Reply Brief — Julius Jerome Murphy, Petitioner v. Texas

No. 18-1022

IN THE

Supreme Court of the United States

_________

JULIUS JEROME MURPHY,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

_________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

_________

REPLY BRIEF IN SUPPORT OF

CERTIORARI

_________

SARAH M. CUMMINGS

REED SMITH LLP

2911 Turtle Creek

Blvd., Suite 300

Dallas, TX 75219

CATHERINE E. STETSON

Counsel of Record

E. DESMOND HOGAN

KATHRYN MARSHALL ALI

ELIZABETH LOCKWOOD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Petitioner

MAY 1, 2019

CAPITAL CASE

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

INTRODUCTION ........................................................ 1

ARGUMENT ............................................................... 2

I. THIS COURT SHOULD GRANT

CERTIORARI TO REVIEW THE TCCA’S

MISAPPLICATION OF CLEARLY

ESTABLISHED FEDERAL LAW. ........................ 2

A. This Court Should Grant Certiorari To

Evaluate Murphy’s Giglio Claims Under

The Correct Standard And To Resolve

The Federal Question Presented By His

Brady Claims. ................................................... 2

B. A Prosecutor Who Creates A False Impression In The Mind Of Jurors Violates

Giglio. ................................................................ 4

II. THE TRIAL COURT’S DENIAL OF A

CONTINUANCE RESULTED IN A

FUNDAMENTALLY FLAWED HEARING

THAT VIOLATED MURPHY’S RIGHT TO

DUE PROCESS...................................................... 6

A. The Trial Counsel’s Denial Of Murphy’s

Repeated Requests For A Continuance

Denied Him Of His Constitutionally Protected Opportunity To Be Heard...................... 6

B. The Trial Court’s Refusal To Continue

The Hearing Caused Substantial Harm

To Murphy. ....................................................... 8

III.THE COURT SHOULD GRANT

CERTIORARI TO DETERMINE

WHETHER THE DEATH PENALTY IS

UNCONSTITUTIONAL. ....................................... 9

(i)

ii

TABLE OF CONTENTS—Continued

Page

A. The TCCA Dismissed Murphy’s Eighth

Amendment Claim On Federal Grounds. ........ 9

B. Murphy’s Eighth Amendment Claim Is

Not Barred By Principles Of Retroactivity...................................................................... 11

C. The Death Penalty Violates The Eighth

Amendment..................................................... 12

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Atkins v. Virginia,

536 U.S. 304 (2002) ........................................... 11

Brady v. Maryland,

373 U.S. 83 (1963) ............................................... 1

Coleman v. Thompson,

501 U.S. 722 (1991) ....................................... 9, 10

In re Davila,

888 F.3d 179 (5th Cir. 2018) ............................. 10

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................. 6

Giglio v. United States,

405 U.S. 150 (1972) ......................................... 1, 4

Gilday v. Callahan,

59 F.3d 257 (1st Cir. 1995) ................................. 3

Glossip v. Gross,

135 S. Ct. 2726 (2015) ....................................... 12

Grannis v. Ordean,

234 U.S. 385 (1914) ............................................. 6

Harris v. Reed,

489 U.S. 255 (1989) ........................................... 10

Hicks v. Wainwright,

633 F.2d 1146 (5th Cir. 1981) ............................. 8

Jenkins v. Artuz,

294 F.3d 284 (2d Cir. 2002)................................. 5

In re Medley,

134 U.S. 160 (1890) ........................................... 12

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Michigan v. Long,

463 U.S. 1032 (1983) ................................... 10, 11

Montgomery v. Louisiana,

136 S. Ct. 718 (2016) ......................................... 11

Penry v. Lynaugh,

492 U.S. 302 (1989) ........................................... 11

Tassin v. Cain,

517 F.3d 770 (5th Cir. 2008) ............................... 5

Teague v. Lane,

489 U.S. 288 (1989) ........................................... 11

Tercero v. Stephens,

738 F.3d 141 (5th Cir. 2013) ............................... 6

Trop v. Dulles,

356 U.S. 86 (1958) ............................................. 13

United States v. Agurs,

427 U.S. 97 (1976) ............................................... 2

United States v. Bagley,

473 U.S. 667 (1985) ............................................. 3

United States v. Iverson,

637 F.2d 799 (D.C. Cir. 1980) ............................. 5

RULES:

Sup. Ct. R. 10(c) ........................................................ 2

IN THE

Supreme Court of the United States

_________

No. 18-1022

_________

JULIUS JEROME MURPHY,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

_________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

_________

REPLY BRIEF IN SUPPORT OF

CERTIORARI

_________

INTRODUCTION

Julius Murphy is on death row despite never having had a constitutionally valid trial. The State

violated Brady v. Maryland, 373 U.S. 83 (1963),

when it failed to disclose to Murphy that it had

threatened and bargained with two key witnesses.

