No. 11-1215

In the Supreme Court of the United States

ABU-ALI ABDUR’RAHMAN,

Petitioner,

v.

ROLAND COLSON, WARDEN,

Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Sixth Circuit

BRIEF OF FORMER PROSECUTORS AMICICURIAE, IN SUPPORT OF PETITIONER

ASHLEY LITWIN

40 NW 3RD STREET, PH1MIAMI, FLORIDA 33128TEL. (305) 403-8070

DAVID OSCAR MARKUS

COUNSEL OF RECORD

MARKUS & MARKUS, PLLC

40 NW 3RD STREET, PH 1MIAMI, FLORIDA 33128TEL. (305) 379-6667dmarkus@markuslaw.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE. . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 7

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

(ii)

TABLE OF AUTHORITIES

CASES

Abdur’Rahman v. Bell999 F. Supp. 1073 (M.D. Tenn. 1998).. . 6,10,15,16,17

Abdur’Rahman v. Bell2009 WL 211133, (M.D. Tenn. Jan. 26, 2009).. 4.,17,20

Abdur’Rahman v. Colson649 F.3d 468 (6th Cir. 2011). . . . . . . . . . . . . . . 6,13,24

Bagley v. United States473 U.S. 667 (l985). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Brady v. Maryland373 US 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . passim

Berger v. United States295 U.S. 78 (1935). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cone v. Bell129 S.Ct. 1769 (2009). . . . . . . . . . . . . . . . . . . . . . . . 24

Cues v. Maryland386 U.S. 66 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Garrett v. State2001 WL 280145 (Tenn. Cr. App. March 22, 2001). . 6

(iii)

Giglio v. United States405 U.S. 150 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re ZimmermannNo. 24039-5-CH (Tenn. S. Ct, Disciplinary Bd. ofProf. Resp. May 28, 2002). . . . . . . . . . . . . . . . . . . . . . 6

In re ZimmermannNo. 12128-5-LC (Tenn. S. Ct. Disciplinary Bd. ofProf. Respon. Sept. 30, 1994). . . . . . . . . . . . . . . . . . . 7

In re Zimmermann1986 WL 8586 (Tenn. Cr. App. 1986). . . . . . . . . . . . . 7

Kyles v. Whitley514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Miller v. Pate386 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Mooney v. Holohan294 U.S. 103 (1935). . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Jones789 S.W.2d 545 (Tenn. 1990). . . . . . . . . . . . . . . . . . 6

State v. Middlebrooks995 S.W.2d 550 (Tenn. 1999). . . . . . . . . . . . . . . . . . . 7

State v. Spurlock874 S.W. 2d 602 (Tenn. Crim. App. 1993). . . . . . . . 23

State v. Vukelich2001 Tenn. Cr. App. LEXIS 734 (2001). . . . . . . . . . . 7

(iv)

Zimmermann v. Board of Prof. Respon.764 S.W.2d 737 (Tenn. 1989). . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

American Bar Association, Standards for CriminalJustice: Prosecution Function (Commentary) (3d ed. 1993). . . . . . . . . . . . . . . . 20,23

Cody, Michael, Death Penaty in America: Its Fairness and Morality32 U. Mem. L. Rev. 919 (2001). . . . . . . . . . . . . . . . . . 2

National District Attorney’s Association,National Prosecution Standards(2d ed. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tennessee Code of Professional ResponsibilityDR 7-102(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tennessee Supreme Court Rule 8, Code of Professional Responsibility DC-7-13. . . . . . 23

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The following former prosecutors file this amicicuriae brief in support of Petitioner pursuant toSupreme Court Rule 37.3(a) :1

C Bates Butler: former First Assistant U.S.Attorney for the District of Arizona; former U.S.Attorney for the District of Arizona.

C Charles W.B. Fels: former Assistant DistrictAttorney for Knox County, Tennessee; formerU.S. Attorney for the Middle and EasternDistricts of Tennessee.

C Hal Hardin: former Assistant District Attorneyfor Davidson County, Tennessee; former U.S.Attorney for the Middle District of Tennessee.

C William J. Hardy: former Litigation BranchChief of the Criminal Section, U.S. Departmentof Justice; former Assistant U.S. Attorney forthe District of Colombia.

C Michael Pasano: former Assistant U.S. Attorneyfor the District of Colombia and the SouthernDistrict of Florida.

The parties were notified ten days prior to the due 1

date of this brief, and letters of consent have been filedwith the Clerk of the Court. No counsel for any partyto this case authored this brief in whole or in part, andno person or entity other than amici curiae and theircounsel made a monetary contribution to thepreparation or submission of the brief.

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C Quenton White: former U.S. Attorney for theMiddle District of Tennessee; formerCommissioner for the Tennessee Department ofCorrection.

