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Williams v. Williams

United States District Court, S.D. Georgia, Savannah Division

January 3, 2017

JAENAED M. WILLIAMS, Petitioner,
v.
STANLEY WILLIAMS, Respondent.

          REPORT AND RECOMMENDATION

         Following affirmance of his conviction for, inter alia, felony murder, Williams v. State, 290 Ga. 533, 540 (2012), Jarnard M. Williams unsuccessfully sought state habeas relief, doc. 14-22, [1] certificate of probable cause to appeal denied, doc. 14-23, and now petitions this Court for federal habeas relief under 28 U.S.C. § 2254. Doc. 1. Sentenced to life plus twenty years, Williams, 290 Ga. at 540 n. 1, Williams' core claim is that his prosecutor violated her Brady/Giglio[2] duty. After a thorough review of the record, the Court finds that the State court misapplied controlling Supreme Court precedent and unreasonably concluded that the state prosecutor had not made a side deal regarding the future prosecution of a key state witness when, in truth, not only had such a promise been made, but the prosecutor deliberately concealed that promise from the jury. Williams has shown, therefore, that he is entitled to federal habeas relief from his conviction.

         I. BACKGROUND

         Petitioner's Brady claim pivots on the testimony of Isaac Kemp Fitzgerald, the prosecution's star witness who vacillated when asked to positively identify Williams as one of the men who assaulted the group that he was in. As noted above in footnote 2, this claim is fact and context-sensitive, necessitating detailed factual recitation and case-comparisons. Williams has no quarrel with the Georgia Supreme Court's recitation of the facts:

At about 5:00 p.m. on October 25, 2007, [Wymberly] Baker, [Donald] Robinson, Isaac Fitzgerald, and Tereen Graham were talking in front of Baker's house in Savannah, Georgia, when a stolen black Toyota Highlander with three or four people in it pulled up. Two men got out and said they were there to rob the victims, who began running. The two men then began shooting. Baker was fatally shot in the chest, and Robinson was shot in the arm. After [Williams' co-defendant, James] Mitchell went through Baker's pockets, the two shooters jumped back in the SUV and fled the scene.
Shortly after the shootings, the police found the Highlander abandoned, with the doors open and the engine running. The two guns used in the shooting, a Tech-9 and a 9mm pistol, were later found near where the SUV was parked. An officer driving near the location of the SUV saw [Williams], who fit the description of one of the suspects and appeared out of breath, walking down the street. [Williams] was detained, and a detective told the officer to interview him and then release him, which the officer did.
Venus McKinney, who has a child with [Williams], voluntarily went to the police station on the day of the crimes. She told a detective that the night before, [Williams] and Chevis Borrum had come to her house in a black SUV; they drove around for a while; [Williams] parked the vehicle on the street; he spent the night with her; and he had a 9mm gun. McKinney told the detective that [Williams] left the house in the morning but came back and knocked on her window and asked her to hand him his gun, which she did. McKinney also said that the police had allowed [Williams] to call her when he was detained and she had falsely told the officer that [Williams] was with her at the time of the crimes. The detective testified that between the time of her statement and the trial, McKinney never told him that her story was untrue. At trial, however, McKinney recanted her statement, claiming that she gave the police false information because she became upset with [Williams] after seeing him earlier on the day of the crimes with one of his old girlfriends.
Jamel Williams testified that he knows both Mitchell and [Williams] because he sold them marijuana. On the day of the crimes, Mitchell, [Williams], and another man came to his house in a black SUV, and Jamel got in to make the transaction. Although Jamel testified at trial that he did not know if there were any weapons in the car and did not know the other man's name, the detective testified that, in a pre-trial statement, Jamel said that Mitchell had a Tech-9 and [Williams] had a 9mm handgun at the time of the drug sale and that Chevis Borrum and Eric Brown were also in the SUV.
Borrum testified that [Williams] was his "partner" and they had known each other about eight years. On the day of the crimes, Borrum said, he was walking with [Williams] when they were stopped and questioned by a police officer. However, he claimed not to recognize the black Highlander and denied being in it that day, saying that he was out walking when he ran into [Williams] on the street in the neighborhood where the SUV was found and they both live.
At trial, Fitzgerald identified Mitchell as one of the two shooters, but said that he could not identify the other assailant because the man was wearing a bucket hat and "kinda covering his face" with his shirt. On October 26 and December 20, 2007, the detective had shown Fitzgerald six-person photo lineups that included [Williams'] photograph. In the October 26 lineup, Fitzgerald circled [Williams'] photo but said he was not positive about the identification and wrote "a little bit" under the photo. The detective testified that Fitzgerald appeared scared and hesitant at that time. In the December 20 lineup, which used a clean copy of the same lineup card, Fitzgerald identified [Williams] as one of the shooters without qualification. Fitzgerald also testified that he had been reluctant to tell the police who the shooters were because he was "real scared about what happened." He added that two or three months after the crimes, he saw [Williams] at a bar, and [Williams] had come over and stood behind him until he and his friends moved.
Although Green and Robinson identified Mitchell as one of the shooters, neither could identify the second shooter. Robinson did testify, however, that Mitchell had a Tech-9 and the other shooter used a 9mm gun.

