Amicus Curiae Brief — David Brown, Petitioner v. Louisiana

CAPITAL CASE

No. 22-77

IN THE

Supreme Court of the United States

_______________________

DAVID BROWN,

v.

Petitioner,

LOUISIANA

Respondent.

_______________________

On Petition For Writ Of Certiorari To The

Supreme Court Of Louisiana

_______________________

BRIEF OF AMICI CURIAE

THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS (NACDL)

IN SUPPORT OF PETITIONER

_______________________

CHRISTOPHER J. MURELL

DAVID J. UTTER

FAIR FIGHT INITIATIVE

2831 New Orleans,

LA 70117

(504)717-1297 (P)

(504) 233-6691 (F)

chris@murell.law

david@fairfightinitiative.org

JEFFREY T. GREEN*

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Amici Curiae

August 26, 2022

*Counsel of Record

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................... ii

INTERESTS OF AMICI CURIAE ............... 1

SUMMARY OF THE ARGUMENT ............. 2

ARGUMENT ................................................. 4

I.

THE

DECISION

BELOW

CREATES

A

FRAMEWORK

RADICALLY AT ODDS WITH

THIS COURT’S PRECEDENT ......... 4

a. The Louisiana Supreme

Court’s New Definition of

“Favorable” Vitiates Brady

and its Progeny ....................... 4

b. Brown Again Procedurally

Misapplies

this

Court’s

Materiality Analysis ............... 8

II. LOUISIANA COURTS CONTINU

E TO COUNTENANCE AND

ENABLE BRADY VIOLATIONS,

REQUIRING FEDERAL COURTS

REPEATED INTERVENTION ......... 9

a. The Louisiana Supreme

Court Persists in Ignoring or

Disregarding this Court’s

Brady Decisions....................... 9

b. The Louisiana Supreme

Court’s Refusal to Follow

Brady

Necessitates

Frequent Federal Reversals ... 16

CONCLUSION ............................................. 20

ii

TABLE OF AUTHORITIES

CASES

Page

State ex rel. Benn v. State, 11-2418 (La.

06/22/12); 90 So.3d 1045............................ 15

State ex rel. Bishop v. State, 13-2613 (La.

10/19/16); 202 So.3d 996............................ 14

In re Bokenfohr, 18-718 (La. 09/21/18);

252 So.3d 872............................................. 12

Boren v. Taylor, 16-2078 (La. 06/29/17);

223 So.3d 1130........................................... 12

Brady v. Maryland, 373 U.S. 83 (1963) ....... 1

Cone v. Bell, 556 U.S. 449 (2009) .......... 5, 6, 7, 8

DiLosa v. Cain, 279 F.3d 259

(5th Cir. 2002) ........................................... 17

Floyd v. Cain, 10-1163 (La. 05/20/11);

62 So.3d 57............................................. 16, 17

Floyd v. Vannoy, 894 F.3d 143

(5th Cir. 2018) ........................................... 17

Grace v. Cain, No. 02-3818, 2021 U.S.

Dist. LEXIS 230654 (E.D. La. Dec. 2,

2021) ...................................................... 13, 16

State ex rel. Hampton v. Cain, 11-1935

(La. 03/23/12); 82 So.3d 1241 .................... 14

Jones v. Vannoy, 17-101 (La. 06/16/17);

221 So.3d 850............................................. 11

Johnson v. Cain, 68 F. Supp. 3d 593,

(E.D. La. 2014) ...................................... 18, 19

Kyles v. Whitley, 514 U.S. 419

(1995) ......................................... 2, 5, 6, 8, 9, 10

Lacaze v. Warden La. Corr. Inst. For

Women, 645 F.3d 728 (5th Cir. 2011) ....... 18

Mahler v. Kaylo, 537 F.3d 494

(5th Cir. 2008) ........................................... 18

McKoy v. North Carolina, 494 U.S. 433

(1990) ......................................................... 5

iii

TABLE OF AUTHORITIES—continued

Page

McQuiggin v. Perkins, 569 U.S. 383

(2013) ......................................................... 17

Moore v. Texas, 139 S. Ct. 666 (2019) .......... 7

New Jersey v. T.L.O., 469 U.S. 325

(1985) ......................................................... 5

Penry v. Lynaugh, 492 U.S. 302 (1989) ....... 6

Smith v. Cain, 565 U.S. 73 (2012) ......... 2, 7, 10

State v. Baumberger, (La. 12/14/12); 104

So.3d 417.................................................... 11

State v. Bazile, 12-2243 (La. 05/07/13);

144 So.3d 719............................................. 12

State v. Beckley, 21-1987 03/15/22); 333

So.3d 1237.................................................. 11

State v. Blank, 16-213 (La. 05/13/16); 192

So.3d 93...................................................... 15

State v. Broadway, 17-825 (La. 09/21/18);

