Wednesday, December 5, 2012

BRADY/NAPUE RULINGS, COURT OF APPEALS

SUCCESSFUL BRADY AND NAPUE CASES II court of appeals

*Brady v. Maryland, 373 U.S. 83 (1963)

 

Suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution. (Here, the state court had concluded that Brady was entitled to resentencing because of the prosecution’s failure to disclose an extrajudicial statement by the co-defendant where he admitted to being the actual killer. The Supreme Court affirmed the state court’s ruling that Brady was not entitled to a new guilt-innocence trial.)

 

Napue v. Illinois, 360 U.S. 264 (1959)

 

"When reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of immunity deal with witness violates Due Process. In addition, “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” See Mooney v. Holohan, 294 U.S. 103; Pyle v. State of Kansas, 317 U.S. 213. And “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” See Alcorta v. State of Texas, 355

U.S. 28.

 

1.                  UNITED STATES COURTS OF APPEALS

 

*Simmons v. Beard, F.3d , 2009 WL 2902251 (3rd Cir. Sept. 11, 2009)

 

Under AEDPA, habeas granted due to state’s failure to disclose impeachment evidence related to the two primary witnesses tying the defendant to the crimes. The victim was an elderly woman killed in her home. Three neighbors identified the defendant as the person last seen with the victim asking to use her phone. These witnesses were all connected as they lived in the same house. They only came forward identifying the defendant after his arrest and pictures had been publicized. Another witness testified that she had been robbed and sexually assaulted by a man described similarly shortly after the murder but before the body was found and her attacker referenced the murder. While she reported the assault on the day it occurred, she made no reference to the statement referencing the murder and she only identified the defendant in a photo array after the murder and his picture had been publicized. She identified him a second time in a lineup requested by defense counsel. The defendant’s girlfriend, who had initially made statements to police that would have provided the defendant with an alibi defense, contradicted the asserted alibi in her trial testimony. The state had failed to disclose four items from the defense. First, the defendant’s girlfriend was a suspect and was threatened with arrest if she did not cooperate with police. She cooperated and all of her in-person or phone conversations with the defendant were recorded. Second, the other assault victim had attempted to buy a pistol soon after the assault and lied on the forms to avoid disclosing her 1951 felony conviction for burglary, which made her ineligible to purchase a weapon. The lie made her subject to prosecution for perjury. She was charged with the weapons charge, but the prosecutor and detective in this case dismissed the charges against her and did not forward the information as they did in other cases where persons were suspected of perjury. Third, lab reports of evidence collected following her assault report showed no blood or seminal fluid and hairs consistent with the assault victim but not the defendant. Finally, at some point prior to trial, the assault victim was shown a mug book containing the defendant’s picture but did not identify him. A police officer testified in the preliminary hearing, however, that she had not been shown a mug book. This failed identification was the only Brady issue the state court reviewed on the merits. The Third Circuit’s review under AEDPA was complicated because there was a four-way split in the state court decision with no ground receiving a majority support. Because the state court found procedural bars for three of the claims, there was no adjudication on the merits. The state court’s decision on the failed mug book identification was “an unreasonable construction of the factual evidence” presented in state court because the court failed to consider the undisputed fact that the defense would not have requested a lineup if this information had been disclosed. Likewise, because the state court had reviewed the merits of only the mug book identification claim, “the court did not reach the issue of the collective effect of multiple violations.” Conducting this collective analysis, the court found the suppressed evidence to be material as “it calls into question the credibility of the two witnesses at the heart of the case.” The prosecutor also recognized that the other assault victim was a “critical witness,” beginning his opening statement describing her testimony and even calling her “critical” witness. “Overall the picture of what [the] trial would have been like had these four Brady violations not occurred is vastly different from what actually happened.”

 

United States v. Torres, 569 F.3d 1277 (10th Cir. 2009)

 

Distribution conviction reversed on direct appeal. The defendant was convicted for distribution to a confidential informant during a controlled buy. Prior to trial, the government disclosed that the informant was paid $100, cooperated with the government for approximately eight months, had previously been a drug user but had not used in 15 months, and she had two prior felony convictions. The defense was prohibited from cross-examining the informant with criminal complaints for drug possession and forgery that had been dismissed in the year prior to the defendant’s arrest. Following trial, the defense discovered evidence related to the informant that had not been disclosed and filed a motion for new trial. The District Court improperly applied the newly discovered evidence test and denied relief. Reversal required because the government failed to disclose that (1) the informant had been retained by the DEA on two prior occasions and had been de-activated following the forgery charge, which was later dismissed; and (2) she had misidentified the defendant as his cousin.

