State v. Caughron

DAUGHTREY, Justice,

dissenting.

I believe that this case should be remanded for a new trial because of unwarranted interference with the defendant’s right to due process — by the police, by the prosecution, and by the trial court. Hence, I respectfully dissent from the majority opinion.

The majority’s recapitulation of the evidence in this case demonstrates that the testimony of the defendant’s teenaged accomplice, April Ward, was not only crucial to the state’s case against Gary Caughron, it was the state’s case against him. The FBI developed no forensic evidence implicating Caughron, despite extensive testing on fingerprints, shoeprints, blood and other fluids, and fibers. The boot print on the victim’s bedroom door established that someone other than the defendant had kicked in the door. Statements that Cau-ghron made to friends and associates were incriminating to some extent, but for the most part were brief and ambiguous. These statements certainly would not support a murder conviction in the absence of April Ward’s testimony.

The police department and the district attorney’s office clearly understood April Ward’s significance as a prosecution witness. But, at least initially, she was not a cooperative witness. Beginning in June 1988 with the first statement she gave police, and ending with the sixth and last one she gave them in November 1988, April Ward made a total of six pretrial statements, no two of which were completely consistent with each other.

From the beginning, the police and the prosecution sought to shield April Ward and the information she had given them from the defendant’s attorneys. During the course of their investigation, the police directed April Ward’s mother, Lettie Cruze, not to permit April to talk with defense counsel. Because April Ward was effectively under “house arrest” during the months immediately before trial, this directive cut off any access that defense counsel might have had to this crucial witness during his investigation of the case and preparation for trial.

In response to the defendant’s pretrial “Brady motion” — seeking pretrial disclosure of material evidence favorable to the defense — the prosecutor failed to provide defense counsel with copies of April Ward’s prior inconsistent statements. And when, finally, the prosecutor turned over copies of witness statements to the defen *545 dant’s attorneys on the first night of trial, counsel was faced with the prospect of digesting over 100 pages, constituting the statements of 20 potential state witnesses, in the few hours before trial resumed the next morning. The next day, the trial judge refused to recess trial following April Ward’s testimony on direct examination, despite counsel’s representation that he had not had adequate time to review her pretrial statements and was unprepared to cross-examine her. As a result, defense counsel was not only prevented from gathering information that could have been developed from interviewing April Ward. He was also denied discovery of her statements prior to trial, and he was forced to conduct cross-examination of the state’s crucial witness without the benefit of adequate preparation.

The trial court laid the blame for this predicament on the defendant’s attorney. The majority here finds no error in the trial court’s ruling. I conclude, to the contrary, that the combined action of the police, the prosecutors, and the trial judge operated effectively to deprive the defendant of his right to due process. 1

Moreover, the cumulative prejudice resulting from the due process violations in this case, in which the defendant has been convicted and sentenced to death, cannot be written off as harmless error. While the defendant’s lead attorney did cross-examine April Ward at trial, there is no way to measure how much more vigorous and effective his cross-examination might have been if he had been able to interview the witness in person prior to trial, or had been furnished with her prior inconsistent statements in response to his timely discovery motion, or had been given an adequate opportunity to review those statements and use them to prepare an effective cross-examination following her testimony on direct examination, all of which he was enti-tied to do under state and federal law and under our rules of procedure.

To use a colloquialism that summarizes the situation most descriptively, Cau-ghron’s attorneys were effectively “stonewalled” by state officials involved in the investigation and prosecution of this ease. Without any realistic gauge with which to measure the extent of prejudice to the defendant as a result of the due process violations apparent in this record, I conclude that the only appropriate relief is to grant the defendant a new trial, at which the defense will have the benefit of the discovery and disclosure that it should have had prior to and during the first trial. In reaching this conclusion, I do not wish to minimize in any way the wholly reprehensible nature of the homicide committed in this case, against an innocent and ultimately helpless victim. To insist on honoring the due process rights of the accused is an obligation imposed on courts and the judicial system by the state and federal constitutions. It in no way minimizes the heinousness of the guilty party’s conduct.

I. POLICE INTERFERENCE WITH TRIAL PREPARATION

The due process violation in this case began with a police directive to April Ward’s mother, Lettie Marie Cruze, not to let April talk to the defendant’s counsel during the investigatory stage of this case. It was only the first in a series of efforts to thwart defense access to information about the case.

The due process implications of government interference with a defendant’s right to interview potential witnesses may best be seen as a continuum, at one end of which is the active concealment of key witnesses. When a prosecutor deliberately conceals a material witness and the defense is thereby prejudiced, a due process violation results. See, e.g., Freeman v. State of *546 Georgia, 599 F.2d 65, 69 (5th Cir.1979), cert. denied, 444 U.S. 1013 , 100 S.Ct. 661 , 62 L.Ed.2d 641 (1980); Lockett v. Blackburn, 571 F.2d 309, 313 (5th Cir.), cert. denied, 439 U.S. 873 , 99 S.Ct. 207 , 58 L.Ed.2d 186 (1978).

Falling somewhere along the continuum of cases illustrating prosecutorial interference with a defendant’s right of access to witnesses are those cases in which a prosecutor has instructed a witness not to talk to defense counsel. The law is well-settled that prospective witnesses do not belong to either party, and for this reason neither side should suggest that a witness refrain from talking to opposing counsel. Gammon v. State, 506 S.W.2d 188, 190 (Tenn.Crim.App.1973); United States v. Matlock, 491 F.2d 504 (6th Cir.), cert. denied, 419 U.S. 864 , 95 S.Ct. 119 , 42 L.Ed.2d 100 (1974). Of course, a witness has the right to refuse to be interviewed. Byrnes v. United States, 327 F.2d 825, 832 (9th Cir.1964). Nevertheless, when the state instructs a witness not to talk to defense counsel and defendant’s trial preparation is thereby hindered, or other prejudice results, due process may be violated.

