Amicus Curiae Brief — James Skinner, Petitioner v. Louisiana

No. 25-1

In the Supreme Court of the United States

JAMES SKINNER

PETITIONER,

v.

LOUISIANA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO LOUISIANA’S 21ST JUDICIAL DISTRICT COURT

BRIEF OF LAW PROFESSORS

AS AMICI CURIAE SUPPORTING PETITIONER

ZACHARY K. WARREN

Counsel of Record

ROBERT M. CARY

GARRETT M. WEN

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

zwarren@wc.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ......................................... 1

SUMMARY OF ARGUMENT ............................................... 4

ARGUMENT ................................................................................ 7

I. Prosecutors Have Both a Constitutional and an

Ethical Obligation to Disclose Material Evidence to

the Defense ............................................................................ 7

II. Unremedied Brady Violations Corrode Professional

Ethical Standards and Harm the Justice System.... 10

III. The Brady Violations Here Are Particularly

Egregious ............................................................................. 12

IV. The Decisions Below Grossly Distorted Brady by

Distinguishing Two Cases that Aren’t

Distinguishable and Imposing on Mr. Skinner an

Unprecedented Burden to Prove the “Credibility” of

the Evidence that Prosecutors Withheld ................... 15

CONCLUSION .......................................................................... 19

APPENDIX A ............................................................................1a

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Brady v. Maryland,

373 U.S. 83 (1963) .............................. 4-10, 12, 14, 16-18

California v. Green, 399 U.S. 149 (1970) .......................... 18

Cone v. Bell, 556 U.S. 449 (2009) ....................................... 10

Connick v. Thompson, 563 U.S. 51 (2011).................. 10, 12

Disciplinary Couns. v. Kellogg-Martin,

923 N.E.2d 125 (Ohio 2010) (per curiam) ..................... 9

Giglio v. United States, 405 U.S. 150 (1972) ............ 4, 8, 18

Glossip v. Oklahoma, 145 S. Ct. 612 (2025) ..................... 17

Hurd v. People, 25 Mich. 405 (1872) ................................... 7

In re Att’y C, 47 P.3d 1167 (Colo. 2002) (en banc)............. 9

In re Jordan, 913 So. 2d 775 (La. 2005)............................ 10

In re Riek,

834 N.W.2d 384 (Wis. 2013) (per curiam)..................... 9

In re Seastrunk, 236 So. 3d 509 (La. 2017) ...................9-10

Kyles v. Whitley, 514 U.S. 419 (1995) ........ 8, 10, 12, 14, 18

Murray v. Carrier, 477 U.S. 478 (1986) ........................... 18

Nix v. Whiteside, 475 U.S. 157 (1986) .............................. 11

People v. Davis, 18 N.W. 362 (Mich. 1884) ........................ 7

Ramos v. Louisiana, 590 U.S. 83 (2020) .......................... 15

Schlup v. Delo, 513 U.S. 298 (1995) ................................... 18

Smith v. Cain, 565 U.S. 73 (2012)................................ 17, 19

State ex rel. Okla. Bar Ass’n v. Ward,

353 P.3d 509 (Okla. 2015) ................................................ 9

Strickland v. Washington, 466 U.S. 668 (1984)............... 11

Strickler v. Greene, 527 U.S. 263 (1999) ......................... 7, 8

United States v. Agurs, 427 U.S. 97 (1976) .................... 8, 9

United States v. Scheffer, 523 U.S. 303 (1998)................. 17

Wardius v. Oregon, 412 U.S. 470 (1973)........................... 11

Wearry v. Cain,

577 U.S. 385 (2016) (per curiam) ....... 4, 6, 12-16, 18-19

III

Page

Other Authorities:

ABA Criminal Justice Standards for the

Prosecution Function) (4th ed. 2017) ...................... 7, 10

Addison M. Bowman, Standards of Conduct for

Prosecution and Defense Personnel: An

Attorney’s Viewpoint,

5 Am. Crim. L.Q. 28 (1966) ............................................. 8

William J. Brennan, The Criminal Prosecution:

Sporting Event or Quest for Truth?,

1963 Wash. U. L.Q. 279 (1963) ..................................... 11

Canons of Pro. Ethics (Am. Bar Ass’n 1908) ..................... 8

Constitutional Convention of the State of

Louisiana, Official Journal of the Proceedings

of the Constitutional Convention of the State

of Louisiana (H.J. Hearsey ed., 1898) ........................ 15

Disciplinary R. 7-103 (Am. Bar Ass’n 1969)................... 8, 9

Stephen Gillers & Roy D. Simon, Regulation of

Lawyers: Statutes and Standards (2005) ..................... 8

Samuel R. Gross et al., Nat’l Registry of

Exonerations, Government Misconduct and

Convicting the Innocent (2020),

https://tinyurl.com/p76rh4ju ........................................ 12

Robert H. Jackson, Att’y Gen. of the U.S.,

The Federal Prosecutor: Address to the

Second Annual Conference of United States

Attorneys (Apr. 1, 1940) ................................................. 7

Peter A. Joy, The Relationship Between

Prosecutorial Misconduct and Wrongful

Convictions: Shaping Remedies for a Broken

System, 2006 Wis. L. Rev. 399 (2006) ........................... 8

Louisiana Rules of Professional Conduct Rule 3.8 ......... 10

David Luban, Are Criminal Defenders

Different?, 94 Mich. L. Rev. 1729 (1996) .................... 11

IV

Page

Other Authorities—continued:

