of the witness would have undermined the jury's sentencing recommendation.

Clemmons v. Delo, 
124 F.3d 944 (8th Cir. 1997), cert. denied, 523 U.S. 1088 (1998)  

Defendant was convicted of murder and sentenced to death for the killing of a fellow prison inmate. Conviction reversed when prosecution failed to disclose an internal prison memo generated the day of the incident which indicated that someone saw a second inmate commit the murder. While the defendant did present other inmates to testify at trial that this second inmate committed the murder, the prosecution argued that these witnesses were not believable because the person they were implicating was "conveniently dead," thus the outcome of the proceeding was sufficiently undermined.

Singh v. Prunty, 
142 F.3d 1157, 1161-1162 (9th Cir. 1998), cert. denied, 525 U.S. 956 (1998)  

The court granted habeas relief in this murder for hire case on the ground that the prosecution violated Brady by failing to disclose an agreement with its star witness, pursuant to which the witness avoided prosecution on several charges, and received significantly reduced sentences on other charges. The undisclosed information was material, in the court's view, because "[i]t is likely the jury had to believe [the witness'] testimony in order to believe the prosecution's theory. For these reasons, [the witness] was the key witness who linked [petitioner] to the murder-for-hire scheme," and his "credibility was vital to the prosecution's case."

United States v. Service Deli, Inc., 
151 F.3d 938, 943-944 (9th Cir. 1998)

The court reversed the defendant government contractor's conviction for filing a false statement with the United States Defense Commissary Agency because the government failed to disclose notes taken by one of its attorneys during an interview with the state's most important witness. The notes contained "three key pieces of information" useful in impeaching the witness: (1) the witness' story had changed; (2) the change may have been brought on by the threat of imprisonment; and (3) that the witness explained his inconsistent stories by claiming that he had suffered "a stroke which affected his memory." This information was material, the court explained, because "the government's entire case rested on [the] testimony" of the witness who was the subject of the undisclosed notes, and that witness' credibility "essentially was the only issue that mattered." Finally, the court rejected the government's contention that the undisclosed impeachment evidence was merely cumulative because the defendant had gone into the same areas on cross examination of the witness. The court explained: "It makes little sense to argue that because [defendant] tried to impeach [the witness] and failed, any further impeachment evidence would be useless. It is more likely that [defendant] may have failed to impeach [the witness] because the most damning impeachment evidence in fact was withheld by the government."

Seiber v. Coyle, 
1998 WL 465899 (6th Cir. July 27, 1998) (unpublished)

The court granted relief on petitioner's claim that the state violated Brady in two instances. The first violation resulted from the state's failure to disclose that a member of the prosecution team had promised one of two key witnesses that his probation would be transferred to another jurisdiction after his testimony against petitioner. The second violation arose out of the state's nondisclosure of a preliminary crime scene report indicating that the perpetrator of the burglary for which petitioner was later convicted was approximately half petitioner's age, and that no other information identifying the perpetrator was known. The contents of this report sharply contradicted the testimony of the prosecution's only other key witness, a police officer who described the perpetrator in minute detail at trial, and identified petitioner as fitting the description.

United States v. Scheer, 
168 F.3d 445 (11th Cir. 1999)

The court granted relief in this bank fraud case on the ground that the government violated Brady by failing to disclose that the lead prosecutor in the case had made a statement to a key prosecution witness, who was himself on probation as a result of a conviction arising out of the same set of facts, "that reasonably could be construed as an implicit -- if not explicit -- threat regarding the nature of [the witness'] upcoming testimony . . .." 168 F.3d at 452. In granting relief, the court made clear that, to succeed, the appellant was not required to prove that the witness actually changed his testimony as a result of the prosecutor's threat, nor was he required to establish that, had evidence of the threat been disclosed, the remaining untainted evidence would have been insufficient to support his conviction.

