EvidenceProf Blog

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

Sunday, August 22, 2021

Sixth Circuit Finds No Brady Violation in Murder Appeal Despite State's Failure to Disclose That Its Key Eyewitness Said Defendant Was NOT the Shooter on Night of Shooting

Pursuant to Brady v. Maryland, the prosecution has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defense. So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect? Those were the questions addressed by the Sixth Circuit in its opinion Friday in McNeill v. Bagley, 2021 WL 3701386 (6th Cir. 20201).

In McNeill, the State argued that

On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, [Freddie] McNeill, got the sale.
Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNeill's residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: “No. * * * You know how it works. I want to see [the crack] first.” Fulton and McNeill continued to argue about the money. When the trio reached McNeill's house, Fulton stopped the car. McNeill produced a gun, saying, “This is a stickup,” and “I want the money.” Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.
McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying, “You don't think this gun's real?” and “You don't think this thing's loaded?” Fulton told McNeill to return his keys. After further argument, McNeill walked away. Fulton, who was a locksmith, got into his car and attempted to start it using his locksmith's tools.
While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton's head, said, “Played me for a bitch,” and shot Fulton. Fulton died several hours later.

At trial,

Rushinsky testified that he had a longstanding relationship with McNeill, and that he immediately recognized McNeill when he came over to the car to sell Fulton and him cocaine. But, unbeknownst to the jury, on the night of the shooting, Rushinsky was shown a photograph of McNeill and informed the police that McNeill was not the perpetrator.


After Fulton was shot, police quickly arrived on the scene. According to a responding officer, “[u]nits first on scene gave out two descriptions of the suspect fleeing the area one being a black male wearing peach colored pants and a read (sic) shirt, and the other being a black male wearing blue jeans and gray sweatshirt.”....Police then received an anonymous tip that “a black male wearing blue jeans and gray sweatshirt had abandoned a vehicle” at a nearby intersection, “and that he'd ran southbound.”...Police found the vehicle and determined that it was registered to a Mr. Patterson Sr., who informed them “that his son Mr. Patterson Jr. was supposed to be in charge of the vehicle.”...“Mr. Patterson Jr. was located at [a] McDonalds,” and “[d]ue to Mr. Patterson Jr. matching the description of the suspect involved in the shooting and his suspicious activity with his vehicle he was transported...for possible identification by Rushinsky.” ...But after “Rushinsky stated that Mr. Patterson Jr. was not involved,” he was released....
All of this evidence was contained in a police report that the State conceded had not been provided to the defense.

While the two judge majority held that this evidence wasn't material under Brady, Judge Clay dissented, concluding that

In short, as the State itself acknowledged, without Rushinsky's testimony, the case against McNeill was weak. McNeill's fingerprints were not found in the car. No blood spatter or gunshot residue was found on any of his clothes. The murder weapon was never recovered. Nothing linking McNeill to the crime was discovered at the scene of the crime. The non-Rushinsky eyewitness testimony consisted of the inconsistent and contradictory testimony of four young children. And the remaining circumstantial evidence merely established that McNeill's ex-girlfriend, who had been paid to testify, believed that McNeill had a gun on the day of the shooting and that he had wanted money; that, years earlier, McNeill had been one of many people selling drugs on the corner of Massachusetts Avenue and G Street; that McNeill's mother lived near the shooting; and that McNeill, an admitted drug dealer, was hiding when the police came to arrest him. Considering the lack of forensic or any other physical evidence implicating McNeill in the shooting, evidence impeaching the identification of the only adult eyewitness to the crime is certainly sufficient to undermine confidence in the jury's verdict.

Could an en banc review be forthcoming?



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