U.S.C.A. NO. 98-6782-CC
BETTY WOODS WILSON, Appellant
v.
MICHAEL W. HALEY, ET AL, Appellee
APPELLANT’S BRIEF
| Stephen A. Strickland Richard S. Jaffe Cecilee R. Beasley Jaffe, Strickland, Beasley & Drennan, P.C. 220 Arlington Avenue Birmingham, AL 35205 (205) 930-9800 |
Charles Hooper P.O. Box 2374 Huntsville, AL 35804 (256)539-8914 |
Herman A. Watson Watson Fees & Jimmerson, P.C. P. O. Box 46 Huntsville, AL 35804 (256) 536-7423 |
| Charles H. Pullen 221 East Side Square Suite 3-A Huntsville, AL 35801 (256) 532-3888 |
Charles R. Crowder Cory, Watson, Crowder & Degaris, P.C. 2131 Magnolia Avenue Birmingham, AL 35255 (205)328-2200 |
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Counsel hereby certifies, pursuant to Circuit rules, that the following persons and entities have an interest in this appeal:
Kristi Adcock, Esq. – District Attorney
Cecilee R. Beasley, Esq. – Appellate Attorney
G Ward Beeson, III, - Assistant Attorney General
Mo Brooks, Esq. – District Attorney
Margaret S. Childers – Assistant Attorney General
Bobby Lee Cook, Esq. – Trial/Appellate Attorney
Cook & Connelly – law firm representing Appellant
Cory, Watson, Crowder & Degaris, P.C. – law firm representing Appellant
Charles R. Crowder, Esq. – Appellate Attorney
Harwell G. Davis, III – Magistrate Judge
Russell Jackson Drake, Esq. – Trial/Appellate Attorney
Jimmy Fry, Esq. – District Attorney
Judge Paul W. Greene – Magistrate Judge
Charles Hooper, Esq. - Trial/Appellate Attorney
Richard S. Jaffe, Esq. – Appellate Attorney
Jaffe, Strickland, Beasley & Drennan, P.C. – law firm representing Appellant
Susan Moquin – District Attorney
Sam C. Pointer, Jr. – U.S. District Court Chief Judge
Bill Pryor – Attorney General
Charles H. Pullen – Appellate Attorney
Paul M. Sandlin, Esq. – Trial Attorney
Stephen A. Strickland, Esq. – Appellate Attorney
Herman A. Watson, Esq. – Appellate Attorney
Watson Jimmerson, P.C. – law firm representing Appellant
Whatley Drake, LLC – law firm representing Appellant
Betty Woods Wilson - Appellant
Dr. Jack Wilson (deceased) – victim
Thomas N. Younger – Trial Judge
STATEMENT REGARDING ORAL ARGUMENT
While it is evident that this court must grant Betty Wilson’s petition for writ of habeas corpus, counsel for the appellant believe that oral argument will be of benefit to the parties and the court.
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . i
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . .C1 of 2
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
FACTS:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
STANDARD OF REVIEW:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARGUMENT AND CITATIONS OF AUTHORITY. . . . . . . . . . . . . . 30
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
This court has jurisdiction over this appeal pursuant to Rule 22, Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c). This is an appeal of a denial by the district court of Betty Wilson’s habeas petition under 28 U.S.C. § 2254. On October 11, 1998, Judge Sam Pointer, Jr. issued a Certificate of Appealability.
I.THE STATE HAD A DUTY TO DISCLOSE THE EXCULPATORY INFORMATION.
II.THE DISTRICT COURT ERRED IN HOLDING THAT BETTY WILSON’S TRIAL COUNSEL COULD HAVE OBTAINED THE NOTES FROM DR. MAIER HIMSELF THROUGH THE EXERCISE OF DUE DILIGENCE.
III.THE INFORMATION IN DR. LAWRENCE MAIER’S NOTES WAS MATERIAL TO THE OUTCOME OF THE CASE.
Betty Wilson is currently incarcerated.
On May 27, 1992, Betty Wilson, and her sister, Peggy Lowe were arrested and charged with the capital murder of Betty’s husband, Dr. Jack Wilson. Betty Wilson was convicted of hiring James White (hereinafter "White") to kill her husband, and she was sentenced to life without parole. Mrs. Wilson filed a direct appeal of her conviction and sentence with the Alabama Court of Criminal Appeals. After oral argument, but before the court released a decision in the case, she filed a petition for post-conviction relief pursuant to Ala. R. Crim. P. 32, collaterally attacking her conviction and sentence based, in part, on an affidavit signed by White recanting his trial testimony and absolving Mrs. Wilson of guilt. In addition, Mrs. Wilson discovered exculpatory and impeaching evidence that was not produced until after her trial.
The trial court held a hearing on the Rule 32 petition. White was called as a witness and defense counsel attempted to examine him regarding his affidavit recanting his trial testimony. However, White refused to answer based on his Fifth Amendment privilege against self-incrimination. Another inmate testified that White told him that he lied at the Wilson trial. The inmate also testified that he overheard White praying out loud for forgiveness for having lied at that trial. After the hearing, the trial court denied the petition.
The direct appeal and appeal of the denial of the Rule 32 were consolidated for purposes of review by the Alabama Court of Criminal Appeals. On January 13, 1995, that court affirmed Mrs. Wilson’s conviction and upheld the trial court’s denial of the Rule 32 petition. Wilson v. State, 690 So.2d 449 (Ala.Crim.App. 1995). Judge John Patterson filed a 9 page dissent based on his determination that the State’s evidence did not corroborate the testimony of the alleged accomplice, White, as required by Alabama law.
On January 17, 1997, the Alabama Supreme Court quashed Mrs. Wilson’s writ of certiorari as improvidently granted with respect to the appeal of the denial of the Rule 32 petition (In an eighteen (18) page dissent, Justices Maddox and Butts concluded that the denial of the petition for post-conviction based upon Brady was error.) Ex parte Wilson, 690 So.2d 477 (Ala. 1997). On March 21, 1997, the Alabama Supreme Court overruled Mrs. Wilson’s application for rehearing with Justices Maddox, Butts and See dissenting.
Betty Wilson then filed a request for relief from judgment or sentence pursuant to 28 U.S.C. § 2254 on May 14, 1997, in the United States District Court for the Middle District of Alabama. It was transferred to the Northern District of Alabama on May 29, 1997. On June 16, 1998, the Magistrate issued a report and recommendation recommending the denial of the Petition for Habeas Corpus. After being granted additional time to respond, Wilson filed her objection to the Magistrate’s Judges Report and Recommendation on July 31, 1998. On August 24, 1998, United District Judge Sam Pointer adopted the report of the Magistrate, accepted the Magistrate’s recommendation and denied the Petition for Writ of Habeas corpus. Mrs. Wilson filed a Notice of Appeal to the Eleventh Circuit of Appeals on September 23, 1998, and a Motion for Certificate of Appealability on September 29, 1998. On October 11, 1998, Judge Sam Pointer, Jr. issued the Certificate of Appealability.
The facts surrounding Betty Wilson’s trial and her Rule 32 Petition are sufficiently set out in the majority and dissenting opinions of the Court of Criminal Appeals and the dissenting opinion of Justice Maddox in the Alabama Supreme Court opinion. See Wilson v. State, 690 So.2d 449 (Ala.Cr.App. 1995) and Ex parte Wilson, 690 So.2d 477 (Ala. 1997). See also the record on appeal and Betty Wilson’s Petition for Habeas Corpus and Supporting Brief. (Vol. 1, Docket numbers 1, 15, and 16). Due to word limitations, this brief will adopt Judge Maddox’s dissent for those facts that apply to Mrs. Wilson’s Brady issue:
Dr. Jack Wilson, the defendant’s husband, was found dead at his home in Huntsville on May 22, 1992. He had been stabbed twice in the chest and had been severely beaten around the head and torso. Ms. Wilson and her twin sister, Peggy Lowe, and James White were subsequently indicted for capital murder. The theory of the State’s case was that Ms. Wilson and her twin sister, Peggy Lowe, had hired James White to kill Dr. Wilson so that Ms. Wilson would be free of him and would be the beneficiary of his sizable estate. The prosecutor elected to try Wilson and Lowe separately, with Wilson’s case proceeding first. The prosecutor elected not to try White until he had testified in the trials of the two sisters.