Model Rules of Pro. Conduct r. 3.8

(Am. Bar Ass’n 2020) ............................................ 7, 9, 10

Petition for Writ of Certiorari, Wearry v. Cain,

577 U.S. 385 (No. 14-10008) ......................................... 13

Deborah L. Rhode et al.,

Legal Ethics (9th ed. 2024) ............................................ 9

Richard A. Rosen, Disciplinary Sanctions Agaist

Prosecutors for Brady Violations: A Paper

Tiger, 65 N.C. L. Rev. 693 (1987) ................................ 11

Fred C. Zacharias, Structuring the Ethics of

Prosecutorial Trial Practice: Can Prosecutors

Do Justice?, 44 Vand. L. Rev. 45 (1991) ....................... 7

INTEREST OF AMICI CURIAE 1

Amici are fourteen law professors whose research and

teaching focus on legal ethics and professional responsibility. They have collectively authored widely cited scholarship on prosecutorial conduct. Many have lectured extensively on the subject.

Amici share an interest in ensuring the ethical standards governing prosecutorial conduct are well-defined

and consistently upheld. Because courts’ Brady decisions

and legal communities’ ethical standards frequently overlap and reinforce each other, unremedied Brady violations weaken existing ethical standards and promote

harmful professional norms. Accordingly, amici submit

this brief to highlight, from a legal ethics perspective, why

this Court’s intervention is imperative.

A complete list of amici includes: 2

Nora Freeman Engstrom

Ernest W. McFarland Professor of Law

Co-Director, Deborah L. Rhode Center on the

Legal Profession

Stanford Law School

Rebecca Aviel

Professor of Law

University of Denver Sturm College of Law

Amici affirm that no part of this brief was authored by any party’s

counsel, and no person or entity other than amici or their counsel

funded its preparation or submission. Amici also affirm that all parties were timely notified of the filing of this brief.

2

Amici’s institutional affiliations are included solely for identification purposes. The views expressed in this brief do not reflect the

views of amici’s institutions.

1

(1)

2

Benjamin H. Barton

Helen and Charles Lockett Distinguished

Professor of Law

The University of Tennessee College of Law

Scott L. Cummings

Robert Henigson Professor of Legal Ethics

UCLA School of Law

Barbara S. Gillers

Adjunct Professor of Law

Chair, ABA Standing Committee on Ethics and

Professional Responsibility, 2017-2020

New York University School of Law

Stephen Gillers

Elihu Root Professor of Law Emeritus

New York University School of Law

Leslie C. Levin

Hugh Macgill Professor of Law

University of Connecticut School of Law

David J. Luban

Distinguished University Professor

Class of 1984 Distinguished Chair in Ethics,

Stockdale Center for Ethical Leadership,

United States Naval Academy

Georgetown University Law Center

Lawrence C. Marshall

Professor of Law

Co-Founder, Center on Wrongful Convictions,

Northwestern Pritzker School of Law

Stanford Law School

3

Philip G. Schrag

Delaney Family Professor of Public Interest

Law

Georgetown University Law Center

William H. Simon

Arthur Levitt Professor of Law Emeritus

Columbia Law School

Abbe Smith

Scott K. Ginsburg Professor of Law

Director, Criminal Defense and Prisoner

Advocacy Clinic

Co-Director, E. Barrett Prettyman Fellowship

Program

Georgetown University Law Center

Eli Wald

Charles W. Delaney Jr. Professor of Law

University of Denver Sturm College of Law

W. Bradley Wendel

Edwin H. Woodruff Professor of Law

Cornell Law School

4

SUMMARY OF ARGUMENT

The State of Louisiana deprived Mr. Skinner of his

right to due process by withholding substantial exculpatory evidence critical to his defense. The Louisiana courts

then refused to grant relief, even though this Court

granted relief to Mr. Skinner’s co-defendant under nearly

identical circumstances in Wearry v. Cain, 577 U.S. 385

(2016) (per curiam). This outcome is “incompatible with

‘rudimentary demands of justice.’” Giglio v. United

States, 405 U.S. 150, 153 (1972) (citation omitted). It is

problematic for another distinct but related reason: It

damages the ethical standards upon which the justice system relies.

