Reply Brief — Michigan, Petitioner v. Floyd Russell Galloway, Jr.

Supreme Court briefDec 27, 2024

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No. 24-198

In the Supreme Court of the United States

PEOPLE OF THE STATE OF MICHIGAN, PETITIONER

FLOYD RUSSELL GALLOWAY, JR.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

REPLY BRIEF

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

John Pallas

Division Chief

Scott Shimkus

Assistant Attorney General

Criminal Appellate and

Parole Appeals Division

Attorneys for Petitioner

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Introduction ................................................................ 1

Argument .................................................................... 2

Galloway’s “nothing to see here” approach in

opposition to the petition is unavailing. .............. 2

II. Any challenge to the manner and means of

evidence collection necessarily triggers an

inquiry into the exclusionary rule, including

its benefits and costs. ........................................... 3

A. Good faith rebuffs the need for exclusion. .... 4

B. The benefits of exclusion do not outweigh

the societal costs in the face of death. ........... 6

C. The well-recognized alternatives to

exclusion better balance the equities at

play. ................................................................ 8

III. The disparate treatment of a non-team

member’s withholding of exculpatory

information versus privileged yet inculpatory

information confounds this Court’s

conception of justice under Brady v.

Maryland and its progeny. ................................. 10

Conclusion ................................................................. 13

TABLE OF AUTHORITIES

Page

Cases

Brady v. Maryland,

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

Collins v. Virginia,

584 U.S. 586 (2018) .............................................. 8

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) ................................................ 8

Davis v. United States,

564 U.S. 229 (2011) .............................................. 5

District of Columbia v. Wesby,

583 U.S. 48 (2018) ................................................ 9

Goff v. Bagley,

601 F.3d 445 (6th Cir. 2010) .............................. 11

Heck v. Humphrey,

512 U.S. 477 (1994) .......................................... 8, 9

Herring v. United States,

555 U.S. 135 (2009) .............................................. 6

Hudson v. Michigan,

547 U.S. 586 (2006) ................................ 5, 8, 9, 10

Jaffee v. Redmond,

518 U.S. 1 (1996) .................................................. 7

Miclea v. Cherokee Ins. Co.,

963 N.W.2d 665 (Mich. Ct. App. 2020) ................ 2

Nix v. Whiteside,

475 U.S. 157 (1986) .............................................. 7

iii

Nix v. Williams,

467 U.S. 431 (1984) .............................................. 8

People v. Joly,

970 N.W.2d 426 (Mich. Ct. App. 2021) ................ 2

Schlup v. Delo,

513 U.S. 298 (1995) ............................................ 11

Stone v. Powell,

428 U.S. 465 (1976) .............................................. 4

Swidler & Berlin v. United States,

524 U.S. 399 (1998) .......................................... 5, 9

United States ex rel. Shiflet v. Lane,

815 F.2d 457 (7th Cir. 1987) ................................ 2

United States v. Charles,

213 F.3d 10 (1st Cir. 2000) ................................... 2

United States v. Kennedy,

225 F.3d 1187 (10th Cir. 2000) ............................ 2

United States v. Marshank,

777 F. Supp. 1507 (N.D. Cal. 1991) ..................... 2

United States v. Powell,

469 U.S. 57 (1984) ................................................ 3

United States v. Segal,

313 F. Supp. 2d 774 (N.D. Ill. 2004) .................... 2

United States v. Soto,

799 F.3d 68 (1st Cir. 2015) ................................... 3

United States v. Taylor,

764 F. Supp. 2d 230 (D. Me. 2011)....................... 2

United States v. Voigt,

89 F.3d 1050 (3d Cir. 1996) .................................. 2

Statutes

Mich. Comp. Laws § 338.1728(3) ............................. 10

Rules

Fed. R. App. P. 32.1(a) ................................................ 2

Sup. Ct. R. 10(c) ........................................................ 12

INTRODUCTION

The outcome and implications of the state-court

decisions in this case should give this Court pause.

Not only because a young woman has been missing for

nearly a decade without any justice to speak of—

though that is certainly worth more than a moment’s

reflection—but also because this case strikes at the

heart of justice itself.

