Johnson v. Bell

R. GUY, COLE, JR., Circuit Judge,

dissenting.

The facts giving rise to Johnson’s Brady claim are undisputed and straightforward. The entire case against Johnson consisted of only four witnesses and no physical evidence. One of the four witnesses was originally scheduled as an alibi witness to corroborate Johnson’s innocence. On the day before trial, after a coerced midnight encounter with the State prosecutor, that witness flipped. As for the other three witnesses, the State admits that the prosecution withheld evidence that would have impeached each witness’ identification of Johnson as the perpetrator. To say the least, the jury saw a markedly different trial than it would have had the prosecution honored its Brady obligations. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accordingly, the Tennessee Court of Criminal Appeals unreasonably determined that the withheld evidence was immaterial and that, without it, Johnson still received a fair trial “resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Because “ ‘fairness’ cannot be stretched to the point of calling this a fair trial,” id. at 454, 115 S.Ct. 1555, I dissent.

I.

It is fundamental and firmly established that a defendant’s due process rights are violated where the government (1) withholds evidence (2) favorable to the defendant (3) that is “material either to guilt or to punishment.” Brody, 373 U.S. at 87, 83 S.Ct. 1194. The State concedes that it withheld favorable evidence that would *491have assisted in Johnson’s defense. At issue is only whether the suppressed evidence was material.

Brady materiality is established where, viewing the withheld evidence collectively, the “government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting United States v. Bag-ley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The Supreme Court has repeatedly stated that “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Id.; accord, e.g., Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). Indeed, “[t]he reversal of a conviction is required upon a ‘showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Id. (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555). The Supreme Court has referred to this as only a “reasonable probability” or a “significant possibility” of a different result. See, e.g., id.; Strickler v. Greene, 527 U.S. 263, 298, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (Souter, J., concurring in part and dissenting in part) (explaining that “[reasonable] ‘probability1 raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding standard, ‘more likely than not’ ” and preferring the phrase “significant possibility”). Accordingly, Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. “A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434-35, 115 S.Ct. 1555; accord Castleberry v. Brigano, 349 F.3d 286, 294 (6th Cir.2003).

The prosecution withheld six items1 of evidence that, when considered collectively, as we must, compel the conclusion that Johnson’s trial did not produce an outcome worthy of confidence. As the Supreme Court of Tennessee explained, “[Johnson]’s insurmountable problem in this case was not Davis’s testimony, but the testimony of the three eyewitnesses, two of whom looked into the barrel of the pistol held by [Johnson] and were shot by him.” State v. Johnson, 632 S.W.2d 542, 547 (Tenn.1982). Had the prosecution honored its Brady obligations by disclosing the six relevant items of suppressed evidence, then the value of two of those “insurmountable” witnesses, Bob Bell and Debra Smith, would have been substantially reduced, and the value of the third, Louis Smith, would have been obliterated. A review of the withheld evidence reveals that its disclosure “would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense.” Kyles, 514 U.S. at 441, 115 S.Ct. 1555. As Supreme Court precedent directs, I proceed with an evaluation of “the tendency and force of the undisclosed evidence.” Id. at 437 n. 10, 115 S.Ct. 1555.

The first item of withheld evidence was a police report prepared by Detective Moore, regarding his interview of Bell the day after the crimes. This report would have undermined Bell’s identification of *492Johnson as the perpetrator. Bell testified that he was familiar with Johnson because Johnson had frequented Bell’s store in the past, that the assailant had some facial hair, and that Johnson was the assailant. It is undisputed that at the time of the crimes Johnson had a goatee and a light moustache. Thus, the jury heard testimony from Bell that was internally consistent. In Detective Moore’s suppressed report, however, Bell described the assailant as having “no facial hair.” (JA 274.) Without employing any fantastic leaps of imagination, this withheld report would have called into question the reliability of Bell’s identification. Simply put, by suppressing the report, the prosecution was able to prevent the jury from learning a crucial inconsistency between Bell’s initial description of the assailant and Bell’s identification of Johnson. Because reliability of identification testimony depends in large part on the accuracy of a prior description, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), Bell’s identification would have been substantially undermined by the use of this withheld police report.