Schledwitz v. United States, 
169 F.3d 1003, 1014-1015 (6th Cir. 1999)

The government violated Brady by failing to disclose that its key witness, who was portrayed as a neutral and disinterested expert during petitioner's fraud prosecution, had for years actually been actively involved in investigating petitioner and interviewing witnesses against him. In granting relief, the court noted that, although "[t]aken individually, none of the [undisclosed evidence, which included items other than the nature of the expert's involvement] would appear to raise a 'reasonable probability' that [petitioner] was denied a fair trial," this evidence, viewed collectively, entitled petitioner to relief.

Crivens v. Roth, 
172 F.3d 991, 996-999 (7th Cir. 1999)

The Seventh Circuit granted relief in this non-capital murder case on the ground that the state violated Brady by failing to disclose the entire criminal record of its key witness. In so holding, the court rejected the state's contention that no Brady violation occurred because the nondisclosure was not deliberate, but was instead a result of the witness having used aliases, thereby making parts of his criminal record more difficult to locate. The court reasoned: "Criminals often use aliases, but the police are able to link the various names to a single individual through a variety of means. If the state indeed asked for the criminal history records . . ., we find it difficult to accept that the Chicago Police Department had not or could not have discovered [that the witness had been arrested under more than one name]." The court further concluded that, in light of the witness' demonstrated propensity to lie, the fact that petitioner had been afforded an opportunity to question him concerning his criminal record was not enough to render the state's nondisclosure immaterial. Finally, the court characterized the state's failure to disclose the witness' record in the face of a direct request and a court order "inexcusable," and concluded that "[t]he atmosphere created by such tactics is one in which we highly doubt a defendant whose life or liberty is at stake can receive a fair trial."

Love v. Freeman, 
1999 WL 671939 (4th Cir. Aug. 30, 1999) (unpublished)

The Fourth Circuit granted federal habeas corpus relief in this North Carolina child sexual assault case, finding that the state violated Brady by failing to disclose: evidence that the alleged victim twice denied she had been sexually abused; numerous inconsistencies in the alleged victim's account of the sexual assault; evidence of the alleged victim's "perhaps pathological lying history" and self-destrcutive and attention-seeking behavior; a tape recording and transcript of a social worker's interview of the alleged victim, during which the social worker utilized suggestive interviewing techniques and supplied the alleged victim with information that subsequently became part of her story; complete records of the alleged victim's hymenal examination; information suggesting the alleged victim's mother ceased supporting petitioner's claim of innocence as a result of coercion by the department of social services; and information indicating that the alleged victim had previously been raped by two boys.

Spicer v. Roxbury, 
194 F.3d 547, 558-560 (4th Cir. 1999)

A majority of the Fourth Circuit panel affirmed the district court's grant of habeas relief in this post-Act, non-capital habeas case from Maryland. The majority agreed with the district court's conclusion that the prosecutor violated Brady v. Maryland by failing to appreciate and disclose to the defense a serious discrepancy between the descriptions of a key witness' knowledge as told to the prosecutor by the witness himself, and as told to the prosecutor by the witness' lawyer, who had contacted the prosecutor about the witness' knowledge in hopes of working out a plea deal. While the witness told his lawyer several times that he had not seen petitioner on the day petitioner allegedly attacked a bar owner, and the lawyer communicated this information to the prosecutor, the witness himself subsequently told the prosecutor, and later petitioner's jury, that he had seen petitioner on the day of the attack, and that petitioner was running away from the crime scene while being chased by an employee of the victim's restaurant.

White v. Helling, 
194 F.3d 937, 945-946 (8th Cir. 1999)

The Eighth Circuit granted relief in this 27 year old robbery/murder case due to the state's nondisclosure of several documents strongly suggesting that a witness whose testimony severely undermined petitioner's defense of coercion had initially identified someone other than petitioner as the person who took his wallet during the crime, and that the witness had been coached to such an extent that, had the evidence been revealed earlier, the trial might have excluded the witness' testimony altogether.