White testified at Wilson’s trial that he had been hired to kill Dr. Wilson for $5,000, and he implicated both Wilson and her sister, Lowe. Wilson was convicted and sentenced to life without parole. Her sister was subsequently tried and acquitted. White pleaded guilty and was sentenced to life imprisonment, with the possibility of parole.
Ex parte Wilson, 690 So.2d at 479.
Wilson made a pre-trial request for discovery of all records generated or maintained by the Alabama Department of Mental Health and Retardation pertaining to James White, the alleged co-defendant, but that some of the requested records were not made available to Wilson before her trial.
On July 17, 1992, Wilson filed a motion styled "Motion for Discovery of Prosecution Files, Records, and Information Necessary to a Fair Trial," and she subsequently, on July 30, 1992, filed a motion styled "Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial." That July 30 motion read, in part, as follows: (emphasis added).
"COMES NOW Defendant, by and through her undersigned attorneys, and respectfully moves this Honorable Court, pursuant to Rule 16 of the Alabama Rules of Criminal Procedure; applicable State law; the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provision of the Alabama State Constitution, to order the production of the materials specified below. Defendant additionally relies on Ex parte Monk, 557 So.2d 832 (Ala.1989), in which the Alabama Supreme Court held that capital cases are ‘sufficiently different to justify broadened discovery.’
"Defendant requests that this Court order the individuals named below to produce for inspection and copying the documents specified herein, wherever such documents may be located, with such production to be arranged within thirty (30) days after discovery is ordered.
In this motion Wilson asked for several documents, but the documents that are the specific subject of Wilson’s Rule 32 petition were described in the motion as follows:
"6. All records generated or maintained by the Alabama Department of Mental Health and Mental Retardation and pertaining to the Defendant, co-defendant or accomplice;
"7. All records pertaining to Defendant, co-defendant or accomplice and generated by the Taylor Hardin Secure Medical Facility, Tuscaloosa, Alabama;
". . . .
"10. Any and all medical, psychological, psychiatric or mental examinations or evaluations relating to the Defendant, James Dennison White, a/k/a/ James Dennison Howell, that [have been] or will be performed by any State or governmental agency."
It is undisputed that Wilson, on August 11, 1992, filed a motion styled "MOTION TO EXPEDITE MOTIONS FILED AND REQUEST TO ALLOW DEFENDANT TO HAVE A DICTAPHONE IN HER JAIL CELL," in which she specifically asked, in part:
"that the Court expedite its decision on the following motions: … Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial."
She alleged, in part:
"4. For each day the Defendant is denied her constitutional right to participate and prepare her defense, she is losing a day of valuable time to prepare her trial and participate in her own defense."
On February 1, 1993, Wilson filed another motion styled "MOTION TO EXPEDITE MOTIONS FILED," in which she stated, in part:
"COMES NOW the Defendant Betty Woods Wilson, by and through her attorney of record, and moves this Court to expedite its decisions on the following motions: . . . 13. Motion for Discovery of Institutional Records and Files Necessary to A Fair Trial filed July 30, 1992 . . ."
Based on the foregoing, it appears to me that Wilson filed sufficient requests to get the institutional records regarding White.
The facts surrounding the legal issue presented in this case are not seriously disputed. In fact, many of the facts were included in a stipulation that is a part of the record. The facts show that after James White was indicted, his defense attorney made a pre-trial motion to have him examined to determine his competency to stand trial on the capital murder charge. Because White was found to be indigent, the trial judge ordered that a psychiatric evaluation be performed on him at the State’s expense. In August, 1992, Dr. Lawrence Maier, who was under contract with the Department of Mental Health and Mental Retardation, examined White at the Taylor Hardin Secure Medical Facility ("Taylor Hardin"). Of some significance in this case is the fact that Dr. Maier’s evaluation report was made of White after White had given seven statements to State agents, in which he had stated to the police many of the facts surrounding the homicide, but had not stated the time of the homicide.
During his examination of White, Dr. Maier made handwritten notes of information he obtained in the interview, including facts relating to the capital murder charges then pending against White, Wilson, and Lowe. Immediately following the interview, Dr. Maier prepared an initial competency evaluation report, and the supplemental notes that he later filed are the subject of this proceeding.
Why does Wilson claim that the notes were material? At her trial, her counsel questioned White about inconsistencies between his trial testimony and statements he had previously given to the police, including statements relating to the time the murder occurred. Regarding the time of the homicide, White testified that he could not recall any exact times, including the time of the murder, because, he said, he did not carry a watch and he was suffering from blackouts. According to Dr. Maier’s notes, however, White told him that he committed the murder between 6:00 and 6:30 p.m.
After examining White, Dr. Maier determined that White was mentally competent to stand trial, and he filed his report at Taylor Hardin and furnished copies to the prosecution, to White’s attorney, and to the trial court, but Dr. Maier did not file the handwritten notes or a transcription of them at that time; rather he took the notes with him and later had them transcribed, after which he sent a copy of them to Taylor Hardin, where, as was required, the notes were attached to the initial evaluation report that he had previously prepared. It was the State’s failure to produce these notes, in which Dr. Maier stated that White had told him that the murder occurred between 6:00 and 6:30 p.m., that forms the basis of Wilson’s claim that her constitutional rights were violated and that she is, therefore, entitled to a new trial.
For a better understanding of Wilson’s constitutional claim, I state some of the basic facts relating to the notes, their content, and their relevance insofar as Wilson’s trial is concerned.
After White was examined by Dr. Maier, the trial court held a hearing to determine White’s competency to stand trial. The trial judge determined that White was mentally competent to stand trial, as Dr. Maier had concluded in his evaluation; however, before White’s trial, and before Wilson’s trial, White entered into a four-page contingent plea agreement with the prosecutor, wherein White agreed to provide "truthful and complete corroborating evidence … substantiating the complicity and involvement" of Wilson and her twin sister, Lowe, in the murder of Dr. Wilson. The prosecution, in turn, agreed to recommend, after Wilson and Lowe were tried, that White be allowed to plead guilty to the offense of murder (a lesser included offense of capital murder) and be sentenced to life imprisonment. Stated differently, the substance of the agreement was that if White would testify against Wilson and Lowe, he would not face execution, or, for that matter, a sentence to life imprisonment without parole, for his part in the murder of Dr. White, but would instead receive only a life sentence with the possibility of parole.
The basic facts surrounding the preparation and filing of the handwritten notes are not disputed. In fact, at the Rule 32 proceeding, the parties entered into the following stipulation of facts regarding the notes taken by Dr. Maier:
"1. Dr. Lawrence R. Maier was appointed to do a mental competency evaluation of James Dennison White. Dr. Maier is regularly employed on a contract basis by the Alabama Department of Mental Health and Mental Retardation to evaluate all criminal defendants where there is a question as to their mental competency. Dr. Maier is employed to work in the Huntsville, Alabama, area. Maier’s evaluation of White was the result of action taken by White’s attorney, Roy Miller. The request by Miller for the evaluation was made in the case of State of Alabama v. James Dennison White, CC-92-1192-FJ. The evaluation was ordered by Judge Jeri Blankenship on July 14, 1992.
"2. On August 5, 1992, Dr. Maier interviewed James Dennison White. Thereafter, Dr. Maier filed a formal report with the District Attorney of Madison County, Alabama, with Judge Blankenship, and with Roy Miller.