 

United States v. Price, 566 F.3d 900 (9th Cir. 2009)

 

Felon in possession of firearm conviction vacated due to government’s failure to disclose key

witness’ criminal record. The pistol was found under the driver’s seat of a car that was pulled with the defendant riding in the rear. While circumstantial evidence pointed to the defendant, the key government evidence was the testimony of a witness that testified she had seen the defendant with the pistol 15 minutes before the car had been stopped. Unknown to the defendant, except for one prior theft conviction, was that this witness had a lengthy history of theft and fraudulently using false registration tag convictions and arrests for shoplifting. The undisclosed evidence was material as the prosecutor relied heavily on the witness’ testimony in closing and the defendant was acquitted of the drug trafficking charges tried at the same time. The District Court erred in finding no Brady violation simply because the prosecutor did not personally have knowledge of the witness’ history, although the record was clear that, at minimum, the prosecutor had requested a detective to obtain this information.

 

Shortt v. Roe,

2009 WL 2487046 (9th Cir. 2009) (unpublished)

 

Habeas relief granted in murder and robbery case because the state failed to disclose that a state witness had been given sentencing consideration in exchange for his testimony against the defendant and failed to correct the witness’ false testimony denying consideration. Under AEDPA, the state court’s decision was an objectively unreasonable application of both Brady and Napue.

 

*Douglas v. Workman,

560 F.3d 1156 (10th Cir. 2009)

 

Under AEDPA, habeas relief granted to two petitioners due to state’s failure to disclose deal the Oklahoma prosecution made in exchange for shooting victim/key witness’ testimony. The witness, a member of the Crips, and a teenage girl who died were shot in a drive-by shooting. The witness initially made contradictory statements to police, but ultimately identified Powell and Douglas as the shooters. Both were charged with capital murder. The witness had cocaine trafficking charges pending at the time of the shooting. He was not charged due to the weapon and drugs on him at the time of the shooting. Prior to the preliminary hearing, he was also charged with throwing a rock at a police car. By the time of Douglas’ trial, he pled to a lesser offense of possession with intent to distribute and received a 10 year sentence. The other charge was dismissed. After serving four months of his sentence he was released on pre-parole. That status was revoked when he was arrested for receiving stolen property. He had a pre-parole interview for a second consideration and was notified that release would not be recommended just three days before he initially met with the capital prosecutor. During his testimony in Douglas’ trial, he denied any deals or help from the prosecutor in exchange for his testimony. The prosecutor even elicited his testimony that he had never asked the prosecutor for help. His testimony was the “linchpin” in the state’s case, which culminated with the state’s closing argument emphasizing his trustworthiness. Just one day after Douglas’ trial, the prosecutor sent a detailed letter to the parole board in support of the witness’ parole application and referencing the witness’ testimony in the upcoming Powell trial. The witness was granted pre-parole status again but again violated and was reincarcerated. The witness contacted his mother, who contacted the prosecutor, who contacted the sentence administration auditor just a week before Powell’s trial. Without disclosure of any of this information, the witness again served as the key witness for the state. He again denied any deals or assistance and the state again elicited his testimony that he had not even asked for help. A month after Powell’s trial, the prosecutor contacted the prison warden who approved the restoration of 400 days’ credit to the witness, effectively discharging his sentence and getting him released from prison. While Powell and Douglas sat on death row, the prosecutor’s assistance to the witness continued. Assault with a deadly weapon charges for shooting someone were dismissed due to “insufficient evidence of identification.” Drive-by shooting charges were dismissed “due to lack of cooperation from the victims.” He had an assault and battery charge for beating his girlfriend with a baseball bat and trafficking in cocaine charges. Even though the capital prosecutor was no longer in the district attorney’s office, he contacted the prosecutor on the witness’ behalf. The witness was also arrested for murder charges in Texas. The witness was sentenced to 15 years on the assault case and was then allowed to plead to the trafficking charge for a five year (“unusually lenient”) concurrent sentence. The witness was allowed to plead to a reduced aggravated robbery charge in Texas and received a twelve and a half year sentence concurrent with his Oklahoma sentences. While Powell and Douglas were pending in federal habeas, the witness disclosed that he had been unable to identify any of the shooters. He said that he would not testify against either defendant unless the state assisted him with his then-pending trafficking case. Thereafter, the prosecutor continued to assist him because he threatened to reveal his perjury in the trials. The district court granted relief to Powell but denied relief to Douglas. The Tenth Circuit granted relief to both. For Douglas, who had been pending in the Tenth Circuit when the witness disclosed the deal, there were some complicated procedural holdings resolving statute of limitations and possibly second petition/successor issues in Douglas’ favor prior to reaching the merits. De novo review was applied because the state court never addressed the Brady claims on the merits. The court found that the witness’ identification of the defendants was “indispensable” as the “only direct evidence linking [the defendants] to the murder.” If the juries had discounted his testimony as not credible, they almost certainly would have acquitted the defendants. While defense counsel attempted to impeach the witness on the issue of his motive to testify, they were “stonewalled” by the witness’ repeated denials and “stymied from rebutting those denials” by the state’s failure to disclose the relevant impeaching evidence. While there was less evidence of a deal prior to Douglas’ trial, the evidence still supported a finding that the state was offering assistance to the witness in exchange for his testimony. Two witnesses testified in the trial that the witness told them he had made a deal with the prosecutor in exchange for his testimony. The witness was charged with drug or weapons offenses, even though he admitted possession at the time of the shooting. And, the prosecutor sent a letter to the parole board just one day after trial. In light of the continued assistance to the witness long after the trials were over and even after the prosecutor left the district attorney’s office, “the reasonable inference [of a deal prior to trial] becomes inescapable.” Even if the deal was tacit, disclosure was required. “A deal is a deal–explicit or tacit. There is no logic that supports distinguishing between the two.” Id. at 1186.