Nuckols v. Gibson,
 233 F.3d 1261 (10th Cir. 2000)

The Tenth Circuit granted relief in this Oklahoma capital case, finding that the state failed to disclose material evidence impeaching a key prosecution witness. The undisclosed evidence indicated that the witness - a deputy sheriff whose testimony provided the only support for the admissibility of petitioner's confession, which itself was the only piece of evidence linking petitioner to the crime - had been strongly suspected of stealing from the sheriff's office, and had been tangentially involved in a second murder, for which petitioner was also under arrest at the time of his confession. The evidence was impeaching and material because it would have allowed petitioner to raise questions about the witness' motivation for testifying that petitioner reinitiated questioning which led to his confession, thereby turning what had been a close credibility contest between petitioner and the witness in petitioner's favor, and securing the suppression of petitioner's confession.

Paradis v. Arave, 
240 F.3d 1169 (9th Cir. 2001)

The Ninth Circuit affirmed the district court's grant of relief in this former Idaho capital case (death sentence commuted to life) on petitioner's claim that the state violated Brady v. Maryland by failing to disclose a prosecutor's notes taken at a meeting with law enforcement and the medical examiner. The notes contained, among other things, information regarding the condition of the victim, time of death, and the medical examiner's opinions based on that information, all of which would have been useful to petitioner in impeaching the medical examiner's testimony indicating that the victim died in Idaho, rather than in Washington. If successful, this would have negated Idaho's jurisdiction to prosecute petitioner for murder.

Finley v. Johnson, 
243 F.3d 215 (5th Cir. 2001)

In this Texas kidnapping case, petitioner made a sufficient showing of actual innocence to permit him to overcome procedural default of his Brady claim by showing that the Brady material in his case - evidence that a restraining order was issued against his kidnapping victim two days after the kidnapping - was highly probative of petitioner's defense of "necessity," because it supported his claim that his actions were immediately necessary to protect others from being harmed by the kidnapping victim, and if accepted by the jury, would have resulted in petitioner's acquittal.

Boyette v. LeFevre, 
246 F.3d 76, 93 (2nd Cir. 2001)

The Second Circuit reversed the district court's denial of relief in this New York robbery, arson and attempted murder case, finding that the prosecution violated Brady in failing to disclose several documents. The prosecution's case rested solely on the victim's identification of petitioner, the credibility of which was bolstered at trial by the victim's claim that she recognized her attacker immediately. The undisclosed documents revealed that the victim had not, in fact, identified the perpetrator immediately, and tended to undermine the credibility of her memory by contradicting her claim that her attacker had smeared some type of fire accelerant on her face. Petitioner's first trial ended when the jury hung 9-3 in favor of acquittal, and his defense at both trials centered on a relatively strong alibi supported by the testimony of multiple witnesses who placed petitioner out-of-state at the time of the crime. The court summed up its conclusion that petitioner was entitled to relief as follows: "Because this very close case depended solely on [the victim's] credibility, the [state appellate court] applied Kyles in an objectively unreasonable way when it concluded - without any analysis - that [petitioner] was not prejudiced."

Leka v. Portuondo, 
257 F.3d 89 (2nd Cir. 2001)

In this non-capital New York murder case, the Second Circuit granted relief, finding that the prosecution's failure to disclose the name of a crucial eyewitness with information favorable to the defense "until three business days before trial," and failure to disclose the substance of the witness' knowledge at all, violated Brady. Petitioner was convicted strictly on the questionable testimony of two eyewitnesses, each of whom gave post-trial statements recanting, to varying degrees, their identifications of petitioner. The suppressed evidence consisted of the eyewitness account of an off-duty police officer, who saw the shooting from above, and gave an account which differed in important respects from that of the witnesses who testified at trial. In finding the suppressed evidence "material," the Second Circuit observed that "[i]t is likely that [the witness'] testimony at trial would have had seismic impact." And in concluding that the prosecution suppressed the information notwithstanding the fact that it disclosed the witness' name three days before trial, the court explained that "the prosecution failed to make sufficient disclosure in sufficient time to afford the defense an opportunity for use."