Williams, 290 Ga. at 533-35 (emphasis added).

         That court ruled that sufficient evidence supported petitioner's conviction. Williams, 290 Ga. at 535. Williams does not challenge that. Instead, "raising the same claims raised in his state habeas corpus petition, " doc. 21 at 2, he recapitulates the Brady and ineffective assistance of counsel (IAC) claims resolved against him on his direct and collateral appeals. Docs. 1 & 21. Those claims must be reviewed under The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

         II. GOVERNING STANDARDS

         The AEDPA bars federal courts from granting habeas relief to a state petitioner on a claim that was adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         The case law has fleshed out these statutory terms. On the "facts" prong, § 2254(d)(2), the Court "must presume the state court's factual determinations are correct, unless the petitioner rebuts that presumption with 'clear and convincing evidence.' 28 U.S.C. § 2254(e)(1)." Jones v. Sec'y Flo. Dept. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016). That's a tough showing to make: "The state court's decision must have been more than incorrect or erroneous. It must have been objectively unreasonable. If the AEDPA standard is difficult to meet, that is because it was meant to be." Id. (quotes, cites, and alterations omitted).

         As for the "law" prong, § 2254(d)(1),

a state court decision is based on an "unreasonable application" of clearly established federal law when it (1) "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case, " or (2) "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." [Williams v. Taylor, 529 U.S. 362, 407 (2000)]. The "'unreasonable application' inquiry . . . ask[s] whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This "requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003); see Harrington v. Richter, 562 U.S. 86, 101 (2011) ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." (internal quotation marks omitted)).

McCartney v. Sec'y, Fla. Dept. of Corr., 2016 WL 5349213 at * 4 (11th Cir. Sept. 26, 2016) (footnote omitted). "[A] state court's decision must be not merely wrong but so wrong that no reasonable judge could have reached that decision." Dassey v. Dittmann, ___F.Supp.3d___, 2016 WL 4257386 at * 18 (E.D. Wis. Aug. 12, 2016) (citing Woods v. Donald, 135 S.Ct. 1372, 1376 (2015)).

         On IAC[3] claims courts grant one layer of deference to counsel's decisions and a second to state court IAC rulings (hence, "double deference"). "The tandem effect of the deference given generally to state court decisions under AEDPA, combined with the deferential standard applied to review of an attorney's performance when challenged as being ineffective, means that it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding." Dorvil v. Sec'y, Dep't. of Corrs., 2016 WL 6090852 at * 4 (11th Cir. Oct. 19, 2016) (quotes and cite omitted). Courts determine "whether there is any reasonable argument that counsel satisfied Stricklands deferential standard.' Richter, 562 U.S. at 105." McCartney, 2016 WL 5349213 at * 4.

         Finally, sandbagging is prohibited. Petitioners must submit their claims to the state courts first. New claims advanced to a federal habeas court but not to the proper state court face dismissal on exhaustion, if not procedural default, grounds.[4]

         III. ANALYSIS

         A. Brady Violation

         Time erodes all memory and truth's too easily sold. Defense lawyers thus challenge witness perception, recall, and credibility. That task was especially important here because, as the above factual recitation shows, the State had no forensics (like fiber or fingerprints) to link Williams to the crimes. And, as the prosecutor would later concede, the State's case more or less hinged on just one, demonstrably "iffy" eyewitness: Fitzgerald. Williams thus counted on his appointed counsel (Michael Edwards) to zealously challenge Fitzgerald's pivotal testimony.

