Opposition Brief — Jason Eugene Bush, Petitioner v. Arizona

No. 18-7235

IN THE

SUPREME COURT OF THE UNITED STATES

JASON EUGENE BUSH,

PETITIONER,

“ys

STATE OF ARIZONA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE ARIZONA SUPERIOR COURT,

IN AND FOR THE COUNTY OF PIMA

BRIEF IN OPPOSITION

MARK BRNOVICH

ATTORNEY GENERAL

O.H. SKINNER

SOLICITOR GENERAL

LACEY STOVER GARD

CHIEF COUNSEL

DAVID R. COLE

SENIOR LITIGATION COUNSEL

CAPITAL LITIGATION SECTION

(COUNSEL OF RECORD)

2005 N. CENTRAL AVE.

PHOENIX, ARIZONA 85004-1580

CADOCKET@AZAG.GOV

TELEPHONE: (602) 542-4686

ATTORNEYS FOR RESPONDENTS

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Is Petitioner entitled to relief under Brady v. Maryland and its progeny?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ceesssssccsccsssssssssssscscssssseceesssscsssseseeccesssesesnsnsnnsnssseseesee i

TABLE OF AUTHORITIES .n.ccscsssssssssssssssssssssssssesesssssseseveveesuvessssevesesesssasesasssnsassesesssessesssesesssees iii

OPINION BELOW .nesssssssssssssssssssssssssssssssvsssssevesscssesnsssesenssssssnsscasesannssssssessssnsasassssesssseneecensenaeenee 1

STATEMENT OF JURISDICTION ....ccccsscsssssscssssssssssssssssssssssssscsssssnsssssssseessecessesseseeeceeeeceseeeneceee 1

PROVISIONS INVOLVED. essssssssssssssssssssssssssssssssesssssssssssseseccessestiseenensesseseseeseseeuenesnsssnssssssssessee 1

STATEMENT OF THE CASE....csssssssssssssssssscsssssssesssscescesesessussssssssssssseseeeeesessuenennensssesseseeeeeeeeeee 1

REASONS FOR DENYING THE WRIT.....ccssscssssessssssssssssssssssssscssssssnssssssecessesesseeeceeceseseeeeeseeneneee 3

CONCLUSION ....sssssssssssesssssssssssssssssssessssssssssssessesssssesesssesssssssssssssssssessssssnnerensnsesssaseseeeceneeceeeseneenee 7

il

TABLE OF AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963). .....0.ccccccceccscseceeseesceccsecesceseessesseeseess 3, 4, 6, 7

Kyles v. Whitley, 514 U.S. 419 (1995)... cee cceccsececceccceccescesecsecssessessecuecseease 3, 5, 6

Milke v. Mroz, 236 Ariz. 276, (App. 2014)... .cceecssecceccsccsccesecselecessesscssessesasesseesesseee 3

Smith v. Cain, 132 S. Ct. 627 (2012)... ececceseeseeseeseeseesesesessesseesecseeeseeseeseesesesesseesess 3

State v. Bush, 244 Ariz. 575 (2018) ........ecccccccesscsecscessccessceessccssecssscessecesscecsscsscerecesereees 2

State v. Eddington, 228 Ariz. 361 (2011) .....ecececececccecseeccescecccesccecesceseescasessesecaeesees 3

State v. Forde, 233 Ariz. 543 (2014)... ceeccecccecceccesccesscesecssesseesseessecssesscessecees 2,4

United States v. Agurs, 427 U.S. 97 (1976) ....cceccccccessscsscsscscesececssseseecsseseesensesaesaes 5

United States v. Bagley, 473 U.S. 667 (1985)... eececseeccccessssseescesesscessessesecasescees 3

Constitutional Provisions

U.S Const. Amend XIV o.....cccccccc cece cee eeeeecceccssecscsccsececeeesecsesecsecsscssscecccecsccesescsssccceceeeeeeene 1

Rules

U.S. Supreme Ct. R. 10... cece cccesscessscessccecesssssessssecsssccesssceeseeecesscecsecesesseeesseceesaees 7

Statutes

28 U.S.C. § 1257 (a)... ccccccccccccscescsscsscssssscsscscsscsscssvssesessscsecsecsecsesaesussecsessersesacsassscsscesees 1

iii

OPINION BELOW

The Pima County Superior Court’s May 17, 2016, order denying the relief sought by

Petitioner appears at Petitioner’s Supplemental Sealed Appendix 8. The Arizona Supreme

Court denied Petitioner’s Petition for Review on August 16, 2018. The order denying

review appears as part of Petitioner’s Appendix A. Petitioner’s request for reconsideration

was denied on September 6, 2018; that order appears at Petitioner’s Appendix B.

STATEMENT OF JURISDICTION

This Court has jurisdiction to consider this matter under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment XIV to the United States Constitution

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.