And the State violated Giglio v. United States, 405

U.S. 150 (1972), when it failed to correct the false

impression created by these witnesses’ trial testimony. Making matters worse, the trial court violated

Murphy’s due process rights when it refused to grant

Murphy a continuance so that he could secure live

witness testimony during habeas proceedings related

to these constitutional violations.

(1)

2

The State, in its opposition, argues that the decision below was correct and that, in any event, it is

beyond the power of this Court to address. Neither

proposition is true.

The State of Texas violated Murphy’s constitutional rights. Because Murphy faces execution, the

importance of remedying these violations cannot be

overstated. Nor can they be shielded from this

Court’s review by a pro forma appellate-court decision. This Court has authority to grant certiorari. It

should.

ARGUMENT

I. THIS

COURT

SHOULD

GRANT

CERTIORARI TO REVIEW THE TCCA’S

MISAPPLICATION

OF

CLEARLY

ESTABLISHED FEDERAL LAW.

A. This Court Should Grant Certiorari To

Evaluate Murphy’s Giglio Claims Under

The Correct Standard And To Resolve The

Federal Question Presented By His Brady

Claims.

This Court can—and should—grant certiorari because the TCCA rejected Murphy’s constitutional

claims on a basis that “conflicts with relevant decisions of this Court,” including Brady and Giglio.

Sup. Ct. R. 10(c); see also Pet. 13–22.

The TCCA adopted in full the trial court’s misstatement and misapplication of this Court’s materiality standard for Giglio claims. The correct standard looks to whether there is “any reasonable likelihood that the false testimony could have affected the

judgment of the jury.” United States v. Agurs, 427

U.S. 97, 103 (1976) (emphases added). And it applies

3

in cases like this one—where the “undisclosed evidence demonstrates that the prosecution’s case

includes perjured testimony and that the prosecution

knew, or should have known, of the perjury.” Id.

But the trial court instead applied the more burdensome Brady materiality standard, which requires

an applicant to demonstrate “a reasonable likelihood

that it affected the judgment of the jury.” Pet. App.

46a–47a (emphasis added); see also Pet. 19–20. The

difference between “could have” and “did” is not

merely semantics. See, e.g., Gilday v. Callahan, 59

F.3d 257, 267 (1st Cir. 1995) (contrasting the Brady

standard, which requires defendant to show “a

reasonable probability that * * * the result of the

proceeding would have been different,” with the

Giglio standard, which is “more favorable to the

defendant” and requires only that the defendant

show that the “false testimony could have affected”

the outcome (quotation marks omitted and emphasis

added)). Its adoption of the improper standard

infected its conclusions, which the TCCA adopted

without additional comment. That was not a misapplication of a properly stated rule of law; it was a

finding made under an incorrect standard.

Furthermore, the trial court’s determination that

the State did not suppress evidence in violation of

Brady v. Maryland, and the TCCA’s subsequent

adoption of this determination, decided an important

federal question in a way that conflicts with the

precedent of this court: The State must disclose even

the mere “possibility of a reward” offered in exchange

for testimony. United States v. Bagley, 473 U.S. 667,

683 (1985). Here, though, the State failed to disclose

threats the prosecutors made to two critical witness-

4

es, Javarrow Young and Christina Davis. The State

withheld from defense counsel its threats to prosecute Young if he failed to cooperate, and promises of

leniency if Young testified against Murphy. Pet. 8–

10, 15. Davis likewise understood from the State

that if she testified against Murphy she would escape

all charges, and if she did not, she would be charged

with conspiracy to commit murder. Id. at 8–10, 21.

The defense never heard that, either. The TCCA’s

finding that these fundamental lapses did not violate

Brady contravenes this Court’s precedent.

In an effort to side-step Murphy’s constitutional

claims, the State places great weight on the TCCA’s

use of the phrase “our own review.” Pet. App. 3a; see

also Opp. 17. But these three words do not imply

rejection of the Giglio materiality standard or the

impermissible Brady findings. The TCCA made no

independent findings of fact or conclusions of law. It

instead stated that its “review[ ]” encompassed “the

record and the trial court’s findings of fact and

conclusions of law.” Pet. App. 3a. The only reasonable inference from this wide-ranging review and lack

of independent findings is that the TCCA adopted

the trial court’s findings and conclusions in full.

