Amicus Curiae Brief — Abdur'Rahman v. Bell

SUPREME COURT OF THE UNITED STA

Abu-Ali Abdur’ Rahman,

Petitioner,

v.

Ricky Bell, Warden,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Sixth Circuit

BRIEF FOR FORMER PROSECUTORS JAMES F.

NEAL, W. THOMAS DILLARD, QUENTON I.

WHITE, JUDGE JOHN J. HESTLE, RALPH E.

HARWELL, AND CHARLES FELS, AMICI CURIAE,

IN SUPPORT OF PETITIONER

JOHN F. TERZANO ELIZABETH G. TAYLOR

THE JUSTICE PROJECT (COUNSEL OF RECORD)

1725 EYE STREET, N.W. RONALD H.WEICH

WASHINGTON, D.C. 20006 ZUCKERMAN SPAEDER LLP

1201 CONNECTICUTAVE., N.W.

WILLIAM MCLAIN WASHINGTON, D.C. 20036

DAVID A. CLARKE SCHOOL (202) 778-1800

OF LAW

4200 CONNECTICUT AVE., N.W.

WASHINGTON, D.C. 20008

in

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE.

STATEMENT OF THE CASE....

7

I. The Prosecutor Withheld and

Evidence to Convince the Trial Jury that

Petitioner, Rather than an Accomplice,

Performed the Stabbing...

The Prosecutor Withheld and

Evidence to Distort the Nature of Petitioner's

1972 Homicide Conviction. .. hiccadeiene

The Prosecutor Withheld and Misrepresented

Evidence Regarding Petitioner's Mental

Health.

IV. The Prosecutor's Conduct Violated Basic

Standards Governing the Legal Profession and

Deprived Petitioner of Due Process of Law ..

ll

TABLE OF AUTHORITIES

CASES

Abdur’Rahman v. Bell, 999 F. Supp. 1073

Ok a passim

Bagley v. United States, 473 U.S. 667

Berger v. United States, 295 U.S. 78 (1935) ...sssscccssssesesesee 2

Brady v. Maryland, 373 U.S. 83 (1963) ....cc.cc-ccseeseesevees passim

Garrett v. State, 2001 WL 280145 (Tenn.Cr.

Aap. DERSER 2B, BODE cccessessssssensiseresenesmaan 12

Giglio v. United States, 405 U.S. 150 (1971) .........cccccceseeeeee 24

Giles v. Maryland, 386 U.S. 66 (1967)...........cccscesseseeeeee 16, 23

In re Zimmermann, 1986 WL 8586 (Tenn.

Ce. Agp. BSG .n.cccescccncssecsssescsnistenetetmmmemianasine 13

In re Zimmermann, No. 24039-5-CH (Tenn.

S.Ct. Disciplinary Bd. of Prof. Resp.

DERG BB, BOGE) o.cccccccscccesescsssensnssnieoneanieseenensemiaann 13

In re Zimmermann, No. 12128-5-LC (Tenn.

S.Ct. Disciplinary Bd. of Prof. Resp. Sept.

DO, EDDIE) ...cecceccccsssseccssssnssnnssenbensenieannsiaesaininannanee 13

Kyles v. Whitley, 514 U.S. 419 (1995)... ccececesseeseeeeeees 24

Miller v. Pate, 386 U.S. 1 (1967).............:cccesseceeeeeeees 7, 12, 22

Mooney v. Holohan, 294 U.S. 103 (1935)..........sccscessesees 12, 22

ill

State v. Jones, 789 S.W. 2d 545 (Tenn.1990)................0. 5,13

State v. Middlebrooks, 995 S.W. 2d 550

SE 13

State v. Spurlock, 874 S.W. 2d 602 (Tenn

STII Ti snerpnamssnnenesegsssnescscssnssneqnesssesevssescsccecsseote 2, 23

State v. Vukelich, 2001 Tenn. Crim. App.

LEXIS 734 (Sept. 11, 2001) ....ccccccccccscsvessseesssveessneersneeessvess 13

Wood v. Bartholomew, 516 U.S. 1 (1995) ..........cccccccccceeeeees 16

Zimmermann v. Board of Prof. Resp., 764

LL ee 13

STATUTES AND RULES

American Bar Association, Model Rule

a 23

American Bar Association, Standards for

Criminal Justice: The Prosecution

Function, 3 —12 (c) (3d ed. 1993) ..........ccccceccceeseeeeeeeees 6, 23

National District Attorneys Association,

National Prosecution Standards 6.5 (2d ed.

| ee 15, 23

Proposed Tennessee Rule of Professional

CDC, 1. 2UMIDU D csscscsccnsssecscssesscseosecocsscossocsees 23

Tennessee Supreme Court Rule 8, Code of

Professional Responsibility, DR7-

oe 15, 23

iv

l

Former prosecutors James F. Neal, W. Thomas

Dillard, Quenton I. White, Judge John J. Hestle, Ralph E.

