Petition for Writ of Certiorari — Ronald S. Monroe v. Hilton Butler, Warden

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87 1017 | PED

VEC 21 1967

_ | Boserr F. spanion,

: k CLERK

No. 87- :

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RONALD S. MONROE,

Petitioner,

Vv.

HILTON BUTLER,

WARDEN, LOUISIANA STATE PENITENTIARY,

ANGOLA, LOUISIANA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE CRIMINAL DISTRICT COURT

FOR THE PARISH OF ORLEANS, LOUISIANA

Allan Blumstein

(Counsel of Record)

Douglas G. Morris

Andrea Bierstein

Paul, Weiss, Rifkind, Wharton & Garrison

1285 Avenue of the Americas

New York, New York 10019

John DiGiulio

331 St. Ferdinand

Baton Rouge, Louisiana 70802

(504) 383-0078

QUESTIONS PRESENTED

After the federal courts in this capital case found that

Louisiana had violated Brady v. Maryland, 373 U.S. 83 (1963)

by suppressing substantial evidence that another man had

committed the crime for which petitioner was convicted, the

State courts found the contrary. These facts raise two ques-

tions:

, 1. When a federal court has found after a full and f

evidentiary hearing that the State’s post-conviction suppics-

sion of material exculpatory evidence violates a petitioner’s

Brady rights, are the state courts, in determining the remedy

for this violation, bound to give effect to that federal court’s

determination of a federal question under federal doctrines of

collateral estoppel?

2. When a federal court issues a writ of habeas corpus

because of the State’s post-conviction suppression of material

exculpatory evidence in violation of a petitioner’s Brady rights

and remands petitioner to state court to request post-convic-

tion relief which comports with his constitutional rights, are

the state courts required to grant petitioner a new trial or re-

lease him -- until now the invariable remedy for a

prosecutorial suppression of material exculpatory evidence?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............

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

SI oc cc cccsccccceccscess

ee Sa ce hs we hse decss.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............

STATEMENT OF THE CASE ............

The Crime and the Conviction ........

The Suppression of Material,

ESMGUNPOROTY TSVIGOMCE 2.1... e cece:

Post-Conviction Proceedings in the State

Courts -- First Time Around .........

The Federal Habeas Petition ..........

The Federal Evidentiary Hearing ......

The District Court’s Issuance of the Writ

The Fifth Circuit Decision and the Denial

ET

Post-Conviction Proceedings in the State

Courts -- Second Time Around .......

ii

Se .@ 8 64 8.6.64 86 8 2.8

Sat 2 whe & Fw em

REASONS FOR GRANTING THE WRIT .............+---

I. THIS COURT SHOULD GRANT THE

WRIT TO CLARIFY THE REQUIREMENT,

IGNORED ENTIRELY BY LOUISIANA,

THAT STATE COURTS GIVE COLLAT-

ERAL ESTOPPEL EFFECT TO PRIOR DE-

TERMINATIONS OF FEDERAL QUES-

TIONS BY FEDERAL COURTS ............---0-0055

A. Federal Collateral Estoppel Binds

er ee

B. Federal Collateral Estoppel Applies

as a Consequence of the Judicial Power

in Article III, the Supremacy Clause in

Article IV, and the Principles of Full

. - -o veererr + orrerrrrT Ter err

C. Collateral Estoppel Applies to the

ve 8 ol Re errerr rr rer err rere

Il. THIS COURT SHOULD GRANT THE

WRIT TO RESOLVE THE ISSUE OF

WHAT REMEDY A STATE MUST GRANT

FOR A POST-CONVICTION SUPPRES-

SION OF MATERIAL, EXCULPATORY

3, & reer yee

CE 6-5 cee cee kee cde eesnasteentacepeienedes

iii

TABLE OF AUTHORITIES

Cases Page |

Allen v. McCurry, 449 U.S. 90 (1980) .........0....... 24

Anderson v. Phoenix Investment Counsel of

Boston, Inc., 440 N.E.2d 1164 (Mass. 1982) ..... 13 n. 4

Baldwin v. Alabama, 472 U.S. 372 (1985) ......... 24 n. 8

Bardo v. Commonwealth Dept. of Public Welfare,

Bee Cae Be Cs OD 5k 6 obs as RR Kes vd 13 n. 4

Brady v. Maryland, 373 U.S. 83 (1963) ........ i, 6, 7, 25

Delaware Valley Citizens Council for Clean Air

v. Commonwealth of Pennsylvania, 755 F.2d 38

(3d Cir.), cert. denied, 474 U.S. 819 (1985) ... 14, 15, 16

Deposit Bank v. Frankfort, 191 U.S. 499

a ee ee ae 11 n. 2, 16-17

Edwards v. First Federal Savings & Loan

Association of Clovis, 696 P.2d 484 (N.M. App.

SE Sheeh ee eee e ee eeu ne peabeukas 6 ot 60 kns 13

Embry v. Palmer, 107 U.S. 3 (1962) ...........ccccece 15

Freeman v. Lester Coggins Trucking, Inc.,

TR Ween Ge Coeee Gaels BOD oo bios cs cic ccccceces 18

Gelb v. Royal Globe Ins. Co., 798 F.2d 38

(2nd Cir. 1986), cert. denied, 107 S. Ct. 167

Sa ES ac rnin paee Ee ogee 13 n. 3, 24

iv

Page

Hardy v. Johns-Manville Sales Corp., 681 F.2d

Re EE ee kavid ewes veeeneeencdsennnes 14

Hays v. Louisiana Dock Co., 452 N.E.2d 1383

Se Ss Se ED n.d 6 obS Se dseeessisess 13 n. 4

Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1949) ..... 12

In re Wright, 282 F. Supp. 999 (W.D. Ark. 1968)....... 27

International Brotherhood of Electrical

Workers v. Hawaiian Telephone Co., 713

Fee Se ED I eG Cao Cb Sh. wce dsc es cede sek 13

Lakeside v. Oregon, 435 U.S. 333 (1978) .......... 24 n. 8

Levy v. Cohen, 561 P.2d 252 (Cal.), cert.

denied, 434 U.S. 833 (1977) ................ 13 n. 4, 16

Limbach v. Hooven & Allison Co., 466

ESOS Pee ree 11 n. 2, 12

Martin v. Martin, 470 P.2d 662 (Cal. 1970) ........ 13 n. 4

Monroe v. Blackburn, 748 F.2d 958

(Sth Cir. 1984), cert. denied, 106

ee tinted ecweeeees's 9

Montana v. United States, 440 U.S. 147

EE ie ee CaS eh ee esa sins be'5 4 18 n. 5, 24

Myers v. International Trust Co., 263

ee GP eh doce cade ca buheisuncscaceuwieeeen 16

Parklane Hosiery Co. v. Shore, 439

NA I oss ria riiice sc vcicecs.

Segal v. American Telephone & Telegraph

Corp., 606 F.2d 842 (9th Cir. 1979) ........

Seven Elves, Inc. v. Eskenazi, 704 F.2d 241

rs sus bod wee

State v. Monroe, 397 So.2d 1258 (La. 1981) ...

State v. Monroe, 366 So.2d 1345 (La. 1978) ...

Sioll v. Gottlieb, 305 U.S. 165 (1938) .........

Sullivan v. First Affiliated Securities, Inc.,

813 F.2d 1368 (9th Cir.), cert. denied, 108

ee eee ree

Supreme Lodge, Knights of Pythias v. Meyer,

ONE OR, GR isi stiniddicivavenss

Traveller’s Indemnity Co. v. Sarkisian,

794 F.2d 754 (2nd Cir.), cert. denied, 107

ee Coe eee we uneees

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

United States v. Moser, 266 U.S. 236 (1924)....

United States v. Stauffer Chemical Co., 464 U.S.

Se CE DN uddte ¢eesciceedeeen eee eeeees

vi

Constitutional Provisi

Wm GUI, GUE. TA BB kk ccc cc ccccncccves 2, 14

U.S. Constitution, art. I, § 2 ..................... 2-3

RR EE ee eee 3, 15

U.S. Constitution, amend. XIV, § 1 .................. 3

Statutes

EE, inden 46600 Wye bn 64-5 anes cade 3, 15, 16

8: aA eee 24 n. 8

Other

Degnan, Federalized Res Judicata,

OS Wale 0.5. P08 COUPE .nnc cc ccc cece cccees 14-15, 16

Restatement (Second) Judgments § 87 (1982)....... 14, 16

18 Wright, Miller & Cooper, Federal Practice

and Procedure: Jurisdiction ............ 15, 16, 18 n. §

vil

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RONALD S. MON®OE,

Petitioner,

Vv.

HILTON BUTLER,

WARDEN, LOUISIANA STATE PENITENTIARY,

ANGOLA, LOUISIANA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE CRIMINAL DISTRICT COURT

FOR THE PARISH OF ORLEANS, LOUISIANA

Petitioner Ronald S. Monroe respectfully prays that a writ

of certiorari issue to review the order of the Criminal District

Court for the Parish of Orleans denying his federal constitu-

tional challenges to the sentence of death imposed upon him

by the State of Louisiana.

Petitioner is under sentence of death in the Louisiana

State Penitentiary at Angola, Louisiana pursuant to a judg-

ment of conviction of murder in the first degree. An order of

the Criminal District Court has stayed petitioner’s execution

pending his timely filing of this petition for certiorari and its

final disposition.

OPINIONS BELOW

The unreported opinion of February 2, 1987 of the Crimi-

nal District Court on the Application for Post-Conviction Re-

lief or, in the Alternative, Motion for a New Trial (“Applica-

tion and Motion”) is annexed hereto as Appendix A. The un-

reported Memorandum Decision and Order 1987 of the Lou-

isiana Supreme Court, filed on September 21, denying the ap-

plication for a supervisory writ is annexed hereto as Appendix

B. The unreported decision of the United States District Court

for the Eastern District of Louisiana, filed on February 29,

1984, which found a Brady violation and which, petitioner ar-

gues, should have been given collateral estoppel effect, is an-

nexed hereto as Appendix C. The Findings and Conclusions

of United States Magistrate Marcel Livaudais, which was

—— by the District Court, is annexed hereto as Appen-

ix D.