B. A Prosecutor Who Creates A False Impression In The Mind Of Jurors Violates Giglio.

The State contends that this Court has not recognized, and should not recognize, Giglio violations

where a key trial witness creates a “false impression”

in the minds of the jury members by omitting facts or

offering misleading testimony. Not so. Giglio itself

states that “whether the nondisclosure was a result

of negligence or design, it is the responsibility of the

prosecutor.” Giglio, 405 U.S. at 154. A nondisclo-

5

sure, by its definition, is an omission that gives rise

to a “false impression”—for example, that a witness

is voluntarily testifying, or that no deal has been

struck, or that testimony is free from influence.

Several federal courts have held that Giglio applies

to cases where the prosecutor’s nondisclosure created

a false impression in the minds of jury members by

omitting facts or offering misleading testimony. See

Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008)

(finding Giglio violations based on State’s failure to

correct misleading impression created by key witness

during testimony regarding promises of leniency);

Jenkins v. Artuz, 294 F.3d 284, 294 (2d Cir. 2002)

(finding Giglio violation where testimony was “probably true” but “misleading”); United States v. Iverson, 637 F.2d 799, 805 n.19 (D.C. Cir. 1980) (“it

makes no difference” for purposes of discerning a

Giglio violation “whether the testimony is technically

perjurious or merely misleading”).

Here, the prosecution misled the jury by failing to

disclose the influence it had exerted on both Young

and Davis. This violated Giglio and Brady. Although the prosecution put both witnesses on the

stand, it did not elicit testimony that would have

made this influence apparent. Pet. 18–19, 21. Had

the jury members known that both Young and Davis

testified under threats of charges and promises of

leniency, this information would have undoubtedly

impacted their perception of the witnesses’ credibility. Id. at 18–21. They were given no such opportunity.

6

II. THE TRIAL COURT’S DENIAL OF A

CONTINUANCE

RESULTED

IN

A

FUNDAMENTALLY FLAWED HEARING

THAT VIOLATED MURPHY’S RIGHT TO

DUE PROCESS.

A. The Trial Counsel’s Denial Of Murphy’s

Repeated Requests For A Continuance Denied Him Of His Constitutionally Protected Opportunity To Be Heard.

It is a “‘fundamental requisite’ of due process * * *

that an individual is entitled to an ‘opportunity to be

heard.’” Ford v. Wainwright, 477 U.S. 399, 430

(1986) (O’Connor, J., concurring) (quoting Grannis v.

Ordean, 234 U.S. 385, 394 (1914)). Due process

guarantees habeas petitioners an opportunity to

develop their claims. See Tercero v. Stephens, 738

F.3d 141, 148 (5th Cir. 2013). The trial court’s

arbitrary denial of Murphy’s motion for a continuance to secure the live testimony of critical witnesses

denied Murphy his constitutionally protected opportunity to present his evidence and be heard. And the

TCCA’s dismissive ratification of the trial court’s

findings and conclusions merits summary reversal.

The State distorts the circumstances surrounding

Murphy’s inability to secure live witness testimony

at the hearing. Proceedings at the trial court were

placed on hold shortly after the TCCA remanded the

matter in 2016. Neither Murphy nor the State had

any reason to believe that, in September 2017, the

TCCA would order sua sponte that the trial court

resolve Murphy’s on-hold claims, or that the trial

court would then schedule the hearing to occur in

less than a month. See Pet. App. 8a–9a; see also

Order at 1–2 (102nd Dist. Ct., Sept. 22, 2017).

7

In the few weeks between the trial court’s order

and the hearing, Murphy’s counsel went to great

lengths to locate Davis and Young and secure their

appearances. Even through the morning of the

hearing, counsel attempted to serve Davis with a

subpoena “in every single location that we know that

she lived, ate, or worked at, including multiple

residences, including multiple shelters, including

multiple other institutions.” Hr’g Tr. 11:2–6.

And Murphy did serve a subpoena to secure the

appearance and testimony of Young, who was incarcerated at the time. The State faults Murphy for

failing to seek a bench warrant. Opp. 28 & n.11.

But Murphy’s counsel inquired about a bench warrant and were specifically told by the constable’s

office that no bench warrant was needed to secure

Young’s transport to testify at Murphy’s hearing.

Hr’g Tr. 10:22–11:1. In other words, the State informed Murphy that a bench warrant was not required, the State failed to transport Young to the

hearing, and now the State seeks to shift blame to

Murphy for its own failure to produce Young at the

hearing.

