Petition for Writ of Certiorari — Jason Eugene Bush, Petitioner v. Arizona

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JASON EUGENE BUSH

Petitioner

vs.

STATE OF ARIZONA

Respondent

On Petition for a Writ of Certiorari

to the Arizona Superior Court, Pima County

PETITION FOR A WRIT OF CERTIORARI

John L. Saccoman

Counsel of Record

Law Office of John L. Saccoman, Esq.

P.O. Box 16013

Phoenix, Arizona 85011

(602) 492-1521

State Bar No. 013397

saccomanjohn@gmail.com

Attorney for Petitioner

QUESTION PRESENTED

Whether Arizona follows the rule of Kyles v. Whitley requiring prosecutors

to investigate and disclose exculpatory evidence from all participating investigative

agencies in accordance with the due process clause of the Fourteenth Amendment.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

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Table of Contents

.1

Opinions Below

Jurisdiction.................................................................................................................1

Constitutional and Statutory Provisions Involved.....................................................2

Statementof the Case.................................................................................................3

Reasons for Granting this Petition.............................................................................6

I. Arizona does not follow Brady doctrine as set forth in Kyles v. Whitley,

U.S. 419 (1995), in violation of Fourteenth Amendment due process. This

Court should grant certiorari to correct Arizona's misapplication of Brady

doctrine.

Conclusion............................................................................................................... .14

111

INDEX TO APPENDICES

Appendix

Appendix A. Decision of the Arizona Supreme Court.

Appendix B. Order Denying Reconsideration of Appeal.

Appendix C. Arizona Supreme Court Order Denying Special Action.

Appendix D. Arizona Supreme Court Order Denying Special Action.

Appendix E. Arizona Supreme Court Order Denying Petition for Review.

Appendix F. State's Response to Bush's Motion for Discovery.

Supplemental Sealed Appendix

Sealed Appendix 1.

Superior Court Decision Denying Motion for Unredacted

FBI Reports.

Sealed Appendix 2.

Arizona Supreme Court Order Staying Appeal and

Remanding for Post-Conviction Relief.

Sealed Appendix 3.

First Motion for State to Provide Unredacted Reports.

lv

Sealed Appendix 4.

First Special Action to Arizona Supreme Court.

Sealed Appendix 5.

Second Motion for State to Provide Unredacted Reports.

Sealed Appendix 6. Superior Court order denying Motion for Unredacted Reports.

Sealed Appendix 7. Second Special Action to Arizona Supreme Court.

Sealed Appendix 8. Superior Court Order Denying Post-Conviction Relief.

Sealed Appendix 9. Petition for Review of Denial of Post-Conviction Relief.

Sealed Appendix 10. Redacted FBI Report. (one page.)

Sealed Appendix 11. Unredacted FBI Report. (one page.)

Sealed Appendix 12. Redacted FBI Report. (one page.)

Sealed Appendix 13. Unredacted FBI Report. (one page.)

Sealed Appendix 14. Partial pre-trial hearing transcript, 8/2/10 at 1-7.

V

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

SUPREME COURT CASES

Berger v. United States, 295 U.S. 78 (1935).......................................................... 14

Brady v. Maryland, 373 U.S 83(1963) ...................... 3-4,5,6,7,8,9, 10, 11, 12,13

California v. Trombetta, 467 U.S. 479 (1984)........................................................13

Giglio v. United States, 405 U.S. 150 (1972)............................................................6

Kyles v. Whitley, 514 U.S. 419 (1995)..........................................................6, 7, 8, 9

United States v. Agurs, 427 U.S. 97 (1976)........................................................6, 13

United States v. Bagley, 473 U.S. 667 (1985) . ..................................................... 6,7

STATE SUPREME COURT CASES

Canion v. Cole, 210 Ariz. 598,115 P.3d 1261 (2005) ..............................................4

State v. Briggs, 112 Ariz. 379, 542 P.2d 804 (1975).................................................5

State v. Bush,

Ariz.