JURISDICTION

a The decision of the Louisiana Supreme Court denying pe-

titioner’s application for a supervisory writ was entered on

September 21, 1987. On November 3, 1987 Justice Byron

White signed an order extending through December 20, 1987

petitioner’s time to file this petition for certiorari. Petitioner

invokes this Court’s jurisdiction under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article iil, Section 1 to the Constitution of the United

States provides, in relevant part: “The judicial Power of the

United States, shall be vested in one Supreme Court, and in

such inferior courts as the Congress may from time to time

ordain and establish.”

2. Article il, Section 2 to the Constitution of the United

States provides, in relevant part: “The judicial Power shall

ote

extend to all Cases, in Law and Equity, arising under this

Constitution, [and] the Laws of the United States...

[and] to Controversies... .”

3. Article VI to the Constitution of the United States pro-

vides, in relevant part: “This Constitution, and the Laws of

the United States which shall be made in pursuance thereof

. . . Shall be the supreme Law of the Land; and the Judges in

every state shall be bound thereby, any Thing in the Constitu-

tion or Laws of any State to the Contrary notwithstanding.”

4. Amendment XIV, Section 1 to the Constitution of the

United States provides, in relevant part: “[NJor shall any

State deprive any person of life, liberty, or property, without

due process of law... .”

5. Title 28, Section 1738 of the United States Code, enti-

tled “Judicial Code and Judiciary,” revised, codified and en-

acted into positive law by Act of June 25, 1948, c. 646, Sec-

tion 1, 62 Stat. 869 provides, in relevant part: “The records

and judicial proceedings of any court of any. . . State, Terri-

tory or Possession [of the United States], or copies thereof,

shall be proved or admitted in other courts within the United

States and its Territories and Possessions by the attestation of

the clerk and seal of the court annexed, if a seal exists, to-

gether with a certificate of a judge of the court that the said

attestation is in proper form. Such Acts, records and judicial

proceedings or copies thereof, so authenticated, shall have the

same full faith and credit in every court within the United

States and its Territories and Possessions as they have by law

or usage in the courts of such State, Territory or Possession

from which they are taken.”

STATEMENT OF THE CASE

The Crime and the Conviction

In the early morning of September 10, 1977, an intruder

murdered Lenora Collins in her New Orleans home by stab-

» $e

bing her in the chest and neck. An hour later, Ronald Monroe,

a neighbor with no criminal record, was arrested at home for

the crime.

The only evidence linking Monroe to the crime was an

identification by the victim’s two pre-teenaged children,

Theodise and Joseph. No physical evidence, such as finger

prints, footprints, a murder weapon or blood samples impli

cated Monroe. He has consistently maintained his innocence.

On January 23, 1980, Monroe was convicted of the first

degree murder of Lenora Collins and sentenced to death. */

His direct appeal was denied. State v. Monroe, 397 So.2d 1258

(La. 1981), ceri. denied, 463 U.S. 1229 (1983).

The Suppression of Material, Exculpatory Evidence

It is undisputed that less than nine months after petition-

er’s conviction, the New Orleans police were told by Michigan

authorities that another man, George Stinson, the former hus-

band of Lenora Collins, had confessed to the crime for which

‘Monroe had been sentenced to die. The police never revealed

that information to petitioner or his counsel.

The details of the suppression are as follows: | In July

1980 George Stinson murdered his common-law wife Erma

Jean Lofton in Pontiac, Michigan by stabbing her in the chest

and neck. While investigating the Lofton murder in July 1980,

Detective Joseph Gallardo of the Pontiac, Michigan Police De-

partment received information indicating that Stinson had

stabbed to death his previous wife in New Orleans -- Lenora

Collins. Gallardo telephoned the New Orleans Police Depart-

ment ("NOPD”) to convey this information. The NOPD asked

no questions and passed the information on to no one else.

'/ The Louisiana Supreme Court had reversed a previous conviction on

appeal. State v. Monroe, 366 So. 2d 1345 (La. 1978).

Shortly thereafter, Gallardo learned that Stinson had ap-

parently confessed to stabbing Collins to death. Stinson had

described the Lofton killing to his cellmate, Francis Lee

McWilliams, and then told McWilliams that the “same thing

happened” to Collins. McWilliams reported Stinson’s account

of the Lofton and Collins killings to Detective Gallardo. On

September 23, 1980, Gallardo again called up the NOPD.

Gallardo spoke to Sergeant John McKenzie of the NOPD.

Sergeant McKenzie made detailed and contemporaneous notes

of his conversation with Gallardo. These notes state in perti-

nent part:

While in jail, Stinson got to bragging about how he

had murdered wife in Michigan to cell mate.

Stinson also bragged that he had killed his first wife

in New Orleans on 9/10/77 and threatened his stepchil-

dren into identifying neighbor as killer... .

Det. Gallardo also got information from a second

source that Stinson had killed New Orleans wife Col-

lins.

(Appendix D at 110.)

The State admitted below that it never disclosed to

Monroe or his counsel the information conveyed by Detective

Gallardo to the NOPD and Sergeant McKenzie. (See Appen-

dix D.) Monroe’s counsel learned of the Stinson material, and

its suppression by the State, only in late 1983 and then only

by a fluke.

Post-Conviction Proceedings in the

State Courts -- First Time Around

On December 27, 1983, Monroe filed a Motion for a New

Trial or, in the Alternative, Post-Conviction Relief, in the

—=

Criminal District Court for the Parish of Orleans. Monroe also

sought a stay of his execution, then scheduled for just after

midnight on January 4, 1984. Monroe alleged, inter alia, that

Stinson had admitted the Collins murder and that the New

Orleans police had violated Monroe’s constitutional rights un-

der Brady v. Maryland, 373 U.S. 83 (1963) by failing to dis-

close the information to Monroe or his counsel as soon as it

came to their attention.

Monroe presented to the Criminal District Court all the

facts concerning the suppression which were later presented

to the federal court in Monroe’s federal habeas corpus peti-

tion, except for the McKenzie notes. Defense counsel did not

yet know of their existence. The State’s attorneys -- who vig-

orously objected to Monroe’s request for discovery and an

evidentiary hearing -- apparently never bothered to check the

NOPD file on the Collins murder, where the McKenzie notes

were lying, gathering dust.

On January 3, 1984, the Criminal District Court refused

to hold an evidentiary hearing or sign subpoenas for the

Michigan witnesses who could provide testimony in support of

Monroe’s Brady claim. It dismissed the proceeding and denied

the motion for a stay of execution. The Louisiana Supreme

Court affirmed that ruling by a five-to-two vote later that

evening.

The Federal Habeas Petition

On December 30, 1983, Monroe filed a petition for a writ

of habeas corpus in the United States District Court for the

Eastern District of Louisiana. The district court, after giving

considerable deference to the state court proceedings, stayed

Monroe’s execution on January 4, 1984, only eight hours be-

fore it was scheduled to take place. The district court first

found that Monroe had exhausted his state court remedies and

then ordered an evidentiary hearing before a United States

=

Magistrate to determine whether the State had withheld mate-

rial, exculpatory evidence from Monroe in violation of Brady

v. Maryland.

The Federal Evidentiary Hearing

. In response toa subpoena duces tecum issued in connec-

tion with this hearing, the State in mid-January 1984 finally

produced to defense counsel the McKenzie notes.

A full and fair evidentiary hearing was held before Magis-

trate (now federal Judge) Livaudais on January 30, 1984.

Stinson and Gallardo both testified. (see Appendix D.)

. Three days after the hearing, Magistrate Livaudais deter-

mined that Monroe’s Brady claim had merit and recom-

mended that a writ of habeas corpus be granted. (Appendix D

at 8d.) Magistrate Livaudais found each of the three elements

of a Brady violation present. First, the Magistrate found it

“undisputed that state authorities suppressed the evidence

concerning George Stinson that they received from Detective

Gallardo,” and that they never conveyed it to Monroe or his

counsel. (Appendix D at 6d.) Second, the Magistrate found

the suppressed evidence favorable to Monroe. In the Magis-

trate’s words: "It is hard to imagine evidence more poten-

tially favorable to a defendant than the possibility that another

person’s confession to the crime for which he has been con-

victed coupled with a suggestion of a second source of infor-

mation in support.” (Appendix D at 7d.) Finally, the Magis-

trate found that the suppressed evidence “creates a reasonable

doubt that did not otherwise exist.” He added:

A parallelism between the Michigan and New Or-

leans murders was shown. In each Stinson was the hus-

band, in each a possible motive may have been the

wife’s apparent disaffection, in each a stabbing and in

each a suggestion of witness intimidation.

(Appendix D at 7d.)

The District Court’s Issuance of the Writ

On February 15, 1984, the district court accepted the

Magistrate’s findings and conclusions and granted a writ of

habeas corpus. In a “Memorandum Opinion” of February 29,

1984, the district court, on a de novo review of the record,

adopted the Magistrate’s report as its own findings and con-

clusions. (Appendix C.) The district court held that the State

had violated Monroe’s Brady rights.

The District Court issued its Memorandum Opinion with

the express purpose of “address[ing] the [State’s] objection to

the [Magistrate’s] report.” (Appendix C at Ic.)

The State had contended that, despite Brady, it was “un-

der no duty to give a defendant exculpatory evidence which

was obtained after the defendant was convicted.” (Appen-

dix C at 2c.) (Emphasis added.) The district court explicitly

rejected this contention and found a Brady violation. The court

held “that it is fundamentally unfair and contrary to society s

notion of justice for a prosecutor to withhold material excul-

patory evidence which he acquires while the defendant is enti-

tled to file a motion for a new trial.” (Appendix C at 3c.)

The State had contended that the Stinson material “was

not credible and does not rise to the level of Brady material

..” (Appendix C at 3c.) The district court explicitly re-

jected this contention as “without merit.” (Appendix C at 3c.)

Rather, the district court noted that Stinson admitted at the

evidentiary hearing that he had said “that [Lenora Collins]

was killed the same way Erma Lofton was,” and the district

court found that “this statement could be viewed by a trier of

fact as a confession which would by logical necessity excul-

pate Monroe.” (Appendix C at 4c.)