C Edward M. Yarbrough: former U.S. Attorney forthe Middle District of Tennessee; formerAssistant District Attorney for DavidsonCounty, Texas.

INTEREST OF AMICI CURIAE

Amici curiae submit that the habeas petition inthis case raises serious issues of prosecutorialmisconduct that should be reviewed by the federalcourts. The Assistant District Attorney Generalassigned to the case withheld important evidence fromthe defense in violation of Brady v. Maryland and thebasic ethical obligations of a prosecutor.

As former law enforcement officials, we possessa personal appreciation for the unique role of theprosecutor in the American criminal justice system."We want to make sure that the perpetrators ofheinous crimes are caught, tried and punished. But wemust also ensure that we have the right person andthat the perpetrators are convicted and punishedwithin the guidelines of our Constitution." MichaelCody, The Death Penalty in America: Its Fairness andMorality, 32 U. Mem. L. Rev. 919, 920 (2001).

Prosecutors bear an ethical duty to search forthe truth and present only the truth to the jury. The

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government’s interest “in a criminal prosecution is notthat it shall win a case, but that justice shall be done.”Berger v. United States, 295 U.S. 78, 88 (1935).

All of us handled serious felonies and several ofus handled capital matters when we served asprosecutors. Those of us that prosecuted cases inwhich the death penalty was sought carried out thatresponsibility with a heightened sense of our ethicalobligations. It is an awesome task to build a case totake a man’s life and to argue that the jury shouldreturn a death sentence. While the consequence ofprosecutorial misconduct is serious in any criminalprosecution, it is harrowing in a capital case.

Among us, we have personally handled orsupervised thousands of criminal prosecutions in thefederal courts and in various state courts. This case isatypical. The Petitioner’s prosecution fell far short ofthe standards to which we are all held.

We focus this brief on those prosecutorial actionswhich fell short of a prosecutor’s duties under Bradyand the ethical obligations of the office. Amici urge theCourt to review the Petitioner’s serious claims ofprosecutorial misconduct.

STATEMENT OF THE CASE

In state and federal habeas petitions, Petitionerpresented evidence of prosecutorial misconduct in hiscapital trial, specifically the withholding andmisrepresentation of evidence on key issues, including:the identity of the person who did the stabbing;

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whether Petitioner intended to rob the victim; thecircumstances of a prior homicide used as anaggravating circumstance in support of the deathpenalty; and Petitioner's mental condition, whichshould have been presented to the jury in mitigation ofthe death sentence, shedding light on Petitioner’sbizarre inculpatory testimony in the penalty phase.

The district court addressed each piece ofwithheld evidence separately and found that theprosecutor’s suppression of this evidence was notmaterial. But the court did not adequately considerthe aggregate effect of the misconduct on Petitioner’ssentencing-phase defense and on the jury’s search forthe truth.

First, the district court addressed theprosecutor's failure to provide to trial counsel the labreport finding no blood on the coat and other clothingPetitioner wore on the night of the crime, finding thatit was sufficient under Brady that the prosecutorproduced the lab reports to Petitioner’s first counsel. 2

The district court ruled that defense counsel was 2

ineffective for failing to obtain the report from priorcounsel, but did not address the misconduct inproducing one lab report to trial counsel, while failingto produce the other, when trial counsel had requesteda copy of all discovery. Producing only one of tworelevant reports “had the effect of representing to thedefense that the evidence [did] not exist.” Bagley v.United States, 473 U.S. 667, 682-83 (l985) (anincomplete response to a specific discovery request maycause more harm than a complete non-disclosure).

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Abdur’Rahman v. Bell, 2009 WL 211133, *10 (M.D.Tenn. Jan. 26, 2009).

Second, the district court addressed thesuppressed pre-trial statement of Miller, Petitioner’sco-defendant, which contradicted Miller’s testimony attrial and the prosecution’s theory of the case whilecorroborating Petitioner’s testimony. The court foundthe failure to disclose was not prejudicial because thePetitioner was already aware of the informationcontained in Miller’s pretrial statements. Id. at 7.

Third, the district court addressed theprosecutor's failure to provide defense counsel atranscript of Petitioner's 1972 trial for murder whichwould have made clear that the earlier offense did notinvolve gangs and drugs, as the prosecutor asserted,but was the result of the repeated rape of Petitioner bya prison gang of which the decedent was theringleader. See id. at 4, 17. In addition, the transcriptincluded testimony from two psychiatrists, includingone for the government, that Petitioner was unable tocontrol his behavior, which would have been crucial toshow mental illness. Id. at 4. The court found noBrady violation, citing defense counsel’s deficientperformance for the failure to introduce evidence aboutthe mitigating circumstances of the 1972 murder andPetitioner’s mental issues. Id. at 4,17.

