Tuesday, February 10, 2015

Playing on an Unlevel Field

Our jobs are difficult. Things are not easier when the other side is less than forthcoming. Or when the other side engages in misconduct. Unfortunately, these things still happen. We are reminded of this by two recent, and related, Sixth Circuit decisions:

Bies v. Sheldon: This is a death penalty case. The victim was 10 years old. The conviction "rested almost entirely on an unrecorded statement that Bies allegedly made to police following a prolonged and highly suggestive custodial interrogation." Bies had an IQ around 60 and was functionally illiterate. Evidence gathered during the investigation, including evidence incriminating other potential suspects, was not disclosed to Bies or his counsel. In fact, officers did not disclose this evidence to prosecutors. This evidence spanned hundreds of pages. The undisclosed reports "included a substantial collection of tips, leads, and witness statements relating to other individuals who had been investigated for the murder -- two of whom had apparently confessed to the crime, and neither of whom was ever ruled out as the perpetrator." The State also withheld "witness statements that undermine the State's theory of the case and information that could have been used to further impeach two of the State's witnesses."
Clearly, this is a Brady violation, as the Sixth Circuit found. The State admitted that the evidence was favorable to the defendant and suppressed by the State (two of Brady's three prongs; note Kyles v. Whitney and the extension of Brady to information known to police investigators and not the prosecutor). The Court also found the evidence material (the third prong). This conclusion was "inescapable" considering the "quality and quantity of the evidence that the State failed to disclose."
A few more points. The Court was unimpressed with trial testimony from a jailhouse snitch. It was also unimpressed with the defendant's unrecorded confession, especially in light of the defendant's intellectual disabilities. And the defendant's statements were also made to curry favor on a pending charge in another state.

Gumm v. Mitchell: Believe it or not, this case involves the same murder. Gumm, like Bies, was also convicted of the murder of the 10 year old, and he was also sentenced to death. Like Bies, Gumm is intellectually disabled. And, you guessed it, the same Brady violations in Bies happened in Gumm's case. But there is more. The prosecutor in this case elicited severely prejudicial and inflammatory testimony on Gumm's sexual proclivities (brace yourself: one witness testified that he "fucked the horse.") In the Court's words: "Although unrelated and removed in time from the crimes in this case, the prosecution put forth unreliable hearsay statements regarding cruelty to animals and bizarre sex acts to suggest that Petitioner had a propensity to commits acts like the crimes in question." The Court's criticism gets even worse. We will not repeat it. We write only as a reminder that not all prosecutors abide by the law. These cases remind us that remedies await.      

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