,

423 P.3d 370, WL 391068 (Aug. 16, 2018) ...............3

State v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014) .............................. 3,4, 5,9-10

State v. Jessen, 130 Ariz. 1, 633 P.2d 410 (1981).....................................................7

vi

State v. Jones, 120 Ariz. 556, 587 P.2d 742 (1978)

.7

STATE COURT OF APPEALS CASES

Canion v. Cole ex rel. County of Maricopa, 208 Ariz. 133, 91 P.3d 355 (App.,

2004)...........................................................................................................................7

STATUTES AND RULES

Arizona Rules of Criminal Procedure, 15.1................................................5, 7-8, 8-9

vii

[iI1ii

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The decision of the Pima County Superior court, the highest state court to

review the merits, appears at Supplemental Sealed Appendix 1 to the petition and

is unpublished.

JURISDICTION

The date on which the highest state court decided this case was August 16,

2018. A copy of that decision appears at Appendix A.

A timely petition for rehearing was thereafter denied on September 6, 2018.

A copy of the order denying rehearing appears at Appendix B. The present

Petition for Certiorari is due on December 5, 2018. S. Ct. R. 13.3.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment XIV

Section 1

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Arizona Rules of Criminal Procedure 15.1

(f) Scope of the State's Disclosure Obligation. The State's disclosure obligation

extends to material and information in the possession or control of any of the

following:

(1) the prosecutor, other attorneys in the prosecutor's office, and members of the

prosecutor's staff,

any law enforcement agency that has participated in the investigation of the

case and is under the prosecutor's direction or control; and

any other person who is under the prosecutor's direction or control and who

participated in the investigation or evaluation of the case.

3.

Arizona Rules of Criminal Procedure 15.1 (2018)

(1) Scope of the State's Disclosure Obligation. The State's disclosure obligation

extends to material and information in the possession or control of any of the

following:

the prosecutor, other attorneys in the prosecutor's office, and members of the

prosecutor's staff;

any state, county, or municipal law enforcement agency that has participated in

the investigation of the case; and

any other person who is under the prosecutor's direction or control and who

participated in the investigation or evaluation of the case.

STATEMENT OF THE CASE

This is a capital case. Bush was one of three defendants convicted of two

murders in 2009. Bush was sentenced to death and timely appealed. The facts of

3

Ariz.

the case are recounted in State v. Bush,

,

423 P.3d 370, No. CR-i 1-

0107-AP, 2018 WL 391068 (Aug. 16, 2018).

While Bush's appeal was pending, the Arizona Supreme Court issued the

decision in Bush's co-defendant's case. State v. Forde, 233 Ariz. 543, 315 P.3d

1200 (2014). Reviewing that opinion, Bush's attorneys learned for the first time of

the existence of FBI reports disclosed in 2011 pursuant to Brady v. Maryland, 373

U.S 83 (1963), right before the start of Forde's trial. Forde, at 549-550, 315 P.3d

at 1206-1207. Information in those FBI reports tended to exculpate Bush. After

securing the reports, Bush moved to stay his appeal and remand to the trial court to

supplement the record.

On May 29, 2014, the Arizona Supreme Court stayed Bush's appeal and

remanded the case for post-conviction relief limited to a claim of the alleged

nondisclosure or inadequate disclosure of 234 pages of FBI reports to Bush's trial

counsel. (Suppi. Sealed Appendix 2.)

Because the disclosed FBI reports were redacted, Bush requested the

prosecutors to provide unredacted copies of the reports. The prosecutors declined

and advised Bush to contact the FBI directly. Thereafter, Bush moved the trial

court to have the prosecutors provide unredacted copies of the reports to Bush.

(Suppl. Sealed Appendix 3.) The court denied the motion observing Arizona's

requirement that in state post-conviction relief a petition must be first filed before

4

discovery may be sought. See Canion v. Cole, 210 Ariz. 598, 115 P.3d 1261

(2005).

Bush filed a special action in the Arizona Supreme Court noting that the

petition-first before discovery requirement of Canion v. Cole did not apply to

Brady material. (Suppi. Sealed Appendix 4.) The Arizona Supreme Court denied

Bush's special action without comment. (Appendix C.)

Bush then filed his petition for post-conviction relief, and again requested

the prosecutors to provide unredacted copies of the FBI reports disclosed as Brady

materials, and to submit to interviews. (Suppi. Sealed Appendix 5.) The State

again objected saying it had given Bush everything in its possession and control

and that it could not make the FBI do anything. The trial court again denied

Bush's motion, this time citing the State's response and quoting from State v.