 

Harris v. Lafler,

553 F.3d 1028 (6th Cir. 2009)

 

Under AEDPA, habeas relief granted in second-degree murder case due to the state’s failure to disclose three statements made by police officers to the state’s primary witness. The witness and the defendant were in a bar fight. Later that night, a vehicle followed the car in which their opponent rode and shots were fired into that vehicle killing two passengers. The witness and the defendant were arrested a month later. The witness testified at the preliminary hearing that he drove the vehicle and the defendant fired into the other vehicle. Defense counsel asked him six times whether any promises or deals had been made in exchange for his testimony. The witness said no. This testimony was read into the trial evidence, after the witness invoked his Fifth Amendment rights. The state failed to disclose to the defense that police officers had told the witness: (1) his girlfriend would be released if they were satisfied with his statement; (2) he would be released if he testified at the preliminary hearing consistent with his statement; and (3) he should tell no one that police had promised him anything in return for his statements or testimony. These statements were material because they could have been used to cast doubt on the witness’ credibility. The state had also “featured” the witness’ “eyewitness account” in closing arguments. The court rejected the state’s request for remand for an evidentiary hearing because the state had never before challenged the factual accuracy of the witness’ post-conviction statements. “The time to submit evidence or seek an evidentiary hearing is before factual allegations become the basis for a decision against the State, not after.”

 

Drake v. Portuondo,

553 F.3d 230 (2nd Cir. 2009)

 

Under AEDPA, habeas relief granted in murder case on Napue claim because the prosecution presented false expert testimony. Two high school students were killed while making out in a car parked near a junkyard. The defendant, another high school student, had dressed in military fatigues and fired into the car. According to his statement, he was out looking for abandoned cars to shoot at the junkyard and was not aware the car was occupied when he opened fire on it. The state, in order to compensate for evidence of lack of motive, presented “expert” testimony “regarding a fictional syndrome of sexual dysfunction, dubbed ‘picquerism,’ which is ‘medically speaking, nonsense,’ but appeared to account for the particular, gruesome circumstances of the shooting.” The only other possible evidence of a sexual motive was that the female victim had a bruised rectum. She also had bite-marks on her breasts, which, according to the forensic odontologist, are often present in sexual crimes. The forensic odontologist recommended the prosecutor consult a “prison psychologist” in Michigan. The prosecutor did so two weeks before trial. After an hour long call, the “expert” said he needed to think about the case before he could give an opinion. He later informed the prosecutor it was “picquerism,” which the prosecutor had never heard of. The prosecutor waited until the day before the “expert” testified to notify the defense of the intent to call him. This late notice prohibited defense counsel from finding a competing expert and preparing for cross-examination. In his testimony, the “expert” gave a long list of impressive credentials. He then testified the he had been provided with information only the day before and immediately formed his opinions about the case, which was a clear case of picquerism. The defense requested a two-week continuance to allow time to find a rebuttal expert, but this request was denied. The testimony given by the “expert” was false in a number of ways. His credentials were almost non-existent except that he was a “prison psychologist” with no doctorate degree and a limited license to practice only in prison services or under the supervision of a fully-licensed psychologist. The record also supported the inference that the prosecutor knowingly elicited the false testimony because the prosecutor delayed notice to the defense until the last minute and then resisted a continuance. Likewise, the prosecutor’s notes revealed that he knew the “expert” had not “published” any papers so he asked the “expert” if he had “written” any papers, whereas he asked other experts about writing and publication. Likewise, the testimony that the “expert” had just been provided information the day before and immediately formed his opinion was clearly false, as he had “two weeks to conjure up his quackery.” The “supposed brevity” of the “expert” review of the case “was perhaps the strongest reason” for the jury to find it credible. The prosecutor knew this testimony was false because the falsehood related directly to conversations with the prosecutor. This false testimony went directly to the only issue in the case, which was intent, and the Court could not conclude that there was no reasonable likelihood the false testimony could have affected the judgment of the jury.