Having found a Brady violation and having granted a writ

of habeas corpus, the district court remitted Monroe to the

=<

state courts to obtain post-conviction relief which comported

with his constitutional rights.

On February 15, 1984 Monroe moved the district court to

amend the judgment insofar as it failed to direct his release

from custody unless the State granted him a new trial. At oral

argument on April 25, 1984, the district court denied the mo-

tion.

The Fifth Circuit Decision and the Denial of Certiorari

Monroe appealed to the United States Court of Appeels

for the Fifth Circuit from that part of the judgment which did

not direct his release from custody unless the State granted

him a new trial. The State did not cross appeal -- failing to

challenge the district court’s decision that the Brady principles

apply to post-conviction suppression or that the suppressed

evidence here was material. The Fifth Circuit affirmed the

district court’s ruling, Monroe v. Blackburn, 748 F.2d 958 (Sth

Cir. 1984) and this Court, with Justices Brennan and Marshall

dissenting, denied certiorari. Monroe v. Blackburn, 106 S. Ct.

2261 (1986). In his dissent, Justice Marshall pointed out that,

upon a finding of a Brady violation, “The only way this right

can be guaranteed is to grant petitioner the remedy that until

now has always followed a determination that the Brady rule

has been violated: He must be released or retried.” Id. at

2265 (Marshall, J., dissenting).

Post-Conviction Proceedings in the

State Courts -- Second Time Around

Monroe returned to the Criminal District Court for the

Parish of Orleans, on November 7, 1986, filing for the second

time an Application for Post-Conviction Release or, in the

Alternative, a Motion for a New Trial (“Application and Mo-

tion”). Before the same judge who had denied his first Appli-

cation and Motion, Monroe argued that the Criminal District

eG.

Court should grant a new trial as the remedy for the Brady

violation found by the federal courts. In support of his Appli-

cation and Motion, Monroe submitted the transcript of the

federal hearing.

The Criminal District Court denied the Application and

Motion on February 2, 1987. The court held, in direct contra-

diction to the prior determination of the federal court, that

Brady did not apply to a suppression of exculpa tory evidence

after conviction. The court also held, again in direct contradic-

tion to the prior determination of the federal court, that the

suppressed Stinson statement was “merely an observation,”

and an “off-hand remark” which was not a confession. In-

deed, the court reached a result nearly identical to the one it

had reached three years earlier -- before the federal eviden-

tiary hearing and the federal judgment. It was as if the federal

court had never ruled.

On March 13, 1987 Monroe applied to the Louisiana Su-

preme Court to issue a supervisory writ to review the Order of

the Criminal District Court and order that court to grant

Monroe a new trial, but on September 21, 1987, the Louisiana

Supreme Court, over two dissents, denied the application.

Soon thereafter the Criminal District Court issued a stay of

execution pending review by this Court.

Monroe now seeks review in this Court because the Lou-

isiana state courts improperly disregarded the factual and le-

gal holdings of the federal courts and failed to grant him a

new trial to remedy the violation of his Brady rights.

a Me

REASONS FOR GRANTING THE WRIT

I

THIS COURT SHOULD GRANT THE WRIT

TO CLARIFY THE REQUIREMENT, IGNORED

ENTIRELY BY LOUISIANA, THAT STATE

COURTS GIVE COLLATERAL ESTOPPEL

EFFECT TO PRIOR DETERMINATIONS OF

FEDERAL QUESTIONS BY FEDERAL COURTS

Faced with the exact same issues decided by the federal

court between the same parties, the state court here utterly

ignored the federal court’s judgment, including its conclusions

of law and findings of fact made after a full and fair eviden-

tiary hearing. In ignoring that judgment, the state court failed

to accord the federal ruling any collateral estoppel effect,

without so much as mentioning the reasons for failing to do

so. The state court never even alluded to the possibility that it

was bound by what the federal court had done. This case thus

presents the important issue of whether a state court is bound

to give effect to a federal court’s determination of federal

questions under federal principles of collateral estoppel.

A. Federal Collateral Estoppel Binds State Courts 2/

The principle is clearly established that a state court must

give federal collateral estoppel effect to an earlier federal

court's decision of a federal question. That is the holding of

2/ As a preliminary matter, there can be no doubt that the issue of

whether a state court must give collateral estoppel effect under federal

law to a federal court’s prior federal question judgment is itself a federal

question, giving this Court jurisdiction under 28 U.S.C. § 1257(3). Lim-

bach v. Hooven & Allison Co., 466 U.S. 353, 362 (1984); Stoll v. Got-

tlieb, 305 U.S. 165, 167 (1938); Deposit Bank v. Frankfort, 191 U.S.

499, 515 (1903).

eo tiie

Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984). In a

dispute before state courts between a taxpayer and state tax

authorities over the disallowance of a deduction, the taxpayer

relied upon an earlier decision of this Court -- Hooven & Al-

lison Co. v. Evatt, 324 U.S. 652 (1949) (“Hooven I”) -- a case

involving the same tax, the same parties and similar property.

The Limbach court soundly

rejected the taxpayer’s argument that “state-law principles of

collateral estoppel” applied. Id. at 361 (emphasis supplied).

The Limbach court said that it was "concerned with federal

issues and a contention that a state court disregarded a fed-

eral constitutional ruling of this Court” id. at 362, and stated:

We reject the suggestion that we are confronted, in

the present posture of the case, with a claim of collat-

eral estoppel under state, as distinguished from fed-

eral, law. Hooven I was a decision concerned with the

application and impact of the Import-Export clause

upon the Ohio tax. The issue, thus, was one of a fed-

eral constitutional barrier. The Supreme Court of Ohio

certainly so viewed it. . . . And it viewed collateral es-

toppel in the light of precepts set forth in. . . a federal

. . Case.

Id. at 361. Federal and state courts are not in dispute about

what the rule is. Recent federal courts which have addressed

the issue, albeit in dicta, have set forth the same proposi tion

as in Limbach that a state court must give federal collateral

estoppel effect to a federal court’s federal question judgment.

E.g., Seven Elves, Inc. v. Eskenazi, 704 F.2d 241, 244 n.2 (Sth

Cir. 1983) (“[S]tate courts generally are required to follow

« i «

federal rules in deciding the preclu sive effect of a prior fed-

eral question judgement of a federal court.”). 3/ State courts,

which have actually decided the issue, have agreed that fed-

eral law governs the collateral estoppel effect of a federal

court’s judgment in a subsequent state court action. E.g., Jn-

ternational Brotherhood of Electrical Workers v. Hawaiian Tele-

phone Company, 713 P.2d 943, 955 n.17 (Hawaii 1986); Ed-

wards v. First Federal Saving & Loan Association of Clovis, 696

P.2d 484, 490-492 (N.M. App. 1985). 4/ :

In short, this Court as well as lower federal courts and

State courts have been nearly unanimous in accepting the prin-

ciple that a federal court’s federal question judgment binds a

later state court under federal collateral estoppel rules -- a

principle which the state court here ignored and defied.

3/ Other such federal court decisions are Sullivan v. First Affiliated

Securities, Inc., 813 F.2d 1368, 1376 (9th Cir.), cert. denied, 108 S. Ct.

150 (1987) (“The res judicata impact of a federal judgment is a question

of federal law which a state court is bound to apply .. . .”); Gelb v.

Royal Globe Insurance Company , 798 F.2d 38 (2nd Cir. 1986) cert.

denied, 107 S. Ct. 167 (1987) (“A state court must apply federal law to

determine the preclusive effect of a prior federal question judgment.”);

Travellers Indemnity Company v. Sarkisian, 794 F.2d 754, 761 n.8 (2nd

Cir.) cert. denied 107 S. Ct. 277 (1986) (“However, if Brown’s case had

been remanded to state court, the res judicata effect of the prior federal

question suit would still have been governed by federal law.”).

4/ Other such state court decisions are Hays v. Louisiana Dock Com-

pany, 452 N.E.2d 1383, 1388-1389 (Ill. App. 5 Dist. 1983); Anderson

v. Phoenix Investment Counsel of Boston, Inc., 440 N.E.2d 1164, 1167

(Mass. 1982); Bardo v. Commonwealth Department of Public Welfare,

397 A.2d 1305, 1307 n.1 (Pa. 1979); Levy v. Cohen, 561 P.2d 252, 257

(Cal.), cert. denied, 434 U.S. 833 (1977); Martin v. Martin, 470 P.2d

662, 666, 670 (Cal. 1970).

the

B. Federal Collateral Estoppel Applies as a Consequence of

the Judicial Power in Article III, the Supremacy Clause

in Article VI, and the Principles of Full Faith and Credit

The requirement that a federal court’s federal question

judgment subsequently binds a state court pursuant to federal

rules of collateral estoppel finds support not only in near

unanimous precedent, but also in unassailable legal reason-

ing. It is grounded in the authority of federal courts under

Article III of the Constitution. An essential element of the

authority of any court, including a federal court, is the princi-

ple of finality, and that principle demands that the rules of

collateral estoppel apply to a federal judgment. Hardy v.

Johns-Manville Sales Corporation , 681 F.2d 334, 337 (Sth Cir.

1982); Restatement (Second)- Judgments § 87 (1982). See also

Delaware Valley Citizens’ Council for Clean Air v. Commonwealth

of Pennsylvania, 755 F.2d 38, 46 (3rd Cir.) (Stern, District

Judge, concurring) (“Since 1792, finality of judgments has

been recognized as an essential attribute of this federal judi-

cial power to render decisions.”), cert. denied, 474 U.S. 819

(1985) Thus, federal collateral estoppel is necessary for pre-

serving the power of federal courts to render final judgments.

The principle that federal rules of collateral estoppel are

inherent to a federal court’s power to render final judgments

arises from the “judicial power” of federal courts to decide

certain “cases” and “controversies.” U.S. Constitution, arti-

cle Ill, § 1, 2. The principle is clearly articulated in a widely

cited article by Professor Ronan E. Degnan:

At its root is the constitutional provision that the

federal judicial power extends only to cases and contro-

versies. To decide a case or controversy implies some

binding effect. A judgment or decree that lacks finality

would constitute something other than an exercise of

the judicial power. If that principle be accepted (and it

o tie

has rarely been denied), it seems inappropriate that

some other sovereignty -- the states -- should have

ultimate authority to determine what binding effect the

judgment has and on whom.