252 So.3d 878............................................. 15

State v. Carter, 10-614 (La. 01/24/12); 84

So.3d 499.................................................... 15

State v. Chester, 15-2304 (La. 12/16/16);

208 So.3d 338............................................. 15

State v. Clark, 12-508 (La. 12/19/16); 220

So.3d 583.................................................... 12

State v. Coleman, 14-402 (La. 02/26/12);

188 So.3d 174............................................. 12

State v. Coleman, 19-936 La. 03/09/20);

290 So.3d 1129........................................... 11

State v. Dyer, 12-1166 (10/26/12); 101

So.3d 38...................................................... 12

State v. Elmore, (La. 04/26/22); 336 So.3d

889.............................................................. 11

State v. Galle, 15-1734 (La. 03/13/17); 212

So.3d 1164.................................................. 11

iv

TABLE OF AUTHORITIES—continued

Page

State v. Garcia, 09-1578 (La. 11/16/12);

108 So.3d 1................................................. 15

State v. Grace, 17-2070 (La. 02/25/19);

264 So.3d 431......................................... 13, 16

State v. Grace, 17-451 (La. App. 5 Cir.);

2017 La. App. LEXIS 2107....................

13

State v. Green, 16-107 (La. 06/29/17);

225 So.3d 1033....................................... 14, 15

State v. Green, 17-626 (La. 06/29/17); 227

So.3d 818.................................................... 11

State v. Hampton, 19-1429 (La. 02/26/20);

2020 La. LEXIS 504 .................................. 11

State v. Hoffman, 20-137 (La. 10/19/21);

326 So.3d 232............................................. 14

State v. Lacaze, 16-234 (La. 12/16/16) (La.

12/16/16); 208 So.3d 856............................ 15

State v. Newton, 17-926 (La. 02/11/19);

263 So.3d 421............................................. 11

State v. Pierre, 13-873 (La. 10/15/13); 125

So.3d 403.................................................... 12

State v. Revish, 19-1732 (La. 10/20/20);

340 So.3d 864............................................. 12

State v. Robertson, 15-1911 (La. 01/08/16);

182 So.3d 942............................................. 12

State v. Robertson, 18-1006 (La. 05/20/19);

271 So.3d 190............................................. 11

State v. Ross, 13-175 (La. 03/25/14); 144

So.3d 932.................................................... 12

State v. Serigne, 16-1034 (La. 10/06/17);

232 So.3d 1227........................................... 11

State v. Skinner, 19-1427 (La. 02/26/20);

2020 La. LEXIS 507 .................................. 11

v

TABLE OF AUTHORITIES—continued

Page

State v. Williams, 19-1293 (La. 08/14/20);

300 So.3d 825............................................. 12

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

2008) .......................................................... 18

Tennard v. Dretke, 542 U.S. 274 (2004)....... 9

Wearry v. Cain, 577 U.S. 385

(2016) ........................................... 2, 6, 7, 9, 10

Whitmore v. State, 18-1093 (La. 05/06/19);

2019 La. LEXIS 1267 ................................ 12

OTHER AUTHORITIES

Page for Douglas DiLosa’s Case, THE

NATIONAL REGISTRY

OF EXONERATIONS, available at: https://

www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3178

(last visited August 25, 2022) ................... 17

Page for John Floyd’s Case, THE

NATIONAL REGISTRY

OF EXONERATIONS, available at: https://

www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5454

(last visited August 25, 2022) ................... 17

1

INTERESTS OF AMICI CURIAE 1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional association that works on behalf of criminal

defense attorneys to ensure justice and due process

for those accused of crime or misconduct. NACDL

was founded in 1958 and boasts a nationwide membership of many thousands of direct members and

up to 40,000 affiliates. NACDL’s members include

private criminal defense lawyers, public defenders,

military defense counsel, law professors, and judges.

It is the only nationwide professional bar association

for public defenders and private criminal defense

lawyers. NACDL is dedicated to advancing the

proper, efficient, and virtuous administration of justice.

NACDL files many amicus briefs each year, including in this Court, seeking to provide assistance

in cases that present issues of broad importance to

criminal defendants. NACDL and its members have

a vital interest in ensuring that that Brady v. Maryland, 373 U.S. 83 (1963) and its progeny are uniformly applied both by prosecutors and courts

around the country, including in Louisiana. Because

disclosure decisions by prosecutors are largely selfpoliced, NACDL respectfully submits that a uniform

standard is all more critical.

1 Pursuant to this Court’s Rule 37, Amici state that no coun-

sel for any party authored this brief in whole or in part, and no

person or entity other than Amici made a monetary contribution to the preparation or submission of the brief. Both Petitioner and Respondent consented to the filing of this amicus

brief.