Mitchell v. Gibson
262 F.3d 1036 (10th Cir. 2001)

In case where the government did not dispute the district court’s finding that petitioner’s rape and sodomy convictions were constitutionally infirm due to the prosecution’s failure to disclose exculpatory test results, and its presentation of false testimony by Oklahoma City police chemist, Joyce Gilchrist, the Tenth Circuit concluded that petitioner was also entitled to habeas relief as to his death sentence. The district court erred in using standard of Romano v. Oklahoma is assessing whether the Brady violation required vacated of death sentence. (The appeals court noted, however, that because the Brady violation in this case deprived petitioner of his right to cross-examination and to present mitigating evidence, petitioner would still be entitled to relief under Romano without having to demonstrate that the entire sentencing was rendered fundamentally unfair.) Applying Kyles, the appeals court found that petitioner was entitled to relief even though there may have been sufficient evidence to justify the jury’s death verdict, given that the rape and sodomy convictions "impacted all three of the aggravating circumstances found by the jury: that the murder was heinous, atrocious and cruel; that it was committed to avoid arrest for the rape and sodomy; and that Mr. Mitchell posed a continuing threat to society." Further, the defense presented considerable mitigating evidence.

Boss v. Pierce
263 F.3d 734 (7th Cir. 2001)

State appellate court’s apparent assumption that suppressed evidence must be exculpatory to satisfy the requirements of Brady, rather than merely impeaching, was contrary to clearly established Supreme Court precedent. State court unreasonably applied Brady in finding that defense counsel would have discovered the suppressed information by exercising due diligence given that the source was a defense witness, where nothing about the witness’s role in the case (an alibi witness) suggested that she had knowledge about statements made by the key prosecution witness around the neighborhood. "Holding that reasonable diligence requires defense counsel to ask witnesses about matters of which counsel could not have reasonably expected a witness to have knowledge is inconsistent with the aim of Brady and its progeny." State court unreasonably applied Brady in finding that evidence uncovered after disclosure of the witness’s statement was simply cumulative, where: (1) the new witnesses were neutral and disinterested, in contrast to the defense witnesses at trial; and (2) the new witnesses recounted confessions by the key prosecution witness, which was significantly different than the eyewitness testimony of trial witnesses.

DiLosa v. Cain
279 F.3d. 259 (5th Cir. 2002)

State court applied a rule of law contrary to Supreme Court precedent when it assessed the materiality of suppressed evidence by weighing the existing evidence against the excluded evidence, rather than asking whether the excluded evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. Further, the state court’s ultimate legal conclusion cannot be reconciled with Kyles and Brady. Given that the defense to the murder charge was that unknown intruders killed petitioner’s wife, and the prosecutor highlighted the absence of evidence corroborating petitioner’s account, the State’s failure to reveal evidence potentially pointing to intruders in the house and statements indicating potential intruders in the neighborhood undermines confidence in the verdict.

Killian v. Poole
282 F.3d 1204 (9th Cir. 2002), cert. denied, 123 S.Ct. 992 (2003)

State court unreasonably applied the law to the facts in determining that petitioner was not prejudiced by the suppression of evidence, some of which came into existence post-trial, where the evidence exposed the motivation of the key prosecution witness to lie and tended to show that he did in fact lie at petitioner’s trial.

Benn v. Lambert
283 F.3d 1040 (9th Cir. 2002), cert. denied, 123 S.Ct. 341 (2002)

In case under AEDPA, the panel unanimously affirms the grant of habeas relief to Washington death row inmate based on Brady violations. The prosecution failed to disclose numerous pieces of impeachment information that could have undermined the credibility of the jailhouse informant who was the key prosecution witness as to premeditation, the aggravating circumstance of common scheme or plan, and motive. The withheld evidence related to: (1) the witness’s history of misconduct while acting as an informant; (2) the witness made a false allegation implicating petitioner in a notorious unsolved murder; (3) the witness’s exposure to prosecution in other cases; and (4) the witness’s history as an informant. An independent basis for habeas relief is the prosecution’s failure to disclose evidence that a fire at petitioner’s trailer was accidental. This was material because the prosecution’s theory was that the trailer fire was arson, and that the capital murders were related to insurance fraud connected to the arson.