On short notice, Murphy pursued this hearing with

utmost diligence so he could develop and present his

evidence to the trial court. Murphy repeatedly

requested additional time to secure crucial witnesses’

in-person testimony. See Unopposed Mot. for Continuance (102nd Dist. Ct., Oct. 12, 2017); Hr’g Tr. at

4:18–20, 6:21–11:14. The trial court’s refusal to

grant these requests denied Murphy his due process

right to have his evidence be heard and merits

review, or summary reversal.

8

B. The Trial Court’s Refusal To Continue The

Hearing Caused Substantial Harm To

Murphy.

The trial court’s refusal to continue the hearing

completely hamstrung Murphy’s ability to present

his claims. Young and Davis were key witnesses at

Murphy’s habeas proceeding:

The pair’s recent

revelations that the State made threats and promises of leniency to secure their trial testimony formed

the foundation of Murphy’s habeas petition. Arbitrarily denying a continuance and refusing to allow

Murphy to secure the pair’s live testimony, whom

Murphy diligently attempted to bring to the hearing,

profoundly impacted Murphy’s constitutionally

protected right to be heard. See Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir. 1981) (considering, among other factors, the diligence of defense in

procuring witnesses’ presence and expected favorability of testimony to determine whether a trial

court’s denial of a motion for continuance was an

abuse of discretion).

The State’s arguments about these witnesses’ credibility belie its claim that Murphy suffered no harm

from the trial court’s refusal to continue the hearing.

The State asserts that Davis “was simply not credible” because her statements were disputed in live

testimony. Opp. 21–22. Likewise, the State argues

that “[t]he testimony at the evidentiary hearing

flatly contradicted Young’s affidavit.” Id. at 18. But

these assertions only heighten the impact of the trial

court’s due-process denials. While the trial court

purported to accept Young and Davis’s signed affidavits in lieu of live testimony, it summarily discredit-

9

ed both witnesses because they did not testify in

person. See Pet. App. 39a, 41a.

The State, like the trial court, portrays as infallible

the live testimony presented at the hearing and

discredits written testimony that contradicts any live

testimony. But in doing so, the State ignores Murphy’s introduction of deeply damaging evidence that

prosecutor Al Smith had previously engaged in

prosecutorial misconduct. See Hr’g Tr. 93–102. Had

Murphy had an opportunity to present in-person

testimony of two witnesses offering exculpatory

evidence, rebutting Smith’s statements, and underscoring Smith’s history of prosecutorial misconduct

with testimony about his threats and promises made

to secure their trial testimony, the trial court could

have reached a different credibility determination of

both the witnesses. In sum, the trial court prejudiced Murphy’s ability to present his case. A constitutional violation of this magnitude warrants this

Court’s review.

III. THE

COURT

SHOULD

GRANT

CERTIORARI TO DETERMINE WHETHER

THE

DEATH

PENALTY

IS

UNCONSTITUTIONAL.

A. The TCCA Dismissed Murphy’s Eighth

Amendment Claim On Federal Grounds.

The State argues that the decision below is immunized from review because it rests on an adequate and

independent state ground. Opp. 31-32. That is

wrong.

This Court has created a “conclusive presumption”

of federal jurisdiction over state-court decisions,

Coleman v. Thompson, 501 U.S. 722, 739 (1991),

10

when the decision below “fairly appears to rest

primarily on federal law, or to be interwoven with

the federal law, and when the adequacy and independence of any possible state law ground is not

clear from the face of the opinion,” Michigan v.

Long, 463 U.S. 1032, 1040–41 (1983). See also

Harris v. Reed, 489 U.S. 255, 263 (1989) (extending

presumption to cases on habeas review).

This presumption applies here. First, the decision

below rested on federal law. The State claims the

TCCA’s use of the word “dismissal” nests this decision firmly in state law. Opp. 31. But state courts

cannot so easily foreclose review: It is “the duty of

the federal courts * * * to determine the scope of the

relevant state court judgment.” Coleman, 501 U.S.

at 739. This duty allows federal courts to look beyond the face of the decision and to the arguments

below. Id. at 740. Murphy’s arguments below

sought review under Section 5(a)(1) of the Texas

Code of Criminal Procedure Article 11.071. See Appl.

for Postconviction Writ of Habeas Corpus (Sept. 24,

2015) at 44–45 (“Appl.”). Section 5(a)(1) allows a

court to hear a subsequent application where

“(1) * * * the factual or legal basis for the new claim

was unavailable as to previous applications, and

(2) * * * the specific facts alleged rise to a constitutional violation.” In re Davila, 888 F.3d 179, 188 (5th

Cir. 2018). The first element is “a state-law question;” the second is a “question of federal constitutional law.” Id. (quotation marks omitted). In his

application, Murphy explained that Section 5(a)(1)

applied because of a previously unavailable fact: the

nationwide consensus against the death penalty that

had arisen after he litigated his first petition. Appl.

