Wednesday, April 6, 2016
Today, I'm recording an interview with Bill Rankin, the host of the Breakdown Podcast. The interview will be a special episode of Undisclosed that will premiere on April 18th. In the interview, we will cover a variety of topics, including Breakdown, Undisclosed, and the death penalty in Georgia. The second season of Breakdown, covering the Justin Ross Harris case, premiered recently. I think the second episode of the new season is the best episode of the podcast's entire run.
In this post, though, I want to focus upon one of the Brady violations found in the case that Breakdown covered in its first season because it is very similar to the Brady violation being alleged in Adnan's case in that it involved a misleading disclosure of a faxed document.
As noted in Danforth v. Chapman, 771 S.E.2d 886 (Ga. 2015), "Justin W. Chapman was convicted of arson and felony murder regarding a 2006 fire that was intentionally set outside the front door of his duplex apartment, resulting in the death of a resident who lived on the other side of the duplex." Joseph White, a jailhouse snitch, was one of the chief State's witnesses against Chapman, and he "denied seeking any type of assistance with his then-pending charges in exchange for testimony in Chapman's case."
During pre-trial discovery, the prosecutor faxed the defense a document that contained a copy of an addressed envelope, a one-paged cover letter, and a five-paged statement in which White set forth what he purportedly knew about Chapman and the fire. White had sent the cover letter and statement to his pastor. Unknown to the defense, the second page of the cover letter was missing from the facsimile sent to her by the prosecutor. It was not readily discernible that the page was missing because the first page of the cover letter ended with a complete sentence. At trial, the prosecutor admitted the original document, containing both pages of the cover letter; but he proffered it through the testimony of an investigative officer after White's trial testimony and after White had been released from his trial subpoena. Defense counsel assumed the document admitted at trial was the same document that had been produced to her via fax and did not closely examine the trial exhibit when it was proffered by the prosecutor. During the habeas proceedings, it was shown that the missing second page contained the following statement written by White: “Hold off on giving my statement to police. I want to see what's going on for a few days.” This evidence contradicted White's trial testimony that he went to police immediately with details about the arson, as well as undermined his testimony that he was not seeking help from authorities with his own charges. Again, had defense counsel been aware of this statement at the time of White's trial testimony, she could have used it for the purposes of impeachment.
Since White was the only witness who said Chapman confessed to arson, the evidence described above, which impeached and/or cast doubt on White's credibility, was material to Chapman's defense....Accordingly, the habeas court did not err when it awarded Chapman habeas relief pursuant to Brady and Giglio.
In other words, the Brady violation sustained in Chapman was the inverted image of the Brady violation violation alleged by Adnan. In Chapman, the prosecution sent the defense an incomplete version of White's statement during discovery before introducing that full statement at trial, with defense counsel not realizing what had happened and therefore not making proper use of the full statement at trial. In Adnan's case, the prosecution sent the defense the full Subscriber Activity Report that it got from AT&T, but its trial exhibit -- Exhibit 31 -- left off the AT&T disclaimer and the page identifying the exhibit as a Subscriber Activity Report, with defense counsel not realizing what had happened and therefore not making use of the disclaimer at trial.
This makes both the Chapman and Syed cases very different from the case that Thiru apparently referenced ad naseum in his PCR closing: Maryland v. Kulbicki. As I noted in our final PCR episode, the Court of Appeals of Maryland had held that the defendant in Kulbicki received ineffective assistance of counsel based on failure to track down a 1991 report co-authored by FBI Agent Ernest Poole that presaged the flaws in Comparative Bullet Lead Analysis (CBLA) evidence. According to the Maryland's highest court, this failure was constitutionally deficient because Poole offered incriminatory CBLA evidence at the defendant's 1995 trial.
The report at issue, however, was not part of discovery, which makes it fundamentally different from the misleading documents in both the Chapman and Syed cases. And, indeed, in finding that a new trial was not warranted in Kulbicki, the United States Supreme Court found that
there is no reason to believe that a diligent search would even have discovered the supposedly crucial report. The Court of Appeals offered a single citation in support of its sweeping state- ment that the report “was available” to Kulbicki’s counsel in 1995—a Government Printing Office Web page accessed by the Court of Appeals, apparently conducting its own Internet research nearly two decades after the trial....The Web page indicates that a compila- tion of forensic studies that included the report was “dis- tributed to various public libraries in 1994.”...But which ones? And in an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation?
Finally, the other key difference between Kulbicki and Adnan's case is that
the 1991 report itself did not question the validity of CBLA, concluding that it was a valid and useful forensic tool to match suspect to victim.
This puts the 1991 report in Kulbicki in a different category than the AT&T disclaimer, which flatly stated that incoming calls were unreliable for determining location instead of noting potential problems with incoming pings while affirming their reliability.