"3. Prior to the trial of Betty Woods Wilson for capital murder, the report prepared by Dr. Maier was supplied to [one of] Betty Woods Wilson’s lawyers, namely, Marc Sandlin, by Assistant District Attorney Susan T. Moquin, pursuant to an order by Judge Thomas Younger.
"4. It is the practice of Dr. Maier to cause his notes to be transcribed and typed. Dr. Maier’s notes, taken during the interview of James Dennison White, were typed into a three page document entitled ‘Additional Information Section.’ These transcribed notes were sent by Dr. Maier to Taylor Hardin Secure Medical Facility as required of him by the Department of Mental Health and Mental Retardation. However, the notes were not supplied to the District Attorney of Madison County, Alabama, to the Assistant District Attorney involved, to Judge Blankenship, to Roy Miller, or to [the] prosecutor, James Fry. The notes … were not supplied to Betty Wilson’s lawyers prior to her trial."
The parties also stipulated that neither Wilson nor her attorneys knew of the existence of the notes until they were handed over to them by Lowe’s attorneys on a date after Wilson was tried. [FN3] In addition, the parties orally stipulated that no member of the prosecution nor any member of the police force had had any knowledge of the existence of the transcribed notes.
FN3. In her petition, Wilson claimed that this date was in September 1993. The record shows that Lowe’s attorneys were given not only the evaluation of White, but also the supplemental notes; however, this occurred after Wilson had been tried.
In White’s own case, a different trial judge than the one who tried Wilson’s case had directed that White be evaluated by a psychiatrist at the State’s expense, and had ordered that White "undergo examination by a Certified Forensic Examiner appointed by the Alabama Department of Mental Health and Mental Retardation," to "be conducted on an outpatient basis by Taylor Hardin Secure Medical Facility or regional outpatient program under contract to the Alabama Department of Mental Health and Mental Retardation." This order was entered on July 14, 1992, in James White’s case by Circuit Judge Jeri Blankenship. This order was entered three weeks before Wilson’s discovery motion was filed.
On September 2, 1992, the trial judge in Wilson’s case entered an order, which I attach as Appendix A, in which he ordered the prosecution to turn over certain items of evidence, stating that the prosecution was required to turn over the requested evidence pursuant to the discovery provisions of Rule 16, Ala. R.Crim. P. It is not absolutely clear from the record, however, whether this September 2, 1992, order was entered as a result of the "Motion for Discovery of Prosecution Files, Records and Information Necessary to a Fair Trial," filed July 17, 1992, or was entered as a result of the "Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial" that Wilson had filed on July 30, 1992. In any event, it is clear that the latter motion was specific enough to include not only the evaluation report that Dr. Maier had done, but his notes as well, which it appears were a part of White’s file at the time the motion was filed. (See, Paragraphs 6, 7, and 10 of the "Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial," quoted above, 690 So.2d at 479-480.)
In his September 2, 1992, order, the trial judge directed the prosecution to turn over the documents that were "known to exist or which with due diligence could be determined to exist, and to allow the attorneys [for Wilson] to inspect, test, examine, photograph or copy the same."
Even though the trial judge entered the order on September 2, 1992, and even though Wilson had asked in her motion seeking the institutional files that "such production … be arranged within thirty (30) days after discovery is ordered," the record shows that the prosecution did not turn over to Wilson’s attorneys the evaluation report by Dr. Maier until February 5, 1993, which was 5 months after the order was entered and only 16 days before the commencement of the trial, and only after Wilson’s attorneys had on February 1, 1993, filed a "Motion to Expedite Motions Filed." A copy of that Motion is attached as Appendix B.
I cannot tell from the record before this Court the exact date when the prosecution turned over the requested documents; nor can I determine whether the evaluation report that was given to defense counsel was the one sent to the prosecution in White’s case, or whether the prosecution obtained the evaluation report from Taylor Hardin to comply with Wilson’s request for the institutional files generated or maintained by Taylor Hardin. In any event, the parties stipulated that Dr. Maier’s notes were not produced to Wilson before her trial and that she found out about the notes when attorneys for Peggy Lowe, in Peggy Lowe’s case, were given a copy of the notes.
Although I do not know the specific purpose Wilson had in mind for requesting the documents pertaining to Dr. Maier’s evaluation of White, one can assume that Wilson wanted to get as much background information as possible on White’s past behavior and possible mental problems so that she could discredit him and any testimony he might give. [FN4]
FN4. The record shows that Wilson requested that the trial court issue a subpoena duces tecum to each of approximately 16 private medical institutions and physicians, because White’s attorney had "made public statements relating to his client’s history of substance abuse, his extended history of mental illness, and his client’s extended history of medical treatment." In asking the trial court to issue these subpoenas, Wilson argued that "there is a reasonable likelihood that the [medical] records in question will disclose material information or evidence of substantial value with respect to … [White’s] competency to testify, history of delusions and/or fantasies." Wilson’s motion appears to have made clear the type of information she wanted produced and why she wanted it produced.
Relevant to the instant inquiry, of course, is the fact that Dr. Maier’s notes included a statement made by White in which White admitted that he had committed the murder sometime between 6:00 and 6:30 p.m. In none of the seven statement that White gave to police before he was evaluated by Dr. Maier did he state that the murder had occurred between 6:00 and 6:30 p.m. In fact, as I have stated earlier, White testified at Wilson’s trial that he could not recall any exact times, including the time of the murder, because, he said, he did not carry a watch and he was suffering from blackouts.
According to Wilson, the time of the actual commission of the crime was significant to her defense because she presented evidence of her whereabouts between 5:25 p.m. and 8:00 p.m. It appears that an important component of the prosecution’s case was the establishment of a time line that would prove that the defendant Betty Wilson had the opportunity to participate in the murder of her husband. The prosecution presented evidence to establish this time line: (1) through the testimony of several witnesses who stated that they saw Wilson on the day of the murder; and (2) by the introduction of business records that showed where and when Wilson had made purchases that day. In his seven statements to the police before he was evaluated by Dr. Maier, and at trial, White stated that he could not recall any exact times, including the time of the murder, because, he said, he did not carry a watch and he was suffering from blackouts. A review of the record shows that specific times that appeared to be important to the prosecution included the time that Wilson allegedly picked up White at a shopping mall, the time of day the murder was committed, and the time that Wilson allegedly picked up White at her home.
The State contended at Wilson’s trial that the time-line evidence corroborated White’s trial testimony and gave Wilson the opportunity to participate in the murder. In any event, the evidence of Wilson’s whereabouts on the day of the murder was a substantial part of the State’s case and of Wilson’s defense. The prosecution’s theory of the case was that Wilson had the opportunity to take White to her home between 2:15 p.m. and 3 p.m., and that Wilson could have picked up White only between 4:50 and 5:25 p.m., because business records tended to confirm that she made her last purchase at 4:49 p.m. and witnesses accounted for her whereabouts after 5:25 p.m. the day of the murder. Wilson claims that she was at the mall most of the afternoon of the day of the murder, leaving briefly to go to a tanning booth and returning thereafter.
The prosecution’s theory of the time line and its importance is shown by the closing arguments made by the prosecution to the trial judge, where the prosecutor stated:
"Well, that moves us up to the next day. Moves us up to the 22nd of May. How do we know where the defendant was and how do we know where James was? Well, I put myself something together called ‘Where is Betty? Where is James?’ And you all, do the same thing with all the notes I saw you taking. Because we know from the cash register receipt that she was at Yeilding’s that day and bought some shoes, which you all saw … but bought a paid of shoes like some flowery Keds, which we had here but did not go into evidence. She bought those shoes there. Same shoes, by the way, that later on [N.N.] and I believe some other people said she had on, that they saw her with those Keds. Well, James White described those shoes for you. How did he know? Oh, well, he was stalking. That’s what you are going to hear, he was stalking. Why? Why? He didn’t even know the woman. Talked to her on the telephone. Unless he is telling the truth. He described those shoes for you.