For example, in Gregory v. United States, 369 F.2d 185 (D.C.Cir.1966), remanded, 410 F.2d 1016 (D.C.Cir.1969), cert. denied, 396 U.S. 865 , 90 S.Ct. 143 , 24 L.Ed.2d 119 (1969), the prosecuting attorney advised the witnesses to two robberies not to talk to anyone in his absence. The court stated:

It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview.

Id. 369 F.2d at 189 . The Gregory court, therefore, found that the state had prejudiced the defendant’s pre-trial preparation and thereby deprived him of a fair trial.

In Nichols v. State, 581 So.2d 1245 (Ala.Cr.App.1991), the Alabama Court of Criminal Appeals reversed a conviction after the district attorney sent letters to prospective witnesses asking them not to discuss the case without a government attorney present. The court quoted Gregory at length, as well as Gallman v. State, 29 Ala.App. 264 , 195 So. 768 (1940), to the effect that it is “a mistake of a serious nature for a trial court, or opposing counsel, to assume or intimate that counsel for the defendant is not at full liberty to question ... any person who knows or is presumed to know the facts [of the case]_” Nichols, 581 So.2d at 1249 (citing Gallman, 195 So. at 770 ). Based on this authority, “the serious nature of [the] case,” and the witness’s testimony that the prosecutor’s letter influenced his decision not to talk to defense counsel, the court reversed the conviction and remanded the case for a new trial.

Another court recognized the potential for a due process violation when the state advised witnesses that they “couldn’t or shouldn’t” give statements to defense counsel. In United States v. Peter Kiewit Sons’ Co., 655 F.Supp. 73 (D.Colo.1986), a court ordered the witnesses to submit to depositions in order to cure the problem. That court noted that the witnesses were “particularly vulnerable to suggestion and anxious not to offend the prosecutors” because they were concerned that they, too, could be indicted. The court found it “grossly unfair” to permit this kind of prosecutorial misconduct, which had “unfairly hampered the defendants’ investigation.” Id. at 78 . Both this case and Gregory are examples of courts perceiving the obvious hindrance to defense counsel’s trial preparation when the state instructs witnesses not to talk.

Although instructing a witness not to talk with defense counsel may constitute a due process violation, some courts, emphasizing the requirement of prejudice, have found no constitutional error when the defendant does not appear to have been harmed by the misconduct. For example, in Kines v. Butterworth, 669 F.2d 6 (1st Cir.1981), cert. denied, 456 U.S. 980 , 102 S.Ct. 2250 , 72 L.Ed.2d 856 (1982), a state trooper instructed three witnesses, the cor *547 rectional officers present after a prison assault, not to discuss the case with the defense attorney. However, the officers were not eyewitnesses; their testimony contained no surprises; counsel did not request a recess after the direct examinations; and cross-examination of the witnesses was thorough. The court, finding “nothing that unfairly affected or handicapped appellants in preparation for trial,” held that due process was not violated because defendant could show no prejudice to his case. Id. 669 F.2d at 11 .

In judging whether a defendant has been denied due process by the state’s directive to a potential witness not to talk to defense counsel, the courts use an analysis much like that used in Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), governing.the right to pretrial discovery of exculpatory evidence material to the issue of the defendant’s guilt, discussed further in Section II, infra. The defendant must show that the state withheld favorable, material evidence and that its suppression was prejudicial to the defendant’s case. Courts will find prejudice, however, when defendant’s pre-trial preparation is hampered by the inability of counsel to assess the credibility of witnesses. The courts also consider the other information available to defense counsel, such as pretrial statements, and they look for such indicia of prejudice as requests for recesses and poorly prepared cross-examinations. These factors contribute to what inevitably becomes a subjective assessment of the damage likely to have been done by the state’s misconduct.

In this case, prejudice is clear. Unlike the government officials in Freeman and Lockett , the state prosecutor here did not physically conceal April Ward. The prosecution did, however, insist that she be kept at home and then took advantage of her vulnerability and fear of punishment by advising her mother not to let April discuss the case with the defendant’s attorneys. The actual damage to defendant’s trial preparation is incapable of qualitative assessment, but defense counsel’s efforts to secure copies of April Ward’s statement(s) prior to trial, as well as his repeated requests for time to review the statements provided to him the night before her direct examination, suggest that unlike the efforts of the attorneys in several of the cases discussed above, Caughron’s counsel’s efforts to defend his client were hampered by the complete lack of access to the state’s crucial witness.