2

SUMMARY OF THE ARGUMENT

Again2 and again 3 and again, 4 this Court has been

forced to intervene and correct blatant misinterpretations, mischaracterizations, and misapplications

of Brady and its progeny by Louisiana state courts.

After having previously done so in Kyles and Smith,

this Court in 2016 once more instructed the Louisiana Supreme Court to no longer “emphasize[] reasons a juror might disregard new [undisclosed] evidence while ignoring reasons she might not.”

Wearry, 577 U.S. at 394.

Yet the decision below establishes a new, constitutionally untethered definition of “favorable.”: to be

subject to disclosure, evidence is only “favorable” if

it explicitly “preclude[s]” a defendant’s involvement

in a crime. Pet. App. 163a. This new standard confuses what would constitute a “defense” (e.g., selfdefense, alibi) with what Brady actually requires. To

be “favorable” under Brady, evidence need only “lend

support” to a defense or—in the capital sentencing

context—any mitigating fact that could be a basis for

a sentence less than death. This Court has emphasized that this test for favorability is broad. In Kyles

itself, this Court found the absence of defendant’s

car from an admittedly incomplete list of cars at the

scene of the crime to be favorable. See Kyles, 514

U.S. at 450–51. Such a fact plainly did not “preclude”

or “elucidate” Kyles’ involvement in the crime, thus

would not be subject to disclosure based on the decision below. Inconsistent witness statements, such as

2 See Kyles v. Whitley, 514 U.S. 419 (1995).

3 See Smith v. Cain, 565 U.S. 73 (2012).

4 See Wearry v. Cain, 577 U.S. 385 (2016).

3

in Kyles and Smith, do not necessarily preclude the

defendant from having committed a crime, nor does

a suppressed deal that a jailhouse informant seeks

in return for his testimony as in Wearry.

Second, this Court has repeatedly held the materiality of suppressed evidence is to be assessed cumulatively in context of the whole record. However,

the majority below vastly distorts this inquiry by implementing a constitutionally impermissible

“screening test”: if a reviewing court decides, pieceby-piece, the undisclosed material does not affirmatively exclude the defendant as a perpetrator, the

suppressed evidence is per se not relevant to guilt or

sentencing.

Brown comes on the heels of the resolute refusal

by Louisiana to implement and give effect to this

Court’s Brady rulings. In the decade since Smith

was decided by this Court, the Louisiana Supreme

Court has never cited that decision. Indeed, reviewing all 130 citations to Brady, Kyles, and Wearry

since Smith, the Louisiana Supreme Court has not

found a single “true Brady” 5 violation worthy of

overturning a conviction or sentence.

This outcome is not for want of opportunity. The

Louisiana Supreme Court’s decisions often come

over dissent of other members of the Court who perceive, as the dissenters below did, that a material

Brady violation has occurred. As a result, federal

5 In an interlocutory appellate decision below overturning the

trial court’s granting of a new penalty phase, the Louisiana Supreme Court reserved a “true Brady violation” for instances

where: (1) favorable evidence (2) withheld by the State (3) that

was material. See Pet. App. 199a–200a.

4

courts—including this Court—are continually called

to provide supervision and relief.

This most recent distortion of established doctrine

will strip defendants of constitutional protections,

incentivize prosecutorial non-compliance, and deprive jurors of information essential to their determinations of guilt and punishment—all providing

powerful reasons for this Court to grant certiorari.

ARGUMENT

I. THE DECISION BELOW CREATES A

FRAMEWORK RADICALLY AT ODDS

WITH THIS COURT’S PRECEDENT

A. The Louisiana Supreme Court’s New

Definition of “Favorable” Vitiates

Brady and its Progeny

In Brown, the Louisiana Supreme Court concocts

an entirely new definition of “favorable” that is incongruent with well-established Constitutional

precedent from this Court.

Several facts are beyond dispute. At the time of

Mr. Brown’s trial, the State had in its possession a

statement from a witness—taken by the trial prosecutor himself—that Barry Edge confessed that he

and Jeffrey Clark “made the decision to kill” Captain

Knapps. Pet. App. 159a. This decision was made by

“[Edge] and Jeff[rey Clark]” because “all of th[ose]

other [m-f-s] that was involved they couldn’t seem to

get their head together.” Id. (emphasis added).

“[Edge] said me and Jeff decided we’re going to kill

him.” Id. (emphasis added). The trial prosecutor

then asked the witness, “And [Edge] and, he and Jeffrey made the decision.” Id. at 160a. The witness responded, “[Edge] said him and Jeffrey did, were the

5

only ones that that were thinking rationally during

this highly charged situation.” Id. (emphasis added).

The State acknowledges it chose not to disclose this

statement to Mr. Brown’s trial counsel.

