By David Harshaw, Post-Conviction Branch
There are four cases reviewed. First, the en banc Sixth Circuit reverses the 2-1 decision of a panel which granted a writ of habeas corpus on a Brady issue. The second case is a sufficiency of the evidence case involving the possession of a gun by a passenger in a car. The third case involves the Constitutionality of video-conferencing at a parole revocation hearing. The last case involves the Constitutionality of Tennessee’s sex offender satellite tracking scheme.
Bell v. Bell,
(Tenn.), before the en banc Court.
The Court rules that tacit agreements between the prosecution and witnesses are Brady material. However, in this case, the Petitioner was unable to prove that a tacit agreement was in place.
Columnists in this publication have thrice reviewed the original panel decision. he panel decision was noteworthy because of the quantum of proof required to establish a tacit agreement.
Additionally, the Court reaffirmed that a Brady violation cannot occur regarding exculpatory evidence available to a defendant from other than the state source. The dissent asserts that this long-standing Sixth Circuit holding is contrary to Supreme Court precedent. Practitioners should be aware of the tension between these two points of view.
Stephen Bell, who was homeless, was convicted of the murders of two other homeless individuals. Ballistics tied spent bullet shells found at Bell’s campsite to spent shells found at the victim’s campsite. Another homeless man made a tentative identification of Bell.
This is a habeas case. Bell made two arguments in his appeal from the denial of the writ by the District Court. In addition to an ineffective assistance of counsel argument, he argued that Tennessee committed a Brady violation regarding a jailhouse informant. The following are some of the facts, as found by the full Sixth Circuit, related to this informant:
Also among the state’s witnesses at Bell’s trial was William Davenport, a convicted felon held with Bell in the Nashville jail during the period prior to Bell’s trial. In September 1986, Davenport contacted the Davidson County District Attorney General’s Office by letter, indicating that he had information about the Bell case. On October 13, 1986, Ronald Miller, the prosecutor assigned to Bell’s case, met with Davenport. Notes taken by Miller during that meeting document Davenport’s report that Bell admitted murdering the Wallaces. They also suggest that Davenport desired a transfer into a different facility, the “Red Building,” and movement into a work release program. The notes also seem to refer to Davenport’s parole eligibility status. In November 1986, following Miller’s meeting with Davenport, the district attorney’s office, through a separate attorney, elected not to prosecute four criminal counts pending against Davenport. Davenport received concurrent sentences on two remaining charges.
When called by the government at Bell’s March 1987 trial, Davenport testified that Bell said that he shot Herman Wallace during the course of an argument in which Bell was inebriated or “messed up.” According to Davenport, Bell said that he shot Jean Wallace because “she was there” and expressed no remorse for either killing. Bell’s defense counsel, Ross Alderman, attacked Davenport’s account on cross-examination, suggesting that Davenport was an incredible witness due to his criminal history and his prior Ku Klux Klan membership. During his closing argument, Alderman again challenged Davenport’s veracity, emphasizing Davenport’s criminal history and parole status. Miller attempted to undermine Alderman’s implication that Davenport had an incentive to lie to the jury and denied that Davenport’s decision to testify had anything to do with any promises from his office. He stated at closing, “Mr. Alderman would have you believe that [Davenport] wants an early parole through our office or through me. Well, I don’t have any say-so with the Parole Board; they are going to let him go soon enough anyway. I have nothing to do with what they do in their own respective realms.” Shortly after Bell’s trial, however, Miller did send a letter to the Board of Pardons and Parole on Davenport’s behalf requesting parole “at the earliest possible date.” Davenport was granted early parole in June 1987.
The following are the facts, found by the full Sixth Circuit, that were adduced at the post-conviction hearing:
Alderman testified that, although he submitted a discovery request to the government prior to trial, he received no information concerning Davenport’s communications with the prosecution or his criminal background. Nevertheless, Alderman acknowledged that he knew that Davenport was seeking early parole and that he had been able to argue at closing that Davenport provided testimony in order to receive the benefit of early parole.
At the hearing’s continuation on June 27, Miller testified. He conceded many of the facts related to his interactions with Davenport. However, Miller expressly denied promising Davenport anything in exchange for his testimony. In explaining his decision to submit a letter to the parole board on Davenport’s behalf, Miller stated, “I didn’t promise Davenport anything, and I didn’t make any agreements with him, but he testified at trial against someone I thought was dangerous, and I felt that he would now be labeled as a snitch, and it might be best that I did whatever I could do to get him out of prison, whenever the parole board thought he would be eligible.”