"You know where she went next, the tanning salon, after dropping James off at about 2:30, between 2:10 and 2:30. And by the way you will have the map. You have got the scale. From Parkway City Mall, right here, up to their home on Boulder Circle here. And Trey told you himself, he told you himself, less than five minutes, four or five minutes, just a short little hop, skip, and a jump. Could have been there by 2:15, 2:20, if she left after she made the purchase, and James was in the house.
"And then you know the rest of the places that she went that afternoon. We have documented that for you. We established everywhere we know she went, including, according to Micky Brantley, who said the defendant told him that she went to the bank that afternoon. In fact, her excuse, as I recall the testimony, was for taking - - for going back home, where she forgot the bank bag.
"And what else did he tell you? Told you that when she came back, when he got in the back seat of the car, he covered himself with some plastic bags that seemed to have some clothes in them. And what color did he say the one that was in his face was? He said that it was pink. How did he know? How could he have known? How could he have guessed pink? How could he have guessed clothing bags? Because he was there, because it was in his face. You remember? "You will remember Peggy Black told you that when the defendant came by the Morgan headquarters that night, that she had a bank bag with her, and she told her once or twice or several times that they would be back in the morning, they were going on a trip, that she would come back in the morning and give her the deposit slips. Wait a minute, wait a minute. She already made the deposit, she had made the deposit. What was this all about? Why did she tell her that? She had made the deposit. The deposit slip, apparently, was in the bag. What was this nonsense about coming back? Why didn’t she just give the thing to Peggy Black then? Could it have been that she was establishing being somewhere at 4:30 - - or, rather, 5:30, 5:45?
"Part of the instructions of law which I think the judge is going to give you … is about corroborating evidence and connecting the defendant with the crime. We have got to connect her, at least by implication, with the crime. And one of the ways you can do that is to establish the defendant’s closeness to the crime itself. Sheila Irby does that. You remember Sheila Irby? Sheila Irby was the lady who was taking her daughter to play softball, and she was making trips back and forth, and she had gone back and calculated the time it was that she had to be at the ballpark, the time she got there, the time she left the mall. You all heard the testimony. But it was her testimony that she saw James White on the street at, I believe, 5 ‘til 5:00, 10 ‘til, something like that, but right at 5 o’clock. She went home, got her girls, made a trip, came back, and by her testimony no later than 5:10, if I remember correctly, she saw the defendant on this case heading toward Boulder Circle. Not on Boulder Circle, on Chandler Street, but headed towards Boulder Circle where she lived. That’s exactly where James White tells you he was picked up. That’s exactly the neighborhood where the murder occurred. It puts her there with White or at least 10 minutes of it."
On the other hand, defense counsel Jack Drake argued that White was not credible and that the murder could not have happened as claimed by the prosecution:
"Let’s look at some specific answers to what James White says. He says that he was over there on Boulder Circle between - - well, actually these are specific answers to his whereabouts and what the State says about him and Betty. Andy Sieja, the little 13-year-old boy - - remember him - - came in here in this place and appeared not to even be scared. I thought he was going to be scared to death. He was out there in the circle from somewhere right after 3 o’clock, when he got home, on up to about 5:15. He was out there playing, he and two friends. They didn’t see Betty. They didn’t see Betty. They didn’t see Betty bring James White over there and pick him up. They didn’t see it because it didn’t happen.
"Mrs. ________ [a witness], who doesn’t even live on the circle, lives somewhere else, says she saw Betty in the area in her car. She didn’t say it initially, she only said it after things really got going in the newspaper. I think you can explain [that witness’s] conduct and her testimony in several ways. One, she is mistaken, the other is that maybe she is a dingbat. And y’all can make the choice.
"We know that David Williamson saw James White over in the Ramada Inn and had a confrontation with him, a violent confrontation, saw him at the bar at 5:15. James White says he was in the house for several hours. He wasn’t in the house, we know that now.
"Dr. Wilson came home about 4 o’clock, he went out and drove a stake in the front yard, these boys saw him. He was alive at 4:30. James White wasn’t in the house, it didn’t happen that way.
"And we have this note, the note that everybody says that Dr. Wilson wrote. Now, Jimmy Fry started out saying this 2 was a 3. It’s a 2, you can see it when we blow it up. I mean, there is no question about it. It’s 1715, 22 May. It appears that he wrote down the time and the date and had some things to do. Now, could this be a mistake, could he have done it on the wrong day or something? No. Critical little piece of information right there. ‘Mr. Hyde,’ and he marked it through. He called Mr. Hyde, that’s the message on the answering machine where he told him to bring that piece of equipment over to my office – I’m sorry, I never understood what this thing was, bring something to my office and get the key from the pharmacy so you can get into the office. Remember that?
"He was alive at 5:15, no surprise, because James White was over at the Ramada Inn getting tanked up on alcohol and taking fast ones, getting ready to do something."
Later, defense counsel Bobby Lee Cook argued:
"You heard James White for over a day. And there is one - - we had the court reporter to transcribe everything that he said. There is one statement that he made that I have no problem disagreeing with. And the question was, ‘When did you start telling the truth?’ And he said, and I quote, Mr. Fry, ‘I can’t remember exactly what day it was, what day it was that I started.’ In these two documents, which represent his testimony in this case, he has admitted to lying under oath 58 times."
Unquestionably, White’s testimony that implicated Wilson was critical to the prosecution’s case. In fact, in the plea agreement with James White, the prosecution admits that the "capital murder charges against BETTY WOODS WILSON and PEGGY JOY WOODS LOWE would, of necessity, have to be dismissed in absence of this agreement and the testimony and cooperation of JAMES DENNISON WHITE." Consequently, evidence that not only would corroborate Wilson’s evidence that she did not participate in the murder, but also would contradict some of White’s trial testimony (which is consistent with White’s recantation testimony that Wilson was not guilty) would be relevant and material on the issue of Wilson’s guilt.
Evidence relating to the credibility of White was highly relevant because White was an accomplice, whose testimony, as a matter of law, had to be corroborated, and at least one Judge on the Court of Criminal Appeals was of the opinion that the State failed to meet its burden of corroborating White’s testimony, as required by law. Although I do not agree that Wilson was entitled to a judgment of acquittal as stated by the dissenting Judge on the Court of Criminal Appeals, the record does show that, during a two month period following his initial arrest, White gave seven separate statements concerning his role in Dr. Wilson’s murder and in some of those statements changed his story in relation to many aspects of the crime; however, in his statement of the facts that he gave to Dr. Maier, at a time after he had given the seven statements, White was very specific about the time when he left the Wilson house after the homicide.
There were many inconsistencies in White’s statements. For example, White said in his first five statements that he had met Wilson and Lowe at Logan Martin Dam on Tuesday, May 19. This was inconsistent with his trial testimony that he had met them at the dam on Wednesday, May 20. Additionally, White gave three different accounts of what happened after he committed the murder. Initially, he stated that he left the Wilson home by cutting through the woods behind the house to a roadway where he had left his truck; later, he claimed that he had waited inside the house until Wilson returned home to pick him up. At trial, however, he testified that he did not remember what he did immediately after killing Dr. Wilson, and that his first recollection after the murder was sitting in the woods, where he said he waited until Wilson returned home.
At her Rule 32 hearing, Wilson called White as a witness to give oral testimony, but White, who had executed a recantation affidavit, refused to testify, claiming his Fifth Amendment privilege against self-incrimination.
Ex parte Wilson, 690 So.2d 477, 479-86 (Ala. 1997) (J. Maddox, dissenting).
There are a few more facts that Justice Maddox omitted. On February, 18, 1993, (four days before Betty Wilson’s trial started), the Court inquired about any pending motions, and the following colloquy occurred:
MR. HOOPER: Judge, in addition we had a number of motions that were filed and outstanding since July of ‘92.