Before even reaching materiality, the majority

writes: “[The suppressed statement] simply does not

exculpate defendant and in that regard is not favorable to him.” Pet. App. 160a (emphasis added). The

Louisiana Supreme Court continues that because

the statement “does not preclude” or “speak to” the

Mr. Brown’s involvement in the actual murder, Id.

at 163a, it was not favorable to him in the jury’s determination of whether to impose the death penalty

or not. Id. at 163a–164a.

This Court has explicitly rejected this precise

framework in the context of guilt and penalty decisions. See Cone v. Bell, 556 U.S. 449, 475 (2009) (reversing death sentence for failure to disclose evidence was “mitigating, though not exculpating, [the

defendant’s] role in the crimes”) (emphasis added).

“It is universally recognized that evidence to be relevant to an inquiry, need not conclusively prove the

ultimate fact in issue,” but merely have “any tendency” to make a fact of consequence “more or less

probable.” New Jersey v. T.L.O., 469 U.S. 325, 345

(1985). “The meaning of relevance is no different in

the context of mitigating evidence in a capital sentencing proceeding.” McKoy v. North Carolina, 494

U.S. 433, 440 (1990).

In Kyles itself, police compiled a computer printout

of the license plate numbers of cars parked at the

scene on the night of the murder, which was never

disclosed to the defense. 514 U.S. at 419. Curtis

Kyles’ car was not listed. Id. The State argued that

6

this evidence did not fall under Brady because Kyles

could have moved his car before the list was created

and the list did “not purport to be a comprehensive

listing of all cars in the Schwegmann’s lot.” Id. at

450–51. This Court flatly rejected this contention,

stating it, “confuses the weight of the evidence with

its favorable tendency.” Id. at 450.

This expressio unius est exclusio alterius logic is an

exact parallel to what Petitioner argues now: by the

exclusion of Petitioner’s name in Edge’s confession,

jurors could draw the inference Petitioner was not

among those inmates that decided Captain Knapps

“had to die” and then killed him. Pet. App. 160a.

Or, a juror could have concluded that since the decision to kill did not originate with Petitioner, he was

less morally culpable thus deserving of a sentence

less than death. See Cone, 556 U.S. at 475 (favorable

evidence need only provide a reason that “might

have persuaded one or more jurors” to choose a sentence less than death); Penry v. Lynaugh, 492 U.S.

302, 327–28 (1989) (“[I]t is precisely because the

punishment should be directly related to the personal culpability of the defendant that the jury must

be allowed to consider and give effect to . . . the circumstances of the offense.”).

Nevertheless, Brown’s entire discussion of this

suppressed statement in the context of “favorability”

is a repeat of what this Court rejected in Wearry—

“[E]mphasiz[ing] reasons a juror might disregard

new evidence while ignoring reasons she might not.”

577 U.S. at 394; compare Pet. App. 161a (despite

Edge confessing he and Clark chose to kill Captain

Knapps, because Petitioner’s role was not explicitly

“elucidate[ed],” “the statement is not favorable”).

7

The Louisiana Supreme Court’s favorability analysis conflates favorability with weight, mirroring arguments Louisiana prosecutors continue to make—

and lose—before this Court. See Smith, 565 U.S. at

76 (“The State’s argument offers a reason that the

jury could have disbelieved Boatner’s undisclosed

statements, but gives us no confidence it would have

done so.” (emphasis in original)); Wearry, 577 U.S. at

394 (“Even if the jury—armed with all of this new

[Brady] evidence—could have voted to convict

Wearry, we have ‘no confidence that it would have

done so.’” (quoting Smith, 565 U.S. at 76)).

Recently, when a state court has refused to follow

this Court’s direction on remand, this Court granted

certiorari and reversed again. See Moore v. Texas,

139 S. Ct. 666, 670 (2019) (overturning lower court

for a second time because on remand, there are “too

many instances in which, with small variations, it

repeats the same analysis we previously found wanting, and these parts are critical to its ultimate conclusion”).

This Court has also rejected Louisiana’s approach

in Brown with regards to mitigation evidence. In

Cone, the defendant did not dispute that he committed the murders. Instead, he argued the State suppressed evidence would have “corroborated his trial

defense” and “bolstered his case in mitigation” that

he was not deserving of death because he was suffering from “acute amphetamine psychosis” during the

killings. 556 U.S. at 451. The undisclosed evidence

in Cone that warranted certiorari included statements that the defendant looked “drunk or high,”

“acted real weird,” and “looked wild eyed” in the days

preceding the murders. Id. at 471. Since each withheld statement “strengthen[ed] the inference that

8

Cone was impaired by his use of drugs” and “lend[ed]

support” to his defense, this Court found it favorable—though none of these observations directly “exculpate[d]” as required by the ruling below. Id. at

470, 471.