The second item of evidence suppressed by the prosecution would have cast further doubt on the reliability of Bell’s testimony — a medical report revealing that Bell had a history of “some mental instability.” (JA 1288.) As the majority highlights, any cross-examination regarding Bell’s mental health would by necessity have proceeded delicately. This, however, does not mean that defense counsel would not have been able to use it to further undermine Bell’s credibility. Although its suppression may not rank with the failure to disclose Detective Moore’s police report, it certainly would have had some value to competent counsel, “and it counts accordingly in determining whether ... materiality is satisfied.” Kyles, 514 U.S. at 450, 115 S.Ct. 1555. In short, the medical report “would have had some weight and its tendency would have been favorable to [Johnson].” Id. at 451,115 S.Ct. 1555.

The third item of evidence suppressed by the prosecution would have impeached another “insurmountable witness,” Debra Smith, by raising doubts as to whether she was present in Bell’s store on the night of the crimes. The prosecution withheld a police report prepared by Detective Ro-beck, revealing that Louis Smith indicated that no female customers entered the store during the robbery. This evidence would have further undermined Debra Smith’s testimony, which, both the majority and concurrence acknowledge, was already suspect. Debra Smith testified that, upon entering Bell’s store on the night of the crimes, she immediately realized that a robbery was in progress, yet still purchased a soft drink and inexplicably failed to call the police once she returned home. Even more curiously, her testimony repeatedly described Louis Smith, one of only four people apparently in the store when she entered, as a Black man. Louis Smith, however, is white. Consistent with this theory, the prosecution never alleged a female was present in the store during the robbery until only a few days before trial when it named Debra Smith as a potential witness. This withheld police report puts at issue whether Debra Smith was in Bell’s store that night and, in the hands of competent defense counsel, would have “fueled a withering cross-examination, destroying confidence in [Debra Smith’s] story and raising a substantial implication that the prosecutor had coached [her] to give it.” Id. at 443, 115 S.Ct. 1555.

As the majority and concurrence point out, even without the disclosure of this withheld police report, Debra Smith’s testimony was weak, inconsistent, and significantly impeached. There is no question, *493however, that this report could have been used to further impeach Debra Smith, and may even have been used to expose potential prosecution improprieties, like coaching. The implication of coaching would have been strengthened by the suspicious circumstances surrounding Davis’s conversion, which raises further questions of prosecutorial misconduct. Quite simply, it is unreasonable to conclude that the withheld report would have had no value as exculpation or impeachment, and therefore it too must be counted towards determining whether materiality has been satisfied. See Kyles, 514 U.S. at 450, 115 S.Ct. 1555.

I save the worst for last. The fourth, fifth, and sixth items of evidence withheld by the prosecution relate to Louis Smith. Smith testified that he got a “good look” and even a “real good” look at the assailant’s face. (JA 334, 364.) He further testified that he correctly identified Johnson from a photo array. By all accounts, Smith was a strong witness for the prosecution. The following three items of suppressed evidence in the hands of competent defense counsel, however, would have obliterated his value as a prosecution witness.