. . . The ultimate reason for this conclusion is that it

is in the nature of the judicial power to determine its

own boundaries.

Degnan, Federalized Res Judicata, 85 Yale L.J. 741, 768-769

(1976) (footnote omitted) (emphasis in original). See also

Embry v. Palmer, 107 U.S. 3, 9-10 (1882).

The ultimate source for binding state courts to the federal

collateral estoppel effect required by Article III is the Suprem-

acy Clause. U.S. Constitution, Article VI. See Sullivan v. First

Affiliated Securities, Inc., 813 F.2d 1368, 1376 (9th Cir.), cert.

denied, 98 L.Ed.2d 106 (1987) (a state court is bound to apply

federal rules of res judicata to an earlier federal judgment

under the Supremacy Clause); Delaware Valley Citizens’ Coun-

cil for Clean Air v. Commonwealth of Pennsylvania, 755 F.2d 38,

46 (3rd Cir.) (Stern, District Judge, concurring) (“By com-

mand of the supremacy clause, judges in every state are

bound by these statutes [enacted to implement the jurisdiction

of the Supreme Court and of the lower federal courts], which

in turn give to the federal courts the power to render unassail-

able final judgments.”), cert. denied, 474 U.S. 819 (1985) ;

18 Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction § 4462 at 649 (1981).

Binding state courts to earlier federal question judgments

also sounds in full faith and credit. Whether rooted in the

Statute implementing the Full Faith and Credit Clause, 28

U.S.C § 1738, or judicial rule, this Court has regularly re-

ferred to the principle that “the judicial proceedings of the

federal courts . . . must be accorded the same full faith and

credit by state courts as would be required in respect of the

o a

judicial proceedings of another state.” Supreme Lodge, Knights

of Pythias v. Meyer, 265 U.S. 30, 33 (1924). See also Stoll v.

Gottlieb, 305 U.S. 165, 170-171 (1938); Myers v. International

Trust Company, 263 U.S. 64, 69 (1923). See generally Delaware

Valley Citizens’ Council for Clean Air v. Commonwealth of Penn-

sylvania, 755 F.2d 38, 43-44 (3rd Cir.), cert. denied, 474 U.S.

819 (1985); Levy v. Cohen, 561 P.2d 252, 257 (Cal.) (“Full

faith and credit must be given to a final order or judgment of

a federal court.”), cert. denied, 434 U.S. 833 (1977) ; Restate-

ment (Second)-Judgments, § 87 (1981) (“It has long been es-

tablished that the judgments of the federal courts are to be

accorded full faith and credit when a question of their recog-

nition arises in a state court... .”).

The principle that the judgment of a federal court be ac-

corded full faith and credit in a state court is “indispensable

to federalism,” complementing the Full Faith and Credit

Clause and the explicit language of its implementing statute

28 U.S.C. § 1738. Degnan, Federalized Res Judicata, 85

Yale L.J. 741, 749 (1976). See also 18 Wright, Miller & Coo-

per, Federal Practice and Procedure: Jurisdiction, § 4468 at

648-649 (1981) (“It would be unthinkable to suggest that state

courts should be free to disregard the judgments of federal

courts, given the basic requirements that state courts honor

the judgments of courts in other states and that federal courts

must honor state court judgments.”). In the words of this

Court:

Any other conclusion strikes down the very founda-

tion of the doctrine of res judicata, and permits the

state to deprive a party of the benefit of its most impor-

tant principle, and is a virtual abandonment of the final

power of the federal courts to protect all who come

before them relying upon rights guaranteed by the Fed-

eral Constitution and established by the judgments of

the Federal courts.

- 16 -

Deposit Bank v. Frankfort, 191 U.S. 499, 520 (1903).

Here, Monroe’s rights under the federal constitution were

guaranteed and protected by a judgment of a federal court.

The state court, which had been entrusted with determining

the appropriate remedy for the violation of Monroe’s constitu-

tional rights, took a step backwards. Instead of providing the

remedy, it simply announced that there had been no violation of

constitutional rights in the first place. Thus, the state court

closed its eyes to the federal judgment and trampled on the

finality of a federal court’s judgment; it deliberately made rul-

ings of law and fact directly contrary to the federal court's.

The State court failed to utter a word in support of these rul-

ings -- however contrary to both precedent and logic. Because

the principles of federal collateral estoppel are of such funda

mental importance, this Court should grant certiorari to cor-

rect Louisiana’s blatant disregard of them.

C. Collateral Estoppel Applies to the Law and Facts Here

If the state court had adhered to the rules of federal col-

lateral estoppel -- as it was required to do -- it could not

have reached the result it reached.

Under federal law, three elements are necessary for ap-

plying collateral estoppel:

(1) the issue at stake must be identical to that in-

volved in the prior litigation;

(2) the issue in the prior litigation must have been

actually litigated; and

(3) the determination of the issue in the prior liti-

gation must have been necessary and essential to the

prior judgment.

=

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979).

See also Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860,

862 (Sth Cir. 1985); Seven Elves, Inc. v. Eskenazi, 704 F.2d

241, 244 (Sth Cir. 1983).

Here all three elements are present. The issue of whether

there was a Brady violation was precisely the same before the

federal and state court; the issue was actually litigated in the

federal court; and the finding of a Brady violation was a criti-

cal and necessary part of the federal court’s judgment. In fact,

the application of collateral estoppel is even more obvious

here than usual, for the parties are precisely the same. More-

over, the exact same legal issues litigated before the federal

court reappeared before the state court in the continuation of

the same legal dispute.

Collateral estoppel applies not only to the federal court’s

ultimate holding that there was a Brady violation but also to

its constituent findings of law and fact in support of that hold-

ing, namely that the newly discovered evidence was exculpa-

tory, material and suppressed. The state court, however, ig-

nored and defied each of these underlying findings.

The state court ignored and defied the federal court's le-

gal holding on suppression. §/ The state court

5/ Although collateral estoppel does not apply to “unmixed questions

of laws” arising in "successive actions involving unrelated subject mat-

ter,” Montana v. United States, 440 U.S. 147, 162 (1979), collateral

estoppel “is appropriate if” -- as here -- "both the first and second

action involve application of the same principles of laws to an historic fact

setting that was completed by the time of the first adjudication.” 18

Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction §

4425 at 243 (1981). See also id. at 253 (“Preclusion ordinarily should

apply if two cases present the same issue of law application.” )

The above simply expresses the approach taken by this Court in

United States v. Stauffer Chemical Company, 464 U.S. 165 (1984).

(Continued)

= -

wrote that “it is impossible to accuse the prosecution of ‘sup-

pressing’ [the alleged confession of Stinson] since it did not

exist at the time of trial and therefore could not have been

suppressed.” (Appendix A at 2a.) But the federal Magistrate

had already ruled:

It is undisputed that State authorities suppressed the

evidence concerning George Stinson that they received

from Detective Gallardo. [The State] has admitted that

(Continued)

There Stauffer sued the Environmental Protection Agency (”"EPA”)

separately within the Tenth Circuit and the Sixth Circuit for inspections

by private contractors of Stauffer plants in Wyoming and Tennessee, re-

spectively. The Tenth Circuit agreed with Stauffer that inspections by

“authorized representatives” of the EPA pursuant to the Clean Air Act

did not include private contractors; then the Sixth Circuit reached the

same result on the basis, inter alia, of issue preclusion; and this Court

affirmed. This Court found that issue preclusion should apply as to the

legal holding since there was a “close alignment of time and subject mat-

ter” between the actions, the actions arose “from virtually identical

facts,” and “any factual differences . . . are of no legal significance what

ever. ...” Id. at 172. Of course the reasons for applying collateral es-

toppel to the legal holding here is even stronger than in Stauffer Chemi-

cal Corp. since the actions arise from identical facts in the same contro-

versy. See also United States v. Moser, 266 U.S. 236, 242 (1924) (“But

a fact, question or right distinctly adjudged in the original action cannot

be disputed in a subsequent action, even though the determination was

reached upon an erroneous view or by an erroneous application of the

laws. That wouid be to affirm the principle in respect of the thing ad-

judged but, at the same time, deny it all efficacy by sustaining a challenge

to the grounds upon which the judgment was based.”) (emphasis in origi-

nal); Segal v. American Telephone & Telegraph Corp., 606 F.2d 842,

844-845 (9th Cir. 1979) (“Issue preclusion . . . forecloses litigation only

of those issues of fact and Jaw that were actually decided by a valid judg-

ment between the partners, whether on the same or a different claim.” )

(emphasis added).

=

neither Ronald Monroe, his attorneys nor anyone acting

on Monroe’s behalf was ever informed by anyone act-

ing on behalf of the State of any of this information.

(Appendix D at 6d.)

The state court then went on explicitly to hold “that the

Stinson statement cannot be deemed Brady material because

it did not even exist at the time of Monroe’s trial.” (Appen-

dix A at 2a) (emphasis in the original). But the

federal district court had addressed this very issue in some

detail:

[The State] contend[s] that the State is under no

duty to give a defendant exculpatory evidence which

was obtained after the defendant was convicted. In

granting petitioner’s request for a stay of execution, the

Court held that the duty to disclose exculpatory mate-

rial continues beyond the trial of a criminal case up to

and including the time that an accused may apply for a

new trial. . . . [The State’s argument to the contrary]

exalts form over substance and is without merit. The

Brady cases stand for the proposition that due process

is denied because the trial is fundamentally unfair

when the prosecution fails to give the defendant excul-

patory evidence that is material to an accused’s guilt or

innocence. These cases turn on the belief that society

benefits when our system of criminal justice is fair,

and rejects the sporting notion of justice. . . . [I]t is

fundamentally unfair and contrary to society’s notions

of justice for a prosecutor to withhold material excul-

patory evidence which he acquires while the defendant

is entitled to file a motion for a new trial.