Forde:

[N]either Rule 15.1 nor Brady requires the state to

disclose evidence outside its possession or control.

SeeAriz. R.Crim. P. 15.1(b) (requiring the state to

disclose material "within the prosecutor's possession or

control"); State v. Briggs, 112 Ariz. 379, 383, 542 P.2d

804, 808 (1975) ("The prosecutor cannot be deemed to

have concealed information relating to the guilt or

innocence of the accused, or punishment if he does not

procure materials in the custody of the FBI, an agency

which is not under the control of the prosecutor.").

(Suppi. Sealed Appendix 6.); Forde at 558, ¶ 41, 315 P.3d at 1215.

5

Bush filed a second special action seeking the reports unredacted. (Suppi.

Sealed Appendix 7.) The Arizona Supreme court again denied review without

comment. (Appendix D.)

The trial court denied Bush's petition for post-conviction relief. (Suppi.

Sealed Appendix 8.) Bush filed a petition for review including the issue of not

receiving unredacted reports under Brady. (Suppl. Sealed Appendix 9.) The

petition for review was consolidated with Bush's appeal. On August 16, 2018, the

court affirmed Bush's convictions and sentences. The same day the court denied

Bush's petition for review of the denial of post-conviction relief without comment.

(Appendix E.) On September 6, 2018, the court denied Bush's motion for

reconsideration. (Appendix B.)

REASONS FOR GRANTING THE PETITION

I. Arizona does not follow Brady doctrine as set forth by Kyles v. Whitley.

A. Brady Doctrine.

The State has a constitutional and ethical obligation to disclose material

exculpatory evidence, pursuant to Brady v. Maryland, 373 U.S 83 (1963). This

duty exists even though no requests were made for the evidence. United States v.

Agurs, 427 U.S. 97 (1976). The Brady rule is based on the requirement of due

process. United States v. Bagley, 473 U.S. 667, 675 (1985) (plurality opinion).

21

Under Brady doctrine, "the individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the government's behalf in the

case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also

Bagley, 473 U.S. at 671-73, 677-78 (prosecutor should have obtained impeachment

evidence possessed by federal agency); Giglio v. United States, 405 U.S. 150, 15255 (1972) (Brady violation when one prosecutor did not disclose deal unknown to

him between key witness and another prosecutor.) Favorable, exculpatory

evidence includes impeachment evidence. Bagley, 473 U.S. at 676. Whether a

prosecutor succeeds or fails in that obligation, his responsibility for failing to

disclose known evidence rising to a material level of importance is inescapable.

Kyles at 437-438.

B. Arizona's Interpretation of Brady doctrine.

Arizona claims that it not only follows Brady, but its interpretation of Brady

as found in Arizona Rules of Criminal Procedure, 15.1 is broader than the

requirements of Brady itself. See State v. Jessen, 130 Ariz. 1, 4, 633 P.2d 410, 413

(1981) ("[T]he disclosure requirements of Arizona Rules of Criminal Procedure,

15.1 are more extensive than those of Brady.") More recently, in Canion v. Cole

ex rel. County of Maricopa, 208 Ariz. 133, 137, ¶ 15, 91 P.3d 355, 359 (App.

2004), the Arizona Court of appeals noted that, like Brady, Rule 15.1 was an

7

expression of due process, and reiterated that the disclosure requirements under the

rule are more extensive than those of Brady. Id. (citing State v. Jones, 120 Ariz.

556, 560, 587 P.2d 742, 746 (1978) and Jessen, 130 Ariz. 1,633 P.2d 410).

However, Rule 15.1(f) which specifically outlines an Arizona prosecutor's

disclosure obligation of exculpatory materials is not broader than the requirements

of Brady. In Arizona, the obligation only extends to disclosure of information

from participatory law enforcement agencies "under the prosecutor's direction or

control. The rule states:

The State's disclosure obligation extends to material and

information in the possession or control of any of the

following:

the prosecutor, other attorneys in the prosecutor's

office, and members of the prosecutor's staff,

any law enforcement agency that has participated in

the investigation of the case and is under the prosecutor's

direction or control; and

any other person who is under the prosecutor's

direction or control and who participated in the

investigation or evaluation of the case.