 

U.S. v. Banks,

546 F.3d 507 (7th Cir. 2008)

 

In cocaine possession case, government’s withholding of evidence impeaching government chemist’s expert testimony with evidence she misused her government credit card warranted granting defendant’s new trial motion. Although presence of cocaine not at issue given that another chemist “allegedly tested” substance and concluded it was cocaine and there was “great deal of evidence” presented against defendant that included police surveillance, the accusations of expert’s misappropriation of funds and pending disciplinary proceedings against her were relevant to bias. While “acquittal may have been less likely than conviction” even if impeachment evidence had been disclosed, district court did not abuse discretion in finding evidence about government witness material.

 

United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2nd Cir. 2008)

 

In racketeering, racketeering conspiracy, bribery, wire fraud and obstruction of justice case, district court abused its discretion by denying motion for new trial where prosecution failed to disclose notes taken by FBI special agent during attorney proffer and the notes supported an alternative version of an important conversation that was entirely at odds with the government's theory of the case at trial. Defendant could have used the proffer notes not merely to support his version of the conversation with the witness, but also to impeach the witness's credibility.

 

Toliver v. McCautry,

539 F.3d 766 (7th Cir. 2008)

Where petitioner was convicted of first degree intentional murder based on brother’s murder of roommate, Brady was violated when state failed to disclose letter received before trial that “tended to show” petitioner’s brother acted alone when shooting victim and petitioner attempted to stop his brother from killing roommate. Letter’s author, Smith, offered to testify at petitioner’s trial about contents of letter if prosecutor would ask Smith’s prosecutor about favorable treatment on Smith’s pending charges. Smith would have testified that two witnesses to the murder told him petitioner tried to stop his brother’s actions, and when he asked why petitioner was being charged, a witness said prosecutor wanted to prosecute both brothers, and told witnesses if they did not cooperate, they would be charged with murder. Smith said prosecutor replied to letter, stating he could not help Smith because Smith’s pending prosecution was in another county, and Smith’s information “did not shed any new light” on case. State court denial of relief unreasonable application of clearly established law because undisputed evidence “would have bolstered...defense” and “enhanced significantly ... chances of jury’s accepting” petitioner’s account of facts, and might have created reasonable doubt on whether petitioner “intentionally aided and abetted in murder” or “attempted to prevent it.”

 

*Jells v. Mitchell,

538 F.3d 478 (6th Cir. 2008)

 

Denial of habeas relief on Brady claim reversed in case where petitioner convicted of felony murder and sentenced to death on theory that petitioner randomly kidnapped victim and her child, and later killed victim. Although case was under AEDPA, Brady claim reviewed de novo because state court failed to address merits of four items of evidence the suppression of which petitioner had properly raised in state court. (Other items were not raised in state court and were not considered by the federal court.) The withheld evidence involved: (1) victim visited long-time friend on night of her murder, victim had a drink and was tipsy, friend walked victim to van, saw victim’s son in the van but could not see person driving, (2) victim’s sister stated victim would not take ride from stranger, and victim drinking when sister last saw her on night murdered, (3) victim’s boyfriend who indicated victim arrived at bar around 11:00 p.m. to retrieve key to apartment, and appeared to have been drinking and “was high,” and (4) police report from anonymous person later identified who called twice within 30-minutes, stating she and father saw man grabbing female and young boy about 11:00 p.m. Withheld documents refuted prosecution’s theory of random kidnapping and duress, and impeached credibility of witness who believed altercation with victim was abduction, but admitted in telephone call she couldn’t see man well. Impeachment of that witness together with information that victim voluntarily accompanied petitioner bolstered credibility of another witness who testified witnessed incident but did not call police because he believed victim and man knew each other. Evidence victim intoxicated undercut aggravating factor three-judge panel found supporting death: that petitioner deprived victim of freedom in methodical manner. Petitioner entitled to habeas relief as to his death sentence.