Officer Dobson prepared a police report from an interview with Louis Smith immediately after the shootings. This report indicates that Smith disavowed any ability to identify the assailant: “I then talked to [Louis Smith] who related he was inside the market working on a motor when assailant entered the market and shot and robbed him for no reason and he saw him to be a [young, Black male] but did not see assailant[’s] face.” (JA 1276 (emphasis added).) Smith’s inability to describe the assailant was similarly noted in another police report prepared by Detective Flowers shortly after the crimes: “Louis Smith advised he could not describe susp[eet] at this time but is willing to be reinterviewed at a later date.” (JA 1278.) Finally, and most alarmingly, a withheld police report prepared by Detective Robeck reveals that Smith did not pick Johnson’s picture out of a pre-trial photo array, but instead chose the pictures of two other young, Black males. (JA 298-99, 1281.) It is not hard to imagine what competent defense counsel would have done had the prosecution disclosed these three crucial items. Doubtless, their disclosure would have effectively reduced Louis Smith’s value as a prosecution witness to nil. Importantly, the prosecution’s suppression of these items also prevented the jury from learning that, to the extent Louis Smith could identify the assailant, he identified someone other than Johnson, rendering these items exculpatory as well, despite the concurrence’s best attempts to characterize Louis Smith’s selection of someone other than Johnson from a photo array containing Johnson’s photo as a mere “misidentifi-cation.”

Moreover, the demise of Louis Smith as a credible prosecution witness would have done more than just nullify his testimony. For instance, it would have served to discredit generally the police and prosecution methods employed in assembling the case against Johnson, calling into question the veracity of the other “insurmountable witnesses” and Davis. As the Fifth Circuit aptly explained, the consequences of destroying one eyewitness extend beyond just that witness:

We are tempted, but not persuaded, by this arithmetical approach; our experience at the bar has been that positive identification by two unshaken witnesses possesses many times the power of such an identification by one only, and that the destruction by cross-examination of the credibility of one of two crucial witnesses — even if the other remains untouched — may have consequences for *494the case extending far beyond the discrediting of his own testimony.

Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir.1985).

Confronted with this, the Tennessee Court of Criminal Appeals nonetheless determined that Supreme Court precedent did not compel the conclusion that the withheld evidence was material. See Johnson, 1997 WL 738586, at *8. Curiously, the Tennessee court cited Kyles only once, notwithstanding that Kyles came down two years before the Tennessee court’s decision and that it was, and still is, the Supreme Court’s most thorough application of Brady to any set of facts. See id. at *4 (citing Kyles for the proposition that “[t]he court must view the suppressed evidence. collectively in the context of the entire record to determine whether the evidence is material under Bagley ”). Regardless, because Johnson’s Brady claim presents at least as strong a case for materiality as Kyles, the Tennessee court’s determination that the withheld evidence did not satisfy Brady materiality was an unreasonable application of Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“[A] state-court decision involves an unreasonable application of [Supreme Court] precedent if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case.”).

In Kyles, the Supreme Court reversed a Fifth Circuit decision holding that evidence withheld by the prosecution was immaterial under Brady. 514 U.S. at 454, 115 S.Ct. 1555. Kyles was convicted of the daytime murder of a woman outside a grocery store. Id. at 423, 115 S.Ct. 1555. There was a mountain of evidence against Kyles, which included four eyewitnesses, the murder weapon found in Kyles’s apartment, and some of the victim’s personal effects found in Kyles’s trash. Id. at 430-32,115 S.Ct. 1555. That is, unlike the case against Johnson, physical evidence implicated Kyles. The prosecution withheld the following exculpatory evidence: six contemporaneous eyewitness statements taken by police that would have impeached two of the four eyewitnesses, and various statements, memoranda, letters, and recordings relating to “Beanie,” a police informant, who did not testify at trial, but was responsible for directing the investigation towards Kyles. See id. at 423-26, 115 S.Ct. 1555. At best, the Supreme Court acknowledged that disclosure of the evidence would have served to raise some questions about whether the gun and victim’s personal effects were planted by Beanie in an attempt to frame Kyles, and would have “substantially reduced or destroyed” the value of two of the four eyewitnesses. Id. at 441, 115 S.Ct. 1555. Not every item of the State’s case, however, would have been directly undercut had the suppressed evidence been disclosed. Importantly, the Court recognized that two eyewitnesses would have remained untouched. These eyewitnesses consistently identified Kyles as the perpetrator immediately after the murder, in a photo array, and in court. Moreover, even without the eyewitness testimony, the overwhelming physical evidence still would have pointed towards Kyles, unless the jury had believed that Beanie was the mastermind behind a massive conspiracy to frame Kyles — an account that Justice Scalia described as “strainfing] credulity to the breaking point.” Id. at 470, 115 S.Ct. 1555 (Scalia, J., dissenting).