Finally, the Louisiana Supreme Court’s new misinterpretation of “favorability” would simply erase

large swaths of evidence from constitutional disclosure obligations. Any Giglio evidence impeaching a

witness due to prior inconsistent statements or evolution of an eyewitness account over time does not

“exculpate” a defendant or “preclude” her guilt; nor

does evidence of a deal or other motives of a witness

hidden by the State, nor does evidence of biased or

incompetent policing, nor do many documents—like

lists of cars in a parking lot.

In short, under the doctrinal framework created by

the decision below regarding “favorability,” the Louisiana Supreme Court would have been correct to

deny relief in Kyles, Smith, and Wearry.

B. Brown Again Procedurally Misapplies

this Court’s Materiality Analysis

In determining materiality, “suppressed evidence

[must be] considered collectively, not item by item.”

Kyles, 514 U.S. at 436. In capital cases, undisclosed

favorable evidence is evaluated to determine, in the

context of the record as a whole, whether it could

have served as a basis for a sentence less than death

by one juror or more jurors. Cone, 556 U.S. at 475.

The Louisiana Supreme Court was bluntly told

this in Kyles and again in Wearry. In just 2016, this

Court wrote that the Louisiana Supreme Court once

more erred in viewing the suppressed evidence “in

9

isolation rather than cumulatively.” Wearry, 577

U.S. at 394.

While again engaging in hypothetical ways in

which a juror could potentially disregard Edge’s confession as favorable in Brown, the lower court’s decision here departs even further from this Court’s precedent by creating an impermissible “screening test”

for Brady evidence: If withheld evidence is not directly exculpating, i.e., explicitly precluding one’s involvement in a crime, it is per se not favorable or material even as to sentencing. See Pet. App. 158a–

164a. Instead of assessing the evidence cumulatively, the lower court isolates evidence and excludes

it as irrelevant.

Such screening tests for mitigating evidence have

previously been struck down as having “no foundation in the decisions of this Court.” See Tennard v.

Dretke, 542 U.S. 274, 284 (2004). This most recent

screening test, and disregard of this Court’s materiality precedent, should suffer the same fate.

II. LOUISIANA COURTS CONTINUE TO

COUNTENANCE AND ENABLE BRADY

VIOLATIONS, REQUIRING FEDERAL

COURTS REPEATED INTERVENTION

A. The Louisiana Supreme Court Persists

in Ignoring or Disregarding this

Court’s Brady Decisions

Louisiana is “descend[ing] to a gladiatorial level

unmitigated by any prosecutorial obligation for the

sake of truth.” Kyles, 514 U.S. at 439. This Court has

previously provided numerous examples of what

constitutes “favorable and material” evidence in

10

Louisiana cases: (1) undisclosed inconsistent descriptions of shooter by a witness; 6 (2) undisclosed

inconsistent accounts of events by witnesses; 7 (3)

evolution of an eyewitnesses’ account of his ability to

identify a perpetrator 8or the details of what she saw

over time, 9; (4) bias or incompetent policing; 10 (5)

concealed motives for a witness’ statements inculpating a defendant, 11 such as receiving a deal in his

own case 12 or personal animus against the defendant 13; and (6) documents in the possession of the

State that have some “tendency” to be favorable to a

defendant, even if the weight “of its favorable tendency” is at issue. 14

Yet, in reviewing 130 citations to Brady, Kyles,

Smith, or Cain by the Louisiana Supreme Court

since January 10, 2012, 15 that court has not found a

single Brady violation necessitating a reversal of

conviction or sentence. Smith itself has never once

been cited by Louisiana Supreme Court. In eightysix (86) cases that cite to Brady, Kyles, or Wearry,

6 See id. at 441–42.

7 See id. at 442–43.

8 Smith, 565 U.S. at 73–76.

9 See Kyles, 514 U.S. at 444.

10 Id. at 445.

11 Id. at 445.

12 Wearry, 577 U.S. at 390.

13 Id. at 389–90.

14 Id. at 390; see also Kyles, 514 U.S. at 450–51.

15 This Court handed the State its decisive loss in Smith on

that date.

11

the court simply restates pro forma language, “[Petitioner] also fails to show the state withheld material exculpatory evidence in violation of Brady,”

State v. Elmore, 22-423 (La. 04/26/22); 336 So.3d

889, 889 (mem.). Often these summary denials have

no further explanation. Id.; see also, e.g., State v.

Beckley, 21-1987 (03/15/22); 333 So.3d 1237, 1237;

State v. Coleman, 19-936 (La. 03/09/20); 290 So.3d

1129, 1129 (mem.).

While never itself finding a “true Brady violation,”

the Louisiana Supreme Court has remanded cases

for an evidentiary hearing or consideration of a petitioner’s Brady claims post-Smith in six instances.

See State v. Skinner, 19-1427 (La. 02/26/20); 2020

La. LEXIS 507, *1; State v. Hampton, 19-1429 (La.