Fourth, the district court considered theprosecutor’s suppression of the portions of DetectiveGarafola’s police report describing Petitioner’smentally unstable behavior and found that the defensecounsel’s failure to investigate Petitioner’s mental

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health could not be attributed to the suppression ofthis evidence. Id. at 9.

The Sixth Circuit’s review was limited towhether the withholding of Miller’s pre-trialstatements and the redacted portions of DetectiveGarafola’s police report violated Brady. Abdur’Rahmanv. Colson, 649 F.3d 468, 473 (6th Cir. 2011). The SixthCircuit found no violation because the Petitioneralready knew the underlying facts in the statementand report. Id.

The prosecutor’s conduct in this case bears adisturbing resemblance to more recent conduct by thissame prosecutor which required reversal of a differentfirst degree murder conviction. In Garrett v. State,2001 WL 280145 (Tenn. Cr. App. March 22, 2001), thissame prosecutor argued to a jury that the defendantlocked the victim in the room of a house and thenburned the house down. The Tennessee appellatecourt reversed the defendant’s murder conviction,because the prosecutor suppressed a report in whichthe Fire Detective said the door to the room was, infact, unlocked. This misconduct resulted in a publiccensure of this prosecutor by the Tennesseedisciplinary board, In re Zimmermann, No.24039-5-CH (Tenn. S. Ct, Disciplinary Bd. of Prof.Resp. May 28, 2002), which was the second publiccensure this prosecutor has received. 3

For the prosecutor’s history of similar misconduct, 3

see the lower court opinions in this case. State v.Jones, 789 S.W.2d 545 (Tenn. 1990), (Zimmermann’sactions in promising not to pass prejudicial indictments

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SUMMARY OF ARGUMENT

The prosecutor violated his ethical duties as aprosecutor and his obligations under Brady. Theprosecutor masked the many weaknesses in his case bysuppressing key documents and presenting misleadingtestimony, in gross deviation from the standards of thelegal profession. The prosecutor’s duty is to seekjustice, not merely to convict. This duty is sacred whenprosecuting a case in which the death penalty is

to the jury then doing so “bordered on deception”);Abdur’Rahman, 999 F. Supp. at 1089-90 (Zimmermannimproperly withheld exculpatory evidence from, andmisrepresented facts to, the defense); and in othercases, see e.g., In re Zimmermann, 1986 WL 8586(Tenn. Cr. App. 1986) (Zimmermann’s violation ofdisclosure rules constituted “abuse of ... proceedings ofthe court”); Zimmermann v. Board of Prof. Respon., 764S.W.2d 737 (Tenn. 1989) (Zimmermann reprimandedfor improper comments to the press); In reZimmermann, No. 12128-5-LC (Tenn. S. Ct.Disciplinary Bd. of Prof. Respon. Sept. 30, 1994)(Zimmermann publicly censured for public statementsquestioning a trial judge’s candor); State v.Middlebrooks, 995 S.W.2d 550, 558-59 (Tenn. 1999)(Zimmermann’s representations to the jury in a capitalcase displayed “either blatant disregard for . . . or alevel of astonishing ignorance of the law”); State v.Vukelich, 2001 Tenn. Cr. App. LEXIS 734 (2001)(Zimmermann “strongly admonished” for soliciting thesame “patently improper” testimony that had prompteda prior reversal).

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sought. The deception engaged in by the prosecutor inthis case is incompatible with that duty.

The record in this case indicates that theprosecutor engaged in a pattern of deception thatdeprived Petitioner, and ultimately the jury, ofinformation that would have fundamentally altered thecalculus in both the guilt and sentencing phases ofPetitioner’s trial. No valid interest will be served byallowing Petitioner to be executed without federalreview of the full course of prosecutorial misconductthat occurred in this case.

ARGUMENT

As former prosecutors, the signatories to thisbrief all took an oath to pursue justice, not convictions. In pursuit of this end, we stand by the Brady principlethat “society wins not only when the guilty areconvicted, but when criminal trials are fair.” 373 U.S.at 87-88. Society is not served by the improperwithholding of evidence that could exculpate adefendant or reduce his penalty. Id. This type ofbehavior “casts the prosecutor in the role of anarchitect of a proceeding that does not comport withthe standards of justice.” Id. In light of the seriousprosecutorial misconduct that had a profound impacton the guilt and sentencing phases of Petitioner’sprosecution, the case should be reversed andremanded.

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I. The Prosecutor Withheld andMisrepresented Evidence Critical toPetitioner’s Defense.

A. The Prosecutor Withheld andMisrepresented Evidence thatPetitioner, Rather than anAccomplice, Performed the Stabbing.

The evidence presented to the jury thatPetitioner was the actual stabber was crucial to itswillingness to impose the death penalty. Theprosecutor testified in the district court that Nashvillejurors will not impose death verdicts unless they can be“sure beyond a shadow of a doubt that the person thestate is seeking the death penalty on was in actualityresponsible for the murder.” H.T. 905. The defendantmust be the “shooter or the sticker.” Id. at 907. In hissentencing-phase summation, the prosecutor’sco-counsel stated that “the main issue in this case waswho was the sticker, who wielded that knife.” T.T. 1944.