Comparing the probable impact of the withheld evidence in Kyles to the probable impact of the evidence withheld by the State that would have been favorable to Johnson compels the conclusion that the *495withheld evidence in Johnson’s case is material. Here, the withheld evidence would have served to attack all three eyewitnesses, leaving the State with only Davis’s testimony. Davis, of course, was a nineteen-year-old, who changed his story the day before trial after a coerced midnight encounter with a prosecutor who dangled threats of prosecution and promises of immunity before Davis. Indeed, his testimony was sufficiently suspect that the Supreme Court of Tennessee discounted it in affirming Johnson’s convictions. See Johnson, 632 S.W.2d at 547. Because the case against Johnson relied almost exclusively on eyewitness identification, the materiality of the withheld evidence, which called into question the testimony of all three eyewitnesses, compels a materiality finding.

True enough, the withheld evidence would not have directly undercut Davis’s testimony, and, therefore, even had the withheld evidence been disclosed, there may have been sufficient evidence for a jury to convict, notwithstanding the suspicious nature of Davis’s conversion. That is, any reasonable jury may very well have believed Davis’s testimony. But this is not the proper inquiry. Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. The withheld evidence need not touch every prosecution witness and every item of incriminating evidence before materiality is satisfied. To be sure, “the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others.” Id. at 445, 115 S.Ct. 1555 (citing United States v. Agurs, 427 U.S. 97, 112-13 n. 21, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (emphasis added).

Consistent with this, we have concluded that withheld evidence satisfies materiality where its disclosure would have left several prosecution witnesses completely unscathed. For instance, in Castleberry v. Brigano, we held that three items of suppressed evidence, when evaluated collectively, “strongly supported] the conclusion that Castleberry’s trial did not produce an outcome worthy of confidence,” thus satisfying Brady materiality. 349 F.3d at 292. In reaching this conclusion, we acknowledged that some testimony of witnesses present at the scene of the crime “would not have been contradicted by the withheld evidence.” Id. at 294. Nevertheless, we acknowledged, “[t]he key question ... ‘is not whether the state would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.’ ” Id. (quoting Kyles, 514 U.S. at 453, 115 S.Ct. 1555).

The Supreme Court explained this principle in Kyles:

[N]ot every item of the State’s case would have been directly undercut if the Brady evidence had been disclosed. It is significant, however, that the physical evidence remaining unscathed would ... hardly have amounted to overwhelming proof that Kyles was the murderer....
The inconclusiveness of the physical evidence does not, to be sure, prove Kyles’s innocence, and the jury might have found the eyewitness testimony ... sufficient to convict.... But the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.

514 U.S. at 451, 453,115 S.Ct. 1555.

Before concluding, I am compelled to address the concurrence’s disagreement with what it calls my “depiction” of this case. By my best reading, I find three *496wholly unconvincing points buried in the concurrence and nary a citation.

The first point seems to be that the six items of withheld evidence were all impeaching as opposed to exculpatory, and that this would have rendered it somehow less valuable to competent defense counsel. This is a distinction not supported by case law. The Supreme Court has repeatedly “disavowed any difference between exculpatory and impeachment evidence for Brady purposes.” E.g., Kyles, 514 U.S. at 433, 115 S.Ct. 1555; Bagley, 473 U.S. at 676, 105 S.Ct. 3375. Regardless, it is also a contention unsupported by the record. As mentioned, the suppressed Detective Ro-beck report would have revealed that Louis Smith did not pick Johnson’s picture out of a pre-trial photo array, but instead chose the pictures of two other young, Black males. That the concurrence characterizes this as a mere “misidentification” strains credulity and ignores the Supreme Court of Tennessee’s finding that Louis Smith’s testimony was “insurmountable” because he supposedly “looked into the barrel of the pistol held by [Johnson] and [was] shot by him.” Johnson, 632 S.W.2d at 547.

