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A “VERY BRADY” EN BANC DECISION ISSUES FROM RICHMOND

The 4th Circuit last week released an en banc decision reversing denial of a federal habeas corpus filed by a North Carolina state prisoner who has spent 44 years in prison for a rape he in all likelihood had nothing to do with. The 93-page decision (with an additional 28-page dissent) is a virtual Brady primer, analyzing almost every element in a successful Brady undisclosed-evidence claim.

In 1976, Ronnie Long – a black man – was accused of raping a 56-year old white woman in her home. Her description of the assailant changed over time, and she identified Ronnie by sitting in a courtroom watching a parade of defendants appear in front of a judge. Not a shred of physical evidence connected Ronnie to the offense, and his alibi – he had been at a family function some distance away – seemed pretty solid.

Actually, saying that no physical evidence connected him to the scene is an understatement. The state had gathered all sorts of physical evidence at the scene, including 43 separate fingerprints and all sorts of fiber. The crime lab report found that not even one of 43 fingerprints matched the defendant’s prints, and none of the fiber connected Ronnie to the scene.

Sounds like a slam-dunk, right? Well, maybe on a level playing field. But in Ronnie’s case, the defense never saw the crime lab report, because the police falsely testified no such report existed and (needless to say) the prosecutor never produced it. Furthermore, detectives failed to disclose they had lost the only DNA sample taken from the victim. So Ronnie was convicted.

You remember Brady v. Maryland, right? Brady evidence is evidence in the hands of the prosecution that is favorable to the defendant. Such evidence must be disclosed. If you need a refresher, read this.

The 4th Circuit’s 9-6 decision rejects a state court holding that a prisoner must demonstrate “by a preponderance of the evidence,” that the withheld evidence would have changed the result at trial. The proper standard, the Court said, is a “reasonable probability of a different result,” a relaxed standard that makes much more sense, inasmuch as the defendant was wronged in the first place by having the evidence hidden from him.

The decision also rips the state court’s holding that Brady evidence must be “impeachment or exculpatory evidence” in order to be “favorable” to the accused.  Evidence may not itself impeach a prosecution witness or exculpate a defendant, but may still lead to other yet-undiscovered evidence that is impeaching or exculpatory, or – as in Ronnie’s case – simply be one piece of a cumulative mosaic that makes his guilt questionable.

The State argued that undisclosed evidence that police testified falsely about the crime lab report was not Brady material, because the cops’ testimony might have been explained as merely a “mistake, misunderstanding, or the report itself could be incorrect.” But, as the Circuit said, that has nothing to do with whether the undisclosed evidence was Brady material. While the state’s hypothetical explanations for the false testimony “may have been useful arguments for the State to make to the jury at trial, the rule is not that only unassailable evidence must be disclosed to the defense. Rather, it is clearly established federal law that any favorable and material evidence must be disclosed.”

The State said the undisclosed crime lab report – which concluded that nothing tied Ronnie to the rape – was merely cumulative, because defense counsel argued to the jury in closing that no forensic evidence tied the defendant to the crime. So the fact the jury never heard about the report, the state argued, hardly mattered. The Circuit rejected this stinker of an argument, holding that (1) everyone knows that the attorneys’ arguments are not evidence; (2) a government report showing that none of a big pile of physical evidence tied a defendant to a crime is much more persuasive to a jury than anything a defendant’s lawyer says in an argument; (3) and the cumulative effect on the jury of negative test after negative test after negative test is undeniable.

Finally, the Court noted, the very existence of evidence the police denied having had in their possession would have badly undermined the credibility of the detective witnesses.

This decision should be read by anyone with a Brady issue.

Long v. Hooks, Case No 18-6980, 2020 U.S. App. LEXIS 27138 (4th Cir. Aug 24, 2020)

– Thomas L. Root