02/26/20); 2020 La. LEXIS 504, *1; State v. Robertson, 18-1006 (La. 05/20/19); 271 So.3d 190, 190; State

v. Newton, 17-926 (La. 02/11/19); 263 So.3d 421, 421

(mem.); State v. Serigne, , 16-1034 (La. 10/06/17);

232 So.3d 1227, 1232; Jones v. Vannoy, 17-101 (La.

06/16/17); 221 So.3d 850, 850; State v. Galle, 15-1734

(La. 03/13/17); 212 So.3d 1164, 1165.

Twice the court overturned favorable pretrial rulings requiring disclosure of information the defense

alleged to contain Brady material. See State v.

Green, 17-626 (La. 06/29/17); 227 So.3d 818, 818

(finding trial court erred in ordering pretrial disclosure of potential deals with co-defendants to testify);

State v. Baumberger, 12-2053 (La. 12/14/12); 104

So.3d 417, 417 (reversing trial court order to produce

social security number of decedent’s widow requested to further defense investigation). In one

case, the Louisiana Supreme Court held a lower

court’s pretrial ruling requiring disclosure of materials to be reviewed in camera for Brady was not an

12

abuse of discretion. See State v. Robertson, 15-1911

(La. 01/08/16); 182 So.3d 942, 942.

Another eight decisions contain a cite to Brady for

various reasons, but the issues presented and ruled

upon do not involve alleged Brady violation. 16

The remaining Louisiana Supreme Court decisions post-Smith reject the appellants’ Brady claims,

despite numerous cases falling squarely within the

examples this Court has provided in Kyles, Smith,

and Wearry. The Louisiana Supreme Court has denied relief where an undisclosed statement revealed

the key witness initially described the shooter as

“markedly different in appearance than the defendant.” Whitmore v. State, 18-1093, (La. 05/06/19);

2019 La. LEXIS 1267, *1 (Johnson, C.J., dissenting).

In another case, there were substantial undisclosed

discrepancies between the witnesses’ original statements and those at trial, post-trial evidence of witness coercion by the State, and inconsistencies between the police officer’s undisclosed original report

and his trial testimony; nevertheless, the Louisiana

Supreme Court found no violations. See State v. Williams, 19-1293 (La. 08/14/20); 300 So.3d 825, 825–26

(Johnson, C.J., dissenting) (mem.); see also State v.

Coleman, 14-402 (La. 02/26/12); 188 So.3d 174, 203–

04 (untimely and limited disclosure of inconsistent

16 See State v. Revish, 19-1732 (La. 10/20/20); 340 So.3d 864;

In re Bokenfohr, 18-718 (La. 09/21/18); 252 So.3d 872; Boren v.

Taylor, 16-2078 (La. 06/29/17); 223 So.3d 1130; State v. Pierre,

13-873 (La. 10/15/13); 125 So.3d 403; State v. Bazile, 12-2243

(La. 05/07/13); 144 So.3d 719; State v. Ross, 13-175 (La.

03/25/14); 144 So.3d 932; State v. Dyer, 12-1166 (10/26/12); 101

So.3d 38; State v. Clark, 12-508 (La. 12/19/16); 220 So.3d 583

(conviction and death sentence vacated for other reasons by

Clark v. Louisiana, 138 S. Ct. 2671 (2018) (mem.)).

13

witness’ grand jury testimony was not material because jury was “well aware” the witness gave differing accounts).

Nor did the Louisiana Supreme Court act on a case

remarkably similar to, but even more egregious

than, Kyles. As described by the intermediate appellate court, in State v. Grace, the State’s star witness

was originally suspected by police of committing the

murder—the lead detective testified to the grand

jury she planned to arrest him for the crime until he

implicated the defendant. See State v. Grace, 17-451

(La. App. 5 Cir.); 2017 La. App. LEXIS 2107, *4. An

independent eyewitness identified the State’s star

witness, rather than Mr. Grace, as the shooter in

grand jury testimony Id. at *3. The State chose not

to disclose this evidence, and its star witness was

presented to jurors a normal lay eyewitness, not the

original suspect in the murder. Id. at *3–4. The trial

court granted post-conviction relief to the defendant

on these grounds. Id. at *4. A divided panel of the

intermediate appellate court reversed. Id. at *13–17.

Over the dissent of three justices, the majority of the

Louisiana Supreme Court summarily dismissed the

defendant’s claim writing only, “[r]elator fails to

show that the State withheld material exculpatory

evidence in violation of Brady.” State v. Grace, 172070 (La. 02/25/19); 264 So.3d 431, 431–32; see also

id. at 432 (Hughes, J., dissenting). 17

17 As discussed below, this case is one of the numerous in which

a defendant finally got relief in federal court. See Grace v. Cain,

No. 02-3818, 2021 U.S. Dist. LEXIS 230654 (E.D. La. Dec. 2,

2021).