THE COURT: Mr.Hooper, I had discussed with you gentlemen on two or three different occasions, had entered a general order of discovery, and have been told by you two gentlemen in conference that there were no problems with any matters of discovery. I don’t know specifically any specific matter that needs to be ruled on.
* * *
THE COURT: Well, the Court has entered an order requiring liberal discovery.
MR. HOOPER: Sure.
THE COURT: If you have any problem with that, you were told to inform the Court specifically.
MR. HOOPER: Judge, I have. You know, we had a motion - -
THE COURT: What is it that you want?
MR. HOOPER: We want his original notes, we want all of the police officer’s original notes that they took in the course of this investigation.
THE COURT: Mr. Fry, can you respond?
MR. FRY: Judge, we have given everything that was requested…
(Rule 32 hearing of August 25, 1994 at pages 39-41).
Dr. Lawrence Maier’s relationship with the State is so extensive that he expressed a concern to Betty Wilson’s attorneys as to whether or not he could talk to them without the permission of the District Attorney. (Rule 32 hearing of August 25, 1994, at page 60). Mrs. Wilson’s attorneys told Dr. Maier that all they were doing was seeking the truth and inquired as to why would he need permission to talk. Id. Dr. Maier agreed to talk with Mrs. Wilson’s attorneys but limited the discussion to the report itself. Id.
When Mrs. Wilson’s attorneys met with Dr. Maier, they discussed the importance of trying to impeach White concerning how and when Dr. Wilson’s death allegedly occurred. (Id at 61-63). However, Maier never told Mrs. Wilson’s attorneys about what White told him about the timeline nor did Maier disclose that he had notes concerning this time line.
The facts in this case are illustrated by the following time line:
TIME LINE
4:30 - 4:45 P.M. |
DAVID WILLIAMS, WHITESPORT PHARMACY EMPLOYEE SAW BETTY WILSON IN THE STORE. (T. 1050-51, 1046-47). |
4:30- 5:00 |
ANDY SIEJA, A 13 YEAR OLD NEIGHBOR, TESTIFIED HE WAS PLAYING IN FRONT OF THE WILSON HOME AND SAW MR. WILSON ARRIVE BETWEEN 4:30 - 5:00 P.M. (T. 1685-89). |
4:55 |
|
4:00 - 5:15 |
|
5:00 - 5:15 |
|
5:00 - 5:45 |
|
5:15 |
|
5:25 |
|
5:30 - 6:05 |
|
6:00 - 6:15 |
As Justice Maddox noted, "the state contended that its time line evidence corroborated White’s trial testimony and gave Mrs. Wilson the opportunity to participate in the murder. In any event, the evidence of Wilson’s whereabouts on the day of the murder was a substantial part of the state’s case and of Wilson’s defense. The prosecution’s theory was that . . .Mrs. Wilson could have picked up White (after the murder had occurred) only between 4:50 and 5:25 p.m. because business records confirmed that she made her last purchase at 4:49 p.m. and the witnesses accounted for her whereabouts after 5:25 p.m. the day of the murder, Wilson claims that she was at the mall most of the afternoon of the day of the murder, leaving briefly to go to a tanning booth and returning thereafter." Ex parte Wilson, 690 So.2d 477, 483 (Ala. 1997).
However, Dr. Lawrence Maier’s notes included a statement made by White in which White stated that he had committed the murder between 6:00 and 6:30 p.m. As the state’s chief investigator admitted, if James White was not at the Wilson home at 5:00 to be picked-up by Betty Wilson, it would be "disastrous" to the state’s case. (T. 1534-35).
This Court reviews the district court’s grant or denial of habeas corpus relief de novo. Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999). A district court’s factual findings in a habeas proceeding are reviewed for clear error. Id. An alleged Brady violation presents a mixed question of fact and law, which this Court reviews de novo. Wright v. Hopper 169 F.3d. at 701.
Betty Wilson and her sister, Peggy Lowe, were arrested and charged with capital murder for allegedly hiring White to kill Betty’s husband, Dr. Jack Wilson. Without White’s testimony, the State had no case against Betty Wilson or Peggy Lowe. The State recognized White’s importance in its plea agreement with White where it stated that the "capital murder charge against BETTY WOODS WILSON and PEGGY JOY LOWE would, of necessity, have to be dismissed in absence of this agreement and the testimony and cooperation of James Dennison White."
As the Statement of Facts has shown, White was the only witness who testified regarding the time and manner of the murder. Mrs. Wilson’s attorneys requested discovery of all records generated or maintained by the Alabama Department of Mental Health and Mental Retardation pertaining to James White, the alleged co-defendant. The trial court ordered the prosecutor to turn over the documents. In response, the prosecutor turned over Dr. Lawrence Maier’s competency report to defense counsel and informed them that he had given them everything that was requested.
Mrs. Wilson’s attorneys also met with Dr. Maier and discussed the importance of trying to impeach White concerning how and when Dr. Wilson’s death allegedly occurred. However, Maier never told Mrs. Wilson’s attorneys that White had given a sequence of events to him nor did Maier disclose that he had notes concerning this time line.
Mrs. Wilson was convicted and sentenced to life without parole. After Mrs. Wilson’s trial, Peggy Lowe’s attorneys discovered that Dr. Maier had notes concerning the order of events that James White had presented to him. Peggy Lowe used the impeaching and exculpatory notes at her trial, and she was found innocent. However, Betty Wilson did not have these notes, and she was found guilty.
It is respectfully submitted that, based upon the facts and law, the State had a duty to produce Dr. Maier’s notes, the information in Dr. Maier’s notes was material to the outcome of the case, and the district court erred in holding that Mrs. Wilson’s trial counsel could have obtained the notes from Dr. Maier himself through the exercise of due diligence.
ARGUMENT AND CITATIONS OF AUTHORITY
A criminal defendant is entitled to any information the state has that is exculpatory or favorable to the defense. Brady v. Maryland, 83 S.Ct. 1194, 1196-97 (1963); Ex parte Womack, 541 So.2d 47 (Ala. 1988); and Ex parte Monk, 557 So.2d 832 (Ala. 1989). The government’s duty to disclose favorable evidence under Brady covers not only exculpatory evidence, but also information that could be used to impeach a government witness. Giglio v. United States, 92 S.Ct. 763, 766 (1972) and United States v. Bagley, 105 S.Ct. 3375, 3380-81 (1985). The state is also obligated in a capital case to provide information that would be mitigating at the penalty phase of trial. Green v. Georgia, 442 U.S. 95 (1979) and Ex parte Monk, supra.
In addition, under Rule 16 of the Alabama Rules of Criminal Procedure, the prosecution must disclose all exculpatory information and all statements made by the defendant, codefendants or any accomplices. Ex parte Motley, 534 So.2d 564 (Ala. 1988) and Ex parte Lambert, 519 So.2d 899 (Ala. 1987). Rule 16 provides, in relevant part, that:
the prosecutor shall . . . permit the defendant to . . . inspect, and copy or photograph . . . papers [and] documents . . . which are within the possession, custody, or control of the state/municipality and which are material to the preparation of defendant’s defense.
Ala. R. Crim. P. 16.1(c).
The Rules also provide that:
[u]pon written request of the defendant, the prosecutor shall … permit the defendant to inspect and to copy any results or reports of physical or mental examinations or scientific tests or experiments, if the examinations, tests, or experiments were made in connection with the particular case, and the results or reports are within the possession, custody, or control of the state/municipality, and their existence is known to the prosecutor.
Ala. R. Crim. P. 16.1(d). See also United States v. Kaplan, 554 F.2d 577, 579-80 (3rd Cir. 1977) ("Where documentary evidence is exculpatory, it may be within both Brady and Rule 16, but nonexculpatory records are obtainable in advance of trial only by virtue of Rule 16).