As a result, Arizona is able to evade its Brady obligations where, as here, it

can claim that a law enforcement agency who participated in the case is not under

the prosecutor's direction or control, thus, it has no obligation to disclose

exculpatory material from that agency. This view is in direct violation of Kyles v.

Whitley, 514 U.S. 419 (1995).

Under the recently overhauled Arizona Rules of Criminal Procedure,

effective in January, 2018, the new rule expanded its disclosure requirements to

cover any state, county, or municipal law enforcement agency that has participated

in the investigation of the case, but the prosecutor is still able to evade her Brady

responsibilities for participating federal law enforcement agencies. The new

15.1(f) states:

The State's disclosure obligation extends to material and

information in the possession or control of any of the

following:

the prosecutor, other attorneys in the prosecutor's

office, and members of the prosecutor's staff,

any state, county, or municipal law enforcement

agency that has participated in the investigation of the

case; and

any other person who is under the prosecutor's

direction or control and who participated in the

investigation or evaluation of the case.

Thus, while the new rule has included any state, county, or municipal law

enforcement agency that has participated in the investigation of the case, it does

not include federal agencies. Hence, any federal investigator or agency that has

participated in the investigation is exempt from Arizona's Brady disclosure

requirements by virtue of not being under the prosecutor's direction or control.

This Arizona anomaly directly contravenes the rule in Kyles.

This incongruity is not abstract. In Bush's co-defendant's case, the issue

was raised on appeal. There, co-defendant Forde argued that the trial court's

denial of her request for the FBI source file violated her rights to due process, to

present a defense, and to confront witnesses by denying her motion. She

contended that disclosure was required by Arizona Rule of Criminal Procedure

15.1 and Brady v. Maryland. State v. Forde, 233 Ariz. 543, 558, ¶ 41, 315 P.3 d

12009 1215 (2014). In affirming the trial court the Arizona Supreme Court

observed:

[N]either Rule 15.1 nor Brady requires the state to

disclose evidence outside its possession or control. See

Ariz. R. Crim. P. 15.1(b) (requiring the state to disclose

material "within the prosecutor's possession or control");

State v. Briggs, 112 Ariz. 379, 383, 542 P.2d 804, 808

(1975) ("The prosecutor cannot be deemed to have

concealed information relating to the guilt or innocence

of the accused, or punishment if he does not procure

materials in the custody of the FBI, an agency which is

not under the control of the prosecutor.").

Bush has never asserted that he is entitled to the FBI's source files. Instead,

Bush maintains that Brady requires the prosecutors to review the FBI's files

unredacted and disclose all exculpatory information therein. Because the

10

prosecutors here did not do that, it is unknown whether additional exculpatory

information exists from the FBI's investigation of and involvement in the case.

Bush was denied due process under the Fourteenth Amendment by

Arizona's failure to follow Brady doctrine. The superior court's refusal to order

the prosecutors to review unredacted FBI reports, disclose all exculpatory material,

and submit to defense interviews precluded counsel's from fully investigating

whether the 234-page FBI report was disclosed or adequately disclosed, as ordered

by the Arizona Supreme Court.

Review of the redacted FBI reports provided to counsel gives rise to

legitimate suspicions that the redacted portions also contain exculpatory

information. Bush received redacted FBI reports in 2009. Only two pages of the

234-page FBI report discuss the alternate suspect information identified as

exculpatory to Bush. Both pages were duplicated for some reason. Of the two

duplicate pages, one is redacted, the other is not. All four pages were disclosed to

Bush. While both pages reveal the existence of an alternate suspect or suspects

who may have been involved in the murders, on the redacted copy of one of the

pages, there is a large redacted paragraph at the bottom of the page. (Suppl. Sealed

Appendix 10.) The duplicate, unredacted page contains a discussion of the

11

alternate suspect being involved in another shooting on the California border.

(Suppi. Sealed Appendix 11.)