STATEMENT OF THE CASE

On May 29, 2009, Petitioner shot and killed nine-year-old Brisenia Flores and her

father, Raul Flores. He also shot Gina Flores, Brisenia’s mother, but she survived. Ajury

convicted Petitioner of two counts of first-degree murder, two counts of aggravated

assault, and one count each of attempted first-degree murder, first-degree burglary,

armed robbery, and aggravated robbery. The jury imposed death sentences in connection

with the murders of Brisenia and Raul and a cumulative term of 78 years imprisonment

for the non-capital crimes.

Ultimately, the Arizona Supreme Court affirmed Petitioner’s convictions and

sentences. State v. Bush, 244 Ariz. 575, 423 P.3d 379 (2018). In January 2014, while

Bush’s appeal was pending, the Arizona Supreme Court issued an opinion affirming codefendant Shawna Forde’s convictions and sentences. State v. Forde, 233 Ariz. 543, 315

P.3d 1200 (2014). One of Forde’s claims on appeal was that her right to due process was

denied because State’s counsel failed to timely disclose some FBI reports, referred to in

various documents as “source files.” The Arizona Supreme Court rejected Forde’s claim.

233 Ariz. at 558, 315 P.3d at 1215. On May 29, 2014, the Arizona Supreme Court granted

Petitioner’s request to stay his appeal and remanded the matter to the superior court for

limited post-conviction relief proceedings concerning whether the alleged failure to

disclose the source files deprived Petitioner of his right to due process. (Petitioner’s

Supplemental Sealed Appendix 2.)

The superior court held an evidentiary hearing on April 26, 2016, for the limited

purpose identified in Petitioner’s Supplemental Sealed Appendix 2. Before the testimony

began, the parties stipulated that, in 2009, State’s counsel disclosed an FBI report dated

June 17, 2009. (Respondent’s Sealed Appendix, pp. 21-23.) During the course of the

evidentiary hearing, the source files were admitted as Hearing Exhibit 18. (Id., pp. 12,

26.) Following the hearing, on May 17, 2016, the superior court issued an order denying

relief. (Petitioner’s Supplemental Sealed Appendix 8.)

REASON FOR DENYING THE WRIT

Petitioner urges that Arizona courts violated his rights under Brady v. Maryland,

373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419 (1995). The Petition lacks merit

and should be dismissed.

I. ARIZONA COURTS RECOGNIZE AND PROPERLY APPLY KYLES V

WHITLEY

To the extent Petitioner urges that Arizona courts either do not recognize or fail to

properly apply Kyles v. Whitley, he is mistaken. See State v. Eddington, 228 Ariz. 361,

364, 266 P.3d 1057, 1060 (2011); Milke v. Mroz, 236 Ariz. 276, 282, 339 P.3d 659, 665 (App.

2014).

Il. BRADY V. MARYLAND DOES NOT ENTITLE PETITIONER TO RELIEF

It is incumbent upon prosecutorial officials, as a matter of due process, to disclose

material exculpatory evidence to persons charged with crime. To be entitled to relief

under Brady, a defendant must establish that (1) the State suppressed evidence, (2) the

evidence was favorable to the defendant, and (3) the evidence was material. Brady, 373

U.S. at 87. Evidence is considered “material” if, and only if, “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

“Reasonable probability” in this context has been defined as “a probability sufficient to

undermine confidence in the outcome.” Jd.; see Smith v. Cain, 132 S. Ct. 627, 630 (2012).

1 Respondent’s counsel's research reflects that, between 2008 and 2017, the Arizona Court of Appeals

issued thirteen (13) memorandum decisions that cite Kyles v. Whitley. This is a further indication that

Petitioner’s assertion is incorrect.

Petitioner’s efforts to satisfy these requirements fall short of the mark. First, he

has failed to show that the State suppressed evidence. The superior court found that the

State disclosed the very information contained in the “source files” in November 2009;

furthermore, the source files themselves were made available to Petitioner’s trial counsel

14 months later. (Petitioner’s Supplemental Sealed Appendix 8.) Even if that were not so,

the Federal Bureau of Investigation (“FBI”) is outside the control of the Pima County

Attorney, who prosecuted Petitioner. The prosecutor cannot be held responsible for the

activities of an agency that operates wholly independently of that prosecutor. The Arizona

Supreme Court said as much when it rejected Petitioner’s codefendant’s Brady claim in

State v. Forde, 233 Ariz. 543, 558, 315 P.3d 1200, 1215 (2014).2 Petitioner assigns

particular significance to the fact that the documents in question were redacted before

they were provided to the State and the defense; however, that process was carried out by

the FBI, and that agency refused to disclose unredacted materials to the State.