II. STATE’S REFUSAL TO SUPPLY BRADY MATERIAL

Of course, the prosecution might have overcome any prejudice caused by police interference with the defendant’s efforts to prepare his defense, had the state produced April Ward’s various conflicting statements in response to the defendant’s motion for pretrial disclosure. Although there - is no general right to discovery in a criminal trial, 2 the United States Supreme Court has held that “the 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 v. Maryland, supra, 373 U.S. at 87 , 83 S.Ct. at 1196-97 . 3 While Brady contemplates the suppression of many types of exculpatory evidence, the Supreme Court has specifically held that evidence impeaching a government witness’s credibility may be exculpatory within the meaning of Brady. See Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972); United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985). Likewise, in State v. Williams, 690 S.W.2d 517, 525 (Tenn.1985), this Court held that “when the reliability of a witness may well *548 be determinative of guilt or innocence, the non-disclosure of evidence affecting his credibility may justify a new trial, regardless of the good faith or bad faith of the prosecutor.” Moreover, the inconsistent statements of a witness are considered impeachment evidence favorable to a defendant. See, e.g., United States v. Polisi, 416 F.2d 573 (2d Cir.1969); United States v. Shaffer, 789 F.2d 682, 689 (9th Cir.1986). The witness to be impeached cannot, however, be one whose credibility does not affect defendant’s guilt or innocence, a limitation that is clearly met in this case. See generally United States v. Starusko, 729 F.2d 256 (3d Cir.1984).

When asked to decide whether suppressed evidence is material, the courts have generally held that “the materiality of the withheld evidence may depend on the closeness of the case.” Carter v. Rafferty, 826 F.2d 1299, 1308 (3d Cir.1987). See also Boone v. Paderick, 541 F.2d 447 (4th Cir.1976); United States v. Sutton, 542 F.2d 1239 (4th Cir.1976). For example, in Sta-rusko, supra, the court found that the impeachment of a “key government witness” was material because “his credibility may well be determinative of guilt or inno-cence_ He is the linchpin of the prosecution’s case.” 729 F.2d at 260-61 . Thus, a reviewing court must consider the materiality of the withheld evidence in light of the other evidence presented.

A due process violation requires more than the suppression of significant exculpatory evidence, however. The Fourth Circuit noted in United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.), cert. denied sub nom. Dellinger v. United States, 474 U.S. 1005 , 106 S.Ct. 524 , 88 L.Ed.2d 457 (1985) (citing United States v. Higgs, 713 F.2d 39 (3d Cir.1983)), that “no violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.” See also United States v. McCrary, 699 F.2d 1308 (11th Cir.1983). In United States v. Darwin, 757 F.2d 1193 (11th Cir.1985), the Eleventh Circuit faced a situation in which the government had disclosed impeachment evidence after a witness had testified. Noting the conclusions of the Seventh, Tenth, Third and Eighth Circuits, that court held that “[t]he point in the trial when a disclosure is made ... is not in itself determinative.... We agree with those circuits holding that a defendant must show that the failure to earlier disclose prejudiced him because it came so late that the information disclosed could not be effectively used at trial.” 757 F.2d at 1201 .

Although the complete non-disclosure of significant exculpatory evidence often makes an easy case for a due process violation, delayed disclosure requires an inquiry into whether the delay prevented the defense from using the disclosed material effectively in preparing and presenting the defendant’s case. United States v. Ingraldi, 793 F.2d 408 (1st Cir.1986). In Ingral-di, by failing to move for a continuance and then thoroughly cross-examining the witness, the defense counsel cured a potential Brady violation. Id. 793 F.2d at 413 . In United States v. Enright, 579 F.2d 980 (6th Cir.1978), the Sixth Circuit held that no due process Brady violation occurred because the failure to disclose material exculpatory evidence had been discovered in time for “full and adequate correction.” Finally, in United States v. Moceri, 359 F.Supp. 431, 438 (N.D.Ohio 1973), the court reviewed an order requiring the government to show cause why it should not make a witness’s prior statements available to the defense before trial. That court found that “only in the context of either a complete deprivation of discovery or resulting prejudice” does a due process violation occur. Only if the suppression prevents material exculpatory evidence from effectively being used at trial is there a due process violation. See also United States v. Peters, 732 F.2d 1004 (1st Cir.1984); United States v. Higgs, 713 F.2d 39, 44 (3d Cir.1983); United States v. Xheka, 704 F.2d 974, 981 (7th Cir.1983); United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833 , 100 S.Ct. 65 , 62 L.Ed.2d 43 (1979).

The record in this case indicates that despite the defendant’s timely motion for disclosure, the prosecutor did not produce the inconsistent statements of April Ward, *549 the key witness for the state, until the night before she testified at trial. The evidence was clearly favorable to the defendant as impeachment evidence and also material to the issue of guilt, given the fact that the witness’s testimony was the “linchpin of the case.” Nevertheless, if defense counsel had been given an opportunity to make effective use of the material, that is, time to review those contradictory statements and time to prepare for April Ward’s cross-examination based on what was contained in those statements, the due process problem in this case might have been avoided. Hence, both the due process violation by police in directing April Ward’s mother not to let her talk to defense counsel, and the extenuation of that due process violation by the prosecutor in wrongfully withholding Brady material, could have been overcome in this case, had the trial court given defense counsel an adequate opportunity to review that material at an appropriate point during the trial. Unfortunately, in the name of expediency, that opportunity was not forthcoming.

III. THE RULE 26.2 VIOLATION

The majority opinion contains a brief history of Tennessee Rule of Criminal Procedure 26.2 and its genesis in federal law, and a passing reference to State v. Taylor, 771 S.W.2d 387 (Tenn.1989), the only reported decision of this Court directly interpreting Rule 26.2. Taylor , of course, stands for the obvious proposition that on motion, “a[ ] statement of the witness ... that relates to the subject matter concerning which the witness has testified” must be “produce[d] for the examination and use of the moving party,” but only “[ajfter [that] witness ... has testified on direct examination.” Tennessee Rules of Criminal Procedure 26.2(a) (emphasis added). Hence, under Tennessee law, as under federal law, a prosecutor’s refusal to produce the statements prior to direct examination cannot be held to be prejudicial error, even though it is often extolled as “the better practice.” Taylor, 771 S.W.2d at 391 . The majority then correctly identifies the question of first impression we face in this case: Given the provision in Rule 26.2(d) permitting a “recess ... in the trial for the examination of such statement and for preparation of its use in the trial ”, was counsel in this case afforded a reasonable opportunity to examine April Ward’s prior statements and prepare for her cross-examination? (Emphasis added.)

