EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, July 2, 2018

"In the Dark," "Undisclosed," and Brady Violations Connected to Alternate Suspects

The second season of "In the Dark" by APM Reports/Madeleine Baran has been terrific. It covers the case of Curtis Flowers, who has been prosecuted (a record) six times in connection with the shooting deaths of four people inside Tardy Furniture store in downtown Winona, Mississippi. Flowers's first five trials results in hung juries or convictions that were later thrown out due to Constitutional violations. And now, there's reason to believe that Flowers's latest conviction will be reversed based upon evidence discovered by Baran and her team. Interestingly, that evidence is similar to evidence from one of our recent Undisclosed cases being used to fight for a new trial for Willie "Pee Wee" Veasy.

Willie Veasy was convicted of the January 24, 1992 murder of John "Jamaica" Lewis around 10:00 P.M. in North Philadelphia. At trial, the main evidence of Veasy's conviction was a time card from his job as a dishwasher at Houlihan's, which was about 20 minutes away from the site of the shooting. That time card showed Veasy punching in for work at 5:59 P.M. on January 24th and not punching out until 1:52 A.M. the next day. In turn, the only evidence against Veasy at trial was (1) his (allegedly false) confession; and (2) an eyewitness identification by Denise Mitchell, who claimed that she saw the shooting from the second floor window or her rowhouse (and who later admitted to being legally blind.

Veasy has now moved for a new trial, claiming a Brady violation based on the State's failure to disclose material exculpatory evidence. One piece of evidence that the State didn't disclose was an interview with Mitchell's step-sister, who told the police that Mitchell told her she was outside when the shooting "happened and she was almost shot." As we reported on Undisclosed, a second piece of undisclosed evidence related to the existence of an alternate suspect. 

Specifically, during discovery, the State did disclose to the defense that they had interviewed David Simms, "asked him a few non-confrontational questions and showed him some photos." But the State failed to disclose why the police interviewed Simms. What the State didn't disclose until years later was that

According to the Activity Sheets in the homicide file, when police spoke to [Denise] Mitchell on February 7, 1992 (before they had the name "Willie Veasy"), she told them "Marshall"-a friend of Mr. Lewis' who lived on the 600 block of Russell Street-knew who committed the shooting. Police found Marshall Wall at 648 Russell Street. Wall told police "David" from 630 W Clearfield Street did the shooting. Police took no formal statement from Wall,...but noted the encounter in the Activity Sheet.  

According to Veasy's appellate attorneys, this was a Brady violation because Veasy's trial attorneys were not given the vital information that would have given them reason to investigate/interview Simms at the time of trial.

Something similar was revealed in Episode 10 of "In the Dark." Specifically, Baran and the "In the Dark" team discovered information that was previously undisclosed: that,

in 1996, the State interviewed, arrested, and held an alternative suspect in the Tardy murders, Willie James Hemphill....Hemphill was held in jail on suspicion of the Tardy murders for 11 days, from July 21, 1996 until August 1, 1996....At the time he was arrested, Hemphill was wearing a pair of Fila Grant Hill shoes in a size 9 or 10—the very same shoes that the State has claimed made the bloody shoe print at Tardy Furniture Store....According to a statement by Mr. Hemphill, he was arrested in Memphis at the culmination for a “manhunt” for him involving multiple squad cars and was told by law enforcement in Winona that multiple witnesses had placed him near Tardy Furniture Store on the morning of the murders...And according to Mr. Hemphill, Winona law enforcement took his Fila Grant Hill shoes from him on the day of his arrest.

The link between the Flowers and Veasy cases is that "[t]he sole reference to Hemphill anywhere in the State’s files that were turned over to the defense is a single-page Miranda waiver that contains no information other than Hemphill’s name."

So, like Veasy, Flowers is claiming a Brady violation, and the key question in both cases will likely be the same. In Mississippi, courts look at four factors to determine whether a Brady violation occurred:

To establish a Brady violation[,] a defendant must prove the following: (1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. King v. State, 656 So.2d 1168, 1174 (Miss.1995)

In the Flowers case, like in the Veasy case, it seems clear that the defense can satisfy elements 1, 3, and 4. In both cases, the State had favorable evidence of an alternate suspect, the State suppressed that evidence, and that evidence reasonably could have led to a different result at trial due to the other flaws in the State's case(s). But what about element 2? In both cases, the State did disclose some evidence about alternate suspects but didn't disclose other evidence: (1) in Veasy, the statement implicating Carr; and (2) in Flowers, the fact that Hemphill's Miranda waiver was connected to the Tardy Furniture Murders. So, given these partial disclosures, could trial counsel have obtained the pertinent information with due diligence?