Bell argued that Brady v. Maryland, (1963) was violated in three instances: (i) by the prosecution not turning over the tacit agreement between Davenport and Miller, (ii) by the prosecution not turning over Miller’s notes of his conversation with Davenport, and (iii) by the prosecution not disclosing the favorable dispositions of Davenport’s pending cases.
The heart of the panel decision was its language regarding tacit agreements. The panel stated:
Moreover, a tacit agreement in this context is based on the transparent incentives for both the witness and the prosecution. The fact is that a jailhouse informant is one of the least likely candidates for altruistic behavior; his offer to testify is almost always coupled with an expectation of some benefit in return. The prosecution is not naive as to this expectation, and the prosecution also knows that when the value of the informant’s testimony reaches a sufficient level, it is in the prosecution’s interest to fulfill this expectation. At the most fundamental level, the arrangement is a quid pro quo; the informant knows he is giving something of value and expects something in return; the prosecution knows it is receiving something of value, and gives something in return. No written or spoken word is required to understand the nature of this tacit agreement. This is not to say that “a nebulous expectation of help from the state” is sufficient evidence for such an agreement. Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir.1997). But if a petitioner proves that a witness approached the prosecution to testify with the expectation of some benefit, and that the prosecution understood this expectation and fulfilled the expectation by actually bestowing some benefit, the petitioner has sufficiently demonstrated a tacit agreement that must be disclosed under Brady.
Judge Gibbons wrote the opinion of the full Court. She was joined by Chief Judge Boggs and Judges Batchelder, Rogers, Sutton, Cook, McKeague, and Griffin. Judge Gibbons had dissented from the original panel decision.
The Court found that under the facts of the case that Bell had not proven that a tacit agreement was in place. The Court agreed with the panel that tacit agreements are Brady material. However, the Court wanted more tangible proof than had the panel majority. The Court stated:
In sum, although we do not take issue with the principle that the prosecution must disclose a tacit agreement between the prosecution and a witness, it is not the case that, if the government chooses to provide assistance to a witness following a trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady. “The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony.” Shabazz v. Artuz, (2d Cir.2003) (emphasis in original). To conclude otherwise would place prosecutors in the untenable position of being obligated to disclose information prior to trial that may not be available to them or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement.
Thus, while a prosecutor must turn over a tacit agreement with an informant, he will only be punished for not revealing the agreement if the convicted defendant somehow manages to discover some explicit proof of the wink and a nod.
Bell also lost on the other two aspects of his Brady claim – the prosecutor’s notes and the settled charges. The Court did find that the prosecutor should have turned over his notes (wherein Davenport expressed a desire for leniency), but the Court found no violation of Brady occurred because Davenport had been otherwise adequately impeached. The Court also found that no Brady violation occurred regarding Davenport’s settled criminal charges because this information was a public record. Brady violations cannot occur when the defense has access to the material from another source. The Court cited two of its own cases for this last proposition:
Matthews v. Ishee, (6th Cir.2007) (“Where, like here, ‘the factual basis for a claim is ‘reasonably available to’ the petitioner or his counsel from another source, the government is under no duty to supply that information to the defense.”) (citation omitted); Coe v. Bell, (6th Cir.1998) (There is no Brady violation where information is available to the defense “because in such cases there is really nothing for the government to disclose.”).
Judge Clay, the author of the panel decision, filed a dissenting opinion in which Judges Martin, Moore, Cole and Gilman joined.
The dissent first asserted that Matthews v. Ishee and Coe v. Bell are wrongly decided in light of Strickler v. Greene, (1999) and Banks v. Dretke, (2004). The dissent found that a prosecutor’s assurance that all relevant Brady material in its possession has been turned over (which happened in this case) removes from the defense any obligation to scour the public record for additional material. Apart from Supreme Court precedent, the dissent relied on authority from other Circuits.
The dissent also asserted that two prophylactics should be in place to combat the mischief attendant to tacit agreements. The dissent would have Brady encompass “any evidence that reasonably suggests that the prosecutor conveyed an expectation of favorable treatment to the testifying witness.” The dissent would also have Brady encompass “any evidence in its possession that suggests that the witness actually harbors an expectation of favorable treatment, regardless of whether the prosecution created such an expectation.” The dissent stated:
Construing “promises of reward” or “inducements” to include these two types of evidence would promote the disclosure of evidence actually likely to bias prosecution witnesses. In contrast to the rule proposed by the majority, which would require something akin to a formal agreement before any evidence was subject to disclosure, this rule would foreclose a crafty prosecutor’s strategy of eschewing a formal agreement, only to achieve the same result through innuendo or implication. Additionally, it would resolve the nebulous issue of determining whether subjective expectations had given rise to a mutual understanding between the prosecution and the witness by making that issue one for the jury. If the prosecution made statements implicitly offering leniency in exchange for testimony, or if the witness made statements implying that he possessed such an expectation, the jury could consider whether an agreement existed, and weigh the witness’s testimony accordingly. (Internal citations omitted).