Answering this inquiry in the affirmative, the majority postulates that because the defense “team” was given a copy of April’s six statements “for overnight study and reflection,” defense counsel had 22 hours in which to “study and reflect” on those 64 pages. In the majority’s judgment, two hours would have been sufficient time to comply with the requirements of Rule 26.2. Thus, the majority concludes, the prosecution’s “advance production satisfied the State’s duty under Rule 26.2 and avoided the needless delay of the trial,” and the trial court’s decision “to proceed, apparently to allow April Ward to finish her testimony that day” was not an abuse of discretion. There was, in short, no violation of Rule 26.2 and thus no error, in the majority’s view.

If this were a routine case, and if the majority’s description of the problem posed for defense counsel in this case were more complete, one might not quibble with the decision to assign the matter to that legal limbo known as “trial court discretion.” But this is not a routine case — it is a capital case, one in which the defendant was ultimately sentenced to execution, based entirely on the testimony of 16-year-old April Ward, an accomplice who had given police a total of six contradictory statements, all of which had been systematically withheld from defense counsel despite legitimate efforts, both informal and formal, to obtain them prior to and at the time of trial. To condone the trial court’s action in the name of avoiding delay in the trial, or from some misplaced sympathy for the accomplice, is to make a mockery of the procedural guarantees expressed in our modern rules of procedure and in case law interpreting the reach of due process in criminal trials. At the very least, the majority should offer some guidance on the nature and extent of the trial court’s discretion in this area of *550 the law and should set standards for determining when an abuse of that discretion has occurred.

A. The Provisions of Rule 26.2

The majority notes that the provisions of Rule 26.2 can be traced directly to Federal Rule of Criminal Procedure 26.2, which in turn was based on the federal “Jencks Act,” 18 U.S.C. § 3500 (1957), passed in response to the United States Supreme Court’s opinion in Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957). In pertinent part, the Tennessee Rule reads as follows: 4

Production of Statements of Witness es.—

(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the ease may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

‡ íjí >¡5 ij! J>S

(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, may recess proceedings in the trial for the examination of such statement and for preparation for its use in the trial.

(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice....

Obviously, whether any one of these provisions has been violated and what action must be taken to correct the error can only be determined on a case-by-case basis, in context both the evidence in the record and the procedure followed at trial.

B. Procedural History of the Rule Violation

The factual background of the state’s case against Gary Caughron is set out in detail in the majority opinion. It points out the obvious — that April Ward’s testimony not only made her the prosecution’s “linchpin witness,” but also constituted virtually the entire case for the state. What is not *551 included in the majority opinion is a recitation of the procedural background of the trial, putting in context the “Jencks motion” made by defense counsel at various points during the proceedings.

The trial of this case lasted four days. The first day was consumed by arguments and rulings on unfinished pretrial business, including defense counsel’s request that the trial court order early production of witness statements, and by selection of the jury. Sometime after court adjourned at 7:15 p.m., the district attorney handed defense counsel a package containing the pretrial statements of all prospective witnesses for the state, including April Ward. In the package were over 100 pages of typewritten and handwritten materials, comprising the statements of 20 different persons. Defense counsel apparently did not know until he received these documents from the prosecutor that April Ward had made six separate statements to police.

When court resumed the next morning at 9:00 a.m., the defendant’s lead attorney, Carl R. Ogle, told the trial judge even before the first witness was called that he appreciated having received copies of the witnesses’ statements the night before, but that he had not had a chance to review all the material that had been turned over to him. When, later that day, the state called April Ward as its fourth witness, Ogle told the trial judge that he had had time to review only one of April’s statements and asked that trial be adjourned until the next morning to permit him to examine the rest of her statements before she testified. This request was denied, and April Ward’s direct examination followed immediately.

Near the end of the direct examination, during a break in testimony taken to deal with an unrelated question, Ogle noted that it was 4:05 p.m.; he again reminded the trial judge that he had not had an opportunity to read all of April’s prior statements; and he said, “I would ask the Court to allow me to start my cross-examination in the morning, because I am not prepared and there’s no way in the world I can cross-examine this witness today.” To this the trial judge responded:

No sir. You have your assistant with you, Mr. Ward. You have your [investigator] with you ... They do a lot of work for you and do good work for you and they’ve been doing good work for you for the last ... since about 1:30. They’ve been looking at that. I glanced at it. It seems to have nothing worthwhile, relevant, or germane. You’ve had the statements overnight. This Court will not delay it but I will tell you this, I intend to quit about 5:00. Got a new rule. It may turn my hair brown again. My complexion may return. My vigor may return. I’m going to start working about eight or ten hours a day and quit.... I’ve been working 10, 12, 14 hours a day for the last three weeks and I shouldn’t do that. So I’m going to try to do better and if we can let’s do it. I know that I can’t quit before 5:00. There’s no way in the world I can do it but at 5:00 I’m going to start up [sic] and quit.