1. Prosecutors occupy a uniquely powerful position in

the criminal justice system. With this extraordinary

power comes an extraordinary ethical responsibility: Prosecutors must seek justice within the bounds of

the law, not merely to convict.

In Brady v. Maryland, 373 U.S. 83 (1963), this Court

recognized the constitutional dimension of that ethical responsibility: Prosecutors must disclose all “evidence favorable to an accused” that is “material either to guilt or

punishment.” Id. at 87. Brady shaped not only constitutional law but also professional ethical standards. Where

the Canons of Professional Ethics had previously offered

only vague admonitions against “suppression of facts . . .

capable of establishing the innocence of the accused,”

Brady prompted the legal community to adopt clear rules

imposing an affirmative disclosure duty.

Today, every state has imposed a Brady-like ethical

disclosure rule on prosecutors. Some states have expanded Brady’s protection, imposing a greater disclosure

obligation on prosecutors than the Constitution demands.

5

But many, including Louisiana, set their rules to be coextensive with Brady. Together, these rules create personal peril for prosecutors who deprive defendants of due

process; they ensure that prosecutors fulfill their duty

owed not just to the accused but also to the public.

2. Because constitutional obligations and ethical

standards go hand in hand, when courts leave Brady violations undisturbed, they send mixed messages to prosecutors about their ethical duties. These mixed messages

erode professional norms. The weakened norms, in turn,

lead courts to become even more tolerant of constitutional

violations.

Such systemic failings have grave consequences. Defendants rely on prosecutors to produce evidence necessary for their defense, as prosecutors have exclusive access to and control over certain evidence. When deprived

of important information, defendants fall victim to wrongful convictions. Indeed, the most prevalent form of prosecutorial misconduct in wrongful conviction cases involves

the suppression of exculpatory evidence.

3. The Brady violations in this case are particularly

egregious. Louisiana prosecutors withheld not just one,

but at least half a dozen, pieces of favorable evidence from

Mr. Skinner. Notably, this included much of the same

withheld evidence that led this Court to reverse Mr.

Wearry’s conviction. The repeated suppression of favorable evidence here rendered an already weak case even

less reliable. Indeed, Mr. Skinner’s conviction was possible only after a hung jury in the first trial and then a nonunanimous verdict in the second.

4. Moreover, the state-court decisions below doubly

flouted this Court’s Brady jurisprudence.

6

For starters, they brushed aside Wearry as “distinguishable” without any explanation. But Mr. Wearry’s

case and Mr. Skinner’s case are virtually identical: Mr.

Skinner and Mr. Wearry were charged by the same district attorney, indicted by the same grand jury, and tried

as co-defendants for the same homicide, based on the

same theory, with testimony from the same witnesses.

Critically, prosecutors built both cases on the testimony

of Sam Scott and Eric Brown while presenting no physical

evidence. And, in both trials, evidence that would have

seriously undercut Scott and Brown’s testimony was buried. In Wearry, this Court found that “[b]eyond doubt,

the newly revealed evidence suffices to undermine confidence in Wearry’s conviction.” Here, the very same impeachment evidence is at issue. To reject Mr. Skinner’s

claim while granting Mr. Wearry’s claim would offend the

most basic tenets of justice.

Worse yet, while denying Mr. Skinner relief, the district court faulted Mr. Skinner for not presenting information proving that the withheld evidence is “credib[le].”

This requirement to prove “credibility” is wholly unsupported by this Court’s precedents. It shifts to the court a

role that belongs to the jury at a new trial. It defies basic

logic. And it renders relief under Brady all but unattainable for most defendants.

The Court should grant review or summarily reverse.

7

ARGUMENT

I.

Prosecutors Have Both a Constitutional and an Ethical

Obligation to Disclose Material Evidence to the Defense

The prosecutor “has more control over life, liberty,

and reputation than any other person in America.” Robert H. Jackson, Att’y Gen. of the U.S., The Federal Prosecutor: Address to the Second Annual Conference of

United States Attorneys (Apr. 1, 1940). With such tremendous power comes a tremendous ethical responsibility: A prosecutor must “seek justice within the bounds of

the law, not merely to convict.” ABA Criminal Justice

Standards for the Prosecution Function § 3‑1.2(b) (4th ed.

2017). 3

To ensure that “administration of justice,” this Court

held in Brady v. Maryland, 373 U.S. 83 (1963), that prosecutors have an affirmative obligation to disclose “evidence favorable to an accused” where “the evidence is material either to guilt or punishment.” Id. at 87. This

Brady obligation, as the Court later explained, is “applicable even though there has been no request by the accused.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (cit-

See also, e.g., Model Rules of Pro. Conduct r. 3.8 cmt. [1] (Am. Bar

Ass’n 2020) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”); Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors

Do Justice?, 44 Vand. L. Rev. 45, 46 (1991) (explaining that “Codes of

professional responsibility” treat prosecutors as “ministers having an

ethical duty to do justice”); People v. Davis, 18 N.W. 362, 363 (Mich.