         It follows that a leniency deal with Fitzgerald -- one of sufficient impact that if disclosed to the jury it might undermine confidence in their verdict -- would have been critically important for Williams' prosecutor to disclose. See Wearry v. Cain, U.S., 136 S.Ct. 1002, 1006 (2016) (death-row, habeas litigant's conviction vacated upon a Brady violation over police promise to prosecution witness that they would "talk to the D.A. if he told the truth.") (quotes omitted).[5] Indeed, long before petitioner's trial, black-letter law mandated that any formal or informal, written or unwritten, deals or "understandings" had to be .Brac?y-disclosed:

Giglio did not speak in terms of the state's duty to disclose only bona fide enforceable grants of immunity. Its reach extends to "any understanding[s] or agreement[s]." Giglio, 405 U.S. at 155, 92 S.Ct. at 766 (emphasis added); [Williams v. Brown, 609 F.2d 216, 221 (5th Cir. 1980)] (duty to disclose extends to "any promises, agreements, and understandings"). Cf. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985).

Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985) (emphasis added).

         "And, even mere 'advice' by a prosecutor concerning the future prosecution of a key government witness may fall into the category of discoverable evidence." Tarver, 169 F.3d at 717 (quotes, cite and alteration omitted). Indeed, a witness' mere attempt to obtain a deal before testifying is material, and thus must be disclosed, because a jury may well conclude "that [the witness] had fabricated testimony in order to curry the [prosecution's] favor.'" Wearry, 136 S.Ct. at 1007 (quoting Napue v. Illinois, 360 U.S. 264, 270 (1959)) (emphasis added). After all, "[t]he amount of prison time a government witness is hoping (or expecting) to avoid by cooperating can be very relevant to his motivation to do (and say) what pleases the government." United States v. Hall, ___F.3d___, 2016 WL 7383970 at *8 (11th Cir. Dec. 21, 2016) (concurrence).

         Thus, in LaCaze v. Warden, 645 F.3d 728 (5th Cir. 2011), the Fifth Circuit reversed a district court's failure to grant a § 2254 petition where the prosecution failed its Brady duty to disclose the material fact that a witness (who had admitted to shooting the victim and implicating the defendant) had received a verbal assurance from the district attorney's investigator that his son would not be prosecuted. It did not matter that the prosecution told the jury that the witness had received a reduced- plea deal on his own sentence, because he had testified that he "probably would not have given" his implicating statement without the side-deal taking care of his son. Id. at 735-36. The state supreme court's determination -- minimizing that violation as not sufficiently material because of the other, disclosed plea deal, the witness' disclosed criminal record, and the fact that his testimony was corroborated -- was objectively unreasonable. Id. at 736-39. LaCaze reminded that even partly formed understandings, agreements, and side-deals must be disclosed:

[T]he Supreme Court has never limited a Brady violation to cases where the facts demonstrate that the state and the witness have reached a bona fide, enforceable deal. In Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court explained that the key question is not whether the prosecutor and the witness entered into an effective agreement, but whether the witness "might have believed that [the state] was in a position to implement . . . any promise of consideration." Id.; see Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008) ("A promise is unnecessary."). In fact, "evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness's] credibility." Giglio, 405 U.S. at 155, 92 S.Ct. 763. The question is "the extent to which the testimony misled the jury, not whether the promise was indeed a promise . . . ." Tassin, 517 F.3d at 778 (citing Napue, 360 U.S. at 270, 79 S.Ct. 1173).

Id. at 735 (emphasis added).

         Even the possibility of a reward must be disclosed. United States v. Sigillito, 759 F.3d 913, 930 (8th Cir. 2014) ("the prosecutor must disclose the possibility of a reward that gives the witness a personal stake in the defendant's conviction. United States v. Bagley, 473 U.S. 667, 683 (1985)."). Hence -- as reaffirmed just months ago by Wearry - that stake can arise from a mere generalized assurance:

In the present case, when [the prosecutor] asked the witness, "Have I or any other Assistant District Attorney or anyone offered you any kind of deal or any kind of promise or anything in regard to your testimony today?" the truthful answer (as the prosecutor knew) was "Yes." The witness falsely testified "No." The prosecution cannot, by keeping its promises of consideration to a witness general in language or tone, escape the fact that it gives the witness reason to believe that his or her testimony will lead to favorable treatment by the State. Unquestionably agreements in general terms to reward testimony by consideration create an incentive on the witness' part to testify favorably to the State and the existence of such an understanding is important for purposes of impeachment.