Judge Moore also dissented, joined by Judges Martin, Cole and Clay. She found that there was no reason for an en banc decision in this case. Judge Moore found that the case hinged on a factual disagreement (as opposed to one of law) regarding whether or not a tacit agreement was in place. Federal Rule of Appellate Procedure 35(a) and Sixth Circuit Rule 35(c) do not permit review on mere disagreements of fact.
Judge Daughtrey dissented in part and concurred in part. She, like Judge Moore, found no reason for en banc review. However, on the merits, she found with the majority.
Parker v. Renico,
(C.A.6 (Mich.) 2007), before Cole and Cook, Circuit Judges and Mills, District Judge.
In this habeas case, the Court finds that Michigan unreasonably applied Jackson v. Virginia, (1979), which requires sufficient evidence for a conviction.
Saejar Parker was the rear driver’s side passenger in a car involved in a high speed chase with the police. One of the other three men in the car had just attempted a murder. The chase ended in a crash. Three guns were found. One was on the front passenger seat floorboard. One was on the rear passenger side seat. One was found along the chase route on the passenger side of the car.
At trial, no evidence linked Parker to the attempted murder, and a directed verdict motion on the charge was sustained. However, directed verdict motions on (i) a felon in possession of a handgun charge and (ii) a possession of a gun in the course of a felony charge were overruled. The jury convicted Parker of both of these charges.
In the Michigan courts, Parker found no relief. However, the federal district court found that under Jackson v. Virginia, (1979) that Michigan had carried its factual burden of proof in regards to the possession element of both charges.
Judge Cook wrote the opinion of the unanimous Court. Judge Cook laid out the standard of review as follows:
As framed by AEDPA, the issue is whether the district court erred in concluding that the Michigan Court of Appeals unreasonably applied Jackson v. Virginia, (1979). Under Jackson, habeas corpus relief is appropriate based on insufficient evidence only where the court finds, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319, 99 S.Ct. 2781. The law therefore commands deference at two levels in this case-first, to the jury’s verdict as contemplated by Jackson, and, second, to the state court’s consideration of the jury’s verdict as dictated by AEDPA.
This case (like the typical gun in a car case) involved the concept of constructive possession. Under Michigan law, proximity to a firearm is not enough to establish constructive possession. There must be an “indicia of control.” This is the same test to which Kentucky Courts adhere. See Johnson v. Commonwealth, (Ky. 2002); Commonwealth v. Montaque, (Ky. 2000).
Important to the Court’s decision was that Parker was granted a directed verdict on the attempted murder. The Court stated:
The state attempts to buttress its argument by pointing out that constructive possession can be joint-that is, both men could possess the weapon. In support, it quotes Hill for the proposition that Michigan “recognize[s] the theory of joint firearm possession if the evidence suggests two or more defendants acting in concert.” 446 N.W.2d at 143. The state then asserts, with no additional support, that “the evidence presented in this case suggests that the men acted in concert.” But, as Parker’s directed-verdict motion prevailed, the trial court judge obviously found nothing to suggest this. Instead, the evidence suggested only that Parker was in a car with men who together planned a murder and that guns were in the car. No evidence linked Parker and Williams to common possession of the gun other than their presence in the Grand Am’s backseat.
Wilkins v. Timmerman-Cooper,
(Ohio), before Boggs, Chief Circuit Judge, Gibbons, Circuit Judge, and Bell, Chief District Judge.
The Court finds that the Confrontation Clause is not violated when a witness at a parole revocation hearing appears via video-conferencing.
Randolph Wilkins was alleged to have violated his parole by, among other things, having contact with underage females. The state of Ohio wanted to revoke his parole by having the young women testify at a remote location by video-conferencing. The conference was in real time and allowed for cross-examination. Wilkins complained that this violated his confrontation rights under Morrissey v. Brewer, (1972). He filed a writ of habeas corpus.