The jury was brought back to the courtroom, and the district attorney continued his direct examination of April Ward. Less than ten minutes later, he completed his questioning and tendered the witness to the defense for cross-examination. Ogle, noting that it was 4:12 p.m., again asked for an overnight recess. He reminded the trial judge that he had not received the package of statements until after court adjourned the previous night. He pointed out that he and his co-counsel had had to consult with their client and his family before leaving the courthouse at 9:15 p.m. to return to Ogle’s office, which was located in Jefferson City, some 40 miles away in an adjoining county. They were due back in court in Sevierville at 9:00 the next morning. Ogle said that he had turned over the package of witness statements to his investigator to review overnight, and that he had been able to read only one of April Ward’s statements in the interim. He apologized to the trial judge for having to ask for a recess, and indicated that the defense had tried to avoid the delay by seeking pretrial discovery of the witnesses’ statements, an effort that had proved unsuccessful. When the trial judge responded *552 that he was “powerless to require the Attorney General to do something the rules and the law do not require,” that is, to order early production of the statements, Ogle made the following, thoroughly reasonable response:

But you could cure that [problem] at this point by giving me the amount of time necessary to properly prepare [for cross-examination. [T]his witness is the whole case. I mean, we rise or fall here if they believe her. It’s that important. I’ve been in your court for a long time and don’t regularly ask for this and you know that, but this is a very important case. It’s a very dangerous situation for this witness to step in here without [my] being properly prepared to cross-examine her. It would just be suicide.

The trial judge denied defense counsel’s request for a recess on the ground that the “material is not that complex. [The statements are] not that different [from each other].” After further discussion, during which the prosecution argued against further delay, the trial judge finally allowed counsel a ten-minute recess, which actually stretched into 16 minutes. Although the record does not show the exact time that court resumed following this recess, the hour must have been very close to 5:00 p.m., which was the trial judge’s previously announced adjournment time. Nevertheless, the trial judge not only forced defense counsel to begin his cross-examination of April Ward at that late hour, but he also failed to recess until cross-examination was completed, some considerable period of time later that evening.

It is clear from the record that the trial court’s decision to deny a recess was not due to any misunderstanding on his part about the crucial nature of April Ward’s testimony. Berating defense counsel for his repeated efforts to secure a recess, the trial judge said:

I will give you a ten minute recess but you’re going to cross-examine. But the court observes this. Before anybody came in the courthouse, before anybody got involved in this at all, even the most thickest neophyte in the world would know that [April Ward] is the crucial witness, the devastating witness and you knew, as an experienced, seasoned lawyer, from the front, throughout and now, this is the witness and this is the witness. And so, I hold you to that standard. I'll give you ten minutes to talk with whomsoever you want to. We’re going to cross-examine this lady.

Following the brief recess, the trial judge added:

Right now your client is at enormous risk for the death penalty. At enormous, enormous risk. Your statement that you weren’t ready to cross-examine, if the death penalty is imposed, and it may well be. It’s a jury question. Of course, this lawsuit’s half-tried, and we don’t know what course it will take or what proof is to come but at this time you are in imminent peril. You have put incompetency of counsel in this record by not being diligent, by not going over these statements and by not being prepared to cross-examine this crucial and devastating witness. That’s what concerns the Court but the Court cannot stop and wait and procrastinate.

Before beginning an analysis of the legal principles applicable to these facts, two observations seem pertinent, both based on a careful reading of the transcript in this case. First, there is no reasonable basis in fact for the trial court’s allegation that defense counsel had not been diligent, either in his representation of his client or in the discharge of his duties as an officer of the court. The trial court found as a matter of fact that the attorney had received the witness statements at 7:45 p.m. on the first night of trial. The lawyer was due back in court at 9:00 a.m. the next morning, approximately 13 hours later, ready for trial. In that 13-hour interval, he was called upon to confer with his client, to spend the patter part of two hours driving to and from his out-of-county office, to review the day’s events with his co-counsel, to prepare his opening statement for the next morning, and to tend to such personal matters as eating, sleeping, and maintaining personal hygiene. To ask in addition that he read over 100 pages of witness *553 statements, including 64 pages of April Ward’s statements, make a study of the many inconsistencies revealed in those statements, and devise a strategy for cross-examination based on his review, is simply unreasonable. The courts already demand much of attorneys appointed to represent indigent defendants, especially those who (like Caughron) face imposition of the ultimate penalty. Their efforts are unappreciated by the public generally and undercom-pensated by the justice system they serve. The burden they assume is difficult, and when acting in good faith, they should be accommodated by the courts in their efforts to discharge their professional obligation to their clients.

Second, despite the trial court’s assessment of the statements in question as “not that complex,” “not that different” from one another, and containing “nothing worthwhile, relevant or germane,” a review of April Ward’s statements demonstrates clearly that they were a powerful source of ammunition with which to impeach her testimony, had defense counsel been permitted the time necessary to review them and prepare his cross-examination in light of their content.

C. Analysis of Relevant Case Law Interpreting Rule 26.2

Although, as previously noted, there have been few Tennessee cases interpreting Rule 26.2, there is a rich mine of federal case law involving the production of what is now universally referred to as “Jencks material.” While federal authority is not binding on Tennessee state courts, it is obviously persuasive in resolving disputes such as the one now before us, not only because the drafters of the Tennessee rule opted to follow the federal model so closely, but also because of the thoroughness the federal courts have brought to the analysis of Jencks disputes.

