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November 29, 2010
A Bit Presumptuous: Sixth Circuit Finds Undisclosed 15 Year Old Convictions Didn't Violate Brady
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But is evidence of prior convictions of a "jailhouse snitch" material for Brady purposes if those convictions were more than ten years old? According to the recent opinion of the Sixth Circuit in Brooks v. Tennessee, 2010 WL 4721099 (6th Cir. 2010), the answer is "no."
In Brooks, Donald Gene Brooks was convicted of first-degree felony murder, especially aggravated robbery, theft of property valued over $1,000, and setting fire to personal property. At Brooks' trial,
Michael Wayne Nelson, a convicted felon then serving time in prison, testified that he and Brooks shared a cell in the Montgomery County Jail on June 7, 1996. Nelson stated that Brooks confessed his guilt to Nelson. Brooks provided Nelson with details of the crime....He also told Nelson that the only evidence against Brooks was his companion at the time of the crime, and that he wished that he had killed his companion as well.
Nelson admitted during his direct examination that he had prior convictions for larceny from a person, grand larceny, and escape. He also acknowledged that he was facing breach-of-trust charges at the time of his testimony for failing to return to the Nashville Community Service Center after having been placed on parole.
The prosecution, however, did not disclose to Brooks, inter alia, that Nelson had 15 year-old convictions for perjury and embezzlement. After he was convicted, Brooks filed a petition for federal habeas corpus relief, claiming, inter alia, that the prosecution failed to timely disclose material evidence, including evidence of these prior convictions. In denying this portion of the petition, the Sixth Circuit found that
under Tennessee evidentiary law, Nelson's convictions for perjury and forgery were presumptively inadmissible due to the fact that they were over 15-years old at the time of Brooks's August 1996 trial. See Tenn. R. Evid. 609(b). We therefore conclude that, although this issue is uncomfortably close to the constitutional line, the undisclosed evidence was not material under Brady.
Technically, the Sixth Circuit was correct because Tennessee Rule of Evidence 609(b) provides that
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
But why stop the analysis there? Who cares whether the evidence of these convictions was presumptively admissible? Even assuming that Brady only covers admissible evidence, the relevant question that the Sixth Circuit should have asked was: Would evidence of these convictions have been admissible? And I think that at least with regard to the perjury conviction, the answer should have been "yes." Indeed, back in July, I posted an entry about an opinion of the Court of Criminal Appeals of Tennessee which found that a perjury conviction that was more than 10 years old was admissible under Rule 609(b) based upon its high probative value.
November 29, 2010 | Permalink
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