Judge Gibbons wrote for the unanimous Court:
Wilkins argues that the state court of appeals unreasonably applied Morrissey in determining that videoconferencing did not violate the Confrontation Clause or Wilkins’s due process rights. However, given that defendants have fewer rights in parole revocation hearings than in criminal trials, the state court of appeals did not unreasonably apply Morrissey, and its decision is not “objectively unreasonable.” See Williams v. Taylor, (2000). The Supreme Court specified there is no “inflexible structure” for a parole revocation hearing. Morrissey, Moreover, the Court also encouraged “creative solutions” to avoid Confrontation Clause violations. Gagnon v. Scarpelli, 1973). Therefore, it was not objectively unreasonable for the state court of appeals to hold that videoconferencing, when used in a manner that allows the defendant to confront and hear his accusers in real time, presents no Confrontation Clause violation.
Doe v. Bredesen,
(C.A.6 (Tenn.) 2007), before Griffin and Keith, Circuit Judges, and Van Tatenhove, District Judge.
Requiring convicted sex offenders to wear global positioning devices is Constitutional.
When I was standing in line waiting to see the lethal injection case at the United States Supreme Court, I chatted with an Assistant Attorney General from North Carolina who was very interested in this case because it was the first in which a Circuit Court had addressed this big-brother way of tracking sex offenders. Apparently, this type of intrusion is the wave of the future.
In Tennessee, the Probation and Parole Board is allowed to require a convicted sex offender to wear a global positioning device (GPS) for the duration of his/her probation. John Doe was convicted before this scheme came into being. He challenged the application of this plan to him. He also challenged a lifetime registration scheme that post-dated his conviction. Doe invoked the ex post facto clause of the Constitution.
The Court wrote:
Doe alleges that the GPS tracking device is not realistically concealable, and he contends that it has a marked effect on his lifestyle and freedom of movement and action. In Doe’s words, he is required to carry with him at all times when not at his residence a relatively large box which contains the electronics necessary for the monitoring to take place. This box must be worn on one’s person outside any coat or other outer garment and therefore is obvious to any onlooker. Upon going into a building, [he] must wait several minutes before entering, presumably to allow the device to reset. When inside a building, [he] must go outside at least once every hour so that monitoring can take place. The device is not waterproof, and [he] is not allowed to swim or participate in any other water activity. Baths at home are impossible.
Furthermore, the device has caused [him] added stress and many inconveniences as it does not always work properly. While on vacation, for which [he] obtained prior permission from his probation officer and a judge, [he] received at least six telephone messages from someone at the probation office threatening him with immediate arrest if he did not return a telephone call to the probation office at once. This entire event was because the Global Positioning System monitoring system could not locate him. At other times the [GPS] monitoring system either does not receive or transmit information correctly. When this happens [he] has spent up to an hour on the telephone with someone in the probation office to correct the problem. On one occasion [he] had to stand in the rain, for over thirty minutes, for all his neighbors to see, while the probation office attempted to fix the problem. Appellant is required to purchase the device at a cost of $50.00.
Judge Griffin delivered the opinion of the Court in which Judge Van Tatenhove joined. Judge Griffin wrote:
When evaluating an ex post facto claim, our first task is to “ascertain whether the legislature meant to establish ‘civil’ proceedings.” Smith v. Doe, (2003) (quoting Kansas v. Hendricks,(1997).) If the intent of the legislature was to impose punishment, that ends the inquiry. If, however, “ ‘the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Hendricks, (quoting United States v. Ward, (1980)). Because we “ordinarily defer to the legislature’s stated intent, ... only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,....”Smith, (internal citations and quotations omitted).
The Court went on to find that Tennessee had enacted a civil scheme whose purpose was to protect the public from the high risk of recidivism among sex offenders. The Court also found that the intrusion of the monitoring was not excessive in relation to its purpose. The Court stated:
The dissent argues the Monitoring Act is unreasonable and excessive because it cannot “prevent offenders, like Doe, from committing a new crime.” This supposition is faulty for two reasons. First, as even the dissent itself recognizes, the monitoring system has a deterrent effect on would-be re-offenders. Second, the ability to constantly monitor an offender’s location allows law enforcement to ensure that the offender does not enter a school zone, playground, or similar prohibited locale. In any event, our role is not to invalidate the program if the Tennessee Legislature has not struck the perfect balance between the regulatory purpose of the program and its burdens on Tennessee citizens, but rather to determine whether the means chosen are reasonable. Smith, . We conclude that they are.
The Court thus found that the GPS system did not violate the ex post facto clause.
Judge Keith dissented, in part. He concurred with the majority that Tennessee’s registration scheme was Constitutional. However, he found the tracking scheme to be deeply objectionable:
[A]s to the Surveillance Act, I strongly disagree with the majority’s decision to affirm the district court’s dismissal of this claim. I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The Surveillance Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day “scarlet letter.” I vigorously dissent.