In a 1987 internal memorandum, the prosecutorlisted several “Weaknesses in the Case” for “seek[ing]the death penalty.” H.Ex. 42. First was the difficultyof proving that Petitioner himself was the stabber. Thesurviving victim was blindfolded and did not see whostabbed the deceased. Id. She had observed thatPetitioner was wearing a full-length black “gangstercoat” during the offense, which the prosecutor seizedfrom Petitioner’s home and displayed at trial. T.T.1673. The prosecutor, however, withheld from trial

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counsel the lab report stating that no blood was foundon the coat. See id. at 277, 292, 322, 331-333, 341.

The prosecutor understood that the lack of bloodon the coat cast doubt as to whether Petitioner was thestabber. As he explained to a supervisor,“[p]hotographs of the decedent’s house show bloodspattering all over the kitchen.” H.Ex. 42. Likewise,the police reports and the autopsy report confirmedthat the stabbing had produced copious quantities ofblood. H.Ex. 1-4; H. Ex 14. The lead detectiveobserved the “large amount of blood splattering onitems near the victim [and] on the walls, bar, anddivider,” H.Ex. 3, and concluded that the blood splatterwould have occurred following each blow to the heart.H.Ex. 110 at 42-43. Expert testimony at the hearingconfirmed that, if Petitioner had squatted over thedecedent as the prosecution contended, he would havebeen spattered with blood. Abdur’Rahman v. Bell, 999F. Supp. 1073, 1085 (M.D. Tenn. 1998).

The prosecutor concluded in this internal reportthat there were only two reasonable possibilities forthe lack of blood on Petitioner’s coat: “Either thedefendant removes his coat before he began to stabthese people . . . or if the defendant did wear this coatthe entire time he obviously was not present when thestabbing occurred.” H.Ex. 42.

There was no evidence that Petitioner hadremoved his coat. On the contrary, the victim’sdaughter told police that she had “peeped” out of herbedroom into the kitchen during the incident and

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Petitioner, the “light skinned” man in glasses, “had ona wool coat.” H.Ex. 6.

Petitioner’s co-defendant, Devalle Miller, gavepolice a three-hour confession in which he admittedtaking part in the assault but said that Petitioner wasthe stabber. In numerous interviews about the detailsof the offense leading up to the trial, Miller never saidPetitioner removed his coat and strongly implied he didnot. T.T. 1034-38. Instead, the prosecutor presentedMiller’s testimony that Petitioner “squatted over [thevictim] stabbing him,” thus creating the misleadingimpression, contrary to his own understanding of theblood splattering on the walls and the lack of blood onPetitioner’s coat, that Petitioner stabbed the victimwhile wearing the long black coat.

The defense did not receive, and the jury did nothear, any of evidence that Petitioner’s long black coathad no traces of blood, the person who did the stabbingwould have been covered with blood, and witnessessaw Petitioner wearing the long black coat. Thewithholding of this evidence is not before this Court. The Amici, however, bring this to the Court’s attentionto illustrate this prosecutor’s pattern of misconductand the disastrous impact it had on the Petitioner’sright to a fair trial. This was critical evidence thatPetitioner could not have been the stabber (a necessarycondition for a jury to impose the death penaltyaccording to the prosecutor), but the prosecutorwithheld this evidence so he could present a version ofthe facts the prosecutor knew was irreconcilable withthe physical and medical evidence.

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B. The Prosecutor Withheld andMisrepresented Evidence Suggestingthat Petitioner Intended to Rob TheVictim.

The suppression of Miller’s pre-trial statementsto police also allowed the prosecution to misrepresentthe Petitioner’s intent in going to Daniels’ house inorder to encourage the jury to find an aggravatingfactor in support of the death penalty. At theSentencing phase, the prosecution argued, and the juryfound, three aggravating circumstances to impose thedeath penalty: (1) the murder was especially “heinous,atrocious, or cruel”; (2) petitioner had been convicted ofone or more prior violent felonies; and (3) the murderoccurred in the course of a robbery.

Petitioner always maintained that he and Millerdid not go to Daniels’ home with the intent to rob him,but as part of their work with the Southeastern GospelMinistry (“SEGM”) to rid the community of drugdealers. Petitioner testified that SEGM had discussed“cleaning up the community,” and the evil influence of“people that take hardened drugs and sell them” butnever advocated violence. T.T. at 1839, 1842-43. Petitioner argued in his defense that he and Miller hadgone to Daniels’ home only to scare him, not to rob orkill him, so that Daniels would no longer deal drugs inthe community.