The concurrence’s second concern appears to be that no motive existed for the three witnesses to implicate Johnson. This concern again finds no basis in law or fact. The touchstone of materiality is a “reasonable probability” of a different result. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. All suppressed evidence that has any value as exculpation or impeachment counts in determining whether materiality is satisfied. Id. at 450, 115 S.Ct. 1555. Indeed, even the concurrence must begrudgingly admit that the suppressed evidence would have assisted Johnson’s defense, notwithstanding that the witnesses apparently had no motive to lie. Surely, to conclude otherwise would be to proceed with blinders. Regardless, even assuming that the three eyewitnesses here had no motive to lie, the concurrence’s assertion that they needed a motive to implicate the wrong person defies common sense. They might just simply have been mistaken. The hallmark of an effective defense is bringing to light such mistakes. Without the suppressed evidence, there is no question that Johnson’s defense was severely crippled in accomplishing this basic defense task.

Finally, the concurrence appears to conclude, after summarily discounting almost the entire value of the suppressed evidence, that it would still have found Johnson guilty of the murders had it been a juror in a hypothetical trial where the suppressed evidence was disclosed. Musing about such hypotheticals, however, is unnecessary because that is not what Brady directs. Supreme Court precedent is crystal clear: the Brady materiality inquiry “is not a sufficiency of the evidence test.” Id. at 434, 115 S.Ct. 1555. “[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.” Id. at 453, 115 S.Ct. 1555. Here, there can be no confidence.

Johnson’s case is not even a close one. As in Kyles, Brigano, and others, the same is true here: confidence that Johnson’s verdict would have been the same simply cannot survive a recap of the suppressed evidence and its significance for the prosecution. The withheld evidence, taken together, reveals at a minimum that one witness’s first and most lucid description of the assailant did not comport with his in-court identification, that one witness may not have been present in Bell’s store on the night of the crimes, and that one witness implicated someone other than *497Johnson when confronted with a photo array containing Johnson’s picture. These were the same three witnesses that the Supreme Court of Tennessee called Johnson’s “insurmountable problem.” Johnson, 632 S.W.2d at 547. Had the prosecution disclosed the six items of withheld evidence, competent defense counsel may very well have destroyed the value of their identifications, or at least raised serious questions in the jurors’ minds as to their reliability. This is to say nothing of the potential inferences of police and prosecu-torial misconduct that the jurors may also rationally have made had they been apprised of the suppressed evidence. Simply put, Johnson’s defense was substantially crippled in cross-examining the three critical witnesses on the only serious issue in this case — identification. See Lindsey, 769 F.2d at 1040. “No reasonable court can have confidence in the decision of a jury that did not hear this withheld evidence.” Castleberry, 349 F.3d at 294 (citation omitted).

II.

The Tennessee Court of Criminal Appeals applied Kyles unreasonably when it determined that the evidence withheld by the prosecution was immaterial and that, without it, Johnson received a fair trial resulting in a verdict worthy of confidence. Such unreasonable application of Supreme Court precedent mandates that we grant Johnson’s petition for a writ of habeas corpus. So, I dissent.

. Johnson claims that the prosecution withheld seven items. One of the items is a defense filing in an unrelated case that arguably would have been readily available to Johnson by trial time. As that item does not change my analysis, I proceed assuming that it is not part of the Brady calculus and address only six of the suppressed items. See, e.g., Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (''[W]hen the information is readily available to the defense from another source, there simply is nothing for the government to 'disclose.' ” (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998))).