In the Flowers case, I'm going to guess that the State will place heavy reliance on Carr v. State, 873 So.2d 991 (Miss. 2004), in which, during discovery, the State produced "redacted statements [which] concealed information concerning the Parker murders [for which Carr was convicted] and the possibility that one of the investigating officers was involved in the murders." But, according to the Supreme Court of Mississippi:

It stands to reason...that given the small number of law enforcement officers in Clarksdale, Carr could have obtained the names of all of them and pursued an investigation of the officers who were involved. With reasonable diligence he could have obtained the information himself, thus his argument fails the second part of the four-part Brady test.

Meanwhile, I expect the defense to rely on Manning v. State, 884 So.2d 717 (Miss. 2004), in which the State (1) disclosed to the defense that it had obtained a shoe-print from the crime scene that was insufficient for comparison purposes; but (2) did not disclose to the defense that the shoe-print was for a size  shoe when Manning wore a size 10 or larger shoe.

So, how will the court rule in both cases? Hopefully, we'll know within the next year.



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Do you see a similar catch 22 here for the state that you've referenced with respect to the cell tower disclaimer in the Syed case? It would seem to the lay person that the discovery of this alternative suspect is either a Brady violation or ineffective assistance of counsel. As you note, its fairly clear that had this evidence been presented to a jury, there's a reasonable probability that the outcome would have been different.

Is the petitioner limited to making one argument or the other? If only one argument can be made, is the other argument waived for future proceedings?

Based on all of the shenanigans exposed by Madeleine and her team through their terrific journalism, it would seem highly probable that this information was intentionally hidden from Flowers and his attorneys. Is Flowers permitted to present issues such as the rate at which potential African American jurors were struck by the DA's office, the misrepresented witness statements used in trial testimony, or the criminally reckless favorable treatment provided to the state's star witness as supporting evidence for a pattern of misconduct by the prosecution in support of this Brady claim, or would those simply be stand-alone issues?

It says a lot about our legal system that simply establishing that the prosecution suppressed favorable evidence is but one of four prongs to establish a Brady claim. How does this action alone not undermine the entire case built against a defendant, let alone not result in criminal charges for the prosecutor or law enforcement? (rhetorical question...just venting a little)

Posted by: Paul W | Jul 2, 2018 2:34:28 PM

And now the gun! Doug Evans is an incredibly corrupt DA.

Posted by: Linnette Garber | Jul 3, 2018 6:32:35 AM

In the Flowers case, the defense asked in the sixth trial about the significance of the Hemphill arrest (all they had from Discovery was a Miranda waiver with Hemphill's name), and the investigator and DA, too, I believe, both down-played it and said they only interviewed Hemphill for about 5 minutes before they decided he was not involved. So it's more than just omission - it was a lie, and perjury at that.

As Paul W. implied, you have to wonder about the various defense lawyers. Collectively, they worked on this case for many more years than Madelein's team, yet look at all the evidence she dug up. Just with shoe leather and grit.

Posted by: Susan R | Jul 3, 2018 7:55:55 PM

Colin, from the perspective of a dispassionate legal observer, running the range as an avid fan of both culturally popular and relatively obscure media platforms - in looking at effective advocacy for Curtis Flowers and the related case, how would you differentiate two television hours dedicated by Joe Berlinger's Starz production, versus the granular depth afforded by Madeleine Baran's APM long-form podcast?

From my journalistic perspective, I found both fascinating yet markedly differing in their approach. Despite these relative differences between a cable network platform, and a respected reporter producing a podcast - I can't help thinking that whilst the former gets more eyes, the latter has a smaller but far more focused and advocacy-driven audience.

In the current climate of a day-trading Presidency, I sadly understand neither will get the attention deserved - due to media bias inherent in investing their focus on short-term headlines, to the detriment of broader reporting of fundamentally significant issues.

I have no confidence that the thoroughness of either enterprise will result in the attention and care this case is due. By contrast I similarly would have problems with public perception clouding judicial matters, pertinent to Curtis Flowers progressing what I believe is a troubling case.

When considering significance of the nexus, when legal issues intersect with popular culture - I'm heightened in my awareness of how differing presentations have potential to influence outcomes, especially in culturally prominent cases.

I think both Joe Berlinger and Madeleine Baran did a good job of raising the profile here. I'm less certain of which parties will be effective, in respect of a just outcome.

Hence I'm curious about the take of a practitioner with standing and experience, on what I appreciate relates to an overall small cog in this giant and important criminal justice machine?

Posted by: mojo filters | Jul 4, 2018 1:19:32 PM

Hi, this comment is a little off-topic (though it is relevant to Brady), but please please interview Orange County, CA public defender Scott Sanders and shooting victim's Paul Wilson on an addendum. The two have teamed up to work to end corruption in the criminal justice system. So inspiring. Thank you. Article here: https://theintercept.com/2018/07/09/orange-county-justice-system-prosecutorial-misconduct-unlikely-allies/

Posted by: Esmerelda | Jul 9, 2018 3:14:47 PM

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