Like the Tennessee rule, the Jencks Act and the federal rule require not only that the defendant be furnished with the prior statements of witnesses following direct examination, but also that defense counsel be afforded a reasonable opportunity to examine those statements and prepare for cross-examination based on their contents. Although the duty of the trial court to order a recess under subsection (d) is couched in permissive terms, the federal cases make it clear that failure to permit counsel reasonable time for review constitutes error.

For example, in a case very close on its facts to the one now before us, the prosecution turned over Jencks material to defense counsel on a Sunday morning at 10:00 a.m., preceding the start of a three-day trial the next day, Monday. The material consisted of “a stack of paper at least eight inches thick, including a thousand pages of testimony obtained from ten witnesses, a forty-five minute tape recording and other documents.” United States v. Holmes, 722 F.2d 37, 40 (4th Cir.1983). The record reflects that “it took an experienced attorney twenty-four hours to read through this material once in preparation for this appeal.” 5 Id.

The facts of Holmes bear an almost uncanny resemblance to the facts in this case:

The government completed the direct examination of its first witness, Creta, late in the afternoon of the first day of trial. One of the lawyers for the defense requested the district court to adjourn for the day [because] ... counsel had not sufficiently completed their study of the Jencks material so as to be prepared to cross-examine. The district court ruled that ... since the Jencks material had been furnished the day before, when under a strict interpretation of the Act it need not have been furnished until the witness had completed his direct testimony, the district court would give counsel only a five-minute recess before cross-examination would begin. [Footnote: In *554 fact, counsel were given a sixteen minute recess. The record shows that the recess began at 4:40 p.m., and the jury did not return to the jury box until 4:56 p.m.] The requested adjournment was denied and cross-examination of Creta began. The court remained in session until the cross-examination, redirect and recross-examination of Creta was completed. The jury was excused at 6:51 p.m. and the court adjourned at 7:06 p.m.

Id.

The Holmes court held that it was “clear that defendants were not afforded a reasonable opportunity to examine and digest the mass of material furnished them on the Sunday before the Monday trial began.” Id. at 41 . The reviewing court found an abuse of discretion amounting to a violation of the defendants’ rights under the Jencks Act and ordered a new trial. Id.

A similar error occurred in this case. When the trial judge refused to order a recess, as requested pursuant to Rule 26.-2(d) — or even more reasonably, to adjourn court for the day a mere half-hour earlier than scheduled — he did so without justification. As a result, defense counsel was forced to begin cross-examination under circumstances amounting to a deprivation of Rule 26.2 statements that were rightfully his to inspect. The majority “emphasize[s] that this case does not involve the denial of Rule 26.2 statements.” But, the production of Jencks material without adequate time to read and make use of it undoubtedly constitutes the functional equivalent of a denial. In my judgment, the violation of subsection (d) in this case is so clear that the only remaining question concerns the relief that should be granted in light of this error.

As one commentator has noted, once a Jencks statement is deemed producible, “the defendant’s right to the statement is virtually absolute.” Wharton on Criminal Procedure. (13th ed.) § 378. Because the original Jencks opinion was founded on the United States Supreme Court’s supervisory powers, and not on constitutional grounds, a denial of that right does not, per se, result in constitutional error. Palermo v. United States, 360 U.S. 343, 345, 362 , 79 S.Ct. 1217, 1221, 1229-30 , 3 L.Ed.2d 1287 (1959). The federal courts have noted, however, “that in some situations denial of production of a Jencks Act type of statement might be a denial of a Sixth Amendment right.” United States v. Augenblick, 393 U.S. 348, 356 , 89 S.Ct. 528, 533 , 21 L.Ed.2d 537 (1969). Hence, courts have suggested that both the Sixth Amendment’s right to compulsory process, Id., and the right to confrontation are implicated in the violation of the procedural guarantees of Rule 26.2. Krilich v. United States, 502 F.2d 680 (7th Cir.1974). As to the latter right, the United States Court of Appeal has noted:

Clearly, the principal purpose of requiring the government to disclose prior written statements of a witness which relate to that witness’ direct testimony is to facilitate cross-examination. It is principally through cross-examination that a defendant exercises his right to confront witnesses called to testify against him. Conversely, the failure to provide material to which the defense is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine a government witness and thereby infringe upon his constitutional right of confrontation.

Krilich, supra, at 682 (holding that a Jencks violation “presents an issue of sufficient constitutional dimension to warrant consideration under 28 U.S.C. § 2255”).

Moreover, it has been held that the failure of an attorney to seek a recess for the purpose of reviewing recently proffered Jencks material (instead the defense attorney tried to read through the documents while direct examination was in progress) constitutes ineffective assistance of counsel, yet another Sixth Amendment deprivation. United States v. Hinton, 631 F.2d 769, 771, 778-780 (D.C.Cir.1980). The Hinton court faulted the attorney for failing to seek “adequate time to make an informed tactical decision as to the use of the information contained in the [statements],” thereby producing “a harried trial attorney, attending to direct examination with one part of her consciousness, and with the *555 other rifling through the ‘massive Jencks material’ ... in a hurried attempt to isolate and scan the relevant documents.” Id. at 778 . In Hinton , the defense attorney was “harried” through her own fault, while in this case counsel was “harried” by the action of the trial court. The cause may be different, but the result is the same. Here, as in Hinton , counsel’s conduct was not “the product of deliberate and informed decision” but is marked by “inadequate preparation,” resulting in the deprivation of the defendant’s right to the effective assistance of counsel. Hinton, supra, at 780 .