Miller’s trial testimony contradicted thisstatement. He testified that the sole motive for theoffense was to rob Daniels and steal his drugs. Relyingon Miller, the jury found that Petitioner had committed

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the murder in the course of a robbery as anaggravating circumstance to impose the death penalty.

The prosecution did not disclose to defensecounsel that Miller had made a pre-trial statement topolice which not only contradicted Miller’s testimony attrial, but corroborated Petitioner’s defense. Milleroriginally told police that he and Petitioner went toDaniels’ home to scare him as part of an effort bySEGM to stop drug dealing in the community and not,as Miller stated at trial, to rob Daniels.

The withholding of Miller’s statement was amaterial Brady violation: this statement completelycontradicted the Government’s position at trial andbolstered the defense’s theory. Nevertheless, the SixthCircuit found no Brady violation because the Petitioneralready knew the facts underlying Miller’s statement;i.e., he already knew about SEGM. 649 F.3d 468 at475.

As discussed further in Section II below,Petitioner’s knowledge about SEGM or that Miller mayhave discussed the organization with the police in noway abates the prosecutor’s duty under Brady. Petitioner knew that Miller was lying on the stand, butbecause Petitioner did not know about his pre-trialstatement, Petitioner could not prove that Miller waslying. The existence of this evidence, whichcontradicted the prosecution’s position and provedMiller’s testimony false, was unknown to thePetitioner.

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Second, even if the defense could or should haveknown about the statement, the prosecutor still has anethical duty to ensure the fairness of a prosecution andthus a duty to disclose these statements. Not only doesthe prosecutor have a duty not to mislead the jury intobelieving Petitioner intended to rob Daniels, when theprosecution knew this to be false, but the prosecutorhas a duty to make available any evidence that couldreduce defendant’s sentence. See Brady, 373 U.S. at87-88. The prosecutor realized that defense counselknew little about the facts and exploited that lack ofpreparation. The prosecutor’s conduct is not renderedless improper because competent counsel might haveminimized the damage. In fact, in the view of Amici,the prosecutor’s exploitation of defense counsel’sinadequacies in order to win at any cost is itself a grossdeviation from his obligation to seek justice. Theprosecutor violated both Brady and his oath of office infailing to disclose this crucial evidence.

C. The Prosecutor Withheld andMisrepresented Evidence to Distortthe Nature of Petitioner’s 1972Homicide Conviction.

The state alleged that Petitioner’s 1972conviction for second degree murder while in a federalprison was an aggravating circumstance supportingthe death penalty. H.Ex. 59. The prosecutoranticipated, and expressed concern in hismemorandum to his supervisor, that the defense woulddiminish the significance of the prior conviction byexplaining that the murder occurred when he wastrying to prevent himself from further homosexual

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rape. H.Ex. 42 at 679. The prosecutor obtained atranscript of the earlier trial, but did not produce thetranscript to the defense. In the presence of an FBIagent who had been involved in the earlier case andwas listed as a trial witness, the prosecutor related todefense counsel that the 1972 homicide had resultedfrom “a turf war in the prison between the two gangsas to who would control the drug trade in the prison”and threatened that the agent would testify as such. H.Ex. 136 at 25. That threat dissuaded defensecounsel from presenting the circumstances of the priorhomicide, circumstances the district court found couldhave mitigated the impact of this prior homicide on thejury’s decision whether to impose death. See 999 F.4

Supp. 1073, 1095 n. 27.

At the habeas proceeding, the prosecutoradmitted that his purpose was to prevent the defensefrom “getting into this 1972 murder,” H.Ex. 136,andclaimed that he had related to defense counsel what hehad been told by the FBI agent who investigated the1972 murder. Yet the prosecutor’s “drug turf” versionof the 1972 murder directly contradicted the FBIagent’s testimony in a deposition. The FBI agent hadtestified that the killing was in response to a disputebetween Petitioner and the decedent concerning

Because the prosecution theory was that this 4

killing was motivated by drugs as well, the threat thatan FBI agent would testify about an earlier killingwith the same motivation would have beendevastating. See T.T. 1941, 1979 (closing argumentlinking evidence that the defendant was trying to “takeover” drug turf in this case to the 1972 murder).

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rumors of homosexual conduct between them. H.Ex.136 at 18-19. This homosexual conduct was in fact therepeated rape of Petitioner by a prison gang of whichthe decedent was the ring leader. After Petitionerconfronted the decedent, Petitioner lost control andstabbed him. Id. The prosecutor therefore knew thekilling was not, as he told defense counsel and the jury,about a drug turf war.

Moreover, the prosecutor failed to provide trialcounsel with the transcript of the 1972 trial whichwould have elucidated everything.