14

Grace is not the only case that a suppressed initial

statement by an eyewitness identifying someone

other than the defendant as the perpetrator was

deemed not material. In State ex rel. Hampton v.

Cain, Justice Johnson dissented from denial of review: “The facts in Brady are virtually identical to

the instant case.” 11-1935 (La. 03/23/12); 82 So.3d

1241 (Johnson, J. dissenting) (quoting State v.

Hampton, 98-331 (La. 04/23/99), 750 So.2d 867, 892

(Johnson, J., dissenting)). Specifically, the State’s

sole eyewitness to the murder testified to the grand

jury that the Mr. Hampton’s co-defendant—not Mr.

Hampton—was the shooter. See id. at1241. This testimony was never disclosed. Id.

In the Louisiana Supreme Court’s jurisprudence

post-Smith, Napue violations (prosecution’s presentation of knowingly false testimony) are not material, merely warranting a single word, “Denied”, over

the dissent of three justices. See State ex rel. Bishop

v. State, 13-2613 (La. 10/19/16); 202 So.3d 996, 996

(mem.) (Johnson, C.J., writing that she would grant

review) (“Considering relator has made a colorable

claim that the state presented false testimony which

contributed substantially, if not entirely to his verdict,” review is warranted); see also State v. Hoffman, 20-137 (La. 10/19/21); 326 So.3d 232, 240–41

(affirming conviction where State suppressed an initial coroner investigator’s report which supported

the defense theory rebutting specific intent to kill,

and then presented contrary evidence at trial). Over

the dissent of two justices, a defendant charged with

home invasion was denied relief after he belatedly

received 635 pages of text messages between himself

and the complainant on the second day of trial. See

State v. Green, 16-107 (La. 06/29/17); 225 So.3d

15

1033, 1037–39. These messages—obtained by the

State well in advance from the defendant’s phone

that was seized by police—“contained concrete exculpatory evidence,” id. at 1046 (Johnson, C.J., dissenting joined by Hughes, J.), namely multiple invitations by the complainant for the defendant to come

visit her on the night of the alleged “home invasion.”

Id. However, the majority found that the text messages were not a basis for relief because the defendant should have known about them. Id. at 1037–39;

see also State v. Carter, 10-614 (La. 01/24/12); 84

So.3d 499, 524 (untimely disclosed audio recording

in possession of the State that supported defense

theory was not material because defendant was on

the call and should have known about the contents).

In the remaining cases, the Louisiana Supreme

Court has ruled Brady evidence not material because it was cumulative, 18 known by trial counsel, 19

or did not bring into question the defendant’s guilt. 20

18 See State v. Garcia, 09-1578 (La. 11/16/12); 108 So.3d 1,

35–38; State ex rel. Benn v. State, 11-2418 (La. 06/22/12); 90

So.3d 1045 (mem.).

19 See State v. Blank, 16-213 (La. 05/13/16); 192 So.3d 93,

102.

20 See State v. Lacaze, 16-234 (La. 12/16/16); 208 So.3d 856,

865 (conviction and death sentence vacated for other reasons

by Lacaze v. Louisiana, 138 S. Ct. 60 (2017)); State v. Chester,

15-2304 (La. 12/16/16); 208 So.3d 338, 348 (conviction and

death sentence vacated for other reasons by Chester v. Vannoy,

No. 16-17754, 2018 U.S. Dist. LEXIS 99219 (E.D. La. June 11,

2018); State v. Broadway, 17-825 (La. 09/21/18); 252 So.3d 878,

885–86.

16

B. The Louisiana Supreme Court’s Refusal to Follow Brady Necessitates Frequent Federal Reversals

In addition to this Court’s decisions, federal courts

have frequently been required to expend resources

reversing Louisiana Brady decisions despite their

limited parameters under the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”) and considerations of comity.

Jessie Grace—the case frighteningly similar to

Kyles described above—is a recent example. After

being denied relief by the Louisiana Supreme Court

in 2019, see Grace, 264 So.3d at 431, Mr. Grace filed

a 28 U.S.C. §2254 petition. The district court found

Mr. Grace’s conviction contrary to and an unreasonable application of this Court’s precedent. See Grace,

2021 U.S. Dist. LEXIS at *31; see also id. at *31–34;

see also id. at *33 (“The State does not point to any

instant in the investigation of the [decedent’s] murder that [purported witness’] role in the matter reasonably went from co-perpetrator to eyewitness.”);

id. at 34 (independent eyewitness’s grand jury testimony suggesting she identified the purported eyewitness —not Mr. Grace—as holding a gun to the decedent’s head).

Over three dissenting justices and without an

opinion, the Louisiana Supreme Court denied relief

to John Floyd. See Floyd v. Cain, 10-1163 (La.