1884) (describing the prosecutor as “a sworn minister of justice,

whose duty it was, while endeavoring to bring the guilty to punishment, to take care that the innocent should be protected”); Hurd v.

People, 25 Mich. 405, 416 (1872) (explaining that “[t]he prosecuting

officer represents the public interest, which can never be promoted

by the conviction of the innocent”).

3

8

ing United States v. Agurs, 427 U.S. 97, 96 (1976)). It encompasses “evidence known only to police investigators

and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419,

438 (1995). And it “encompasses impeachment evidence”

that calls into question the “reliability of [the government’s] witness[es].” Strickler, 527 U.S. at 280; Giglio,

405 U.S. at 154.

With its decision in Brady, this Court shaped not only

constitutional law but also professional ethical standards.

Before Brady, the ethics community had only “vague[ly]”

admonished that the “suppression of facts . . . capable of

establishing the innocence of the accused is highly reprehensible.” Canons of Pro. Ethics 5 (Am. Bar Ass’n 1908);

Addison M. Bowman, Standards of Conduct for Prosecution and Defense Personnel: An Attorney’s Viewpoint, 5

Am. Crim. L.Q. 28, 28 (1966). Brady changed that, for the

first time providing a clear framework to assess prosecutors’ ethical obligations. Just one year after the Court’s

1963 decision, the American Bar Association (ABA) created the Special Committee on the Evaluation of Ethical

Standards to amend its existing set of ethics rules. See

Stephen Gillers & Roy D. Simon, Regulation of Lawyers:

Statutes and Standards 523 (2005). And in 1969, the Committee submitted, and the ABA adopted, the following disciplinary rule specifically aimed at prosecutors:

A public prosecutor or other government lawyer in criminal litigation shall make timely

disclosure to counsel for the defendant, or to

the defendant if he has no counsel, of the existence of evidence, known to the prosecutor

or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

Disciplinary R. 7-103 (Am. Bar Ass’n 1969); see also Peter

9

A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a

Broken System, 2006 Wis. L. Rev. 399, 412 (2006). 4

Today, every state (and the District of Columbia) has

adopted an ethics rule to impose on prosecutors a Bradylike disclosure obligation. See infra Appendix A. Some

jurisdictions have broadened prosecutors’ ethical obligation to reach beyond Brady. See Deborah L. Rhode, David Luban, Scott L. Cummings, Nora Freeman Engstrom & Benjamin H. Barton, Legal Ethics 483-84 (9th

ed. 2024). But many, including Louisiana, have made

prosecutors’ disclosure obligations “coextensive with the

obligations required by Brady.” In re Seastrunk, 236 So.

3d 509, 519 (La. 2017); see also, e.g., State ex rel. Okla. Bar

Ass’n v. Ward, 353 P.3d 509, 521 (Okla. 2015); In re Riek,

834 N.W.2d 384, 391 (Wis. 2013) (per curiam); Disciplinary Couns. v. Kellogg-Martin, 923 N.E.2d 125, 130 (Ohio

2010) (per curiam); In re Att’y C, 47 P.3d 1167, 1171 (Colo.

2002) (en banc).

These ethical rules reflect and reinforce Brady by creating personal peril for prosecutors who deprive defendants of due process. While Brady generally “deal[s] with

the defendant’s right to a fair trial,” ethics rules speak to

the prosecutor’s “character and fitness.” United States v.

4

Disciplinary Rule 7-103 has since been modified and incorporated

into the ABA’s Model Rules of Professional Conduct. The rule currently reads:

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Model Rules of Pro. Conduct r. 3.8(b) (Am. Bar Ass’n 2020).

10

Agurs, 427 U.S. 97, 107 (1976) (emphasis added); Connick v. Thompson, 563 U.S. 51, 66 (2011). As the Louisiana Supreme Court has explained, these rules “exist[] to

ensure that the integrity of the prosecutorial arm of our

criminal justice system is maintained.” In re Jordan, 913

So. 2d 775, 783 (La. 2005). Prosecutors who violate the

rules violate their “duty owed” not just to the accused but

“to the public.” Id.

The point of all this is simple: As a “minister of justice,” the prosecutor must fulfill “specific obligations to

see that the defendant is accorded procedural justice.”

Model Rules of Pro. Conduct r. 3.8 cmt. [1] (Am. Bar Ass’n

2020). And by now, it is legal ethics 101 that a prosecutor

bears an “affirmative duty to disclose evidence” that is

“material to [the defendant’s] guilt.” Kyles, 514 U.S. at

432; Cone v. Bell, 556 U.S. 449, 469 (2009); see also ABA

Criminal Justice Standards for the Prosecution Function

§ 3‑5.4 (4th ed. 2017).