The district court found that the prosecutor hadmisrepresented the circumstances of the 1972conviction, and that he had the transcript of the 1972murder trial in his possession before trial began andfailed to provide it to defense counsel. 999 F. Supp. at1089. The court found the transcript favorable to thePetitioner, but nevertheless found it immaterialbecause it was persuaded the outcome would not havebeen any different had defense counsel had thisevidence, given that defense counsel failed toinvestigate his mental illness and his prior convictions. Id. at 1090.

In the experience of Amici, the existence of aprior homicide, particularly one in prison, is asignificant factor in the jury’s determination whetherlife imprisonment is sufficient to guarantee the safetyof the community. A killing related to gangs and drugspresents a very different picture of thecold-bloodedness and dangerousness of a defendantthan an outburst stemming from his repeated rape

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when he was incarcerated and unable to escape. In theview of Amici, this suppressed evidence would haveswayed the jury’s determination whether to impose asentence of death.

D. The Prosecutor Withheld andMisrepresented Evidence RegardingPetitioner’s Mental Health.

The prosecutor’s false representation to defensecounsel of the facts of the 1972 homicide was part of aneven bigger distortion. The prosecutor systematicallysuppressed and misrepresented the evidence ofPetitioner’s mental illness and the connection betweenthat mental illness and Petitioner’s past and presentcrimes.

Petitioner has an extensive, well-documentedhistory of mental illness, none of which was presentedto the jury and much of which was kept from hiscounsel. As the district court recognized, Petitionerwas diagnosed in 1964 as having a “paranoidpersonality.” 999 F. Supp. at 1098. In 1972, apsychiatrist testified that Petitioner suffered from aBorderline Psychosis that caused him to lose controlunder stress. Id. at 1100. Petitioner repeatedly hadexhibited psychotic symptoms, including banging hishead against a wall when he was under stress. H.T.123-124.

When Petitioner was brought to the policestation following his arrest in this case, he began to cryand bang his head against the wall. H.Ex. 7. Reportsfrom the Davidson County Sheriffs Department stated

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that Petitioner was banging his head against the floor,requiring that he be placed in a padded cell on“suicide” watch. H.Ex. 8. The prosecutor did notdisclose the police reports describing that behavior asdiscovery. 2009 WL 211133 at 9. When the policereport describing petitioner’s arrest was turned over attrial as Jencks material, the facts relating topetitioner’s extreme emotional distress had beenredacted. Id.

The prosecutor expected that Petitioner’s mentalillness likely would be an issue at trial and sentencing. H.Ex. 72 (defense counsel notice of intent to rely onmental status defense). The prosecutor obtained thetranscript of the 1972 homicide trial and soughtinformation from the prosecutor in that trial and fromPetitioner’s federal parole officer. From those sources,the prosecutor learned that Petitioner had raised aninsanity defense in the 1972 trial. A psychiatristtestified at the 1972 trial that Petitioner was insane atthe time of the offense due to a mental disease(“borderline” psychosis) that caused him to lose controlunder stress. H.Ex. 131 at 43-46. The jury in that caserejected first-degree murder, convicting on seconddegree, and Petitioner was sentenced to a psychiatricfacility.

Upon motion of defense counsel in this case,Petitioner was sent to the Middle Tennessee MentalHealth Institute (‘MTMHI’) for evaluation and a reportto the court. H.Ex. 22. MTMHI sought informationfrom the prosecutor concerning Petitioner’s mentalhistory. The prosecutor replied with information heknew to be false and, due to the prosecution’s

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withholding of evidence from defense counsel, defensecounsel could not properly refute this information. Theprosecutor reported to MTMHI that, in the 1972proceedings, Petitioner “moved the Court for acompetency hearing and psychiatric evaluation as tohis sanity . . . the Court ruled that the defendant wascompetent and . . . there appears to be no evidencefrom the records submitted to us in that proceedingthat the defendant relied upon an insanity defense attrial.” H.Ex. 34 at 3 (emphasis added); see H. Ex 36(MTMHI report omitting mention of 1972 insanitydefense). That representation stands in stark contrastto the prosecutor’s earlier report to his supervisorsconcerning the 1972 trial. There, the prosecutorreported that he had “received a copy of the transcriptof the defendant’s first trial where he plead not guiltyby reason of insanity.” H.Ex. 42 at 679.

In addition to his affirmative misrepresentation,the prosecutor falsely informed MTMHI that the 1972offense was a “cold blooded premeditated murder”committed “to gain control over the victim’s gang,”H.Ex. 34 at 201, even though the prosecutor knew thatthe 1972 incident was a response to the Petitioner’srepeated rape, and that there was no evidence thatgangs or drugs were involved.

The prosecutor also did not inform MTMHI ofPetitioner’s behavior after his arrest, as outlined in theredacted portions of Detective Garafola’s report, or thattwo days after the offense, Petitioner was placed in apadded cell on suicide watch. H.Ex. 7.