45. Because Murphy could not predict this consen-

11

sus, this fact was previously unavailable as a matter

of state law. The court’s dismissal, then, must have

turned on a finding that Murphy failed to allege a

constitutional violation—a question of federal law.

Second, because the decision below “fairly appears”

to rest on federal law, this Court lacks jurisdiction

only if it is “clear from the face of the opinion” that

the TCCA did not rely on federal law. Long, 463 U.S.

at 1040–41. The TCCA made no such clear statement. This Court thus has jurisdiction over Murphy’s Eighth Amendment claim.

B. Murphy’s Eighth Amendment Claim Is Not

Barred By Principles Of Retroactivity.

The State’s next procedural argument—that

Teague v. Lane, 489 U.S. 288 (1989), bars review—is

even more off-base.

Teague is not absolute.

“[C]ourts must give retroactive effect to new substantive rules of constitutional law.” Montgomery v.

Louisiana, 136 S. Ct. 718, 728 (2016). Such rules

include those that “deprive[ ] the State of the power

to impose a certain penalty.” Penry v. Lynaugh, 492

U.S. 302, 330 (1989), abrogated on different grounds

by Atkins v. Virginia, 536 U.S. 304 (2002). A rule

barring capital punishment is just that. See id. at

330 (noting that a new rule prohibiting executing

intellectually disabled persons “would be applicable

to defendants on collateral review.”); Atkins, 536 U.S.

at 319 (recognizing such a rule); see also Montgomery, 136 S. Ct. at 734 (holding as retroactive rule

barring life without parole for juvenile offenders). It

would therefore be retroactive to Murphy’s case.

12

C. The Death Penalty Violates The Eighth

Amendment.

1. The State seems to misunderstand Murphy’s

showing that the death penalty is arbitrarily imposed. Murphy acknowledges that “this Court’s

precedent * * * recognizes

the

need

for

* * * discretion” in the imposition of the death penalty. Opp. 33. Murphy’s point is that this discretion

itself renders the imposition of the death penalty

unconstitutional. See Pet. 25–28. That is, because

no “constitutionally-permissible sentencing structure,” Opp. 33, can remedy the arbitrariness inherent in our capital-punishment scheme, the death

penalty is unconstitutional.

The State’s remaining arguments on this point

attack straw men. Murphy’s Eighth Amendment

claim is not based on the fact that his death sentence

was arbitrary. Its basis is that that the death penalty writ large is arbitrary.

2. The State’s dismissal of the “overwhelming” evidence that States have executed the innocent is

shockingly cavalier. Glossip v. Gross, 135 S. Ct.

2726, 2756 (2015) (Breyer, J., dissenting). It fails to

confront the full scope of Murphy’s argument, and

instead glibly labels detailed studies “dubious.”

Opp. 34. A problem of such moral gravity deserves a

full briefing on the merits, not an offhand dismissal.

3. The State likewise maintains that this Court has

definitively held that decades-long delays in imposing capital sentences have no bearing on the cruelty

or penological utility of the punishment. Id. at 35.

This Court has long suggested otherwise. See, e.g.,

In re Medley, 134 U.S. 160, 172 (1890).

13

4. Finally, the State offers little to rebut Murphy’s

showing that a widespread consensus has emerged

that the death penalty is categorically impermissible.

See Pet. 32–35. The State does not dispute that 31

States have abandoned capital punishment and that

the frequency of death sentences and executions has

plummeted. See id. at 32–34. Instead, it chalks up

the low frequency of executions to the very discretion

that makes capital punishment arbitrary. Opp. 36.

The reality is that “evolving standards of decency”

have led the majority of States in this Nation to

collectively renounce the death penalty. Trop v.

Dulles, 356 U.S. 86, 101 (1958). This Court should

do the same.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

SARAH M. CUMMINGS

REED SMITH LLP

2911 Turtle Creek

Blvd., Suite 300

Dallas, TX 75219

CATHERINE E. STETSON

Counsel of Record

E. DESMOND HOGAN

KATHRYN MARSHALL ALI

ELIZABETH LOCKWOOD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Petitioner

MAY 1, 2019