Dubose v. Lefevre, 619 F.2d 973, 979 (2nd Cir. 1980) (emphasis added).

         Reminding this Court that his conviction pivots on this single eyewitness' (Fitzgerald's) testimony, Williams contends that the state habeas court unreasonably erred by denying his Brady claim. Doc. 1 at 18; doc. 21 at 3-4, 10-18. That court ruled:

In Ground 2 Williams claims that he was denied federal due process of law and [a] fair trial when the prosecution concealed material impeachment evidence. Isaac Fitzgerald, an eyewitness to the shootings, identified Williams as one of the shooters. Fitzgerald also identified Williams in a photographic lineup. Williams claims that the State made a deal with Fitzgerald, who had a pending drug and firearm case, that he would be given favorable treatment if he testified favorably for the State against Williams. Melanie Higgins, the assistant district attorney who represented the State at trial and on appeal, testified at the second [state habeas] hearing that she did not make any plea offer or deal with Fitzgerald, but that she did tell him that she would notify the assistant district attorney in charge of his case about his cooperation with the State and that the other ADA could consider that in making a plea offer to him.

Doc. 14-22 at 2 (record cites omitted).

         After Higgins promised Fitzgerald to inform his prosecutor about his testimonial cooperation, Fitzgerald in fact testified and it was material -- indeed, critical:

After Williams' trial, Ms. Higgins sent an email to the ADA in charge of Fitzgerald's case, Ann Elmore, that Fitzgerald did testify for the State and that "I don't think there would have been a conviction against Williams had he not testified." The email also asked Ms. Elmore to consider Fitzgerald's cooperation in determining what his sentence recommendation will be. The warden submitted Ms. Elmore's affidavit which stated that she had made no plea offer to Fitzgerald before Williams' trial. Williams' counsel apparently did not know that Ms. Higgins had told Fitzgerald that she would ask Ms. Elmore to consider Fitzgerald's cooperation, [but] trial counsel did know that Fitzgerald had a pending felony case and cross examined him about it.

Doc. 14-22 at 2-3 (emphasis added; record cites omitted).

         Too, there was no dispute that Fitzgerald later received the benefit of his bargain with Higgins. Doc. 14-2 at 23 (Higgins, cross-examined by Williams at the second state habeas hearing in this case, admitted that she kept her end of the bargain after Fitzgerald testified against Williams: "I told [Elmore] that [Fitzgerald] had testified at trial, that it was certainly under adverse circumstances since he had been threatened, and that she should consider that in making a plea offer to him."); doc. 14-20 at 65 (her June 11, 2009 email); doc. 14-20 at 70 (Elmore's June 29, 2009 email plea offer to Fitzgerald's counsel: no jail time but, inter alia, 60 hours of Community Service Work "[a]fter having reviewed the facts of this case, as well as Melanie Higgins' description of his cooperation in connection with her murder case"); id. at 71 (Elmore's July 27, 2009 email altering the deal in light of new charges but still citing "Higgins' description of his cooperation in connection with her murder case" and offering her "hopes that we can work out a global resolution of the defendant's cases.").

         At the second state habeas hearing in this case the State asked Higgins about her transaction with Fitzgerald:

Q. Now, Ms. Higgins, just to be clear, did you promise Mr. Fitzgerald any particular disposition of his case?
A. No. The only thing I told him was that, assuming that he showed up and testified and -- not necessarily testify. In other words, I didn't tell him what to testify to. In other words, if he showed up and testified, that I would tell Ms. Ellmore that he was helpful to the State and that she could consider that in making a plea offer to him, but I didn't get into any sort of plea negotiations or tell him that I was going to make any particular suggestions on a plea offer to Ms. Elmore.
Q. And just to be clear, you did not offer him -- did you offer him a plea offer in exchange for his testimony in your case?
A. Absolutely not.

Doc. 14-3 at 11-12 (emphasis added).