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Misled by the prosecutor’s representations, theMTMHI evaluators reported to the court that theyfound no issues regarding competency and no basis foran insanity defense. The prosecutor then moved, inlimine, to preclude the defense from asserting anymental state defense. The prosecutor cited theMTMHI report “clearly show[ing] that the results ofthe defendant’s evaluation reflect no diagnosis of anymental disease, defect, emotional disturbance or evena personality disorder.” H.Ex. 73.5

The prosecutor’s conduct in giving falseinformation to the MTMHI, an agency directed by thecourt to report on Petitioner’s mental condition, wasentirely improper. See American Bar Association,Standards for Criminal Justice: Prosecution Function3-2.8 (a) (Commentary) (3d ed. 1993).

The prosecutor’s conduct also had an effect onthe outcome of the sentencing hearing. Having beentold that an evaluation in the federal system in 1972revealed no basis for concerns about competency orinsanity, and having no current evidence of mentalillness, MTMHI did little to further investigatePetitioner’s mental health. This report was alsoheavily relied upon by the district court when

The prosecutor’s motion also stated that “the 5

co-defendant . . . has no evidence” that Petitioner wassuffering from a mental disease. H.Ex.73. Yet, the co-defendant had given the prosecutor a statement inwhich he said that Petitioner went from day to night”and was acting “crazy” and had suggested “[i]nsanity.” Id. at l66-67,171, 177.

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evaluating the materiality of Petitioner’s Brady claims. See 2009 WL 21133 at 9. Everyone in the courtsystem, including MTMHI, the trial judge and defensecounsel, was lulled into the belief that there were noserious issues concerning Petitioner’s mentalcondition. 6

The consequence of these falsehoods and thesuppression of all exculpatory evidence was asentencing hearing in which the prosecutor had freerein to paint Petitioner as “a depraved man, notsomeone suffering from severe extreme emotionaldisturbance.” T.T. 1981-82. The prosecutor assertedthat the killing was purely for Petitioner’s “pleasureand enjoyment,” id., without the fear of contradictionby defense counsel because all evidence to the contraryhad been suppressed. Defense counsel had been deniedaccess to the police report demonstrating Petitioner’smental condition at the time of the arrest and thetranscript from the 1972 murder trial discussingPetitioner’s possible Borderline Personality Disorder,so the jury had no context in which to evaluate

Of course, the district court is correct that defense 6

counsel should have obtained Petitioner’s records, but,as explained above, the fact that competent counselmight have been able to limit the damage caused bythe prosecutor’s suppression of evidence does notchange a prosecutor’s obligations under Brady or theethical obligation of a prosecutor to ensure the fairnessof a criminal trial, especially when seeking the deathpenalty.

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Petitioner’s conduct in this offense or in the former asanything other than cold-blooded killings.

The prosecutor’s successful withholding of allevidence of Petitioner’s mental illness also deprived thejury of the context in which to evaluate Petitioner’sbizarre testimony at the sentencing hearing, in whichhe testified that he could not remember what happenedon the night of the killing and then incoherently“submitted to the fact that [he was] the individual . . .that stabbed Mr. Daniel Patricks.” T.T. at 1864; seeH.T. 471-72, 488. Dr. Sadoff, the psychiatrist whoexamined Petitioner for the habeas hearing, testifiedthat Petitioner’s behavior on the stand at thesentencing hearing reflected his illness; he fell apartunder stress. T.T. at 485-97. Had the jury known ofPetitioner’s mental history, the jury would have beenable to discount that Petitioner was describing whatactually happened and likely would not have imposedthe death penalty.

II. The Prosecutor’s Conduct Violated BasicStandards Governing the Legal ProfessionAnd Deprived Petitioner of Due Process ofLaw.

The Constitution and standards of professionalethics forbid prosecutors from winning convictions ordeath sentences by deception or by treating theaccused unfairly. See Brady, 373 U.S. at 87-88. Itbears repeating that “[s]ociety wins not only when theguilty are convicted, but when criminal trials are fair;our system of the administration of justice sufferswhen any accused is treated unfairly.” Id. Within our

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system of justice, “[t]he State’s obligation is not toconvict, but to see that, so far as possible, the truthemerges.” Cues v. Maryland, 386 U.S. 66, 98 (1967)(Fortas, J., concurring in the judgment).

Here, the prosecutor engaged in a “deliberatedeception of the court and jury,” in violation of themost fundamental standards of due process. Mooneyv. Holohan, 294 U.S. 103, 112 (1935). He knowinglywithheld exculpatory information, Brady, 373 U.S. 83,and knowingly misrepresented the physical evidence inthe case. Miller v. Pate, 386 U.S. 1 (1967).