Such a deprivation violates the right-to-counsel provision found in Article I, Section 9 of the Tennessee Constitution, as well as the Sixth Amendment of the federal constitution. See generally Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). This constitutional violation is made all the more egregious by the fact that the trial court took note that it was imminent, but did nothing to prevent it. 6 Whatever value there is in maintaining efficiency in the trial of criminal cases (and it is considerable under normal circumstances), efficiency must be assigned a low priority where procedural rights of an accused are at stake. In this case, the trial judge’s misguided decision not to adjourn court before 5:00 p.m., regardless of the circumstances, amounts to an arbitrary and capricious abuse of discretion, resulting in the necessity of retrial. Put simply, the price of saving less than a half-hour of trial time turned out to be “penny wise but pound foolish.”

For there can be no dispute, given the facts of this case, that the error committed by the trial court was prejudicial. Federal case analysis on this point is compelling. The United States Supreme Court held early on that a Jencks violation could be considered harmless error. Palermo, supra, at 355-6 , 79 S.Ct. at 1226-7 . But in the wake of this initial ruling, the Court has set the threshold for determining harmlessness at a very high level. For example, in Clancy v. United States, 365 U.S. 312 , 81 S.Ct. 645 , 5 L.Ed.2d 574 (1961), the Court said:

Since the production of at least some of the [Jencks] statements was a right of the defense, it is not for us to speculate whether they could have been utilized effectively. As we said in Jencks v. United States: “Flat contradiction between the witness’s testimony and the version of events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, or even a different order of treatment, are also relevant to the cross-examination process of testing the credibility of a witness’s trial testimony.”

Clancy , at 316, 81 S.Ct. at 648 quoting Jencks, supra, at 667 , 77 S.Ct. at 1012-13 (citations omitted).

Building on its ruling in Clancy , the United States Supreme Court noted in Goldberg v. United States:

Since courts cannot “speculate whether [Jencks material] could have been utilized effectively” at trial, ... the harmless-error doctrine must be strictly applied in Jencks Act cases.

425 U.S. 94, 111, note 21 , 96 S.Ct. 1338, 1348, note 21 , 47 L.Ed.2d 603 (1967). The Goldberg court cited with approval Justice Brennan’s dissenting opinion in Rosenberg v. United States, 360 U.S. 367, 373 , 79 S.Ct. 1231 , 3 L.Ed.2d 1304 (1959):

Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply to statements producible under the statute, ... fidelity to the principle underly *556 ing Jencks and the Jeneks statute requires that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would be clearly erroneous. In that determination, appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectively utilized a producible statement.

Thus, federal law permits the courts to overlook Jencks violations only in the narrowest of circumstances: 7

The requirements of the Jencks Act are intended to provide defendants in federal prosecutions with an opportunity for thorough cross-examination of government witnesses, making the constitutionally guaranteed right of confrontation more meaningful. Violations of the statute are necessarily attended by the danger that this precious right will be impaired. For this reason, and also because it is ordinarily difficult upon review of a cold record to ascertain the value to the defense of a statement withheld, violation of the [Jeneks] Act is excused only in extraordinary circumstances. Unless it is perfectly clear that the defense was not prejudiced by the omission, reversal is indicated.

United States v. Missler, 414 F.2d 1293, 1303-1304 (4th Cir.1969) (citations omitted) (emphasis added). Accord, United States v. Winner, 666 F.2d 447, 448-449 (10th Cir.1981); United States v. Knowles, 594 F.2d 753, 755 (9th Cir.1979); United States v. Aaron, 457 F.2d 865, 869 (2nd Cir.1972).

Given the centrality of April Ward’s testimony, the inherent unreliability which attaches to that testimony by virtue of the half-dozen contradictory statements she made over a five-month period prior to trial, and the trial court's failure to grant counsel a reasonable period of time in which to capitalize upon those various pretrial statements, it appears that the Rule 26.2(d) error in this case was prejudicial. Moreover, appellate judges are in a poor position to second-guess counsel on the question of whether a recess to permit full utilization of the statements in this case would have been efficacious. It should be noted, however, that perhaps the most ghoulish aspect of April Ward’s testimony, to the effect that she and Caughron drank the victim’s blood out of shot-glasses as she lay dying nearby, nowhere appears in any of Ward’s prior statements, 8 a fact of which counsel may have been totally unaware, 9 since he had not had an adequate opportunity to read and compare all the statements.

It is true that defense counsel engaged in a vigorous cross-examination of April Ward, confronting her repeatedly with the fact that she had made contradictory statements to police. But, he did not cross-examine her with regard to the details of *557 those statements, perhaps as a matter of strategy, but more likely from ignorance of their contents. It is this latter possibility that should lead this Court to hold that the trial court’s denial of counsel’s request for a recess or a reasonable time to review the statements under Rule 26.2(d) constitutes reversible error.

Finally, it must be emphasized that the majority’s calculation that defense counsel had 22 hours in which to “study and reflect on the pretrial statements of April Ward” (and some 20 other witnesses) is purely illusory. It fails to take into account the fact that almost half this period of time, nine hours, was spent in court during the course of the trial. It makes no provision for two hours of travel, for time that the attorney spent consulting with his colleagues and his client, for time devoted to planning trial strategy for the next day (including opening argument), or for a reasonable period of time for rest and sustenance. The trial judge and a majority of this court apparently expect defense counsel to be able to prepare cross-examination from notes taken by an investigator (notes which the lawyer and the investigator may not have had a chance to discuss) while trial is actually in progress. Had the attorney done voluntarily what he was forced to do by the trial court in this case, there can be little doubt that he would be subject to a charge of incompetency and found to have rendered ineffective assistance of counsel — much like the attorney in United States v. Hinton, supra, who opted to review a witness’s statement while direct examination of that witness was being conducted.