Jamison v. Collins
291 F.3d 380 (6th Cir. 2002)

Brady violation occurred both in the suppression of exculpatory evidence by the prosecution, and in the failure of the prosecutor to weigh the evidence for purposes of Brady disclosure which was the result of an Ohio police policy to withhold potentially exculpatory information from the prosecutor. The following suppressed items are found, collectively, to be material to petitioner’s defense requiring the grant of habeas relief as to the capital conviction: (1) a positive identification of different suspects by an eyewitness to the crime; (2) prior statements by the accomplice (who was also the key prosecution witness) that omitted dramatic details provided during the accomplice’s trial testimony; (3) an eyewitness account that could have impeached the accomplice’s testimony; (4) descriptions of the suspects that undermined the accomplice’s claim that he and petitioner committed the crime together and supported petitioner’s argument that other suspects were overlooked; (5) evidence pointing to another suspect’s involvement in the crime; and (6) an offense report indicating that the victim of a similar robbery had been unable to identify her attacker at the time of the offense.

United States v. Gil
297 F.3d 93 (2nd Cir. 2002)

In mail fraud case, conviction vacated under Brady where the government withheld a memorandum indicating that the defendant was authorized to obtain payment for his extra-contractual work by submitting inflated subcontractor invoices, thus showing that he did not deceive or defraud municipal entity.

Sawyer v. Hofbauer
299 F.3d 605 (6th Cir. 2002).

In sexual assault case, the state court unreasonably applied Brady by failing to correctly identify the evidence that was suppressed. Petitioner was entitled to relief on his Brady claim given the State’s failure to reveal test results establishing that petitioner was not the source of a semen stain on the victim’s underwear. This was material given evidence in the record suggesting that the perpetrator could have cleaned himself with the victim’s underwear following oral sex.

Mendez v. Artuz
303 F.3d 411 (2nd Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003)

Petitioner who was convicted of, among other things, the attempted murder of Johnny Rodriguez, was entitled to habeas relief based on the prosecution’s failure to disclose evidence that another individual had placed a contract on the life of Johnny Rodriguez prior to the shooting. The evidence was "favorable" because it directly contradicted the motive theory testified to by the prosecution witnesses. That the evidence did not suggest an alternative shooter did not mean it was not favorable, given the absence of evidence connecting petitioner to the individual who allegedly took out the contract. And although Johnny Rodriguez identified petitioner as the shooter, trial evidence raised questions about the identification. Materiality is further established by the fact that the suppressed information could have been used by petitioner "to challenge the thoroughness and adequacy of the police investigation."

Scott v. Mullin
303 F.3d 1222 (10th Cir. 2002)

State’s suppression of evidence of a third party’s confession to the capital murder provided cause to overcome the default of petitioner’s Brady claim by the state court, and petitioner was entitled to relief on the claim. The first two prongs of Brady were satisfied because the suppressed evidence was known by police investigators prior to trial and it was clearly favorable to petitioner. The third prong - a reasonably likelihood of a more favorable result - was also satisfied even if, as the government contended, the confession could only have been used to impeach the third party. Had the third party’s credibility been called into question by the confession, doubt about the testimony of other prosecution witnesses who claimed to be with the third party at the time of the killing could have been raised.

Monroe v. Angelone
323 F.3d 286 (4th Cir. 2003)

In evaluating a Brady claim in a post-AEDPA case, deference to the state court’s rejection of the claim is only required as to the suppressed evidence that the state court considered. Brady material that was discovered for the first time in federal court is subject to de novo analysis. And because materiality is assessed collectively, rather than on an item-by-item basis, the federal court "must make an independent assessment of whether the suppression of exculpatory evidence--including the evidence previously presented to the state courts--materially affected Monroe's first-degree murder conviction." Given the thin, circumstantial case against defendant, the prosecution committed reversible error under Brady when it failed to disclose information that could have been used to impeach its key witness, as well as other witnesses, and information that could have supported the defense theory that someone else killed the victim. (The district court found, among other things, that the prosecution suppressed evidence that its key witness was offered assistance in obtaining a sentence reduction in an unrelated case and that this witness had previously supplied information to the police.) As for respondent’s contention that there was no duty to disclose the material because the "substantive equivalent" was heard by the jury, the court states: "the prosecution has a duty to disclose material even if it may seem redundant. Redundancy may be factored into the materiality analysis, but it does not excuse disclosure obligations." 