II. Unremedied Brady Violations Corrode Professional Ethical Standards and Harm the Justice System

Because Brady obligations and professional ethical

standards often go hand in hand, see supra p.9, how courts

adjudicate Brady claims affects how the legal community

defines its ethical standards. As a result, when courts tolerate Brady violations, they send confusing and subversive signals to prosecutors.

Consider this case. The decisions below, while rejecting Mr. Skinner’s Brady claim, simultaneously defined

the contours of Rule 3.8(d) of the Louisiana Rules of Professional Conduct. Indeed, “[t]he disclosure obligations

found in Rule 3.8(d)” and “in Brady” are “coextensive” in

Louisiana. In re Seastrunk, 236 So. 3d at 519; see also

supra p.9. Louisiana prosecutors may, based on the deci-

11

sions below, wrongly assume that withholding exculpatory and impeachment evidence like that in Mr. Skinner’s

case is tolerable.

This vicious cycle then feeds itself. Professional ethical standards follow court opinions, but courts also look

back to “accepted norms of professional conduct” when

defining constitutional obligations. Nix v. Whiteside, 475

U.S. 157, 171 (1986); see also Strickland v. Washington,

466 U.S. 668, 688 (1984) (professional norms “are guides

to determining what is reasonable”).

The resulting harm strikes at the heart of the justice

system. Defendants rely on prosecutors to assemble information necessary for their defense, as they lack the investigative resources available only to the State—for example, the ability to direct law enforcement resources, to

search people and places, and to interrogate witnesses.

See Richard A. Rosen, Disciplinary Sanctions Against

Prosecutors for Brady Violations: A Paper Tiger, 65 N.C.

L. Rev. 693, 694 (1987); see also Wardius v. Oregon, 412

U.S. 470, 475 n.9 (1973) (discussing prosecutors’ “inherent

information-gathering advantages”). Weakened disclosure standards—whether ethical or constitutional—deprive defendants of that important information, thereby

undermining the accuracy and fairness of trials. As Justice Brennan put it, the “least” defense counsel deserves

is “the opportunity to do what the state does when the

trail is fresh,” namely, to access “what the state has

learned.” William J. Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U.

L.Q. 279, 286 (1963); see also David Luban, Are Criminal

Defenders Different?, 94 Mich. L. Rev. 1729, 1737 (1996)

(describing “the ideal of adversary balance”).

12

Even worse: The deprivation of exculpatory information readily leads to wrongful convictions. The National Registry of Exonerations found that 44% of all exonerations involved withholding exculpatory evidence, the

most prevalent form of prosecutorial misconduct. See

Samuel R. Gross et al., Nat’l Registry of Exonerations,

Government Misconduct and Convicting the Innocent iv,

81 (2020), https://tinyurl.com/p76rh4ju. Many of these exonerations involved defendants on death row. Id. at 1-2, 4

& n.7. This Court is no stranger to such injustice: Time

and again, Brady litigants who succeeded before the

Court were acquitted or had their charges dismissed on

retrial. See, e.g., Connick v. Thompson, 563 U.S. 51, 54

(2011); Kyles, 514 U.S. at 422.

III. The Brady Violations Here Are Particularly Egregious

Exacerbating the inequity, the Brady violations in this

case are flagrant. Louisiana prosecutors concealed at

least half a dozen pieces of favorable evidence from Mr.

Skinner—including much of the same exculpatory evidence they concealed in the Wearry trial. See Pet.7-9.

And it was the failure to divulge this exculpatory evidence

in the Wearry trial that led this Court to reverse Mr.

Wearry’s conviction because the “State’s trial evidence”

was nothing more than a “house of cards built on the jury

crediting [Sam] Scott’s account.” Wearry v. Cain, 577

U.S. 385, 392 (2016) (per curiam). Specifically, as in

Wearry, the prosecutors concealed:

•

Reports from a prisoner that Sam Scott—the

State’s key witness in both the Wearry and

13

Skinner trials—told the prisoner to falsely accuse people if he wanted to “get out of jail.”

Pet.App.27a. 5

•

Details of Louisiana’s plea offer to Scott,

which allowed Scott to plead to manslaughter

and receive credit for time served from before

the crime occurred, ensuring Scott’s release

shortly after testifying. Pet.App.31a-32a;

Pet. for Writ of Cert. at 6, Wearry, 577 U.S.

385 (No. 14-10008).

•

Medical

records

concerning

Randy

Hutchinson—an alleged co-defendant—that

made Scott’s account of events physically impossible.

Namely, Scott testified that

Hutchinson “r[a]n into the street to flag down

the victim, pulled the victim out of his car,

shoved him into the cargo space, and crawled

into the cargo space himself.” Wearry, 577

U.S. at 390. But that couldn’t be. Hutchinson

was incapacitated following knee surgery.