=- 20 -

(Appendix C at 2c-3c.)

To allow the state court to retry the legal issue of post-

conviction suppression would be particularly outrageous be-

cause the State had the opportunity to appeal the federal dis-

trict court’s holding on that issue to the Fifth Circuit but chose

not to do so. The State should not be allowed to reargue in the

state court the very point it lost on and chose not to appeal in

the federal courts.

In short, the federal court held that there was “constitu-

tional infirmity because material exculpatory matter bearing

on Monroe’s guilt or innocence was suppressed.” (Appendix C

at 7c) (emphasis added). The state court was collaterally es-

topped from reopening the federal court’s suppression holding

and was duty-bound to adhere to it.

The state court also ignored and defied the federal court’s

factual findings on the exculpatory and material nature of the

new evidence.

The state court held “that the ambiguous utterance by

Stinson that Ms. Collins died in a manner similar to the de-

mise of Erma Jean Lofton, Stinson’s common-law wife in

Michigan, was merely an observation that both women coinci

dentally died as a result of being stabbed.” (Appendix A

at 3a) In reaching this holding, the state court completely

ignored the federal court’s finding that this statement was

both exculpatory and material.

The federal Magistrate stated:

It is hard to imagine evidence more potentially favor

able to a defendant than the possibility of another per-

son’s confession to the crime for which he has been

convicted coupled with a suggestion of a second source

of information in support.

- 21 -

(Appendix D at 7d.)

The federal district court stated:

In light of the Court’s careful evaluation of the re-

cord, the fact that Stinson made a statement that could

be reasonably construed as a confession leads this

Court to find that this evidence creates a reasonable

doubt as to Monroe’s guilt that did not previously exist.

(Appendix C at Sc.) ¢/

6/ In fact, the state court ignored and defied the federal court at almost

every turn.

The state court found thai the Stinson material would not “have

injected a doubt in the jury’s mind” in light “of the overwhelming, eye-

witness evidence of Monroe’s murder of Ms. Collins, provided by the

victim's two children. . . .” But the federal district court found that "the

eyewitness testimony of the victim’s two children” was marred by “dis-

turbing” aspects:

Although this testimony would seem to clearly establish Monroe's

guilt, the Court is disturbed by many aspects of their testimony . . . De-

tective Gallardo’s testimony at the evidentiary [hearing] concerning the

facts surrounding the allegations that Stinson intimidated witnesses in

Michigan, as well as the Bridges testimony concerning the possibility that

the children may have been coerced, supports the Court’s concern that

the children’s testimony should be weighed against the exculpatory evi-

dence.

(Appendix C at Sc.)

The state court also found that Collins was not separating from Stin-

son when she died, that “no animosity [existed] between the two,” and

that the Lofton murder is irrelevant to understanding the Collins murder.

But, after hearing all the evidence, the federal Magistrate found “a paral-

lelism between the Michigan and New Orleans murders”:

In each Stinson was the husband, in each a possible motive may

- 2«

In siraply ignoring the federal court’s findings of fact, the

State court surely did not do what the federal court expected,

which was to give due countenance to the evidence which

bears materially on Monroe’s innocence. The state courts are

bound to give effect to the federal court’s relevant findings of

fact and conclusion of federal law. A state court is not free to

decide -- as the state court did here -- that the evidence is

not material enough to grant a new trial under state law be-

cause the federal court was wrong to find that that same evi-

dence was material enough to constitute a Brady violation. 7/

Such a decision is too infected with error to be allowed to

stand.

(Continued)

have been the wife’s apparent disaffection, in each a stabbing and in

each a suggestion of witness intimidation.

(Appendix D at 7d-8d.) The federal district court added:

The record also reveals that Monroe’s mother testified that on the

day of the murder Stinson came by the Collins’ house and tried to see his

ex-common law wife. After he was told that she was not at home he said

that he would come back that evening. This evidence makes the assertion

that Stinson committed the murder plausible.

(Appendix C at 4c-Sc)

7/ Even if the proper standard were the state standard governing new

trial motions based on newly discovered evidence -- which it is not --

the state court would still have to determine whether evidence which is

material enough to create a reasonable doubt as to guilt which did not

previously exist, as found by the federal courts, is also materia] enough to

probably change the verdict. But the Louisiana courts never addressed

this issue. In fact, the federal courts’ findings of fact -—- which only need

to show a reasonable doubt as to guilt which did not previously exist —-

are so strong that it might well be that they even collaterally estop the

state from not finding that the new evidence would have probably

changed the verdict.

Se

Allowing the state court decision below to stand would be

unjust. The state had a full and fair opportunity to litigate

issues of law and fact before the federal court. It lost. It did

not appeal from the adverse portions of the federal decision.

Now, petitioner is entitled to protection “from the burden of

relitigating an identical issue with the same party. ¥

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). ‘See

also, Montana v. United States, 440 U.S. 147, 153-154 (1979)

(collateral estoppel “protects ... adversaries from the ex-

pense and vexation attending multiple lawsuits. . . .”).

Allowing the state court decision below to stand would

also be unwise. “Judicial efficiency demands that there be an

end to litigation at some point.” Gelb v. Royal Globe Insurance

Company, 798 F.2d 38, 44 (2d Cir. 1986). If upheld, the state

court decision would promote judicial nonuniformity -- by

allowing state courts to pay no deference at all to their federal

counterparts. But collateral estoppel “fosters reliance on judi-

cial action by minimizing the possibility of inconsistent deci-

sions.” Montana v. United States,

440 U.S. at 153-154 (1979). See also, Allen v. McCurry, 449

U.S. 90, 94 (1980).

This court should grant certiorari in order to secure uni-

form national implementation of the Limbach rule. By granting

certiorari here, this Court -- whose holdings clearly bind the

state court in the first instance -- can clearly establish a na-

tional rule of law for all states to follow. 8/

8/ Th’s Court should also grant certiorari to resolve a conflict

between a federal court and the highest state court issuing an order. See

Supreme Court Rule 17; Lakeside v. Oregon, 435 U.S. 333, 336, 336 n.3

(1978); Baldwin v. Alabama, 472 U.S. 372, 374 (1985).

tie

II

THIS COURT SHOULD GRANT THE

WRIT TO RESOLVE THE ISSUE OF WHAT

REMEDY A STATE MUST GRANT FOR A

POST-CONVICTION SUPPRESSION OF

MATERIAL EXCULPATORY EVIDENCE

In this case, the federal court found a violation of petition-

er’s rights under Brady v. Maryland and then remanded peti-

tioner to state court for a constitutionally appropriate remedy.

The precise issue presented by these circumstances has never

been addressed by this Court: when a federal court issues a

writ of habeas corpus because of the State’s post-conviction

suppression of material, exculpatory evidence in violation of a

petitioner’s Brady rights and remands petitioner to state court

to request post-conviction relief which comports with his con-

stitutional rights, are the state courts required to grant peti-

tioner a new trial or release him -- until now the invariable

remedy for prosecutorial suppression of material exculpatory

evidence?

The answer must be that, confronted with a Brady viola-

tion, the state court is required to order a new trial and is not

allowed to reconsider the evidence under state law standards

for a new trial. In all other cases, the invariable remedy for a

Brady violation has been a new trial. Petitioner has not found

a single case in which a new trial has not been granted in a

similar circumstance, nor has the State, in all the proceedings

below, cited to any such case. But for one fact -- the post-

conviction setting of the illegal suppression -- it would be

absolutely clear that the state court was required to grant peti-

tioner a new trial or release him.

But the fact that the evidence was suppressed after, rather

than before or during trial, does not lessen the fundamental

unfairness to Monroe inherent in such suppression, diminish

=

the State’s duty to disclose such material, or alter the federal

court’s finding that Monroe may be innocent. The Brady prin-

ciple is bottomed on the fundamental unfairness of

prosecutorial suppression of exculpatory evidence, see United

States v. Agurs, 427 U.S. 97, 110-111 (1976). Accordingly, to

effectuate the Brady rule, this Court has fashioned a federal

constitutional standard for determining when a defendant is

entitled to a new trial after prosecutorial suppression of excul-

patory evidence. Thus, this Court has drawn a sharp distinc-

tion between newly-discovered evidence suppressed by the

State and newly-discovered evidence obtained from a neutral

source:

If the standard applied to the usual motion for a new

trial based on newly discovered evidence were the

same when the evidence was in the State’s possession

as when it was found in a neutrai source, there would

be no special significance to the prosecution’s obliga-

tion to serve the cause of justice.

Agurs, 427 U.S. at 111. That rationale applies just as strongly

to a post-conviction suppression as to any other Brady viola-

tion.

This issue is of extraordinary public importance. If, in a

post-conviction setting, a state court may reevaluate the evi-

dence by state law standards as in a state court motion for a

new trial, instead of the Brady-Agurs federal constitutional

standard, the prosecution has no incentive to uphold its obli-

gations in the post-conviction setting. Agurs, 427 U.S. at 111

(1976). In fact, the ruling actually encourages the prosecutor

to suppress exculpatory evidence. If the suppression succeeds,

the conviction and sentence -- perhaps a death sentence --

will stand. If the suppression fails, the prosecutor is no worse

off -- a defendant is left with the same remedy he would have

had if the state had not suppressed.

ii<

Clearly, state courts must apply the Brady-Agurs standard

in order to discourage prosecutorial misconduct after trial,

just as it discourages prosecutorial misconduct before and

during trial. The sovereign’s “overwhelming interest that jus-

tice shall be done,” Agurs, 427 U.S. at, 111, does not end with

the trial. /n re Wright, 282 F. Supp. 999 (W.D. Ark. 1968)

(granting new trial on basis of prosecutor’s post-trial suppres-

sion of exculpatory evidence).