Both the exclusionary rule and Brady v. Maryland, 373 U.S. 83 (1963), seek to balance the rights of

the accused with the government’s access to evidence

to prove the truth. Typically, that balance teeters in

favor of the accused to protect that person from government malfeasance. But it totters back in the government’s (and the victim’s) favor, if an outside officer

or agency is the one that faltered. And, in the end, effective alternatives to suppression exist to honor good

faith and to deter bad faith.

The State is not alone in recognizing the significance of these issues. Respondent Floyd Galloway,

Jr.’s accusations of “strained conflict” and “tortured

logic” in the State’s petition overlook that two justices

of Michigan’s highest court appraised these issues as

worthy of review. Br. in Opp. 14–15. To be sure, the

justices’ views do not bind this Court, but they do

demonstrate that the issues reach beyond mere error

correction, as Galloway argues, and are not relegated

to the idiosyncrasies of polygrapher James Hoppe,

then-Chief Gary Mayer, or the Farmington Hills Police Department (FHPD). They go much deeper. They

touch on first principles of justice, privilege, and law.

The State asks this Court to intervene.

ARGUMENT

Galloway’s “nothing to see here” approach

in opposition to the petition is unavailing.

Galloway stresses—nine times—that the Michigan Court of Appeals’ opinion is unpublished and is

therefore inconsequential to this Court. Br. in Opp. i,

1, 10, 14, 15, 19, and 26. Yet it is anything but inconsequential.

To begin, the foundational case upon which this

one rests, People v. Joly, 970 N.W.2d 426 (Mich. Ct.

App. 2021), is published, and despite its relative recency it has already been cited in five other published

cases. Joly also relied on numerous published federal

cases. 970 N.W.2d at 432–36 (citing United States v.

Kennedy, 225 F.3d 1187 (10th Cir. 2000); United

States v. Charles, 213 F.3d 10 (1st Cir. 2000); United

States v. Voigt, 89 F.3d 1050 (3d Cir. 1996); United

States ex rel. Shiflet v. Lane, 815 F.2d 457 (7th Cir.

1987); United States v. Taylor, 764 F. Supp. 2d 230 (D.

Me. 2011); United States v. Segal, 313 F. Supp. 2d 774

(N.D. Ill. 2004); and United States v. Marshank, 777

F. Supp. 1507 (N.D. Cal. 1991)).

What is more, an unpublished opinion still provides persuasive authority, especially if it is the only

case on point. Miclea v. Cherokee Ins. Co., 963 N.W.2d

665, 670 (Mich. Ct. App. 2020). In fact, Federal Rule

of Appellate Procedure 32.1(a) explicitly allows citation of unpublished federal authorities issued on or after January 1, 2007. In short, just because an opinion

is unpublished does not mean it is devoid of significance.

In a similar vein, Galloway argues that this case

is “not a good vehicle” for review because it sits in a

pretrial, interlocutory posture. Br. in Opp. 26. He says

it thus “remains to be seen whether the government

even needs the suppressed evidence to convict.” Id.

The issues cannot wait until trial, however, because if

Galloway is acquitted, the prohibition on double jeopardy will deprive the State of any other opportunities

to challenge these adverse rulings. See United States

v. Powell, 469 U.S. 57, 65 (1984). It is now or never.

Nor is the issue whether the facts of this case will

repeat, with some other polygrapher or police chief

choosing to violate a privilege. See Br. in Opp. 25. The

issue is much broader: what an unwitting law-enforcement or prosecution team is to do when receiving

seemingly legitimate information from an outside

source that later turns out to be privileged. It is about

balancing the team’s good faith against the outside

source’s bad faith without giving the criminal defendant an utter windfall. See United States v. Soto, 799

F.3d 68, 81 (1st Cir. 2015) (“The exclusionary rule is

not meant to be a windfall for a defendant.”).

As shown below, Galloway’s rebuttals fall short.

II. Any challenge to the manner and means of

evidence collection necessarily triggers an

inquiry into the exclusionary rule, including

its benefits and costs.