05/20/11); 62 So.3d 57 (mem.). Mr. Floyd was convicted of two murders at two different scenes. No

physical evidence, including fingerprints, tied him to

either scene. After being incarcerated for more than

twenty-three years, pro bono counsel discovered fingerprints results from both crime scenes both

17

marked “Not John Floyd” that never disclosed this

evidence. See id. at 59–60 (Johnson, J. dissenting).

See Floyd v. Vannoy, 894 F.3d 143, 152 (5th Cir.

2018). Ultimately, the federal district court found

that Mr. Floyd’s compelling actual-innocence claim

overcame an otherwise procedurally time-barred

claim under this Court’s decision in McQuiggin v.

Perkins, 569 U.S. 383 (2013). See Floyd, 894 F.3d at

152. The district court then conducted “an exhaustive analysis” of Mr. Floyd’s Brady claims and vacated his conviction. Id. at 153. The Fifth Circuit affirmed: “[I]n light of the newly-discovered evidence,

no reasonable juror, considering the record as a

whole, would vote to convict Floyd of Hines’ murder.”

Id. at 160. On remand, the State dismissed all

charges against Mr. Floyd. 21

Douglas DiLosa was likewise exonerated after his

life sentence was reversed by federal court. The Fifth

Circuit held Louisiana courts “applied a rule of law

contrary to” this Court’s established precedent by

evaluating whether the “four main categories of

withheld evidence” were sufficient to factually exculpate Mr. DiLosa rather undermine confidence in the

verdict. DiLosa v. Cain, 279 F.3d 259, 263–64 (5th

Cir. 2002). The State dismissed charges after remand. 22

21 See Page for John Floyd’s Case, THE NATIONAL REGISTRY

OF EXONERATIONS, available at: https://www.law.umich.edu/s

pecial/exoneration/Pages/casedetail.aspx?caseid=5454

visited August 25, 2022).

(last

See Page for Douglas DiLosa’s Case, THE NATIONAL

REGISTRY OF EXONERATIONS, available at: https://www.law.u

mich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3178 (last visited August 25, 2022).

22

18

Federal habeas relief has been granted where Louisiana courts have declined to find promises of benefits or leniency to witnesses material under Brady.

See Tassin v. Cain, 517 F.3d 770, 775–77 (5th Cir.

2008) (affirming habeas relief due to suppressed leniency agreement between the testifying co-defendant and trial court); Lacaze v. Warden La. Corr. Inst.

For Women, 645 F.3d 728, 731–38 (5th Cir. 2011)

(overruling Louisiana Supreme Court’s determination that an undisclosed promise that the State

would not prosecute of the son of the State’s key witness was not material).

Like many other Louisiana Supreme Court Brady

cases, David Mahler’s post-conviction writ application was denied “without setting forth supporting

reasons.” Mahler v. Kaylo, 537 F.3d 494, 498 (5th

Cir. 2008). Reversing the state courts, the Fifth Circuit held that suppressed witness statements that

the victim was killed in the middle of a fight with the

defendant, rather than (as the State had claimed at

trial) after the fight when the victim turned to run—

could have made a difference to the jury’s decision

whether the defendant was guilty of murder, manslaughter, or was acting in self-defense. Id. at 500–

03. Similarly, in Johnson v. Cain, the State’s key

witness’ account of the facts at trial were far different—and far more inculpatory—than the witness’

undisclosed initial statement. 68 F. Supp. 3d 593,

612 (E.D. La. 2014). At trial, the witness testified the

defendant kicked and shot the complainant after he

was already on the ground. Id. To the contrary, in

his undisclosed initial statement, the witness described a quick exchange where, after seeing the

complainant punch the defendant’s brother in the

mouth, the defendant jumped out of a car and fired

19

immediately. Id. The Louisiana courts denied merits

review, deciding the claim was procedurally barred.

Id. at 610. The district court found this to be an error

of “[s]imple math,” Id. n.11, then granted merits relief on the Brady claim.

This is not an exhaustive review of all relevant federal habeas rulings; rather, an exemplary set of

cases showing the burden that Louisiana courts’

misapplication of Brady law places both on federal

courts and those with constitutionally infirm convictions awaiting relief. Further, AEDPA significantly

limits federal courts corrective oversight meaning

that the number of federal habeas grants necessarily

understates potential prosecutorial violations of

Brady.

20

CONCLUSION

For the reasons set forth herein, Amici respectfully requests that the Court grant review in this

case.

Respectfully submitted,

JEFFREY T. GREEN*

CHRISTOPHER J. MURELL

SIDLEY AUSTIN LLP

DAVID J. UTTER

FAIR FIGHT INITIATIVE

1501 K Street NW

Washington, DC 20005

2831 New Orleans,

LA 70117

(202) 736-8000

(504)717-1297 (P)

jgreen@sidley.com

(504) 233-6691 (F)

chris@murell.law

david@fairfightinitia*Counsel of Record

tive.org

Counsel for Amici Curiae

August 26, 2022