In fact, after trial, when a defendant's rights may no

longer be vigilantly protected by watchful defense counsel in

the adversary process, the burden on the state to ensure that

justice be done is even greater. The Court should grant cert-

iorari and hold that state courts must grant a new trial be-

cause the Brady-Agurs rule applies at whatever stage of the

legal process the unlawful suppression of evidence occurs. 9/

®/ In fact, in granting the writ of certionari here, this Court might con-

sider as "fairly subsumed” within its grant of the writ the issue presented

in petitioner’s earlier petition for certiorari: whether the invariability of

the new trial remedy for a Brady violation required the federal court to

grant a new trial and not a remand to state court for his remedy. In

remanding petitioner to state court, the district court fashioned a

unique -- and unworkable -- remedy for a Brady violation. Now that

petitioner has been back to the state courts, the flaw in the district court's

approach is readily apparent. The state court took the district court's

remand as an opportunity to issue a ruling utterly at odds with prior fed-

eral ruling. The result is exactly what the district court hoped to avoid --

inconsistent rulings that strain the desired harmonious relations between

State and federal courts.

of «

CONCLUSION

For the foregoing reasons, the petition for a writ of cert-

iorari should be granted.

Dated: December 21, 1987

Respectfully submitted,

Allan Blumstein

(Counsel of Record)

Douglas G. Morris

Andrea Bierstein

PAUL, WEISS, RIFKIND, -

WHARTON & GARRISON

1285 Avenue of the Americas

New York, N.Y. 10019

(212) 373-3000

John DiGiulio

331 St. Ferdinand

Baton Rouge, Louisiana 70802

(504) 383-0078

» Re

APPENDICES

la

APPENDIX A

STATE OF LOUISIANA CASE NO. 261-647 “F”

VERSUS CRIMINAL DISTRICT

COURT

RONALD MONROE PARISH OF ORLEANS

RULING

This matter came before this Court on a hearing on a

motion for a new trial, as ordered by the United States Dis-

trict Court for the Eastern District of Louisiana, affirmed by

the Fifth Circuit Court of Appeals, Monroe v. Blackburn, 749

F. 2d 958 (Sth Cir. 1984), cert. denied, US. 1068S. Ct.

2261, _ L.Ed.2d __ (1986). This Court has reviewed the en-

tire record of this case, including the transcript of Ronald

Monroe’s trial for first degree murder on January 22, 1980, as

well as the transcripts of all proceedings held in connection

with applicant’s habeas corpus application in federal court,

along with the jurisprudence this Court appreciates to apply to

this matter. With this review in mind this Court denies

Monroe’s motion for a new trial under Code of Criminal Pro-

cedure Article 851 (3) for the following reasons.

This Court does not find that the evidence relied on by

this applicant involves any interest defined by Brady v. Mary-

land 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This

evidence, a purported “confession” by George Stinson to his

Michigan cellmate, did not even exist at the time Monroe was

tried for the first-degree murder of Lenora Collins in January,

1980. Indeed, it cannot be disputed that this allegedly incrimi-

nating evidence came to exist at least six months after

Monroe was tried and convicted of Ms. Collins’ murder. As a

2a

result it is impossible to accuse the prosecution of “suppress-

ing” this material since it did not exist at the time of trial and

therefore could not have been suppressed. Neither does this

Court find that the Louisiana Supreme Court case of State v.

Johnson, 464 So.2d 1363 (La.1985), has any application to the

instant case. Johnson involved the prosecution’s failure to turn

over to the defendant in a rape case the victim’s panties which

were negative for the presence of semen, despite a pre-trial

request by defendan} to turn over any exculpatory evidence,

including tangible objects favorable to the accused. After this

evidence was discovered by the defendant, post-trial, the trial

court utilized the standard set out in La. C. Cr.P. Art. 851 (3)

regarding newly discovered evidence in analyzing the evi-

dence’s impact, instead of the proper Brady standard. Our Su-

preme Court remanded the case so that the correct legal stan-

dard be used to assess the withheld material’s impact. The

important distinguishing element in Johnson is that the evi-

dence at issue there existed before trial, therefore the State

was duty-bound under Brady to disclose it. In the instant case

this Court holds that the Stinson statement cannot be deemed

Brady material because it did not even exist at the time of

Monroe’s trial. Thus, the applicant’s due process right to a

fair trial was not implicated in any way. Therefore, the dis-

puted material here must be evaluated under the newly dis-

covered evidence standard of La.C.Cr.P. Art. 851 (3) and not

under the rule of Brady v. Maryland.

This Court is required to grant a new trial whenever new

and material evidence that, notwithstanding the exercise of

reasonable diligence by the defendant, was not discovered be-

fore or during the trial, is available, and if the evidence had

been introduced at the trial it would probably have changed

3a

the verdict of guilty. La.C.Cr.P. Art. 851 (3); State v.

Robicheaux, 412 So.2d 1313 (La. 1982). This Court finds that,

as a matter of fact, the Stinson statement does not rise to the

level whereby the jury’s guilty verdict would probably have

changed, had the jury been exposed to that evidence. The

Court holds that the ambiguous utterance by Stinson that Ms.

Collins died in a manner similar to the demise of Erma Jean

Lofton, Stinson’s common-law wife in Michigan, was merely

an observation that both women coincidentally died as a result

of being stabbed. I do not find that Stinson meant that he

murdered both victims. In view of the overwhelming, eyewit-

ness evidence of Monroe’s murder of Ms. Collins, provided by

the victim’s two children who were adolescents at the time of

the killing and competent witnesses at trial, this Court cannot

be persuaded that the off-hand remark made by Stinson to

McWilliams would have injected a doubt in the jury’s mind

such that their verdict would probably have been different. In

addition, this Court finds no evidence in this record that Ms.

Collins was in the process of separating herself from Stinson

at the time of her death. In fact, the record is clear to me that

Stinson and Lenora Collins separated months before her

death and that there existed no animosity between the two,

such as existed between the defendant, his family and the

victim and her family, such that Stinson would have been mo-

tivated to kill Ms. Collins. The Court also finds that Stinson’s

alleged murder of Ms. Lofton in Detroit, obviously occurring

long after the death of Ms. Collins, is irrelevant to the present

case and the Court, therefore, fails to see its significance.

This Court wishes to make clear for the record that both

the applicant and respondent were given every opportunity to

subpoena any witnesses they wished to testify at the hearing.

4a

Both sides agreed to submit the matter on the available testi-

mony in record, with the exception of the calling of Theodise

Collins, Lenora Collins’ daughter and an eyewitness to the

murder who was herself stabbed by Ronald Monroe, to testify

for the respondent State of Louisiana. Ms. Collins once again

swore that it was applicant Monroe, and not Stinson, who

killed her mother and stabbed her. She further said that no

one, specifically Stinson, intimidated her into falsely accusing

Monroe of the murder.

For all of these reasons, the defendant’s motion for new

trial on the merits and/or a new penalty hearing is denied.

New Orleans, Louisiana, this 2nd day of February, 1987.

/s/ DENNIS J. WALDRON, JUDGE

CRIMINAL DISTRICT COURT

SECTION F

PARISH OF ORLEANS

1b

APPENDIX B

THE SUPREME COURT OF THE STATE OF

LOUISIANA

STATE EX REL RONALD S. MONROE

VS.

NO. 87-KP-0574

FRANK BLACKBURN, WARDEN

LOUISIANA STATE PENITENTIARY

IN RE: Monroe, Ronald S.; Applying for Supervisory Writs;

Parish of Orleans Criminal District Court Div. “F” Number

261-647

September 21, 1987

Denied.

CALOGERO & DENNIS, JJ., would grant the writ.

Supreme Court of Louisiana

September 21, 1987

/s/ Deputy Clerk of Court

For the Court

1c

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD S. MONROE *CIVIL ACTION

VERSUS *NO. 83-6277

ROSS MAGGIO, WARDEN,

LOUISIANA STATE PENITENTIARY,

ANGOLA, ET AL *SECTION “F” (5)

MEMORANDUM OPINION

This matter came before the Court on the Petition of

Ronald S. Monroe for a Writ of Habeas Corpus, and was re-

ferred to United States Magistrate Livaudais for an eviden-

tiary hearing. 28 U.S.C. 636 (b)(1)(B). Pursuant to the

Court’s order the Magistrate held an evidentiary hearing and

issued findings and recommendations.

On February 14, 1984 the respondents filed objections to

the Magistrate’s findings and recommendations. When objec-

tions to a Magistrate’s report are filed the Court is required to

make de novo findings as to all portions of the report that are

subject to an objection. 28 U.S.C. 636(b)(1)( ). After carefully

considering the transcript of the evidentiary hearing as well as

all supporting documents in light of the respondents’ objec-

tions, the Court believes that the Magistrate’s findings and

recommendations are without error, and the Court adopts the

Magistrate’s report as its own findings and conclusions. In

compliance with the mandate of 28 U.S.C. 636 (b)(1)(c) the

Court 1s issuing this Memorandum Opinion in order to ad-

dress the respondents’ objections to the report.

2c

The respondents first complain about the Magistrate’s con-

clusion that the petitioner’s complaint does not raise a claim

that is cognizable under the theory of Brady v. Maryland 373

U.S. 83 (1964) and its progeny. In this regard they raise three

objections.

First, they contend that petitioner’s claim is nothing more

than a request for a new trial based on newly discovered evi-

dence. This contention is clearly in error. The petition, accom-

panying legal memoranda and the issues raised at the eviden-

tiary hearing clearly indicate that petitioner bases his request

for relief in Federal court on the fact that during the post-con-

viction relief period the State possessed exculpatory evidence

and failed to turn it over the the defendant. Such a claim is

cognizable under Brady.

Second, the respondents contend that the State is under

not duty to give a defendant exculpatory evidence which was

obtained after the defendant was convicted. In granting peti-

tioner’s request for a stay of execution, the Court held that the

duty to disclose exculpatory material continues beyond the

trial of a criminal case up to and including the time that an

accused may apply for a new trial. /n re Petition of Larry James

Wright, 282 F.Supp. 999 (W.D. Ark. 1968). The State points

to the fact that the Court in Wright failed to cite Brady and

argues that this case does not impose a continuing obligation

under Brady, to disclose exculpatory evidence. This argument

exalts form over substance and is without merit. The Brady

cases stand for the proposition that due process is denied be-

cause the trial is fundamentally unfair when the prosecution

fails to give the defendant exculpatory evidence that is mate-

rial to an accused’s guilt or innocence. These cases turn on

the belief that society benefits when our system of criminal

3c

justice is fair, and rejects the sporting notion of justice. These

same concerns were expressed by the court in Wright. In that

case Judge Miller held that it was unfair and a violation of due

process for a prosecutor to withhold exculpatory evidence

which was acquired while the accused could file a motion for

a new trial. The analysis used in Wright closely parallels the

reasoning applied in Brady. It supports this Court’s holding

that it is fundamentally unfair and contrary to society’s no-

tions of justice for a prosecutor to withhold material exculpa-

tory evidence which he acquires while the defendant is enti-

tled to file a motion for a new trial. Wright did not cite Brady,

but it clearly adopted Brady’s mandate and purpose.