Moreover, in capital cases such as Betty Wilson’s, broadened discovery is warranted:
The capital case is ‘sufficiently different’ from other cases, because there is no other criminal case in which the crime is murder and the possible punishment is death or life imprisonment without parole. See Section 13A-5-39 et seq. Justice Brennan explained how the Justices of the United States Supreme Court view capital cases, as follows: . . . ‘When the penalty is death, we, like state court judges, are tempted to strain the evidence and even in close cases, the law in order to give a doubtfully condemned man another chance." Furman v. Georgia, 408 U.S. 238, 287, 92 S.Ct. 2726, 2751, 33 L.Ed.2d 346 (1972). The hovering death penalty is the special circumstance justifying broader discovery in capital cases.
Ex parte Monk, 557 So.2d 832, 836-837 (Ala. 1989) (emphasis added).
A Brady violation occurs when (1) the prosecution fails to disclose evidence; (2) the evidence is favorable to the accused either because it is exculpatory or because it is impeaching; and (3) prejudice must have ensued. Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) and Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999). To satisfy the prejudice component, the withheld evidence must be "material;" that is, there must be "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler, at 1948. "A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 105 S.Ct. 3375 (1985).
The district court affirmed the Court of Criminal Appeals’ and Rule 32 court’s denial of relief to Betty Wilson on three grounds: (1) the information to Dr. Maier’s notes was not material to the outcome of the case; (2) the State had no duty to disclose this information because Dr. Maier was not an agent of the State and the prosecution had no knowledge of it; and (3) Mrs. Wilson’s trial counsel could have obtained the notes from Dr. Maier himself through the exercise of due diligence.
I.THE STATE HAD A DUTY TO DISCLOSE THE EXCULPATORY INFORMATION.
Betty Wilson was charged with capital murder. She faced either the death penalty or life without parole, and she received sentence of life without parole. Therefore, because Mrs. Wilson’s case was capital, the state owed a broad discovery duty.
Dr. Lawrence Maier, from the Alabama Department of Mental Health and Retardation, was court appointed to perform a mental competency evaluation of James White. He performed the examination, prepared a report, and gave a copy to the court, the prosecutor, and White’s attorney.
Subsequently, Mrs. Wilson’s attorneys filed discovery requests for (1) all records generated or maintained by the Alabama Department of Mental Health and Mental Retardation pertaining to Defendant, co-defendant, or accomplice; (2) all such records generated by the Taylor Hardin Secure Medical Facility; and (3) any and all medical, psychological, psychiatric or mental examinations relating to James White that have been or will be performed by any State or governmental agency.
First, the State did not file any objections to these discovery requests nor did it claim that it did not have the requested documents or that it did not owe a duty to produce said documents. In response to Mrs. Wilson’s discovery request and the court’s order, the State produced Dr. Maier’s report and responded that it had "given everything that was requested." (T. 39). Therefore, the State clearly had a duty to produce the requested documents because Mrs. Wilson’s attorneys requested all of Dr. Maier’s documents, the State did not object, and the trial court ordered the State to produce the documents. The State produced Maier’s report, without the exculpatory notes, and then claimed that it had produced everything requested.
Second, as Justice Maddox noted, the state’s obligation to provide the defendant with discoverable information is heightened when defense counsel makes a specific request for it. United States v. Agurs, 96 S.Ct. 2392, 2399 (1976). "When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable." Id. In addition, the failure of the prosecution to turn over specifically requested evidence, to which no objection is filed, could mislead the defendant into believing that the evidence does not exist.
In Bagley, the Government suggested that a materiality standard more favorable to the defendant reasonably might be adopted in specific request cases because "an incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued." Id. at 3383-84.
In response to the Government’s argument, the Supreme Court stated:
We agree that the prosecutor’s failure to respond fully to a Brady request may impair the adversary process in this manner. And the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption.
Bagley, 105 S.Ct. at 3384. Therefore, the state had a duty which was breached based on United States v. Agurs.
Third, the law provides that Dr. Maier was an agent of the State. In Brady v. Maryland, the Supreme Court held that the State’s "suppression . . . of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 83 S.Ct. at 1196-97.
In Kyles v. Whitley, the Supreme Court held that the prosecutor’s duty to disclose does not apply only to evidence that he is personally aware of. Instead, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the [State’s] behalf in the case . . . ." Id. at 1567. The Court summarized its holding as follows:
The State . . . suggested below that it should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor. To accommodate the State in this manner would, however, amount to a serious change of course from the Brady line of cases. In the State’s favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor’s] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed. 2d 104 (1972). Since, then, the prosecutor has the means to discharge the [State’s] Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the [State’s] obligation to ensure fair trials.
Id. at 1568.
Therefore, the prosecution has an obligation to produce evidence that is actually in its possession or accessible to it in the interests of inherent fairness. Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975); United States v. Washington, 550 F.2d 320, 330 (5th Cir. 1977); and
‘The duty of disclosure extends not only to the individual prosecutor and the prosecutor’s office … but also to the persons working as part of the prosecution team or intimately connected with the government’s case, even if not employed in the prosecutor’s office, such as the police, investigative agencies and officers, and all law enforcement agencies which have participated in the investigation or evaluation of the case and regularly report or have reported to the prosecutor.’ 22A C.J.S. Criminal Law, Section 489(b) (1989)."
Hill v. State, 651 So.2d 1129, 1131-32 (Ala.Cr.App. 1994).
Hence, courts nationwide have held that prosecutors have an affirmative duty to search files maintained by different branches of government "closely aligned with the prosecutor" when there is some reasonable prospect or notice of finding exculpatory evidence. See United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir. 1992) (duty to investigate based on "close working relationship between police and United States Attorney); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (prosecutor’s Brady obligation extended to a search for FBI files and National Crime Information Center files); United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973) overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984) ("there is no suggestion in Brady that different arms of the government, particularly when so closely connected as this one for the purpose of the case, are severable entities; therefore, prosecutor’s Brady obligation extended to a search for a personnel file of a Post Office employee").
See also Smith v. Secretary Dept. of Corrections, 50 F.3d 801, 824 (10th Cir. 1995) ("the prosecution" extends to law enforcement personnel and other arms of the state involved in investigative aspects); United States v. Osorio, 929 F.2d 753, 761 (1st Cir. 1991) ("The prosecutor charged with discovery obligations cannot avoid finding out what ‘the government’ knows, simply by declining to make reasonable inquiry of those in a position to have relevant knowledge."); Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984) ("(A) prosecutor’s office cannot get around Brady by keeping itself in ignorance, or compartmentalizing information about different aspects of a case."); and Martinez v. Wainwright, 621 F.2d 184, 186 (5th Cir. 1980) ("The duty to produce requested evidence falls on the state; there is no suggestion in Brady that different ‘arms’ of the government are severable entities.").
In United States v. Wood, 57 F.3d 733, 736-37 (9th Cir. 1995), the court reversed the appellant’s conviction for distributing allegedly dangerous drugs collectively known as GHB’s. Id. at 736-37. In Wood, the Food and Drug Administration had in its possession research reports that showed that GHB’s were not dangerous. Those reports, had they been disclosed to the defense, would have been exculpatory. Id. at 737-38. The Government argued that the prosecutor was not aware that the reports existed, and thus that the Government should be excused for its failure to produce them. Id. at 737. However, the Ninth Circuit rejected the Government’s argument:
For Brady purposes, the FDA and the prosecutors were one . . . . The Government cannot with its right hand say it has nothing while its left hand holds what is of value . . . . The Government in the form of the prosecutor cannot tell the Court that there is nothing more to disclose while [a government agency] holds in its files information favorable to the defendant.