         Accepting this testimony, the state habeas court then crossed over the § 2254(d)(1)-(2) (fact if not also law prong) unreasonableness line. Seeking relief, Williams argued that: (a) a hidden deal had been cut; (b) it made a material difference. The habeas court nonsensically mismashed those two concepts to find that Higgins had cut no leniency deal with Fitzgerald because it was not material:

This court concludes that there was no Brady violation because the State did not make a deal, formal or informal, for Fitzgerald's testimony. The mere fact that Fitzgerald knew that Ms. Higgins would recommend to Ms. Elmore that she consider Fitzgerald's favorable testimony in making a plea recommendation is not material in that there is no reasonable probability that the jury would have found Williams not guilty if the jury had known about Ms. Higgins' promised recommendation.[6] United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Consequently, there was no deficient performance by trial counsel or appellate counsel for failing to raise and litigate Williams' Brady violation claim.

Doc. 14-22 at 3 (emphasis and footnote added); see also Id. at 5 ("this court has found that the State did not have an agreement with Isaac Fitzgerald for his testimony."). Again, the issue was whether: (a) a deal had been cut; and (b) it made a material difference to the case -- not that no deal had been cut because it would not have made any difference to the jury's verdict (an otherwise nonsensical, speculative construct).

         The resolution of the presented (as opposed to mishmashed) issue is obvious: Of course Higgins cut a deal, of course "the State . . . had] an agreement with Isaac Fitzgerald for his testimony, " and of course it was material. As just reiterated by the U.S. Supreme Court: Even a generalized assurance -- from the police, let alone the prosecutor -- is enough to trigger the prosecutor's Brady obligation. Wearry, 136 S.Ct. at 1006 (granting Brady relief on, inter alia, an undisclosed verbal police promise "that they would 'talk to the D.A. if he told the truth'" in exchange for testimony against the accused; death-penalty conviction vacated). And the materiality standard is not very demanding: Whether the nondisclosure put the whole case in a different light and thus undermined confidence in the verdict. Id. Again, that means that Williams "can prevail even if . . . the undisclosed information may not have affected the jury's verdict." Wearry, 136 S.Ct. at 1012 n. 6.

         Higgins was required to disclose to the defense her verbal promise to Fitzgerald that she would tell Elmore of his cooperation.[7] To insist otherwise, merely because she omitted the "leniency" adjective when recounting her obvious promise to Fitzgerald (in effect, to "talk to the D.A., " as in Wearry), [8] is to enable cynically manipulative semantics to trump reality. And it cannot reasonably be questioned that Fitzgerald's testimony was material. Higgins herself said: "I don't think there would have been a conviction against Williams had he not testified." Doc. 14-22 at 2-3. The state habeas court itself noted that very testimony before inexplicably dismissing Fitzgerald's testimony and deal as not material (i.e., "that there is no reasonable probability that the jury would have found Williams not guilty if the jury had known about Ms. Higgins' promised recommendation."). It is difficult to fathom how a jury could not view the case in a different light had it known that Fitzgerald -- shaky on his identification of Williams in the first place now had a powerful leniency incentive to please the State with his testimony.

         That the state habeas court unreasonably erred is amply underscored by even a passing comparison to the slew of prior, "mere promise" and "understanding" cases, as recently applied in Wearry. Brady, Giglio, and Napue, long ago coalesced into black letter federal law that Higgins unmistakably violated here. Wearry, for that matter, bears compelling comparison to this case because there a generalized police (not even a prosecutor's) promise found deep in its factual weeds would ultimately overturn a state supreme court and vacate a capital conviction.

         A state-court jury convicted and death-sentenced Michael Wearry for the brutal murder of Eric Walber. Wearry, 136 S.Ct. at 1002. Nearly two years after that murder, inmate Sam Scott contacted authorities and implicated Wearry. Id. at 1003. Scott claimed, inter alia, that Wearry and others had confessed to shooting and driving over Walber's body, then leaving his body on a particular road. Id. But Scott got it wrong. Walber had not been shot, and his body had been found on another road. Wearry, 136 S.Ct. at 1003. "Scott changed his account of the crime over the course of four later statements, each of which differed from the others in material ways. By the time Scott testified as the State's star witness at Wearry's trial, his story bore little resemblance to his original account." Id. The prosecution presented no physical evidence, but offered additional circumstantial evidence to link Wearry to the victim. Id.