Third, the respondents contend that Wright is distinguish-

able because the facts that were in prosecutor’s possession

were more credible and were more clearly probative than the

material held by the police authorities in New Orleans. This

objection goes to the standard of materiality will be examined

in this opinion.

The respondents complain that the information given to

the New Orleans police is based on hearsay and rumor and is,

therefore, not credible.

To the extent that this complaint goes to the admissibility

of the Brady material, this contention is irrelevant. Sellers v.

Estelle, 651 F.2d 1074 (1981) cert. den. 102 S.Ct. 1292. The

assertion that the information that was given to the New Or-

leans Police Department was not credible and does not rise to

the level of Brady material is without merit. This argument is

undercut by the fact that after Officer Mckenzie received the

information from Detective Gallardo he found it sufficiently

credible to merit his further investigation. More importantly,

4c

at the evidentiary hearing Stinson admitted making the state-

ment in reference to Lenore Collins’ death “... that she was

killed the same way Erma Lofton was.” Magistrate’s Hearing

1/30/84 at 55. Although Stinson attempted to deny that this

statement was an admission that he killed Ms. Collins, his

former common law wife, this statement could be viewed by a

trier of fact as a confession which would by logical necessity

exculpate Monroe. See, Sellers v. Estelle, 651 F.2d 1074 (Sth

Cir. 1981); A.B.A. Standards for Criminal Justice 11-21(c).

At the least, it is material bearing on the guilt or innocence of

petitioner which a State court should be obliged to consider in

a request for new trial; material that was heretofore unavail-

able.

Since there was no allegation that Monroe’s attorney made

a request for this evidence, the proper standard for determin-

ing whether the evidence that was withheld is material is

whether it creates a doubt that did not otherwise exist. United

States v. Agurs, 427 U.S. 97 (1976); Canon v. State of Ala-

bama, 558 F.2d 1211 (Sth Cir. 1977). To make this evaluation

the Court has carefully examined the trial transcript from

Monroe’s second trial. United States v. Anderson, 574 F.2d

1347 (Sth Cir. 1978); Cannon, supra. This new evidence cre-

ates a reasonable doubt that did not otherwise exist. The

Court’s reading of the record reveals there was no sign of a

forced entry into the Collins home. This, coupled with the fact

that no murder weapon or blood stained clothing or rags were

found at or around Monroe’s home, indicate that Monroe may

not have committed the murder. The record also reveals that

Monroe’s mother testified that on the day of the murder Stin-

son came by the Collins home and tried to see his ex-—com-

mon law wife. After he was told that she was not at home he

Sc

said that he would come back that evening. This evidence

makes the assertion that Stinson committed the murder plausi-

ble.

The only evidence that directly linked Monroe to the mur-

der was the eyewitness testimony of the victim’s two children.

Although this testimony would seem to clearly establish

Monroe’s guilt, the Court is disturbed by many aspects of

their testimony. First, the Court believes that it is most curi-

ous that Joseph Collins ran into the Monroe household to seek

assistance when Monroe was, allegedly, in the process of mur-

dering his mother. Second, Detective Gallardo’s testimony, at

the evidentiary concerning the facts surrounding the allegation

that Stinson intimidated witnesses in Michigan as well as the

Bridges testimony concerning the possibility that the children

may have been coerced, supports the Court’s concern that the

children’s testimony should be weighed against the exculpa-

tory evidence by a State court. 1/ This is not to say that a

trier of fact might not conclude that the children’s testimony is

credible. The Court expresses no opinion on this matter. The

Court is, however, faced with the task of evaluating the record

to determine the possible effect that the evidence that was

withheld might have upon a trier of fact.

In light of the Court’s careful evaluation of the record, the

fact that Stinson made a statement that could be reasonably

construed as a confession leads this Court to find that this

evidence creates a reasonable doubt as to Monroe’s guilt that

did not previously exist. The Court was, therefore, obliged to

1/ For reasons best known to respondents, the Collins children were not

called to testify at the evidentiary hearing before the Magistrate.

6c

issue the Writ of Habeas Corpus on the ground that Monroe’s

due process Brady rights were violated. Austin v. McKaskle, No.

82-1418 slip op. (Sth Cir. Feb. 3, 1984).

In reviewing the record from Monrce’s post conviction mo-

tion before the Criminal District Court for the Parish of Or-

leans the Court finds, contrary to respondent’s assertion, that

the trial court denied Monroe the opportunity to effectively

raise the claim that his Brady rights were violated. Respondent

admits at this hearing that Monroe was unable to present the

exhibits to the trial court which were produced at the eviden-

tiary hearing held by the United States Magistrate. Monroe

was also unable to introduce in the trial court the testimony

elicited at the evidentiary hearing.

Since the evidence came into the possession of the authori-

ties in New Orleans after Monroe’s conviction but before the

expiration of the time that a motion for a new trial based on

newly discovered evidence could have been filed, this Court

finds that the taint caused by the State’s violation of Monroe’s

Brady rights unconstitutionally impaired his right to file a mo-

tion for a new trial or obtain post conviction relief. Since the

Court is obliged to fashion a remedy that disposes of the

claim so as to do what justice and the law require, 28 U.S.C.

2245, the Court is empowered to fashion a remedy that re-

dresses the deprivation Monroe actually suffered. Thus, the

Court entered an order which requires the State to provide to

Monroe whatever he was entitled to by way of post-conviction

relief during the limitation period provided by Louisiana law

for a request for a new trial based on newly discovered evi-

dence, c.f. Dowd v. United States, 340 U.S. 206 (1955).

7c

This Court expresses no opinion regarding the guilt or in-

nocence of Monroe. Our obligation is to decide whether any

aspect of the State court criminal proceeding was constitution-

ally defective, if the State court fails to do so. The issue has

now been decided. The period during which Monroe could

request a new trial was tainted with constitutional infirmity

because material exculpatory matter bearing on Monroe’s

guilt or innocence was suppressed.

It is now the obligation and duty of the State court to grant

Monroe post-conviction relief rights that comport with his

constitutional rights.

New Orleans, Louisiana, this 28th day of February, 1984.

/s/ MARTIN L. C. FELDMAN

UNITED STATES DISTRICT JUDGE

8c

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD S. MONROE *CIVIL ACTION

VERSUS *NO. 83-6277

ROSS MAGGIO, WARDEN,

LOUISIANA STATE PENITENTIARY,

ANGOLA *SECTION “F”(S)

ORDER

The Court having reviewed the Findings and Conclusions

of Magistrate Livaudais, the transcript of hearing held on

January 30, 1984 and the exhibits received, and after consid-

ering Respondent’s Objection to Magistrate’s Findings and

Conclusions, accepts the Magistrate’s Findings and Conclu-

sions and finds that Petitioner’s due process rights during the

post-conviction relief period following his trial were unconsti-

tutionally deprived because material exculpatory matter bear-

ing directly on his guilt or innocence was suppressed by the

local prosecuting authority after his conviction in violation of

the United States Supreme Court decision in Brady v. Mary-

land, 373 U.S. 83 (1964).

Now that this Court has determined the Federal constitu-

tional question the State courts of Louisiana should find it

possible to provide the post-conviction review to which Peti-

tioner is entitled. Therefore,

IT IS ORDERED:

That the Petition of Ronald S. Monroe for a Writ of

Habeas Corpus is granted; and

IT IS FURTHER ORDERED:

That Petitioner's date of execution is postponed and the

9c

State of Louisiana is directed to grant to Petitioner whatever

he was entitled to by way of post-conviction relief during the

limitation period provided by Louisiana law for a request for a

new trial based upon the exculpatory material which the State

courts did not have an opportunity to consider, so that Peti-

tioner may fully and effectively exercise and exhaust his post-

conviction relief rights under Louisiana law.

Written reasons will follow shortly. New Orleans, Louisi-

ana, this 15th day of February, 1984.

/ Martin L.C. n

United Sates District Judge

1d

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD S. MOORE CIVIL ACTION

versus No. 83-6277

ROSS MAGGIO,

Warden, ET AL SECTION: F/5

FINDINGS AND CONCLUSIONS

Petitioner, Ronald S. Monroe, is a state prisoner presently

incarcerated in the Louisiana State Penitentiary at Angola,

Louisiana. He was convicted of first degree murder of Lenora

Collins on January 26, 1978 and on that same date the jury

recommended the death sentence. The Supreme Court of Lou-

isiana reversed the conviction and sentence on December 15,

1978. State v. Monroe, 366 So.2d 1345 (La. 1978). On January

23, 1980 petitioner was retried on the same charge, convicted,

and again the jury recommended the death penalty. The court

sentenced petitioner on February 6, 1980 to death by electro-

cution. The Louisiana Supreme Court affirmed the conviction

and sentence on April 6, 1981. State v. Monroe, 397 So.2d

1258 (La. 1981), rehearing denied.

Petitioner’s execution was scheduled for January 5, 1984

at 12:01 a.m. He applied to this Court for a writ of habeas

corpus and for post-conviction relief pursuant to 28 U.S.C. §

2254 on December 30, 1983. Previously, petitioner sought

post-conviction relief, a new trial and a stay of execution in

the Criminal District Court, Parish of Orleans. On December

29, 1983 the request for the stay was denied. The request for

a new trial, and for a stay of execution was denied on January

2d

3, 1984 by the Criminal District Court in Orleans Parish. This

Court denied petitioner’s application for a stay of execution

on January 3, 1984. The Louisiana Supreme Court denied pe-

titioner’s application for post- conviction relief and for a stay

of execution on January 3, 1984. The Louisiana Supreme

Court denied petitioner’s application for post-conviction relief

and for a stay of execution on January 3, 1984. Monroe v.