See id. He could barely walk, much less run—

and he certainly could not have performed the

physical feats that Scott described. See id.;

see also Pet. for Writ of Cert. at 11, Wearry,

577 U.S. 385 (No. 14-10008).

•

Records showing that police had promised

Eric Brown—another witness who testified

against both Mr. Wearry and Mr. Skinner—

5

It bears emphasis: Sam Scott was the State’s star witness in both

trials, and, upon its careful review of the record from the Wearry trial,

this Court concluded that Scott’s testimony in the Wearry trial was

“dubious.” Wearry, 577 U.S. at 393.

14

that they would “talk to the D.A.” about a fifteen-year sentence that Brown was serving

and five additional charges that Brown was

facing. Wearry, 577 U.S. at 390.

See also Pet.7-9. Still other exculpatory information has

only recently surfaced:

•

Police records showing that both Sam Scott

and Eric Brown told shifting and conflicting

stories to the State and were subsequently

“corrected” by the State. See Pet.App.19a25a, 36a, 43a-45a, 79a-81a.

•

Government records showing that Brown had

moved for—and later received—a favorable

sentence reconsideration while testifying,

which reduced a fifteen-year sentence he was

serving to just probation. See Pet.App.56a57a.

•

Reports from prisoners that Brown told them

they could “get out of jail” by providing information about the crime, and that Brown was

involved in the crime but wanted to “pin this

crime” on someone else. Pet.App.27a, 50a.

See also Pet.12-14. “[C]ases in which the record reveals

so many instances of the state’s failure to disclose” are

“extremely rare.” Kyles, 514 U.S. at 455 (Stevens, J., concurring). And these repeated instances of Brady violations made the State’s already weak case even less reliable—so much so that it took one hung jury followed by a

separate non-unanimous jury to convict Mr. Skinner. See

Pet.App.24. This Court’s intervention is paramount. 6

The non-unanimous nature of Mr. Skinner’s conviction further

taints this case. Louisiana adopted non-unanimous convictions “to

6

15

IV. The Decisions Below Grossly Distorted Brady by Distinguishing Two Cases that Aren’t Distinguishable and Imposing on Mr. Skinner an Unprecedented Burden to Prove

the “Credibility” of the Evidence that Prosecutors Withheld

As the petition explains, Wearry v. Cain, 577 U.S. 385

(2016) (per curiam), resolves this case. See Pet.18-27. Mr.

Wearry was Mr. Skinner’s co-defendant; the two together

allegedly killed a driver and disposed of his body. See

Pet.4. Like Mr. Wearry, Mr. Skinner was charged with

murder. See Pet.3. Like Mr. Wearry, Mr. Skinner faced

a trial with no physical evidence linking him to the crime.

Pet.5-6. And like Mr. Wearry, Mr. Skinner was convicted

almost entirely on the testimony of Sam Scott and Eric

Brown. See Pet.5-6. When this Court ruled that prosecutors had violated Mr. Wearry’s rights under the Fifth and

Fourteenth Amendments by withholding key impeachment evidence undercutting Scott and Brown’s testimony,

that finding logically meant that Mr. Skinner’s rights

were violated, too.

Yet, the Louisiana courts stubbornly disagreed. Although Mr. Skinner repeatedly argued that Wearry dictates the outcome of his case, the district court rejected

that argument, merely asserting that “the Weary [sic]

case is distinguishable enough” that “its decision did not

compel the Court to follow suit.” Pet.App.3a. The appellate courts then denied review. See Pet.App.5a, 7a. The

ensure that African-American juror service would be meaningless.”

Ramos v. Louisiana, 590 U.S. 83, 88 (2020); see also Constitutional

Convention of the State of Louisiana, Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 380-81

(H.J. Hearsey ed., 1898) (convention that adopted non-unanimous

convictions had the express purpose to “assur[e] white political supremacy”). The jury that convicted Mr. Skinner included only one

Black juror. See Pet.6.

16

district court’s bald statement is indefensible. “There is

no legitimate basis to treat the two codefendants differently.” Pet.App.8a (Griffin, J., dissenting).

But the district court compounded its error with a second, equally flawed rationale. The court rejected Mr.

Skinner’s Brady claim because Mr. Skinner “failed to present any evidence as to the credibility of [the] statements”

that he believed constituted Brady materials. Pet.App.3a.

The court did not explain which “statements” it was referring to, only that the “statements” were “made by multiple parties over two decades ago.” Pet.App.2a-3a.

With this declaration, it appears that the court inexplicably imposed a burden on Mr. Skinner to prove that

statements made by Scott, Brown, and/or their acquaintances in prison were “credible” enough such that introducing them to the jury would “undermine confidence in

the outcome of the trial.” Pet.App.3a. And it somehow

imposed this unprecedented burden on Mr. Skinner in the

shadow of this Court’s determination that “[b]eyond

doubt, the newly revealed evidence suffices to undermine

confidence in Wearry’s conviction.” Wearry, 577 U.S. at

392.