Id. The court held that Brady‘s constitutional duty "arose from the unfairness of the Government prosecuting a person while keeping as a secret to itself materials that might exonerate him. It is a duty that assumes that the Government’s aim in a criminal trial is not victory but justice." Id.
It is clear under the facts and law of this case that the prosecution owed a duty to produce Dr. Maier’s notes because he was "closely aligned with the prosecutor" due to his close working relationship with the prosecutor and due to his participation in the evaluation of White.
The parties stipulated that:
1.Dr. Lawrence R. Maier was appointed to do a mental competency evaluation of James Dennison White. Dr. Maier is regularly employed on a contract basis by the Alabama Department of Mental Health and Mental Retardation to evaluate all criminal defendants where there is a question as to their mental competency. Dr. Maier is employed to work in the Huntsville, Alabama, area.
* * *
4.It is the practice of Dr. Maier to cause his notes to be transcribed and typed. Dr. Maier’s notes, taken during the interview of James Dennison White, were typed into a three page document entilted "Additional Information Section.’ These transcribed ntoes were sent by Dr. Maier to Taylor Hardin Secure Medical Facility as required of him by the Department of Mental Health and Mental Retardation…"
Dr. Maier was required by the Department of Mental Health and Mental Retardation to transcribe his handwritten notes and to send them to Taylor Hardin to be made part of White’s mental competency evaluation. The fact that Dr. Maier was required by a State agency to perform this act strengthens the defendant’s argument that the prosecution was under a duty to disclose the notes in this case.
In addition, the prosecution was aware that a competency report had been prepared concerning White and even produced Dr. Maier’s report as part of its Brady response. Under § 15-16-22 of the Alabama Code, a copy of the report was filed with the clerk’s office and a copy was given to the prosecutor handling White’s case. In fact, in McMillian v. State, 616 So.2d 933, 948 (Ala.Crim.App. 1993), this was the basis for the court to hold that the prosecutor had a duty to produce exculpatory evidence found in such reports.
Moreover, Dr. Maier is employed by the State and has an extensive working relationship with the State prosecutors who use him to rebut competency challenges, Miranda challenges, and insanity defense challenges. See Click v. State, 695 So.2d 209, 223 (Ala.Cr.App. 1996); Ex parte Janezic, 723 So.2d 725, 727 (Ala. 1997); Abernathy v. State, 642 So.2d 519, 521 (Ala.Cr.App. 1994); Smith v. State, 646 So.2d 704, 713 (Ala.Cr.App. 1994); and Tankersley v. State, 724 So.2d 557, 566 (Ala.Cr.App. 1998).
In fact, Dr. Maier’s relationship with the State is so extensive that he expressed a concern to Betty Wilson’s attorneys as to whether or not he could talk to them without the permission of the District Attorney. (Rule 32 hearing of August 25, 1994, at page 60). Mrs. Wilson’s attorney told Dr. Maier that they were simply seeking the truth so he did not understand why Maier would need permission to talk. Id. Dr. Maier agreed to talk with Mrs. Wilson’s attorneys but limited the discussion to the report itself. Id.
Therefore, the State owed a duty to disclose the exculpatory information.
The due process clause sets the parameters for Brady:
The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial….
Bagley, 105 S.Ct. 3375, 3380 (1985) (footnotes omitted).
One rationale for requiring the prosecutor to exercise due diligence to discover exculpatory evidence is that he is the representative of a "sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999).
Another rationale was provided by the Fifth Circuit:
If disclosure were excused in instances where the prosecution had not sought information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government.
United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980). See also United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992), where the court held that the prosecution had violated the principles of Brady by failing to search for easily obtainable information. In support of this holding, the court stated:
"Of course the prosecutor’s own interest in avoiding surprise at trial gives him a very considerable interest to search accessible files for possibly exculpatory evidence, quite independent of Brady. Accordingly there is less need for a judicially constructed incentive than in the classic Brady situation, where prosecutors already possess the information but may have little incentive to divulge it apart from the Brady rule itself. We suspect the courts’ willingness to insist on an affirmative duty of inquiry may stem primarily from a sense that an inaccurate conviction based on government failure to turn over an easily turned rock is essentially as offensive as one based on government nondisclosure. See, e.g., Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975). . . ."
Brooks, 966 F.2d at 1502-03.
In those cases where the courts have shifted the blame to defense counsel for failing to discover Brady evidence, defense counsel has usually failed to take any action whatsoever to obtain the material. However, the policy reason for shifting the blame to defense counsel has no bearing on Mrs. Wilson’s case. Not only did Mrs. Wilson’s attorneys request and obtain the report, but they also took the extra step of meeting with Dr. Maier to learn whatever they could to properly cross-examine White. They even had to convince Dr. Maier to talk with them because he did not want to do so without the prosecutor’s permission. When Mrs. Wilson’s attorneys met with Dr. Maier, they discussed the importance of trying to impeach White concerning how and when Dr. Wilson’s death allegedly occurred. (Id. at 61-63). However, Maier never told Mrs. Wilson’s attorneys about what White told him about the sequence of events nor did Maier disclose that he had notes concerning this sequence of events. In other words, Mrs. Wilson’s attorneys tried to do everything possible to properly defend Mrs. Wilson.
Instead, the proper focus should be on (1) the policy reasons behind Brady (the principles of due process and the desire to prevent a miscarriage of justice); (2) the fact that that Mrs. Wilson’s attorneys requested all of Dr. Maier’s documents, the court ordered that they be produced, the State produced the report, and then stated that it had provided everything and Mrs. Wilson’s counsel relied on this statement; (3) and the proper focus should be on the state’s obligation to provide the defendant with discoverable information is heightened when defense counsel makes a specific request for it. United States v. Agurs, 96 S.Ct. 2392, 2399 (1976). In Bagley, the Government conceded that "an incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued." Id. at 3383-84.
Moreover, the Supreme Court has recently decided a case right on point where it held that defense counsel reasonably relied on the prosecution’s open file policy and assertion the defendant had already received "everything known to the government." Strickler v. Greene, 119 S.Ct. 1936, 1949-50 (1999).
III.THE INFORMATION IN DR. LAWRENCE MAIER’S NOTES WAS MATERIAL TO THE OUTCOME OF THE CASE.
In Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995), the Supreme Court held that Brady‘s materiality standard is not a sufficiency-of-the evidence standard. Instead, the proper test for materiality under Brady is whether the suppression of the evidence undermines confidence in the outcome of the trial. Id.
The Tenth Circuit has indicated that test for materiality is a "flexible, sliding scale approach to assessing . . . materiality. . . . (T)he specificity of the request (for production) is inversely related to the prosecution’s disclosure obligation. As the specificity of the defendant’s request increases, a lesser showing of materiality will suffice to establish a violation. Conversely, as the defendant’s request becomes more general or even nonexistent, a greater showing of materiality is required to establish a Brady violation." Smith v. Secretary of N.M. Dept. of Corrections, 50 F.3d 801, 827 (10th Cir. 1995).
It is also recognized that evidence in the hands of a competent defense attorney may be used to uncover other leads and defense theories. Banks v. Reynolds, 54 F.3d 1508, 1519 (10th Cir. 1995).
Moreover, in cases where the prosecution’s case depends heavily on the reliability or credibility of a single witness, evidence that would tend to impeach that witness’s testimony is material and due process requires its disclosure. Moore v. Kemp, 809 F.2d 702, 719 (11th Cir. 1987) and Giglio v. United States, 92 S.Ct. 763 (1972).
Without White’s testimony, the State had no case against Betty Wilson or Peggy Lowe. The State recognized White’s importance in its plea agreement with White where it stated that the "capital murder charge against BETTY WOODS WILSON and PEGGY JOY LOWE would, of necessity, have to be dismissed in absence of this agreement and the testimony and cooperation of James Dennison White." Ex parte Wilson, 690 So.2d 477, 485 (Ala. 1997).
