United States District Court, S.D. Georgia, Savannah Division
JAENAED M. WILLIAMS, Petitioner,
STANLEY WILLIAMS, Respondent.
REPORT AND RECOMMENDATION
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,  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 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.
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
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
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).
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 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
(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;
(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).
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
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)).
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.
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,
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
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). 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).
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)
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).
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)
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).
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).
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
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
A. Absolutely not.
Doc. 14-3 at 11-12 (emphasis added).
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. 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).
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
was required to disclose to the defense her verbal promise to
Fitzgerald that she would tell Elmore of his
cooperation. 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),  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
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.
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
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.
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. Finally, it had failed to turn
over helpful medical and other evidence that would have
impeached Scott. Id. at 1005.
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
"[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
Wearry, 136 S.Ct. at 1006 (emphasis added).
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.
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.
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).
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.
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.