Maggio, __ So.2d __, No. 83-KP-2651 (La. January 3,

1984). Thus, petitioner has exhausted his state remedies. Mi-

nor v. Lucas, 697 F.2d 697 (Sth Cir. 1983); Rose v. Lundy, 455

U.S. 509, 102 S.Ct. 1198 (1982).

The matter was heard on January 4, 1984 and this

courtconsidered several grounds alleged by petitioner in sup-

port of his application for a stay and for post-conviction re-

lief. The Court granted the petitioner’s stay until February 7,

1984 on the basis of ground two of petitioner’s application to

permit an evidentiary hearing to review the validity of peti-

tioner’s claim of a denial of due process. The Court specifi-

cally found that all other grounds of petitioner’s application

lacked merit. (Record Document 12 at 14).

An evidentiary hearing was held on January 30, 1984 to

consider the merits of the second ground alleged in this peti-

tion for habeas corpus. (Record Document 1 at 7). Ground

two raises the issue of whether petitioner’s Sixth Amendment

rights were violated by the State’s suppression of evidence

which was allegedly exculpatory in nature and which could

have indicated that petitioner is not guilty of the crime for

which he was convicted and sentenced to death. The petitioner

argues that he was denied due process of law under Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1964) because the

State failed to relay to defense counsel the fact that a Michi-

3d

gan police detective informed the New Orleans Police Depart-

ment of the possible confession of another man to the crime

for which petitioner has been convicted.

Thé prosecution’s suppression of evidence when it has

been requested by the accused, if the evidence is favorable to

him and is material to his guilt or his punishment, violates

due process whcther or not the prosecution is in good faith or

bad faith. Brady, 83 S.Ct. at 1196-1197. If the defendant

makes a general request for all excuipatory evidence or makes

no request at all for evidence, the prosecutor violates his con-

stitutional duty to disclose if "his omission is of sufficient sig-

nificance to result in the denial of defendant’s right to a fair

trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392,

2400 (1976).

The prosecution is not required to supply the defense with

“a complete and detailed accounting ... of all police inves-

tigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795,

92 S.Ct. 2562, 2568 (1972). Undisclosed evidence is not mate-

rial if it is only possible that it might have helped the defense

or affected the outcome of the trial. Agurs, S.Ct. at 2400.

Omitted evidence is material and its suppression violates due

process if it creates a reasonable doubt that did not otherwise

exist when it is considered in light of the entire record. /d. at

2402. If reasonable doubt about defendant’s guilt does not

exist with or without evaluation of the omitted evidence, a

new trial should not be granted. However, if the additional

evidence, even if it is of relatively minor importance, creates a

reasonable doubt, the evidence is material and the prosecu-

tion’s suppression of it amounts to constitutional error. /d.;

Sellers v. Estelle, 651 F.2d 1074 (Sth Cir. 1981).

4d

Further, the fact that the prosecuting attorney is not

shown to have knowledge of the exculpatory evidence does

not neutralize the nondisclosure. “Failure of the police to re-

veal such material evidence in their possession is equally

harmful to a defendant whether the information is purposely,

or negligently, withheld.” The police department is part of

the prosecution; the state has the duty to disclose and the fact

that the police had not informed the prosecuting attorney does

not excuse the nondisclosure of material exculpe*ory evidence

under Brady. Barbee v. Warden Maryland Penitenti. ry, 331 F.2d

842, 846 (Sth Cir. 1964).

The State must prove the defendant’s guilt beyond a rea-

sonable doubt in order to convict him. Jackson v. Virginia,

443 U.S. 307, 309 (1979). In order to determine if the "omit-

ted evidence creates a reasonable doubt that did not otherwise

exist,” the court must "evaluate all the evidence as it would

bear on the deliberations of a factfinder.” Cannon v. State of

Alabama, 558, F.2d 1211, 1213-1214 (Sth Cir. 1977). See

Agurs, 427 U.S. 112, 96 S.Ct. at 2401.

As aforesaid, petitioner was convicted in January, 1980.

In Louisiana a motion for a new trial based on discovery of

new and material evidence may be filed within one year after

verdict. LSA-C.Cr.P. Art. 851(3), 853. Evidence adduced at

the hearing before the undersigned established that in July,

1980, Detective Joseph W. Gallardo of the Pontiac, Michigan

Police Department contacted the New Orleans Police Depart-

ment and told them that in the course of inves tigating one

George Stinson’s murder of his common-law wife in Michi-

gan, he had received information that Stinson may have also

murdered his previous wife, Lenora Collins, three years ear-

lier in New Orleans. Qn September 23, 1980, he again tele-

Sd

phoned the New Orleans Police Department and spoke to Ser-

geant John McKenzie, platoon commander of the homicide

division of the New Orleans Police Department. Galierdo told

McKenzie of a tape recorded interview (Plaintiff Exhibit 2) he

had had with Francis Lee McWilliams, ‘/ Stinson’s cellmate in

the Oakland County Jail, where Stinson had been incarcerated

after his arrest for Lofton’s murder.

During the interview, McWilliams related several conver-

sations he had had with Stinson, during which Stinson first

confessed to stabbing Lofton, and then stated that "the same

thing happened” to his first wife -- Leonora Collins.

Detective Gallardo also reported information he had re-

ceived that Stinson had threatened Collins’ two children --

Joseph and Theodise 2/ -- into identifying Monroe as their

mother’s killer.

Sergeant McKenzie scribbled notes of his conversation

with Gallardo, and then after verifying the existence of a New

Orleans case file wrote a three page summary in more legible

and chronological order. (Defendant Exhibit 1, testimony of

McKenzie, at 12, 13). Petitioner contends that this three page

summary made on September 23, 1980 (Plaintiff Exhibit 5)

constituted Brady material which was not made available to

him until produced earlier in these proceedings. Sergeant

McKenzie explained that the top and center portions of page

'/ McWilliams had been transported to New Orleans to testify

at the hearing but was not called by either party.

2/ The eyewitnesses then aged fourteen and thirteen respec-

tively who testified at the New Orleans trial.

6d

one of the summary was information he gleaned from the

New Orleans case file, the bottom portion of page one and all

of page two was information given him by Detective Gallardo

and that page three constituted notes of his follow up after the

telephone call. (Defendant Exhibit 1 at 18). He placed the

information in the pigeonhole mailbox of the detectives in

charge of the case. (Defendant Exhibit 1 at 52-53). The detec-

tives did not recall receiving the information. The summary

was located in the case file and produced by counsel for re-

spondent upon discovery request in this habeas proceeding.

This was petitioner’s first access to it.

This summary states in pertinent part:

“While in jail Stinson got to bragging about how he

had murdered wife in Michigan to cellmate.

Stinson also bragged that he had killed his first wife

in New Orleans on 9-10-77 and threatened his step-

children into identifying neighbor as killer.

_. . Det. Gallardo also got information from

a second source that Stinson had killed New Orleans

wife Collins.” (Plaintiff Exhibit 5 at 2).

It is undisputed that State authorities suppressed the evi-

dence concerning George Stinson that they received from De-

tective Gallardo. Respondent has admitted that neither Ronald

Monroe, his attorney, nor anyone acting on Monroe’s behalf

was ever informed by anyone acting on behalf of the State of

any of this information. There was no showing that this non-

disclosure was willful or malicious. For some unexplained

reason the information never got to the attention of the prose-

cutor. This fact that the District Attorney’s office may not

7d

have known of the information communicated by Detective

Gallardo to the Police Department is immaterial. The obliga-

tion to disclose attaches whenever the police in the prosecut-

ing jurisdiction possess exculpatory evidence. United States v.

Agurs 427 U.S. 97, 110 (1976); Giglio v. United States, 405

U.S. 150, 154 (1972); Freeman v. Georgia, 599 F.2d 65, 69

(Sth Cir. 1979), cert. denied, 444 U.S. 1013 (198).

| The second element of proof in establishing a Brady viola-

tion is that the suppressed evidence is favorable to the defen-

dant. It is hard to imagine evidence more potentially favorable

to a defendant than the possibility of another person’s confes-

sion to the crime for which he has been convicted coupled

with a suggestion of a second source of information in sup-

port. Stinson’s denial that he confessed the New Orleans mur-

der to his cellmate in Michigan does not, of itself, render the

evidence unfavorable. His Michigan attorney protected his in-

terests and secured a grant of immunity from prosecution for

the New Orleans murder. (Stinson Exhibit 1). Nonetheless, a

confession at this time under these circumstances might ad-

versely effect whatever Michigan release from custody rights

he enjoys. His Michigan sentence was confinement for a mini-

mum term of ten years, a maximum of twenty-five. (Plaintiff

Exhibit 8).

The final element, materiality of the suppressed evidence

is also established. The suppressed material (Plaintiff Exhibit

5) enhanced by the evidence adduced at the hearing suffi-

ciently creates a reasonable doubt that did not otherwise exist.

A parallelism between the Michigan and New Orleans mur-

ders was shown. In each Stinson was the husband, in each a

possible motive may have been the wife’s apparent disaffec-

tion, in each a stabbing and in each a suggestion of witness

8d

intimidation. The State trial judge did not have the advantage

of having this evidence produced to him some seven months

after trial when it surfaced. Some three years after trial a dif-

ferent State judge heard petitioner’s post-conviction claims,

but even then did not have the text of the suppressed evidence

(Plaintiff Exhibit 5), rather only a suggestion concerning the

Michigan information. A reasonable doubt has been shown to

now exist, when had not formerly, evaluated in the context of

the entire record.

Petitioner has satisfied Brady - Argus criteria. His ground

two of this petition for a writ of habeas corpus is meritorious.

It is, accordingly, RECOMMENDED that a writ of habeas cor-

pus be GRANTED and that the Court issue whatever order(s)

be deemed appropriate.

New Orleans, Louisiana, February 2, 1984.

/s/ MARCEL LIVAUDAIS, JR.

United States Magistrate

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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