Indiscriminate application of standards in criminal law, rather than assuring the public of their equity

and necessity, “may well have the opposite effect of

generating disrespect for the law and the administration of justice.” Stone v. Powell, 428 U.S. 465, 491

(1976). “The disparity in particular cases between the

error committed by the police officer and the windfall

afforded a guilty defendant … is contrary to the idea

of proportionality that is essential to the concept of

justice.” Id. at 490. These notions hold true for Brady

disclosures and the exclusionary rule, both of which

were indiscriminately applied in this case.

Start with good faith and exclusion.

A. Good faith

exclusion.

rebuffs

the

need

for

Galloway first claims a factual dispute over the

FHPD’s good faith, but that issue has been effectively

settled. Br. in Opp. 21. The Michigan Court of Appeals

found the trial court’s conclusion that then-FHPD

Chief Charles Nebus knew of the privilege from the

start as “tenuous,” because “[w]ithout knowledge that

the source was a private polygraph operator, the request for anonymity was not inherently suggestive of

an ongoing attorney-client relationship or other form

of privilege.” 1 App. 15a–16a. Galloway asserts that

Nebus “plainly suspected” that Mayer’s source was

privileged, but that came months after the tip

1 Galloway is incorrect that Nebus told his officers not to inves-

tigate the tip. Br. in Opp. 22 n.4 (citing App. 58a). The portion of

the trial court’s opinion that Galloway cites reads, “All of the investigating officers who testified stated that they did not attempt

to follow up on obtaining the source of the tip to Mayer because

Nebus resolutely told them there was no more information to be

had from the source.” App. 58a. Galloway’s representation of the

quotation was thus inaccurate. The officers did not investigate

the tip further not because Nebus ordered them not to, implying

an invidious attempt to obscure the truth, but because the tipster

had been exhausted of all information.

evidence had been collected, when the then-Oakland

County Chief Deputy Prosecutor proffered it. (5/3/22

Evid. Hr’g Tr. at 175–76.) Moreover, the Michigan

Court of Appeals reasoned that “there is a significant

distance between mere suspicion that there was something suspicious about the tip and objective awareness

that the tipster was an agent of defense counsel.” App.

16a. Nebus did not know and thus acted in good faith.

Accordingly, “[r]esort to the massive remedy of

suppressing evidence of guilt [was] unjustified.” Hudson v. Michigan, 547 U.S. 586, 599 (2006). Use of the

exclusionary rule in this case has all the trappings of

“the rule’s costly toll upon truth-seeking and law enforcement objectives,” because it deprives an eventual

jury of a large swath of inculpatory evidence and punishes the FHPD for doing their jobs to investigate violent crimes. Id. at 591 (cleaned up). Galloway could hit

the “jackpot” this Court warned of in Hudson, where

suppression may amount to “a get-out-of-jail-free

card.” Id. at 595. Justice demands more.

Galloway proposes that “exclusion [here] serves a

critical purpose beyond the deterrence of willful government misconduct: preserving the sanctity of ‘one of

the oldest recognized privileges in the law.’ ” Br. in

Opp. 24 (citing Swidler & Berlin v. United States, 524

U.S. 399, 410 (1998)). But his proposal disregards this

Court’s insistent admonition that the “sole purpose of

the exclusionary rule is to deter misconduct by law enforcement.” Davis v. United States, 564 U.S. 229, 246

(2011). The Court has “repeatedly rejected efforts to

expand the focus of the exclusionary rule beyond deterrence of culpable police conduct.” Id. Hence,

exclusion cannot be used for enforcement and preservation of a privilege.

A review of deterrence follows. Looking to deterrence, and to deterrence alone, the benefits must be

weighed against the societal costs. Herring v. United

States, 555 U.S. 135, 141 (2009).

B. The benefits of exclusion do not

outweigh the societal costs in the face of

death.

The failure to suppress evidence collected from

breach of a privilege raises the inevitable question of

what else could suffice to deter other officers. Galloway, like the Michigan Court of Appeals, avers that

anything short of suppression would unjustly reward

and could even encourage police misconduct. See Br.

in Opp. 22–23; App. 22a–23a.

The State understands these concerns. Suppression may well be the most obvious and effective deterrent if, as in Joly and similar federal cases, the investigating agency directly encounters and knowingly

uses the privileged information. That is, when there

is no intermediary. But this case is different because

an outside actor intervened and withheld the fact of

privilege from the investigating agency, which received and acted on the information in good faith. This

is not the typical one-sided scenario contemplated by

most straightforward exclusionary cases.