 

Mahler v. Kaylo,

537 F.3d. 494 (5th Cir. 2008)

In manslaughter case, reversing denial of habeas relief because prosecution violated Brady when it failed to provide defense with pretrial witness statements that supported defense and could have been used to impeach several witnesses’ trial testimony about fight between two groups of people. State post-conviction court unreasonably applied clearly established federal law when it found statements not material. Although state court applied right standard, it “focused solely and unreasonably” on whether trial testimony provided jury “sense that ‘a struggle’ or ‘a series of struggles’” occurred at some time between two groups. But “heart of” defense was whether struggle was ongoing or had ended and victim had turned away from petitioner when shooting occurred. State’s case against petitioner “depended on reliability of the very witnesses whose pretrial statements were suppressed,” and those statements directly undermined the prosecution witnesses’ testimony that struggle had ended, and victim turned away when petitioner shot him.

 

United States v. Aviles-Colon, 536 F.3d 1 (1st Cir. 2008)

 

Reversing denial of new trial motion in drug conspiracy case where prosecution withheld DEA reports that could have been important for impeachment purposes at trial by helping defendant advance his defense that he was not part of a certain drug conspiracy but rather a member of a rival conspiracy.

 

United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008)

 

In securities-related case, district court did not abuse its discretion by dismissing indictment following flagrant prosecutorial misconduct, i.e., reckless discovery violations and misrepresentations to the court.

 

White v. McKinley,

519 F.3d 806 (6th Cir. 2008)

 

In §1983 action initiated against former wife and investigating police officer following plaintiff’s prosecution, conviction, and later acquittal of allegedly molesting his daughter, plaintiff had right under Brady to disclosure by police officer of his romantic relationship with plaintiff’s wife and to preservation of potentially exculpatory evidence contained in plaintiff’s daughter’s diary. “[N]o reasonable police officer” under these circumstances “could have believed he could deliberately misrepresent the nature and length of his relationship with [plaintiff’s wife], or that he could deliberately fail to preserve a child victim’s diary containing potentially exculpatory information.”

 

*Tassin v. Cain,

517 F.3d 770 (5th Cir. 2008)

 

Petitioner who was sentenced to death for capital murder committed during armed robbery was entitled to habeas relief based upon prosecution’s failure to disclose prosecution witness’s plea bargain. Petitioner denied plan to rob two men who, along with a third person, were looking for drugs. Petitioner’s wife, indicted on same charges, pleaded guilty and received 10-year sentence. At petitioner’s trial, wife testified petitioner planned robbery. Defense requested disclosure of deals for lenient treatment in exchange for wife’s testimony, but State denied any deal, wife testified no promises were made in exchange for her testimony, and State argued wife had no reason to lie because she faced potential 99-year sentence. Petitioner learned of deal post- conviction when inmate forwarded him letter wife wrote to another inmate discussing possible sentencing deal. Wife’s attorney later averred judge “indicated” would sentence wife to 15 years, and possibly only 10, if she waived marital privilege. Wife testified in post-conviction proceedings she believed she would receive 10-year sentence. Relief denied by state court because trial judge, defendant’s wife and the wife’s attorney denied a final agreement existed. Federal court found that state court ruling requiring petitioner prove judge “promised” wife lenient sentence was contrary to clearly established Supreme Court law because “suppressed bargain need not have been [] firm promise” in order to mislead jury about wife’s credibility, and State never disclosed bargain. State had duty to disclose witness’s expected financial treatment even absent a “‘firm promise,’” and “nondisclosure of the understandings” violated Brady.

 

*Jackson v. Brown,

513 F.3d 1057 (9th Cir. 2008)

 

Affirming grant of habeas relief as to special circumstance (death eligibility) finding and death sentence where prosecutor violated Napue by failing to correct false testimony by jailhouse informants about expected benefits from testifying against petitioner. The “materiality” element of Napue was satisfied with respect to the jury's special circumstances finding given importance of informant’s testimony on question of whether petitioner acted with the requisite “intent to cause death.”