Similarly, the second duplicated page shows two redacted paragraphs and

two partially redacted sentences. (Suppi. Sealed Appendix 12.) Again, the

unredacted duplicate discloses information about the alternate suspects being

involved in a violent shooting on the California/Mexico border. (Suppi. Sealed

Appendix 13.) Moreover, the redacted version of Suppi. Sealed Appendix 12 says

that the page is "1 of 2" pages. But the unredacted version has no such "1 of 2" at

the bottom. Both of the unredacted pages are exculpatory in that they show the

alternate suspects being involved in another murder. Based on the context and

locations of the redacted pages as opposed to the unredacted pages, there is a

reasonable likelihood that the reports contain other substantive Brady material

sufficient to require the prosecutors to at least review them unredacted.

These FBI reports were denominated as Brady materials by the prosecutors.

At a pretrial hearing one said, "We were able to tab those portions of the source

file that pertain to this case, that look like they could remotely involve Brady

material." (Suppl. Sealed Appendix 14.) If the portions the prosecutors selected

even "remotely" involved Brady material, that information increases the possibility

that the redacted portions also likely contain Brady material.

12

Those tabbed excerpts became the 234 pages of FBI reports at issue here.

Consequently, the question of the adequacy of the disclosure which was central to

the Arizona Supreme Court's remand order could not be fully answered without

access to the 234 pages unredacted.

The trial court's refusal to order the prosecutors to review unredacted reports

and disclose all exculpatory information had ripple effects. In the interlocutory

post-conviction proceeding, the court's denial prevented Bush from fully

investigating and discovering the disclosure and adequacy of Brady disclosure in

order to support his claims of a Brady violation, and to show the prejudice.

Because the trial court would not order the prosecutors to cooperate and

interview with Bush's attorneys, Bush was unable to properly investigate and

develop his claim of a Brady violation and to show prejudice.

Similarly, on appeal, Bush raised an issue of prosecutorial misconduct for

the prosecutors' failure to review unredacted copies of the FBI reports, and assist

Bush in investigating, developing, and presenting his Brady violation claims.

Without complete, unredacted reports, Bush could not show the materiality of the

non-disclosed material, or its prejudice to Bush.

13

CONCLUSION

This Court has held that the due process clause of the Fourteenth

Amendment requires "that criminal defendants be afforded a meaningful

opportunity to present a complete defense." California v. Trombetta, 467 U.S.

479, 484 (1984). This imposes a "constitutional duty on the prosecution to turn

over exculpatory evidence that would raise a reasonable doubt about the

defendant's guilt." Id. Such evidence is considered material if its exculpatory

value was apparent before the evidence was destroyed and is "of such a nature that

the defendant would be unable to obtain comparable evidence by other reasonably

available means." Id. at 488 (citing United States v. Agurs, 427 U.S. 97 (1976)).

The prosecution's responsibilities go beyond a duty to convict. Berger v.

United States, 295 U.S. 78, 88 (1935) (The prosecution's interest "in a criminal

prosecution is not that it shall win a case, but that justice shall be done.... It is as

much [the prosecution's] duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate means to bring about

a just one.").

From the time Bush filed his Motion to Stay Appeal in 2014 upon discovery

that FBI reports existed, the prosecutors made only a single phone call to the FBI

in which the FBI made assurances that it had "vetted" the source materials,

14

implying that the FBI had thereby adequately protected Bush's constitutional

rights. (Appendix F.) But because the FBI was not the prosecuting agency here,

and therefore had neither the ethical nor professional responsibilities owed by the

prosecutors, nor the intimate knowledge of the case necessary to understand which

evidence was potentially exculpatory, such assurances were meaningless.

The fact that these prosecutors found such assurances satisfactory without

themselves having viewed unredacted copies of the source files demonstrates their

non-compliance with and their misunderstanding of their own obligations. Their

failure to fulfill those obligations, and the Arizona courts' refusal to enforce them,

violated Bush's Fourteenth Amendment rights under Brady and Kyles.

The petition for a writ of certiorari should be granted.

Respectfully submitted:

December 1, 2018.

John L. Saccoman

Counsel of Record

Law Office of John L. Saccoman, Esq.

P.O. Box 16013

Phoenix, Arizona 85011

(602) 492-1521

state Bar No. 013397

saccomanjohn@gmail.com

ohn L. Saccoman

Attorney for Petitioner

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