Under this dynamic, the societal repercussions of

suppression must be weighed. See Herring, 555 U.S.

at 141. Primary among them is the loss of reliable evidence of guilt. In this case, the tip evidence fills in the

gaps of Danielle’s and Galloway’s movements on the

night of her disappearance and reinforces the premeditation and deliberation Galloway used against Danielle. True, a jury could infer those actions from other

evidence, but direct evidence will always trump indirect evidence.

These costs easily extend to other situations as

well. To wit: what if the victim is still alive? Would the

law truly prioritize a legal privilege over someone’s

life, tying the police’s hands if they knew or even suspected their information was privileged? Indeed, the

law already recognizes exceptions to the therapist-patient and attorney-client privileges for credible future

threats against third parties. Jaffee v. Redmond, 518

U.S. 1, 18 n.19 (1996) (therapist-patient); Nix v.

Whiteside, 475 U.S. 157, 174 (1986) (attorney-client).

The same rationale applies to someone who is presently in danger. Danielle had been missing for only

one week when the tip came in. Even if her prognosis

had been bleak, it was plausible that she could have

been alive. In that scenario, the standard cannot be

that privilege holders and police must “simply hold

their silence,” as the Michigan Court of Appeals proposed. App. 18a (quotation modified for tense and subject). “No system of justice worthy of the name can tolerate a lesser standard.” Whiteside, 475 U.S. at 174

(noting that the duty of confidentiality does not extend

to “plans” for “future criminal conduct”).

Besides, all is not lost for defendants in the absence of suppression. There are other deterrents that

strike a much more equitable balance between the defendant’s rights and the truth-seeking process—a critical point the state courts failed to consider here.

C. The well-recognized alternatives to

exclusion better balance the equities at

play.

Galloway contends that the petition’s proposed alternative deterrents to exclusion are “illusory if not

wholly fanciful.” Br. in Opp. 23. But were they illusory

or fanciful when two justices of the Michigan Supreme

Court endorsed them? App. 3a–5a. What about when

this Court has endorsed them? Collins v. Virginia, 584

U.S. 586, 609 n.6 (2018) (Thomas, J., concurring)

(“[T]his Court has recognized the effectiveness of alternative deterrents such as state tort law, state criminal law, internal police discipline, and suits under 42

U.S.C. § 1983”); Hudson, 547 U.S. at 596–98 (“As far

as we know, civil liability is an effective deterrent

here, as we have assumed it is in other contexts.”) (citing Correctional Services Corp. v. Malesko, 534 U.S.

61, 70 (2001), and Nix v. Williams, 467 U.S. 431, 446

(1984)).

In any event, Galloway offers two retorts without

explaining either. He first argues that a suit under

§ 1983 would be barred by Heck v. Humphrey, 512

U.S. 477 (1994). Br. in Opp. 23. Not so. Heck precludes

a § 1983 suit if “a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence,” and, if so, the plaintiff must “demonstrate that the conviction or sentence has already

been invalidated” by a court. 512 U.S. at 487. Suits

challenging the collection of evidence, such as under

the Fourth Amendment, however, “may lie” because

“such a § 1983 action, even if successful, would not

necessarily imply that the plaintiff’s conviction was

unlawful.” Id. at 487 n.7. As long as the plaintiff can

point to an “actual, compensable injury” other than

conviction—such as, here, breach of a privilege—the

suit may proceed. Id. See also Hudson, 547 U.S. at 598

(noting that knock-and-announce suits went “forward,

unimpeded by assertions of qualified immunity.”).

Galloway’s second retort to any alternative deterrents (again, without explanation) is that a suit would

be barred under the second prong of the qualified-immunity doctrine. Br. in Opp. 23. Wrong again. “[O]fficers are entitled to qualified immunity under § 1983

unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of

Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (cleaned

up). “Clearly established means that, at the time of

the officer’s conduct, the law was sufficiently clear

that every reasonable official would understand that

what he is doing is unlawful.” Id. at 63 (cleaned up).