 

United States v. Garner, 507 F.3d 399 (6th Cir. 2007)

 

In carjacking case, prosecution violated Brady by failing to timely turn over records from the victim’s cell phone which was used to make and receive calls by the hijacker or hijackers. The records supported defendant's theory that he had been framed by the codefendant, the codefendant's friend, and the codefendant's ex-girlfriend. Because of the late disclosure, defense counsel did not have time to investigate records to determine their value.

 

U.S. v. Jernigan,

492 F.3d 1050 (9th Cir. 2007) (en banc)

 

Reversing denial of motion for new trial in case where defendant was convicted of robbing three banks and prosecution had failed to reveal that while defendant was awaiting trial, two more banks in area were robbed by a woman bearing an “uncanny physical resemblance” to defendant. The defense had been misidentification and the reliability of a surveillance video was contested. (The appeals court agreed that the video failed to identify defendant as the robber.) The suppressed evidence was material because it “substantially erode[d] the already questionable value of eyewitness identifications,” there was a “similar modus operandi in all” robberies, and the suppressed evidence magnified the “significance of gaps and inconsistencies” in the prosecution’s case, which lacked any physical evidence tying defendant to the crimes. “[C]onsidered collectively” the withheld evidence was material and defendant was denied fair trial.

 

*Graves v. Dretke,

442 F.3d 334 (5th Cir.), cert. denied, 549 U.S. 943 (2006)

 

Prosecution violated Brady by failing to disclose statements by its critical witness, the alleged 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.

 

*Silva v. Brown,

416 F.3d 980 (9th Cir. 2005)

 

In pre-AEDPA capital case, prosecution violated Brady where although it disclosed that murder charges had been dropped against the co-defendant in exchange for his testimony against Silva, it did not reveal that part of the deal was that the co-defendant, who had previously been in a motorcycle accident and sustained severe brain damage, would forgo a psychiatric evaluation. The primary evidence against Silva was the testimony of the co- defendant. Although the 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.

 

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.

 

*Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005) (en banc)

 

The prosecution’s knowing presentation of false evidence and failure to correct the record violated Hayes’s due process rights. Napue applies to false evidence, not just perjured testimony. The constitutional prohibition against presenting false, rather than perjured, evidence was not a new rule under Teague. The false evidence regarding whether a deal had been made with the key prosecution witness was material because there was a reasonable likelihood the false testimony affected the jury’s verdicts as to first degree murder and the death sentence. Once materiality is established, there is no need to apply Brecht.

 

Slutzker v. Johnson,

393 F.3d 373 (3rd Cir. 2004)

 

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

 

United States v. Sipe,

388 F.3d 471 (5th Cir. 2004)

 

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

 

United States v. Rivas,

377 F.3d 195 (2nd Cir. 2004)

 

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

 

Mathis v. Berghuis,

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

 

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

 

Norton v. Spencer,

351 F.3d 1 (1st Cir. 2003)

 

In Massachusetts child sexual assault case where the alleged victim, Fuentes, was the sole witness, the appeals court affirms the grant of relief on petitioner’s Brady claim. After trial, petitioner discovered evidence that the prosecution had likely been off by several months in its contention about when the assaults allegedly occurred, and petitioner had not been at the house at the

relevant time. Petitioner also learned that another alleged victim, Noel, who had been found incompetent to testify, admitted to having fabricated the charges against petitioner at the insistence of Fuentes. Noel further stated that Fuentes had made up his allegations and that the prosecutor repeatedly told Noel and Fuentes how to testify even after being informed by Noel that none of the claims were true. The state court’s denial of relief involved both an unreasonable determination of the facts and an unreasonable application of clearly established federal law.

 

Castleberry v. Brigano,

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

 

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

Hall v. Washington,

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

 

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

 

Goldstein v. Harris,

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

 

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

 

Bailey v. Rae,

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

 

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

 

Monroe v. Angelone,

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

 

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

 

Scott v. Mullin,

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

 

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

 

Mendez v. Artuz,

303 F.3d 411 (2nd Cir. 2002), cert. denied, 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."

 

Sawyer v. Hofbauer,

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

 

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

 

United States v. Gil,

297 F.3d 93 (2nd Cir. 2002)

 

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

 

Jamison v. Collins,

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

 

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

 

Benn v. Lambert,

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

 

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

 

Killian v. Poole,

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

 

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

 

DiLosa v. Cain,

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

 

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

Boss v. Pierce,

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

 

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

 

Mitchell v. Gibson,

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

 

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

 

Leka v. Portuondo,

257 F.3d 89 (2nd Cir. 2001)

 