Bailey v. Rae
339 F.3d 1107 (9th Cir. 2003)

In case involving convictions for sexual abuse and sexual penetration, the prosecution violated Brady by failing to disclose therapy reports concerning the victim's mental capacity. The reports were "exculpatory" because the crimes for which petitioner was charged required that the victim be incapable of consent due to a mental defect and the reports indicated that the victim understood both what type of physical contact was not okay and that she could say "no." Unhelpful passages in the reports did not negate their exculpatory nature since, taken as a whole, they were favorable to the defense. The state post-conviction court’s finding that the reports were not exculpatory was an unreasonable applicable of Supreme Court precedent. The suppressed evidence was material despite the fact that the victim’s trial testimony was consistent with the findings in the report. "Cumulative evidence is one thing. Unique and relevant evidence offered by a disinterested expert is quite another. By summarily dismissing the Ford reports as cumulative, the state court fundamentally mischaracterized their nature and significance. Setting aside for a moment the substance of the reports, it is implausible that one could equate a statement made by a teenage complainant whom the State has labeled intellectually deficient with a clinical assessment provided by a disinterested professional therapist who had been treating the victim over a period of years." The state court's denial of the Brady claim on materiality grounds was both "contrary to" and an "unreasonable application of" clearly established Supreme Court precedent. It was contrary to Supreme Court precedent because it required that the suppressed evidence "be such as will probably change the result if a new trial is granted." The state court's denial of the Brady claim was also objectively "unreasonable" in that "the state court's analysis of prejudice amounted to little more than a blanket assumption that, because [the] reports were cumulative, they would have had little impact on the trial's outcome." The appeals court "conclude[s] that the Supreme Court's Brady jurisprudence requires more than simply labeling the evidence as cumulative without placing it in context." 

Goldstein v. Harris
82 Fed. Appx. 592, 2003 WL 22883652 (9th Cir. 2003) (unpublished)

Appeals court affirms grant of habeas relief in murder case where the prosecution suppressed evidence related to the credibility of its two key witnesses. First, it failed to disclose a deal with the jailhouse informant. Second, it did not reveal that police investigators were impermissibly suggestive during the eyewitness’s identification of petitioner in a photo lineup, or that it advised the eyewitness that he need not retake the stand to clarify his testimony after he realized that he may have recognized petitioner because he had met him prior to the murder. Further, the prosecution violated Napue v. Illinois by failing to correct the informant’s false testimony about not having received benefits for his assistance in this and other cases. 

Hall v. Washington
343 F.3d 976 (9th Cir. 2003)

In California murder case, false and material evidence was admitted in violation of petitioner’s due process rights. The false evidence took the form of a series of handwritten questions and answers allegedly exchanged between petitioner and a jailhouse informant. These notes were admitted at trial as adoptive admissions, without the testimony of the informant. In post-trial proceedings, petitioner presented evidence – including an admission from the informant and testimony from document experts – that the informant fabricated the jailhouse notes by changing the questions after petitioner had written his answers.  

Castleberry v. Brigano
349 F.3d 286 (6th Cir. 2003)

Prosecution committed Brady violation during petitioner’s robbery-murder trial by withholding: (1) a description of the assailant by the victim which differed from petitioner’s appearance; (2) a statement by a witness claiming to have heard the prosecution’s key witness plotting the robbery of the victim; and (3) witness accounts of suspicious persons in the vicinity of the killing, including descriptions of "thin" individuals. (Petitioner was 5'9", 221 pounds at the time of the crime.) Although the suppressed evidence would not have contradicted all of the testimony received at trial, it was enough to create a reasonable probability of a different outcome at trial had the Brady information been available. The state court decision denying relief was contrary to Supreme Court precedent in that the state court analyzed the suppressed evidence for materiality item by item rather than cumulatively. 