The district court’s ruling is inexplicable. “Credibility” has never been an element of a Brady violation. To

the contrary, at this juncture, the reviewing court must

reverse if it determines that there is a “reasonable likelihood that [the withheld evidence] could have”—not would

have—“affected the judgment of the jury.” Wearry, 577

U.S. at 392 (emphasis added). Reversal is warranted

“[e]ven if the jury—armed with all of th[e] new evidence”—might not find the evidence credible and might

still “vote[] to convict.” Id. at 394.

17

Indeed, whether any suppressed evidence is “credible” is a question for the jury at a new trial: “[T]he jury is

the lie detector.” United States v. Scheffer, 523 U.S. 303,

313 (1998) (emphasis in original) (citation omitted); see

also id. (“Determining the weight and credibility” of “witness[es]” has “long been held to be the ‘part of every case

[that] belongs to the jury’” (citation omitted)). Besides, in

a post-conviction posture, defendants have no power to

subpoena or compel evidence. It blinks reality to require

defendants to obtain and “present” evidence, Pet.App.3a.,

to corroborate information that, until now, was in the

prosecution’s exclusive control.

Lest any doubt remain, this Court has already rejected Louisiana’s attempt to tether Brady to the “credibility” of the withheld evidence. In Smith v. Cain, 565

U.S. 73 (2012), this Court vacated a conviction where Louisiana prosecutors concealed earlier “statements by [the

State’s witness] that conflict with his testimony identifying [the defendant] as a perpetrator.” Id. at 75. Louisiana

argued that those concealed statements were not credible

because they were “made five days after the crime” and

“can be explained by fear of retaliation.” Id. at 76. This

Court was unpersuaded, explaining that Louisiana’s “argument offers a reason that the jury could have disbelieved [the witness’s] undisclosed statements, but gives us

no confidence that it would have done so.” Id. (emphases

in original); see also Glossip v. Oklahoma, 145 S. Ct. 612,

629 (2025) (“[The] assum[ption] [that] the jury would have

believed [the witness] no matter what . . . has no place in

[Brady’s] materiality analysis.”).

Finally, if the district court was referring to out-ofcourt “statements” made by Scott and Brown, then the

court’s “credibility” requirement would fail even basic

18

logic. Scott and Brown’s statements constitute Brady material because the statements contradict those witnesses’

later accounts and could therefore be used to impeach

them. See Pet.9, 21; see also Giglio, 405 U.S. at 154-55.

Accordingly, Mr. Skinner’s defense does not even turn on

establishing Scott and Brown’s credibility; it turns on

Scott and Brown being not credible. By revealing Scott

and Brown’s “hot-and-cold” behavior—and the “dubious”

and “suspect” nature of their testimony, Wearry, 577 U.S.

at 393—the withheld, inconsistent statements support

that defense. See California v. Green, 399 U.S. 149, 15557 (1970) (explaining difference between impeachmentand substantive-use of evidence). It flips impeachment on

its head to require Mr. Skinner to establish the credibility

of the very same witnesses he seeks to impeach. 7

The district court might have confused the Brady standard with

the “actual innocence” standard. The Brady standard—used to ensure a fair trial—requires reversal so long as, considering the new

evidence, courts cannot be “confident that the jury’s verdict would

have been the same.” Kyles, 514 U.S. at 453. The “actual innocence

standard”—used to resurrect procedurally defaulted claims or successive petitions—requires courts to find that, considering “the new

evidence, no juror, acting reasonably, would have voted to find [the

defendant] guilty beyond a reasonable doubt.” Schlup v. Delo, 513

U.S. 298, 329 (1995); see also Murray v. Carrier, 477 U.S. 478, 497

(1986). The latter is much more demanding because, by the time the

“actual innocence” standard kicks in, the defendant already has exhausted appellate and postconviction remedies. Moreover, the “actual innocence” standard is meant to address the unique threat that

defaulted claims and successive petitions pose to “the finality of statecourt judgments and to principles of comity and federalism.” Schlup,

513 U.S. at 318. A Brady claim, raised as this one is, raises none of

those concerns.

7

19

CONCLUSION

Once again, the Louisiana courts rendered decisions

that “r[an] up against settled constitutional principles.”

Wearry, 577 U.S. at 392 (reversing Louisiana courts’ denial of relief on Brady claim); see also Smith, 565 U.S. at

75 (again, reversing Louisiana courts’ denial of relief on

Brady claim). They not only left undisturbed “a conviction that is constitutionally flawed,” Wearry, 577 U.S. at

396, but also—along the way—profoundly damaged professional ethical standards and the justice system at large.

This Court should grant review or summarily reverse.