The standards of the legal profession alsorecognize the special responsibilities of publicprosecutors to seek justice. Tennessee Supreme Court,Rule 8, Code of Professional Responsibility, EC-7-13(‘the public prosecutor’s duty is to seek justice, notmerely to convict”); State v. Spurlock, 874 S.W. 2d 602(Tenn. Crim. App. 1993); American Bar Association,Standards for Criminal Justice: The ProsecutionFunction, 3-12(c) (3d ed. 1993) (same); NationalDistrict Attorney’s Association, National ProsecutionStandards, 1.1 (2d ed. 1991) (“the primaryresponsibility of prosecution is to see that justice isaccomplished”).

The pursuit of justice is incompatible withdeception or the withholding of evidence. Prosecutorsmay not conceal facts or knowingly fail to disclose whatthe law requires them to reveal. Tennessee Code ofProfessional Responsibility, DR 7-102(A). Prosecutorsshould be candid with opposing counsel, and may not“impede opposing counsel’s investigation of the case.”

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National Prosecution Standards, 6.5.a, 53.5.a. Nowhere in our legal system is strict adherence tothese principles more vital than in cases in which theprosecution seeks the death penalty.

The prosecutor’s role is not to pick and choosewhat to disclose to defense counsel to enhance thechances of a conviction, but instead to ensure that adefendant will not be convicted unfairly based on anincomplete picture of the evidence. The obligation toturn over exculpatory evidence is not relieved, as theSixth Circuit and the Warden suggest, by thedefendant’s knowledge of the underlying facts of thesuppressed evidence. See 649 F.3d at 475. Theobligation to turn over evidence in the pursuit of justiceand fairness is absolute.

Indeed, the Sixth Circuit’s view of Brady iscontradicted by Brady itself. In Brady, the Petitionerknew the underlying facts of the suppressed evidence;the prosecution had suppressed co-defendant Boblit’sconfession to police that Boblit – and not Brady – hadkilled the victim. Id. at 84. This Court found that thesuppression of this evidence violated Brady’s dueprocess rights even though Brady, of course, not onlyknew that Boblit had been the one to kill the victim,but Brady had testified as such at the trial and hiscounsel argued that Boblit was the killer at sentencing.See id. The question was not whether Brady knew theunderlying facts of the suppressed evidence – who thekiller was – but whether that evidence might haveaffected the outcome.

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In Cone v. Bell, 129 S.Ct. 1769 (2009), this Courtoverturned a death sentence based on a Bradyviolation where the petitioner knew the underlyingfacts of the suppressed evidence. Cone’s defense wasinsanity based on his drug addiction. Id. at 1773. Thestate argued that he was not addicted. Id. at 1774. Years later, Cone discovered that the state hadwithheld documents suggesting that he was in factaddicted. Id. at 1783. The Court determined that thisevidence undermined confidence in the jury’ssentencing recommendation given “the far lesserstandard that a defendant must satisfy to qualifyevidence as mitigating in a penalty hearing in a capitalcase.” Id. at 1785. Thus, the Court found that thesuppression of evidence of Cone’s drug addiction, a factwhich Cone was well aware of, violated the constitutionunder Brady.

In addition to the lower court’s error in excusingthe prosecutorial misconduct because (some of) theunderlying facts were known to the defense, the courtsbelow also erred in failing to evaluate the cumulativeeffect of these violations. In Kyles v. Whitley, 514 U.S.419 (1995), this Court made clear that undisclosedevidence is to be “considered collectively, not item byitem.” Id. at 436. Here, the Sixth Circuit erred indeclining to consider the suppressed evidencecollectively in determining whether this evidenceundermines confidence in the jury’s finding for a deathsentence.

Prosecutorial misconduct such as that in thiscase requires reversal if there is “any reasonablelikelihood [that the misconduct could] have affected the

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judgment of the jury.” Giglio v. United States, 405U.S. 150, 154 (1971); see also Kyles, 514 U.S. at 433. Here, the prosecutor engaged in a pattern ofwithholding and deception that deprived Petitioner,and ultimately the jury, of information that would havefundamentally altered the calculus in the sentencingphase of Petitioner’s trial. There can be no reasonabledispute that the misconduct on the fundamental issuesand evidence of the case, as discussed in Section Iabove, likely had a fundamental effect on the judgmentof the jury. It would be a serious miscarriage of justicefor Petitioner to be executed without review of theprosecutor’s conduct and its impact on the fairness ofPetitioner’s trial and sentencing.

CONCLUSION

For the foregoing reasons, the petition for a writof certiorari should be granted.

Dated: May 9, 2012 Respectfully submitted,

ASHLEY LITWIN

40 NW 3RD STREET, PH1MIAMI, FLORIDA 33128TEL. (305)-403-8070

DAVID OSCAR MARKUS

COUNSEL OF RECORD

MARKUS & MARKUS, PLLC

40 NW 3RD STREET, PH 1MIAMI, FLORIDA 33128TEL. (305) 379-6667dmarkus@markuslaw.com