Norton v. Spencer
351 F.3d 1 (1st Cir. 2003)

In Massachusetts child sexual assault case where the alleged victim, Fuentes, was the sole witness, the appeals court affirms the grant of relief on petitioner’s Brady claim. After trial, petitioner discovered evidence that the prosecution had likely been off by several months in its contention about when the assaults allegedly occurred, and petitioner had not been at the house at the relevant time. Petitioner also learned that another alleged victim, Noel, who had been found incompetent to testify, admitted to having fabricated the charges against petitioner at the insistence of Fuentes. Noel further stated that Fuentes had made up his allegations and that the prosecutor repeatedly told Noel and Fuentes how to testify even after being informed by Noel that none of the claims were true. The state court’s denial of relief involved both an unreasonable determination of the facts and an unreasonable application of clearly established federal law. 

Mathis v. Berghuis
90 Fed.Appx. 101, 2004 WL 187552 (6th Cir. 2004) (unpublished)

Grant of habeas relief affirmed in rape case where state failed to disclose that complainant had twice made false reports to the police claiming to have been the victim of violent crimes, including rape and armed robbery. The state court’s requirement that petitioner show that the prosecutor was aware of the undisclosed police reports was "clearly contrary to Supreme Court precedent." 

United States v. Rivas
377 F.3d 195 (2nd Cir. 2004)

A Brady violation occurred in this narcotics smuggling case where the prosecution failed to disclose until after the guilty verdict that its chief witness, the defendant's fellow seaman who testified that defendant concealed drugs in defendant's cabin, had told the government that he, not defendant, had brought the package of drugs on board the vessel, purportedly believing that it contained alcohol meant for defendant. Although this revelation was arguably consistent with the witness's trial testimony that the drugs belonged to defendant, it could have led the jury to question the witness's credibility and bolstered the defendant's theory that the witness rather than defendant was engaged in smuggling. 

United States v. Sipe
388 F.3d 471 (5th Cir. 2004)

In case involving border control agent’s conviction for use of excessive force and infliction of bodily injury during arrest, district court did not err in granting new trial based on Brady violations. The cumulative impact of the suppressed evidence satisfied the materiality prong of Brady. The suppressed evidence involved: (1) a statement by the government’s star witness indicating a personal dislike for the defendant, which was somewhat inconsistent with the witness’s subsequent testimony; (2) benefits provided to testifying aliens that were more substantial than the benefits the defense was told about; and (3) a prior charge against a witness of filing a false police report which the witness was acquitted of.

Slutzker v. Johnson
393 F.3d 373 (3rd Cir. 2004)

Brady violation found where prosecution suppressed a police report recounting a statement by the neighbor of the victim that she saw someone other than petitioner speaking with the victim’s wife outside the victim’s home after the murder. At trial, she testified that it was petitioner, who had been having an affair with the victim’s wife, who she saw after the murder. The trial prosecutor’s testimony that it was her normal practice to turn over all documents was insufficient to overcome the testimonial and circumstantial evidence indicating that the defense was not provided with the report. The evidence was exculpatory and material because the neighbor was the most credible of the witnesses against petitioner. Although the claim had been procedurally defaulted because it was never presented to the state court, cause was found to overcome the default because there was no procedurally viable way for the petitioner to exhaust the claim once the suppressed material was discovered during federal habeas proceedings. (The ability to have federal proceedings stayed while new claims were exhausted was uncertain at the relevant time and, therefore, petitioner risked losing his right to adjudication of his exhausted federal claims if his federal petition was dismissed without prejudice while he returned to state court to exhaust the Brady claim.)