Respectfully submitted,

ZACHARY K. WARREN

Counsel of Record

ROBERT M. CARY

GARRETT M. WEN

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

zwarren@wc.com

Counsel for Amici Curiae

July 25, 2025

APPENDIX

TABLE OF CONTENTS

APPENDIX A

Ethics Rules Governing Prosecutors’ Disclosure

Obligation, By State ...................................................... 1a

APPENDIX A

Ethics Rules Governing Prosecutors’ Disclosure Obligation, By State

Ala. R. Pro. Conduct 3.8(1)(d)

The prosecutor in a criminal case shall . . . not willfully

fail to make timely disclosure to the defense of all evidence

or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . .

Alaska R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Ariz. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Ark. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

(1a)

2a

Cal. R. Pro. Conduct 5-110(D)

The prosecutor in a criminal case shall . . . [m]ake

timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor

knows or reasonably should know tends to negate the

guilt of the accused . . . .

Colo. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . timely disclose to the defense all information known to the prosecutor, regardless of admissibility, that the prosecutor also

knows or reasonably should know tends to negate the

guilt of the accused or mitigate the offense . . . .

Conn. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . [m]ake

timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the

guilt of the accused or mitigates the offense . . . .

Del. Laws.’ R. Pro. Conduct 3.8(d)(1)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

D.C. R. Prof. Conduct 3.8(d)

The prosecutor in a criminal case shall not . . . [i]ntentionally fail to disclose to the defense, upon request and at

a time when use by the defense is reasonably feasible, any

evidence or information, which can include impeachment

3a

information or information tending to support a motion to

suppress evidence, that the prosecutor knows or reasonably should know tends to negate the guilt of the accused

or to mitigate the offense . . . .

Fla. R. Pro. Conduct 4-3.8(c)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense.

Ga. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or that mitigates the offense.

Haw. R. Pro. Conduct 3.8(d)

A public prosecutor or other government lawyer

shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends

to negate the guilt of the accused or mitigates the offense . . . .

Idaho R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

4a

Ill. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Ind. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Iowa R. Pro. Conduct 32:3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Kan. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Ky. Sup. Ct. R. 3.130(3.8)(c)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

5a

La. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that the prosecutor knows, or

reasonably should know, either tends to negate the guilt

of the accused or mitigates the offense . . . .

Me. R. Pro. Conduct 3.8(b)

The prosecutor shall . . . make timely disclosure in a

criminal or juvenile case to counsel for the defendant, or

to a defendant without counsel, of the existence of evidence or information known to the prosecutor after diligent inquiry and within the prosecutor’s possession or

control, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

Md. R. 19-303.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Mass. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Mich. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

6a

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the degree of the offense . . . .

Minn. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Miss. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Mo. Sup. Ct. R. 4-3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Mont. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Neb. Sup. Ct. R. § 3-503.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

7a

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Nev. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . [m]ake

timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the

guilt of the accused or mitigates the offense . . . .

N.H. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

N.J. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence known to the

prosecutor that tends to negate the guilt of the accused or

mitigates the offense . . . .

N.M. R. Pro. Conduct 16-308(D)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

N.Y. R. Pro. Conduct 3.8(b)

A prosecutor or other government lawyer in criminal

litigation shall make timely disclosure to counsel for the

8a

defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the

guilt of the accused, mitigate the degree of the offense, or

reduce the sentence . . . .

N.C. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the

prosecutor that tends to negate the guilt of the accused or

mitigates the offense . . . .

N.D. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . disclose to

the defense at the earliest practical time all evidence or

information known to the prosecutor that tends to negate

the guilt of the accused or mitigates the offense . . . .

Ohio R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall not . . . fail to

make timely disclosure to the defense of all evidence or

information known to the prosecutor that tends to negate

the guilt of the accused or mitigates the offense . . . .

Okla. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

9a

Or. R. Pro. Conduct 3.8(b)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Pa. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

R.I. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

S.C. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

S.D. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . [m]ake

timely disclosure to the defense of all evidence or information known to the prosecutor that tends to exculpate

the guilt of the accused . . . .

10a

Tenn. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case . . . shall make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Tex. Disciplinary R. Pro. Conduct 3.09(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Utah Code Jud. Admin. r. 13-3.8(d)

The prosecutor in a criminal case shall . . . [m]ake

timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the

guilt of the accused or mitigates the offense . . . .

Vt. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Va. R. Pro. Conduct 3.8(d)

A lawyer engaged in a prosecutorial function shall . . .

make timely disclosure to counsel for the defendant, or to

the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the

guilt of the accused, mitigate the degree of the offense, or

reduce the punishment . . . .

11a

Wash. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

W. Va. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .

Wis. Sup. Ct. R. 20:3.8(f)(1)

A prosecutor, other than a municipal prosecutor, in a

criminal case or a proceeding that could result in deprivation of liberty shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . .

Wyo. R. Pro. Conduct 3.8(d)

The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information

known to the prosecutor that tends to negate the guilt of

the accused or mitigates the offense . . . .