Second, Petitioner has not demonstrated that the evidence in question was

favorable to him. Even if he had done so, he has failed to show materiality, which is the

third requirement in Brady. The information contained in the source files had nothing

whatsoever to do with the crimes with which Petitioner was charged. That the

information might have resulted in further investigation by Petitioner’s trial counsel does

not magically transform immaterial information into material evidence, nor does the

possibility that further investigation might have provided counsel with other avenues to

challenge the eyewitness testimony or Petitioner’s confession to his crimes. According to

* There is no question that the source files referred to in the Arizona Supreme Court’s opinion in Forde are the same files

4

this Court in United States v. Agurs, 427 U.S. 97 (1976), “The mere possibility that an

item of undisclosed information might have helped the defense, or might have affected the

outcome of a trial, does not establish ‘materiality’ in the constitutional sense.” 427 U.S. at

109-10.

IIT. KYLEsS Vv. WHITLEY DOES NOT ENTITLE PETITIONER TO RELIEF

Petitioner’s heavy reliance on Ky/esis misplaced. Curtis Kyles was found guilty of

first-degree murder and sentenced to death by a Louisiana jury. Any resemblance

between Kyles’s circumstances and Petitioner’s ends with the nature of the convictions

and resulting sentences. On state collateral review, it was discovered that prosecutors had

failed to disclose information that was favorable to Kyles. After the Louisiana courts

denied relief, Kyles filed a petition for writ of habeas corpus in federal district court. The

district court denied relief and the Fifth Circuit affirmed. This Court granted Kyles’s

petition for writ of certiorari and ultimately held that Kyles was entitled to a new trial.

The Court found that, despite having knowledge of the existence of the following items of

evidence before Kyles’s trial began, the State failed to disclose them:

(1) “six contemporaneous eyewitness statements taken by police following

the murder”;

(2) “records of Beanie’s? initial call to the police”;

(3) a tape recording of a conversation among Beanie and two police officers;

(4) a “typed and signed statement given by Beanie the day following his

conversation with the two police officers;

at issue here.

3“Beanie,” whose true name was Joseph Wallace, was a police informant who, according to the Kyles

Court, “seemed eager to cast suspicion on Kyles.” 514 U.S. at 425.

5

(5) a “computer printout of license numbers of cars parked near” the scene

of the crime on the night the murder occurred;

(6) an “internal police memorandum calling for the seizure” of certain

items of rubbish after Beanie told officers that he had seen Kyles put a

purse where the rubbish was located; and

(7) “evidence linking Beanie to other crimes” in the immediate area where

the murder in question occurred, including an unrelated murder of a

woman that was committed eight months before the murder at issue.

514 US. at 428-29.

After conducting a thorough analysis of Kyles’s Brady claim in light of the nature of

the State’s case and Kyles’s defense, the Court granted relief. In so doing, the Court made

this critical observation: “[Tlhe question is not whether the State would have had a case

to go to the jury if it had disclosed the favorable evidence, but whether we can be confident

that the jury’s verdict would have been the same.” Jd. at 453 (emphasis added). The

Court then listed six findings that the jury would have been entitled to make had it heard

and seen the undisclosed evidence. /d. at 453-54. Identification of the perpetrator was a

key issue in Kyles’s case; although the six eyewitnesses agreed that it was a black man,

their descriptions “differed significantly” when it came to the perpetrator’s “height, age,

weight, build, and hair length.” /d. at 423. One is hard pressed to imagine a case where

undisclosed evidence is any more “material” in the sense that term is used in Brady and

its progeny.

In stark contrast, the ostensibly undisclosed evidence in Petitioner’s case falls far

short of satisfying the materiality requirement. Bush was identified as the man who shot

and killed his victims. His DNA was found at the scene of the crimes. He confessed to his

role. The fact that another man who had red hair and, like Petitioner, had the nickname

“Red” was involved in an unrelated shooting in another state was not then, and is not

now, material to Petitioner’s case.

IV. PETITIONER HAS FAILED TO IDENTIFY A CIRCUIT SPLIT OR DISAGREEMENT BETWEEN

STATE COURTS OF LAST RESORT THAT MIGHT WARRANT AN ORDER GRANTING THE

PETITION

It is to be expected that some courts will interpret and apply Brady and its progeny

differently from other courts. Conspicuous by its absence here, however, is any showing

that Arizona courts (1) consistently misinterpret and misapply the law, or (2) misapplied

the law in Petitioner’s case and did so to his detriment. None of the considerations that

govern review on writ of certiorari is present here. SUP. CT. R. 10.

CONCLUSION

Based on the foregoing authorities and arguments, Respondent urges the Court to

deny the Petition for Writ of Certiorari.

Respectfully submitted,

MARK BRNOVICH

Attorney General

O.H. Skinner

Solicitor General

Lacey Stover Gard

Chief Counsel

Mls b. Gronalr— Fok

Davift R. Cole

Senior Litigation Counsel

(Counsel of Record)

Attorneys for Respondents

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