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

 

Boyette v. LeFevre,

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

 

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

 

Finley v. Johnson,

243 F.3d 215 (5th Cir. 2001)

 

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

 

Paradis v. Arave,

240 F.3d 1169 (9th Cir. 2001)

 

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

 

*Nuckols v. Gibson,

233 F.3d 1261 (10th Cir. 2000)

 

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

 

White v. Helling,

194 F.3d 937 (8th Cir. 1999)

 

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

 

Spicer v. Roxbury,

194 F.3d 547 (4th Cir. 1999)

 

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

 

Love v. Freeman,

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

 

The Fourth Circuit granted federal habeas corpus relief in this North Carolina child sexual assault case, finding that the state violated Brady by failing to disclose: evidence that the alleged victim twice denied she had been sexually abused; numerous inconsistencies in the alleged victim's account of the sexual assault; evidence of the alleged victim's "perhaps pathological lying history" and self-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.

 

Crivens v. Roth,

172 F.3d 991 (7th Cir. 1999)

 

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

 

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

 

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

entitled petitioner to relief.

 

United States v. Scheer,

168 F.3d 445 (11th Cir. 1999)

 

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

 

Seiber v. Coyle,

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

 

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

 

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

 

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

on cross examination of the witness. The court explained: "It makes little sense to argue that because [defendant] tried to impeach [the witness] and failed, any further impeachment evidence would be useless. It is more likely that [defendant] may have failed to impeach [the witness] because the most damning impeachment evidence in fact was withheld by the government."

 

Singh v. Prunty,

142 F.3d 1157 (9th Cir.), cert. denied, 525 U.S. 956 (1998)

 

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."

 

*Clemmons v. Delo,

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

 

Petitioner was convicted of murder and sentenced to death for the killing of a fellow prison inmate. Habeas relief granted as to conviction based on prosecution’s failure to disclose an internal prison memo generated the day of the incident which indicated that someone saw a second inmate commit the murder. While petitioner did present other inmates to testify at trial that this second inmate committed the murder, the prosecution argued that these witnesses were not believable because the person they were implicating was "conveniently dead," thus the outcome of the proceeding was sufficiently undermined.

 

*East v. Johnson,

123 F.3d 235 (5th Cir. 1997)

 

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

 

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

 

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

conspiracy.

 

*Carriger v. Stewart,

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

 

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

 

United States v. Fisher,

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

U.S. 753 (2000)

 

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

 

Duran v. Thurman,

106 F.3d 407 (9th Cir. 1997) (unpublished)

 

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

 

United States v. Pelullo,

105 F.3d 117 (3rd Cir. 1997)

 

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

 

United States v. Steinberg,

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

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

 

Guerra v. Johnson,

90 F.3d 1075 (5th Cir. 1996)

 

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

 

United States v. Cuffie,

80 F.3d 514 (D.C. Cir. 1996)

 

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

 

United States v. Smith,

77 F.3d 511 (D.C.Cir. 1996)

 

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

 

United States v. Lloyd,

71 F.3d 408 (D.C.Cir. 1995)

 

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

United States v. David,

70 F.3d 1280 (9th Cir. 1995) (unpublished)

 

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

 

United States v. O'Connor,

64 F.3d 355 (8th Cir. 1995), cert. denied, 116 S.Ct. 1581 (1996)

 

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

 

United States v. Boyd,

55 F.3d 239 (7th Cir. 1995)

 

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

 

*Banks v. Reynolds,

54 F.3d 1508 (10th Cir. 1995)

 

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

 

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

 

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

 

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.

 

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

 

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

 

United States v. Kelly,

35 F.3d 929 (4th Cir. 1994)

 

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

 

United States v. Young,

17 F.3d 1201 (9th Cir. 1994)

 

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

 

Demjanjuk v. Petrovsky,

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

 

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

 

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

 

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

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

 

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

 

Ballinger v. Kerby,

3 F.3d 1371 (10th Cir. 1993)

 

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

 

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

 

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

 

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

 

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

 

United States v. Gregory,

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

 

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

 

Hudson v. Whitley,

979 F.2d 1058 (5th Cir. 1992)

 

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

 

Thomas v. Goldsmith,

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

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

 

United States v. Brooks,

966 F.2d 1500 (D.C. Cir. 1992)

 

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

 

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

 

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

 

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

 

New trial ordered on basis of Brady violation where prosecution failed to disclose results of a

pre-trial psychiatric evaluation of defendant which would have fundamentally altered strategy and raised serious competency issue.