This standard, while robust, does not protect “those

who knowingly violate the law.” Id. (cleaned up). And

Galloway contends that Mayer knowingly violated

“ ‘one of the oldest recognized privileges in the law.’ ”

Br. in Opp. 24 (citing Swidler & Berlin, 524 U.S. at

410). His unexplained quibble is therefore meritless.

To be clear: the State does not defend Mayer’s or

Hoppe’s actions, though their intentions were noble to

find Danielle or, if she was deceased, to catch a killer.

The State only explains that there are other deterrent

and punitive measures available besides all-out exclusion of inculpatory evidence derived from a then-secreted breach of a privilege. The trial court and the

Michigan Court of Appeals viewed suppression as the

only viable remedy. Contrary to this Court’s directive,

it was their “first impulse,” not their “last resort.” See

Hudson, 547 U.S. at 591.

One more thing. Galloway apparently doubts that

Mayer could be charged under the polygraph-confidentiality statute, Michigan Compiled Laws

§ 338.1728(3). Br. in Opp. 23 n.5. His reasoning is

striking: because “Hoppe never explicitly informed

Mayer that the information he was conveying derived

from a polygraph examination,” it is “unclear that

Mayer would qualify as a ‘recipient of information

from a polygraph examiner,’ ” assuming, as Galloway

does, that the statute requires “actual knowledge.” Id.

(emphasis added). But if that is true, then this case

should be reversed at once, as Mayer’s objective

knowledge of the privilege undergirds Galloway’s entire claim and the resultant suppression. Galloway

has maintained from the get-go that Mayer was objectively aware of the privileged nature of the tip information. If that is not the case, however, then the

Joly/Voigt test fails, and Galloway’s claim unravels.

Consequently, for any number of reasons, suppression was not warranted.

III. The disparate treatment of a non-team

member’s withholding of exculpatory

information

versus

privileged

yet

inculpatory information confounds this

Court’s conception of justice under Brady v.

Maryland and its progeny.

Galloway’s only true dispute with the State’s

Brady argument is that the outside-officer principle

“has no bearing on the due process issue here” because

Mayer essentially made himself part of the “team” by

conveying information to it. Br. in Opp. 15. That is the

same reasoning the Michigan Court of Appeals applied. See App. 14a. Both miss the mark.

Far from “blind[ing] itself” to the alleged incongruence of the circumstances in Brady and its progeny

and this case, the State avows a contradiction of the

team-based principle when an outside actor provides

not exculpatory information, as in Brady, but inculpatory yet privileged information. Br. in Opp. 16.

The criminal-justice system covets exculpatory information to protect potentially innocent defendants.

See Schlup v. Delo, 513 U.S. 298, 325 (1995). Brady

ensures that the prosecution discloses information

tending to show that the defendant may not have committed the crime charged, and the prosecution risks

reversal if the defendant is convicted in its absence.

But if evidence of potential innocence lies in the hands

of someone, somewhere outside the investigative or

prosecution team, the Constitution does not penalize

the team for it. See, e.g., Goff v. Bagley, 601 F.3d 445,

476 (6th Cir. 2010) (prosecutor has no duty to discover

information possessed by uninvolved agencies). So,

exculpatory information is hallowed, but to a point.

Yet, in situations such as here, if a non-team

member conveys inculpatory information but withholds that it came from a privileged source, the team

is punished for pursuing and using that information.

In both scenarios, though, the outside actor possesses

information undivulged to the team. This results in

identical misconduct but yields divergent, incoherent

consequences: absolution for withholding exculpatory

evidence but not for privileged inculpatory evidence.

As a matter of justice, however, one would expect

the opposite result. That is, one expects the strongest

remedy to vouchsafe the innocent and permit a lesser

remedy for the guilty. The law should not insulate the

guilty while it condemns the innocent.

The regime created by this case is the antithesis

of Brady and its progeny and thereby creates a conflict, contrary to Galloway’s contention. See Sup. Ct.

R. 10(c); Br. in Opp. 15. This dichotomy in approaches

is what caught the attention of two Michigan Supreme

Court justices, who identified a need for harmonization. App. 5a. The State asks for certiorari to do just

that.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,