Conley v. United States
415 F.3d 183 (1st Cir. 2005)

Prosecution violated Brady by failing to disclose evidence that the primary witness had expressed a desire to have his memory hypnotically enhanced, which went to his ability to recall the events. The petitioner was a police officer who was charged with perjury for his testimony about the circumstances surrounding the brutal beating of an undercover officer who had been mistaken for a fleeing suspect. The witness at issue, another police officer, had originally told internal affairs that he had seen the undercover officer chasing the actual suspect, as well as an unidentified police officer behind the undercover agent. (This contradicted the petitioner’s account whereby he claimed to have chased and captured the suspect without ever seeing the undercover agent or his beating.) Later, the witness recanted his statement that he had seen a police officer behind the undercover agent. In his grand jury testimony, which was disclosed to the defense, he explained that he had made the earlier statement about seeing someone behind the undercover agent because he felt guilty about not having seen everything and felt like he should have. What was not disclosed was a statement to the FBI where the witness said that he knew and liked the undercover agent, felt badly that he could not say what had happened, and so he convinced himself he’d seen something. He then expressed a desire to have his memory hypnotically refreshed in order to “truly recall” the events preceding the beating. This evidence was material and not cumulative of the witness’s retraction to the grand jury because the grand jury statement impeached his motive, not his ability to recall. Counsel’s choice not to impeach the witness with his grand jury testimony was supported by an independent strategy and was not proof counsel would not have relied on the hypnosis statement. Finally, the other evidence at trial was weak – the government admitted the victim’s testimony was likely impaired by the head trauma he sustained in the beating, and the actual fleeing suspect’s testimony was impeached with his felony convictions.

Silva v. Brown
416 F.3d 980 (9th Cir. 2005) (capital case)

In pre-AEDPA case, prosecution violated Brady where although it disclosed that murder charges had been dropped against the co-defendant in exchange for his testimony against Silva, it did not reveal that part of the deal was that the co-defendant, who had previously been in a motorcycle accident and sustained severe brain damage, would forgo a psychiatric evaluation. The primary evidence against Silva was the testimony of the co- defendant. Although the co-defendant’s story was corroborated in some respects, it was his testimony alone that provided proof that Silva was the triggerman. The suppressed evidence was material given that the co-defendant’s testimony was crucial, and the fact that the prosecutor was concerned about the jury finding out about the witness’s mental state was evidence of the weakness of the remainder of the case. The suppressed evidence was not cumulative to other impeachment evidence. While evidence of dropped charges offered an incentive to testify falsely, it did not offer a possible explanation for the co-defendant’s confused account of events. The suppressed evidence would have diminished the credibility of the witness, and the prosecution’s desire to hide the evidence would have diminished the overall credibility of its case. Finally, the fact that the jury acquitted Silva of one of the two charged murders did not indicate that impeachment of the co-defendant had been effective.

Graves v. Dretke
442 F.3d 334 (5th Cir.), cert. denied, 127 S.Ct. 374 (2006) (capital case)

Prosecution violated Brady by failing to disclose statements by its critical witness, the alleged co-perpetrator, one of which also implicated the witness’s wife in the murders, and the other of which exonerated Graves. (The only statement disclosed to Graves was one implicating both the witness and Graves. Graves had also been informed that the witness was found to have lied during a polygraph exam when he denied that his wife was involved in the crime.) The statement by the witness claiming to have committed the offense by himself would have undercut the prosecution’s explanation for the witness’s failure to implicate Graves before the grand jury – that Graves had threatened the witness. Even more egregious than the suppression was the fact that the prosecutor knowingly elicited false and misleading testimony from the witness and a police investigator that the witness had always implicated Graves except in his grand jury testimony where he’d denied either men had been involved in the crimes. That Graves was aware of the polygraph results did not establish that he failed to exercise due diligence in seeking out the statement implicating the witness’s wife in the murder since Graves had no reason to believe such a statement had been made. Further, the prosecutor’s questioning of the witness at trial, as well as the prosecution’s discovery responses, reinforced defense counsel’s view that if the wife was involved at all, it was only after the fact. The statement about the wife’s involvement was exculpatory because it fit with the defense theory that two people committed the offense, not three as the prosecution theorized. It also provided a basis for arguing that the witness was blaming Graves in order to save his wife. The statements were material because they would have allowed defense counsel to argue persuasively that (1) the murders were committed by the witness alone or with his wife and (2) the witness’s plan from the beginning was to exonerate his wife but since a story that he acted alone was not believable, he falsely implicated Graves. That the statements did not fit completely with the defense that was presented at trial did not render them immaterial because counsel may have acted differently had the statements not been suppressed.