         That included testimony from another inmate, Eric Brown, who claimed to the jury that he was testifying "solely because his sister knew the victim's sister." Wearry, 136 S.Ct. at 1003. Brown acknowledged that he'd made a prior inconsistent statement to the police. And the prosecution insisted, at trial, that even though Brown was "doing 15 years on a drug charge, " he sought no benefit in exchange for his testimony. Id. In addition to advancing testimony from Scott and Brown, the state also tried to link Wearry to the crime through other witnesses' testimony. Ultimately the jury rejected Wearry's alibi defense when it found him guilty. Id. at 1003-04.

         "After Wearry's conviction became final, it emerged that the prosecution had withheld relevant information that could have advanced Wearry's plea." Wearry, 136 S.Ct. at 1004. It had failed to disclose police records that would have undermined Scott's credibility. Id. It also "had failed to disclose that, contrary to the prosecution's assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would 'talk to the D.A. if he told the truth.'" Id.[9] Finally, it had failed to turn over helpful medical and other evidence that would have impeached Scott. Id. at 1005.

         Reversing the state supreme court's refusal to overturn Wearry's conviction, the Wearry Court first reminded how even the bare nub of a "deal" or "promise" will be considered material, and thus disclosable:

"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, supra, at 87, 83 S.Ct. 1194. See also Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (clarifying that the rule stated in Brady applies to evidence undermining witness credibility). Evidence qualifies as material when there is "'any reasonable likelihood'" it could have "'affected the judgment of the jury.'" Giglio, supra, at 154, 92 S.Ct. 763 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). To prevail on his Brady claim, [a petitioner] need not show that he "more likely than not" would have been acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, ___-___, 132 S.Ct. 627, 629- 631, 181 L.Ed.2d 571 (2012) (internal quotation marks and brackets omitted). He must show only that the new evidence is sufficient to "undermine confidence" in the verdict. Ibid.

Wearry, 136 S.Ct. at 1006 (emphasis added).

         The Wearry Court agreed with the two-justice dissent on what "undermine confidence" means: "Given this legal standard, Wearry can prevail even if, as the dissent suggests, the undisclosed information may not have affected the jury's verdict." Wearry, 136 S.Ct. at 1006 n. 6. The bottom line, then, is whether the undisclosed Brady evidence was sufficient to "undermine confidence" in the verdict. Id. Judges make that call, so judicial confidence informs that standard, and judges are duty-bound to prevent due-process offending misuse of their courts.[10]

         In Wearry's case, "[t]he State's trial evidence resemble[d] a house of cards, built on the jury crediting" a main witness's testimony that Wearry committed the murder over Wearry's alibi evidence. Wearry, 136 S.Ct. at 1006. Postconviction investigation unearthed substantial impeaching evidence against Scott that never made it to the jury, and "any juror who found Scott more credible in light of Brown's testimony might have thought differently had she learned that Brown may have been motivated to come forward not by his sister's relationship with the victim's sister -- as the prosecution had insisted in its closing argument -- but by the possibility of a reduced sentence on an existing conviction." Id. at 1007.

         Hence, a mere police promise to say something beneficial if Brown truthfully testified triggered the Brady disclosure requirement and thus supported reversal. More to the point, Brown's mere understanding of what the police promised was enough to flip that switch. Id.; see also LaCaze, 645 F.3d at 738 (a key witness' mere "understanding" of leniency is enough).

         In Wearry, the prosecution adduced other evidence -- beyond Brown's testimony -- supporting Wearry's conviction, yet the Brady violation involving the police promise in response to Brown's leniency quest was enough to unravel the conviction and death sentence. Likewise here, the State adduced other, circumstantial evidence (through only one eyewitness, Fitzgerald), but the same result is warranted, and for a Brady violation involving not the police, but the prosecutor herself.

         Because Fitzgerald's testimony was material -- even crucial -- it cannot reasonably be denied that Higgins' Brady violation (her failure to disclose that Fitzgerald had an extra, "leniency incentive" to identify Williams) easily undermined confidence in the verdict here, and thus more than meets the Brady materiality standard. And because the "Higgins/Fitzgerald deal" triggered Brady, the state habeas court's ruling directly collides with (as reinforced by Wearry) binding precedent established long prior to Williams' 2009 conviction and the state habeas court's April 10, 2015 ruling. Williams therefore is entitled to have his conviction vacated for a new trial.

         B. ...


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