 

Jacobs v. Singletary,

952 F.2d 1282 (11th Cir. 1992)

 

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

 

Brown v. Borg,

951 F.2d 1011 (9th Cir. 1991)

 

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

 

Jean v. Rice,

945 F.2d 82 (4th Cir. 1991)

 

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

potential and could have altered case.

 

Ouimette v. Moran,

942 F.2d 1 (1st Cir. 1991)

 

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

 

Campbell v. Henman,

931 F.2d 1212 (7th Cir. 1991)

 

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

 

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

 

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

 

United States v. Wayne,

903 F.2d 1188 (8th Cir. 1990)

 

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

 

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

 

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

 

Reutter v. Solem,

888 F.2d 578 (8th Cir. 1989)

 

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

 

United States v. Weintraub,

871 F.2d 1257 (5th Cir. 1989)

 

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

 

McDowell v. Dixon,

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

 

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

 

Jones v. City of Chicago,

856 F.2d 985 (7th Cir. 1988) [Civil case]

 

In successful § 1983 action against police officers by plaintiff who had been charged with murder, court notes that while Brady does not require police to keep written records of all their investigatory activities, attempts to circumvent the rule by keeping records in clandestine files deliberately concealed from prosecutors and defense, which contain exculpatory evidence, cannot be tolerated.

 

United States v. Strifler,

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

 

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

 

Miller v. Angliker,

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

 

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

 

Carter v. Rafferty,

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

 

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

 

*Bowen v. Maynard,

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

 

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

 

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

 

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

 

Brown v. Wainwright,

785 F.2d 1457 (11th Cir. 1986)

 

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

 

Lindsey v. King,

769 F.2d 1034 (5th Cir. 1985)

 

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

 

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

 

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

 

Walter v. Lockhart,

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

 

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

 

United States v. Alexander,

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

 

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

 

*Chaney v. Brown,

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

 

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

 

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

 

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

 

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

 

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

 

United States v. Muse,

708 F.2d 513 (10th Cir. 1983)

 

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

 

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

 

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

 

United States v. Auten,

632 F.2d 478 (5th Cir. 1980)

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

 

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

 

In homicide prosecution, deceased's rap sheet, which prosecution failed to provide to defense pursuant to defense request, was “material” within meaning of Brady to the extent it served to corroborate petitioner’s testimony with respect to shooting incident. That the rap sheet was in possession of the medical examiner, not the prosecutor, did not defeat the claim.

 

DuBose v. Lefevre,

619 F.2d 973 (2nd Cir. 1980)

 

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

 

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

 

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

 

Monroe v. Blackburn,

607 F.2d 148 (5th Cir. 1979)

 

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

 

United States v. Antone,

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

 

For Brady analysis, no distinction is drawn between different agencies under the same government

--- all are part of the "prosecution team."

 

Campbell v. Reed,

594 F.2d 4 (4th Cir. 1979)

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

 

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

 

Testimony presented to grand jury contradicting testimony of government witnesses was Brady

material subject to disclosure to the defense.

 

United States v. Beasley,

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

 

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

 

Jones v. Jago,

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

 

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

 

United States v. Butler,

567 F.2d 885 (9th Cir. 1978)

 

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

 

Annunziato v. Manson,

566 F.2d 410 (2nd Cir. 1977)

 

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

 

United States v. Sutton,

542 F.2d 1239 (4th Cir. 1976)

Reversed where prosecutor concealed evidence that 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.

 

Boone v. Paderick,

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

 

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

 

Norris v. Slayton,

540 F.2d 1241 (4th Cir. 1976)

 

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

 

United States v. Pope,

529 F.2d 112 (9th Cir. 1976)

 

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

 

Washington v. Vincent,

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

 

Habeas relief granted where key prosecution witness lied about his deal with the state, and prosecutor took no action to correct what he knew was false testimony. Petitioner was entitled to relief despite the fact that there was evidence that petitioner and his counsel knew of the perjury as it happened but took no steps to object.

 

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.

 

United States v. Deutsch,

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

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

 

United States ex. rel. Raymond v. Illinois,

455 F.2d 62 (7th Cir.), cert. denied, 409 U.S. 885 (1972)

 

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

 

Jackson v. Wainwright,

390 F.2d 288 (5th Cir. 1968)

 

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

 

*United States ex rel. Thompson v. Dye,

221 F.2d 763 (3rd Cir.), cert. denied, 350 U.S. 815 (1955)

 

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

 

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.

 

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