The physical and psychological demands on an attorney in trial, especially a criminal trial involving a capital offense, are heavy. The expectations placed on defense counsel in this case were completely unrealistic, and they resulted in a deprivation of due process with respect to his client. For the reasons set out above, I dissent from the majority’s decision to affirm the defendant’s conviction in this case.

I am authorized to say that Chief Justice REID joins in this opinion.

. The action of the police in blocking pretrial access to the state's most crucial witness and the prosecution’s failure to disclose summaries of her pretrial statements are not raised as discrete issues on appeal. For this reason, it would be necessary to hold that they constitute "plain error” in order to avoid a finding of waiver on the defendant’s part and grant relief on either ground. However, they are treated in this opinion not as independent grounds for relief, but as due process violations that exacerbated the Jencks error in this case, making it obvious reversible error.

. Weatherford v. Bursey, 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977); State v. Brownell, 696 S.W.2d 362, 363 (Tenn.Crim.App.1985).

. In Brady , the defendant requested the out-of-court statements of his companion during the murder. The government showed him all statements except the one in which the companion admitted the actual killing. Although this information would not affect the conviction, the jury’s knowledge of the defendant's level of participation could have affected his punishment. 373 U.S. at 84 , 83 S.Ct. at 1195 .

. As to the remainder of Rule 26.2, subsections (b) and (c) set out the procedure for determining whether the entire statement of a witness, or only part of it, is producible; subsection (f) requires application of the rule to pretrial hearings in the criminal court; and subsection (g) defines what constitutes a statement under the rule.

According to the Advisory Commission Comments:

"The language of Rule 26.2 is substantially identical to the language in Rule 26.2 of the Federal Rules of Criminal Procedure. There are, however, two other differences that deserve comment.

"First, as formerly was evident in Rule 16, the Committee deliberately did not incorporate that provision of subdivision (e)(3) of the Jencks Act, which applies to statements of witnesses before a grand jury, and such statements are not meant to be obtainable simply because a grand jury witness testifies for the State. Such statements may only be obtained under the limited provisions of existing law now contained in Rule 600(2).

"Second, Rule 26.2(f) now makes it clear that this rule applies not only to trial situations, but also to pretrial testimony such as might be given at a suppression hearing. There would be little logic in requiring statement production only at trial, and not at pretrial hearings where testimony as to the facts of the case is being given under oath. This provision is similar to language found in Rule 12(i) of the Federal Rules of Criminal Procedure but the Tennessee Rules Commission elected to treat all witness statements in one rule. However, the Tennessee rule applies to all pretrial motions under Rule 12(b). Further, the Federal rule treats law enforcement officials as witnesses called by the state, but the commission elected not to adopt this provision. Obviously, Rule 26.2(c) applies to such pretrial motion hearings. Thus, only a part of a witness’ statement may be relevant to the hearing. The remainder may then be disclosed at trial under the provisions of Rule 26.2(a).”

. Likewise, it took the author of this opinion a full hour to read rapidly through the statements of April Ward, without taking notes or marking the statements for comparison purposes. A careful reading would consume much more than the two-hour estimate given in the_ majority opinion. A list of the contradictions in the six statements and the development of a strategy for their effective use on cross-examination would, of course, take even longer.

. Following the conclusion of April Ward’s testimony, the trial judge attempted to rescue defense counsel from a later charge of ineffectiveness by commenting on the fact that Ogle had been handed "yellow sheets” of “check lists” by his investigator and noting, "I find counsel's assistance has been full, complete, meticulous as reflected by the questions put, as by the notes you should retain in case some question is raised at some later time about competency of counsel.” Of course, no post-hoc pronouncement of competency by the trial court can make up for the fact that counsel was hobbled in his representation of Caughron by the denial of his motion for a Rule 26.2(d) recess.

. The federal courts have held a Jencks violation harmless only where the statement and the witness’s testimony are consistent, United States v. Tashjian, 660 F.2d 829 (1st Cir.1981); where the statement is of marginal value, because the witness is not an integral part of the government's case, United States v. Weidman, 572 F.2d 1199 (7th Cir.1978); where the statement contains only cumulative material, i.e., it is the same as the information in grand jury transcripts that have already been disclosed, United States v. Anthony, 565 F.2d 533 (8th Cir.1977); where lost notes would have supported the prosecution’s case, United States v. Miranda, 526 F.2d 1319 (2nd Cir.1975), cert. denied 429 U.S. 821 , 97 S.Ct. 69 , 50 L.Ed.2d 82 ; or where the statement is not exculpatory and there was no advantage to the government in non-production, United States v. Principe, 499 F.2d 1135 (1st Cir.1974). At least one state court has applied harmless error analysis to the violation of production rule. In State v. Tanner, 175 W.Va. 264 , 332 S.E.2d 277, 279 (1985), the Court held: "The question of whether the error was harmless or prejudicial hinges upon whether there was a substantial discrepancy between the contents of the prior statement or report and the witness’s testimony during trial.’’

Obviously, the error in this case could not be considered harmless under any of the foregoing formulations.

. And, no bloody shot-glasses were found at the scene of the crime.

. There is no way to know to what extent this aspect of April’s testimony may have affected the jury's decision to impose the death penalty. The record reflects that the state relied on it in arguing aggravating circumstances during the penalty phase of the proceedings.