Randy Boss and Revell Boss v. Guy Pierce and Mark A. Pierson

FLAUM, Chief Judge,

dissenting.

Like the majority, I share a sense of concern regarding the circumstances of this case. Given the facts before us, the preferable course of action would have been for the trial judge to grant the defense a continuance so that they could have further investigated any additional information which might have been provided by witness Janice Hill. Nevertheless, I am unable to conclude that the Bosses are entitled to a writ of habeas corpus under the standard mandated by 28 U.S.C. § 2254 (d)(1) as interpreted in Williams v. Taylor, 529 U.S. 362, 402-13 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). In my judgment, the Illinois Appellate Court’s determination, that no evidence from Hill was suppressed by the prosecution since she was a cooperative defense witness, cannot be labeled an unreasonable application of Brady in light of the controlling jurisprudence.

I agree with the majority .that the Illinois court’s decision was not “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1).’ Thus, I address only whether the decision is an unreasonable application of such law. The Illinois Appellate Court’s decision fits into a line of circuit cases rejecting Brady claims based on evidence that could have been discovered by the defense with reasonable diligence, see, e.g., Chandler v. Moore, 240 F.3d 907, 915 (11th Cir.2001); United States v. Grintjes, 237 F.3d 876, 880 (7th Cir.2001); Johns v. Bowersox, 203 F.3d 538, 545 (8th Cir.2000), or where the defense knew or should have known of the essential facts necessary to obtain the exculpatory evidence, see, e.g., Coleman v. Mitchell, 244 F.3d 533, 541 (6th Cir.2001); United States v. Zichettello, 208 F.3d 72, 103 (2d Cir.2000). These cases present a reasonable interpretation of Brady since a Brady violation can occur only if evidence is suppressed, and, generally, evidence available to the defense cannot be so characterized.

In deciding whether potentially exculpatory evidence could have been found through reasonable diligence, our court focuses on whether the defense had knowl *747 edge of the material containing such evidence and the same degree of access as the prosecution. See United States v. Parks, 100 F.3d 1300, 1307 (7th Cir.1996); United States v. Morris, 80 F.3d 1151, 1170 (7th Cir.1996). To defeat a Brady claim, the defense need not be aware of the specific details of the exculpatory information or precisely what it is so long as the defense knew of and had access to the material that contained, or the witness who possessed, such information. See, e.g., United States v. Senn, 129 F.3d 886, 892-93 (7th Cir.1997); Parks, 100 F.3d at 1307 .

Respectfully, I cannot find the Illinois Appellate Court’s decision wanting under these standards. Both of the Bosses clearly were aware of Janice Hill, as she testified in favor of one of the defendants, Randy. Since Randy and Revell were tried jointly, Revell must have also known of Hill. Additionally, the Bosses had at least as much access to Hill as the state did considering that she was one of their witnesses. The defense was aware that Hill had evidence relevant to the crime and had ample opportunity to interview Hill in order to obtain all of the information she knew about Eugene Oliver’s death, including Robert McAfee’s involvement. The Bosses have not demonstrated or suggested that Hill was uncooperative or that they otherwise would have had more difficulty in obtaining information from Hill than the prosecution did.

The majority seeks to cabin the need for the defense to be reasonably diligent through a variety of distinctions that are, in my view, unavailing. The reasonable diligence requirement has frequently been applied to evidence that was unwritten. See, e.g., United States v. Zagari, 111 F.3d 307, 320 (2d Cir.1997); Hoke v. Netherland, 92 F.3d 1350, 1355-56 (4th Cir.1996). Indeed, obtaining information through questioning often requires less diligence than sorting through papers. Thus, the fact the proposed evidence in question was contained in Hill’s mind rather than a document is not a reason for excusing the defense’s not uncovering information known by one of their own witnesses.

In addition, a specific lead is not necessary for a reasonably diligent defendant to discover exculpatory information; knowledge of and access to a witness usually are sufficient. See, e.g., Wright v. Hopper, 169 F.3d 695, 702 (11th Cir.1999); Hoke, 92 F.3d at 1355-56 ; United States v. Hicks, 848 F.2d 1, 4 (1st Cir.1988); United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988). The majority’s quotation from our decision in United States v. Hamilton, 107 F.3d 499, 508-09 (7th Cir.1997) demonstrates this proposition. Hamilton does not rest on the defense’s possession of information indicating what specific questions a witness should have been asked. Rather, by the simple fact that the bank teller in Hamilton was a witness the defense should have known to ask whether he had given any prior statements to the police. Id. Similarly, in the days before trial the Bosses’ attorneys readily could have asked Hill if she had learned any additional information relevant to the case since their previous interview.

The Illinois Appellate Court’s decision does not disrupt the prosecutor’s duty to seek justice before victory. Brady was never meant to displace our adversary system of justice, United States v. Bagley, 473 U.S. 667, 675 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), and does not require the prosecution to assist in presenting the defense’s case, United States v. White, 970 F.2d 328, 337 (7th Cir.1992). Even after Brady, defendants are still required to conduct thorough investigations of witnesses which they know may have useful information.

Furthermore, and perhaps most significantly, cases denying Brady claims often have relied on the fact that the witness *748 with the exculpatory material was either a defense witness or cooperated with the defense. See Stockton v. Murray, 41 F.3d 920, 925 (4th Cir.1994); United States v. Dean, 722 F.2d 92, 95 (5th Cir.1983); United States v. Notale, 526 F.2d 1160, 1171 (2d Cir.1975). Against the backdrop of this case law, it is difficult to conclude that the Illinois Appellate Court unreasonably applied the Supreme Court’s directives regarding Brady.

The foregoing is not meant to suggest in any way a broad, strict rule that Brady is in all' circumstances inapplicable to information obtained by the prosecution from defense witnesses. As the majority appropriately recognizes, a defense witness may forget information, may be reluctant to provide certain information to the defendant, or may become hostile to the defense, cf. In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 893 (D.C.Cir.1999). Perhaps the refusal to recognize the possibility of a Brady violation in such circumstances would be an unreasonable refusal to extend a legal principle. Cf. Williams, 529 U.S. at 408-09 , 120 S.Ct. 1495 . However, we are not presented with such circumstances. The Bosses have made no claim that Hill was unwilling or unable to provide the information she possessed. Hence, based on the record before us, I am simply unable to find sufficient support for the grant of the writ of habeas corpus and must therefore respectfully dissent.