As the Statement of Facts has shown, White was the only witness who testified regarding the time and manner of the murder, and the only witness who claimed to have knowledge that Betty Wilson participated in his criminal acts. White’s statement to Dr. Maier regarding when the murder occurred, and when he was allegedly "picked up" by Mrs. Wilson, differed by one to one and one-half hours from the times given for those same events in the State’s time line. Further, the undisputed evidence placed Mrs. Wilson in two different locations between 6:00 and 6:30 p.m., both of which were miles away from the scene of the crime. In essence, the suppressed notes contained evidence that demonstrated that she could not have participated in the crime, as alleged by the State and its witness.
"Consequently, evidence that not only would corroborate Wilson’s evidence that she did not participate in the murder, but also would contradict some of White’s trial testimony (which is consistent with White’s recantation testimony that Wilson was not guilty) would be relevant and material on the issue of Wilson’s guilt." Ex parte Wilson, at 485. Hence, the undisclosed notes were both exculpatory and impeachment evidence. By demonstrating that the murder and White’s flight from the scene took place at a time when Betty Wilson could not have been present, the notes were substantial evidence that Mrs. Wilson was innocent. Further, the notes would have been very useful impeachment evidence against White, the State’s key witness. As a result, the notes are material, and their absence undermines confidence in the verdict reached in this case.
White’s importance to the State’s case, and the resulting materiality of the suppressed notes, were accurately described by Justice Maddox in his dissenting opinion:
[T]here can be little question that Dr. Maier’s notes were favorable to the defense. White was the prosecution’s star witness; Wilson could not be convicted of capital murder without this witness’s testimony. The statement by White to Dr. Maier that he committed the crime between 6:00 and 6:30 p.m. is favorable to the defense, because it is undisputed that both Wilson and the prosecution presented evidence of her whereabouts at this time, thus giving her an alibi. In addition, this evidence could have been used by Wilson to impeach White’s trial testimony.
Ex parte Wilson, at 492.
A case on point is Perdomo v. United States, 929 F.2d 967 (3rd Cir. 1991). Perdomo involved a Virgin Islands prosecution. The defense attorney made a specific request for any information relating to the criminal background of any of the prosecution’s witnesses. Id. at 968. The prosecution incorrectly responded that its key witness did not have a criminal record. Id. at 969. It sought to avoid the consequence of its error by arguing that it could not be responsible for withholding Brady information because it had conducted a NCIC check which did not reveal the criminal record. Id.
However, the witness’s record was contained in the local Virgin Island files which were not recorded in the NCIC database. Id.
The trial court denied Soto’s motion and ruled that the jury had an opportunity to evaluate the informant’s credibility from other damaging testimony that had been elicited during trial concerning Soto’s receipt of Government payments and his prior drug usage. Id. The court also found that the government had not suppressed Soto’s prior record and that the prosecution’s failure to learn of the record could not in any way be determined a material suppression of exculpatory evidence. Id. In addition, the court charged the Office of the Public Defender with knowledge of Soto’s prior criminal record because that office had represented Soto in a prior criminal proceeding. Id.
On appeal, the defendant presented evidence of another case involving the same informant, Hector Soto. Id. at 972. "In a case arising out of an unrelated incident, but with a factual setting quite similar to the case at hand, Jose Rosario was acquitted of charges arising from another Narcotics Strike Force operation that involved the same Hector Soto." Id. In Rosario’s case, the defense was provided with Soto’s criminal record, and at trial, his attorney was able to use that evidence to impeach Soto’s testimony. Id.
The Third Circuit first held that the prosecution should have known about the prior arrest and conviction because the information was "readily available" to it. Id. at 970-71. The court noted that, by searching only the NCIC database, the prosecutors ignored the very records likely to reveal germane information. Id. at 970-71. The court then went on to hold that the evidence was material and that Defendant was entitled to a new trial. In so holding, the Court stated:
The district court did not apply the correct standard for measuring materiality at the sentencing hearing. The court reasoned that the undisclosed information was not material because the jury had ample opportunity to evaluate Soto’s credibility due to other damaging testimony that had been elicited concerning the government payments to Soto and his prior drug usage. Whether the jury has had an a opportunity to consider other impeachment evidence is not the correct standard for determining materiality of undisclosed information. It is well-established that "impeachment evidence as well as exculpatory evidence falls within the Brady rule." Bagley, 105 S.Ct. at 3380 (citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 766, 31 L.ED.2d 104 (1972)). "Such evidence is evidence favorable [and material] to the accused’ so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Id. In addition, a defendant is not required to show that evidence, if disclosed, probably would have resulted in acquittal. The Supreme Court has offered the following explanation:
[i]f the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice. Bagley, 105 S.Ct. at 3883. The question is, therefore, whether the testimony that the defense would have been able to elicit would have been different had counsel known of Soto’s criminal record beforehand.
Id. at 972.
Like Perdomo, Betty Wilson was convicted based on the testimony of a key witness. Defense counsel made a specific request for information, which was not supplied by the prosecution. Mrs. Wilson was convicted and the suppressed evidence was discovered shortly after the conviction. As in Perdomo another trial was held (Peggy Lowe’s), except this trial was tried with essentially the same evidence. In Perdomo, the cases were unrelated but were based on the testimony of the same witness. In Mrs. Wilson’s case, the cases are related and based on the testimony of the same witness. As in Perdomo, Peggy Lowe’s attorneys had access to the suppressed evidence, and she was acquitted. In Perdomo, the trial court was ordered to grant a new trial, and Betty Wilson’s case should have a similar result.
The most important fact that the district court failed to consider on materiality is that Peggy Lowe was acquitted. The State concedes in its plea bargain with White that neither Betty Wilson nor Peggy Lowe could be convicted without White’s testimony. Betty Wilson’s attorneys did not have Dr. Maier’s notes. Betty Wilson lost, and she is serving a sentence of life without parole. Peggy Lowe had these exculpatory notes. She was found innocent. Why? Because Peggy Lowe’s attorneys had those notes!
Another important factor that the district court failed to consider on materiality is there are four judges (who are noted for their judicial restraint) that have substantial questions concerning the Brady issue. Judge Patterson believes that the State failed to meets its burden of corroborating White’s testimony as required by law. Alabama Supreme Court Justices Maddox, See, and Butts all believe that Betty Wilson has a colorable Brady issue, and it is clear from Justice Maddox’ dissent, that materiality should be decided in Betty Wilson’s favor. In addition, Judge Pointer took the extremely rare step of granting Mrs. Wilson a certificate of appealability on the Brady issue. These are all red flags undermining any confidence in the outcome of Mrs. Wilson’s trial.
Based upon the facts and case law established, Betty Wilson prays that this Honorable Court will:
1)grant Betty Wilson’s petition for writ of habeas corpus;
2)instruct the State that, if it decides to retry Mrs. Wilson, it must file a notice of its intention to do so within 30 days of this Court’s decision;
3)order the State to discharge Mrs. Wilson from the sanction imposed for the instant offense prior to 5:00 p.m. within 30 days of this Court’s decision, if the State does not intend to retry Mrs. Wilson.
4)order the State of Alabama to begin the proceeding to retry Betty Wilson within 90 calendar days from this Court’s decision, if the State intends to retry Mrs. Wilson on the instant offense;
5)grant such other relief to which she may be entitled.
Respectfully Submitted,
_________________________
Stephen A. Strickland
The portions of this brief that count toward the type-volume limitations contain 12,476 words which is in compliance with the type-volume limitation.
_________________________
Stephen A. Strickland
I do hereby certify that I have on this the ________day of _______________, 1999, forwarded a copy of the foregoing by United States mail, postage prepaid and properly addressed to:
G. Ward Beeson, III
Assistant Attorney General
Criminal Appeals Division
11 South Union Street
Montgomery, AL 36130
_________________________
STEPHEN A. STRICKLAND