3rd Circuit Hands Down En Banc Primer on Brady – Update for August 25, 2016

We’re still doing a weekly newsletter … we’re just posting pieces of it every day.  The news is fresher this way …


The 3rd Circuit handed down a whopper of a Brady v. Maryland decision on Tuesday, a 102-page en banc smorgasbord of prosecutorial disclosure violations that landed a Philadelphia man on death row two decades ago. Although no physical evidence connected him to the offense, James Dennis was convicted of the 1991 murder of 17-year-old Chedell Ray Williams, who was killed by a robber who tore off her earrings and then shot her in the neck.

In Brady, the Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment.”

Over four vigorous dissents, the en banc court in Dennis v. Sec’y, DOC, held that the Commonwealth of Pennsylvania had withheld documentary evidence proving that a witness could not have seen what she said she saw, evidence that the Commonwealth’s principal eyewitness had provided a crucial inconsistent statement right after the murder, and reports police had received even before Dennis was arrested suggesting that a jailhouse “snitch” had heard another man confess to the crime.

Lower courts, as they are wont to do in Brady cases, had ruled that the evidence was not really favorable to Dennis and it lacked materiality. The 3rd Circuit buried those findings under an avalanche of Brady analysis.

The decision is a lengthy read, but it constitutes a veritable primer on the law of Brady: For example, the Court held that evidence proving that witness Latanya Cason – who said she saw the murdered on a bus two hours later than he said he was – was wrong would have tended to support “Dennis’s and his father’s testimony about his alibi on the day in question…” That alone, the Court said, “is sufficient to demonstrate favorability under Brady. Exculpatory evidence need not show defendant’s innocence conclusively.”

The Court also held that the mere fact that others had testified in support of Dennis’s alibi did not negate the requirement that the Commonwealth turn over the evidence. The Court said, “as both parties note, the other witnesses that testified on behalf of Dennis were friends and family, who were vulnerable to arguments of bias. To the contrary, Cason offered disinterested testimony that corroborated the government’s theory.”

The 3rd Circuit's beat-down of the Commonwealth was 9-4, but the Defendant has already done more than 20 years for a crime he probably did not commit.
The 3rd Circuit’s beat-down of the Commonwealth was 9-4, but the Defendant has already done more than 20 years for a crime he probably did not commit.

The Commonwealth suggested that some of the Brady evidence could have been found by the defense if it had only tried harder. The Court emphatically rejected the argument. Supreme Court precedent “lends no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. To the contrary, defense counsel is entitled to presume that prosecutors have discharged their official duties… The duty to disclose under Brady is absolute—it does not depend on defense counsel’s actions. Thus, we need to clarify our position: the concept of “due diligence” plays no role in the Brady analysis.”

The Commonwealth argued that evidence correcting the time that Cason saw the defendant failed to meet the Brady materiality test, because the correct time still made it possible for Dennis to have killed the victim and made it back home. The Court rejected this argument as well. “Brady materiality,” it said, “does not turn on a determination of the sufficiency of the evidence, but instead requires the court to consider the constitutional error in light of all the evidence to determine whether it puts the whole case in such a different light as to undermine confidence in the verdict. Transforming Cason, a disinterested individual with documentary support, into a defense witness meets the requirements of Brady materiality because it would have necessarily bolstered Dennis’s alibi defense narrative… The type of impeachment evidence provided by the activity sheet would have undercut the credibility of a key prosecution witness in a manner not duplicated by other challenges the defense was able to level…”

The en banc Court similarly eviscerated Commonwealth arguments about two other pieces of Brady evidence. It thus upheld the district court decision that Dennis be released or retried.

The Philadelphia Inquirer reported that attorney Ryan D. Guilds of the Washington, D.C., powerhouse law firm of Arnold & Porter, one of Dennis’s attorneys, said, “Today, another court has reaffirmed that his trial was fundamentally unfair. We hope the commonwealth will take swift action to end this case.”

Dennis v. Sec’y, DOC, Case No. 13-9003 (3rd Circuit, August 23, 2016)



In an unnoticed opinion last Tuesday, the Missouri Supreme Court effectively made most theft offenses no longer felonies, due to an apparently inadvertent change to state law in 2002.

You may no longer be a felon.
You may no longer be a felon.

The case – State v. Bazell – was brought by a woman who had been convicted of multiples firearms-theft felonies. The court said those felonies should be misdemeanors because a part of the state’s criminal code designating certain offenses as felonies is written in a way that doesn’t make it applicable to the state’s definition of stealing itself.

“If the words are clear, the Court must apply the plain meaning of the law,” the opinion said. “When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result.”

Because of the ruling, people charged with Missouri felonies for a number of theft offenses stand to have their convictions knocked down to misdemeanors, according to the public defender who represented the defendant in Bazell. Federal prisoners with prior Missouri theft offenses should check to determine what effect, if any, this has on their criminal histories or enhancing state charges.

State v. Bazell, Case No. SC95318  (Supreme Court of Missouri, August 23, 2016)


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