Harwell, and Charles Fels file this Amici Curiae brief in

support of Petitioner pursuant to Supreme Court Rule 37.3(a).

The parties have consented to the filing of this brief.”

INTEREST OF AMICI CURIAE

James F. Neal, W. Thomas Dillard, Quenton I. White,

Judge John J. Hestle, Ralph E. Harwell, and Charles Fels are

attorneys who formerly served as state or federal prosecutors

in the State of Tennessee. James F. Neal served as a Special

Assistant to the Attorney General of the United States, 1961-

64; United States Attorney for the Middle District of

Tennessee, 1964-66; Chief Trial Counsel, Watergate Special

Prosecution Force, 1973-74; Chief Counsel, Senate Select

Committee to Study Undercover Operations of the

Department of Justice, 1982; and currently is a partner at Neal

& Harwell. W. Thomas Dillard served as an Assistant United

States Attorney for the Eastern District of Tennessee from

1967-76; First United States Attorney for the Eastern District

of Tennessee, 1978-83; United States Attorney for the

Northern District of Florida, 1983-86; and United States

Attorney for the Eastern District of Tennessee, August to

December of 1991. Quenton I. White served as United States

Attorney for the Middle District of Tennessee, 2000-01.

Judge John J. Hestle served as an Assistant District Attorney

General for the Nineteenth Judicial District of Tennessee from

1970-74; and District Attorney General for the nineteenth

Judicial District of Tennessee, 1974-82. Ralph E. Harwell

served as an Assistant District Attorney General for the Sixth

* Letters of consent have been filed with the Clerk of the

Court. No counsel for any party to this case authored this

brief in whole or in part, and no person or entity other than

Amici Curiae and their counsel made a monetary contribution

to the preparation or submission of the brief.

2

Judicial District of Tennessee from 1969-76. Charles Fels

served as an Assistant United States Attorney for the Middle

District of Tennessee from 1974-77; Assistant District

Attorney General for the Sixth Judicial District of Tennessee

(Knox Co.), 1979-82; and Assistant United States Attorney

for the Eastern District of Tennessee from 1982-84.

As a result of their former positions, Amici have a

shared interest in the maintenance of high ethical standards in

the prosecution of Tennessee criminal cases.

Amici Curiae submit that the habeas corpus petition in

this case raises serious issues of prosecutorial misconduct that

should be reviewed by the federal courts. The Assistant

Distnct Attorney General assigned to the case withheld

important evidence from the defense and misled the court, the

jury and defense counsel about relevant facts.

As former law enforcement officials, we each possess

a personal appreciation for the unique role of the prosecutor in

the American criminal justice system. Former Tennessee

Attorney General Michael Cody has written: "We want to

make sure that the perpetrators of heinous crimes are caught,

tried and punished. But we must also ensure that we have the

right person and that the perpetrators are convicted and

punished within the guidelines of our Constitution.” WJ.

Michael Cody, The Death Penalty in America: Its Fairness

and Morality, 32 U. Mem. L. Rev. 919, 920 (2001).

Prosecutors bear an ethical duty to search for the truth

and present only the truth to the jury. The government’s

interest “in a criminal prosecution is not that it shall win a

case, but that justice shall be done.” Berger v. United States,

295 U.S. 78, 88 (1935). See also State v. Spurlock, 874 S.W.

2d 602, 611 (Tenn. Crim. App. 1993)(quoting Berger).

All of us handled serious felonies and several of us

handled capital matters when we served as prosecutors.

—_— <a

a ene re tee um ne ee

3

Charles Fels, Judge Hestle, and Ralph E. Harwell each

prosecuted cases in which the death penalty was sought. We

carried out that responsibility with a heightened sense of our

ethical obligations. It is an awesome task to build a case for

the State to take a man’s life and to argue to a jury that it

should return a death sentence. While the consequence of

prosecutorial - misconduct is serious in any criminal

prosecution, it is harrowing in a capital case.

Further, as members of the Tennessee Bar, we are

familiar with the customs and practices of our state’s criminal

courts. Among us, we have personally handled or supervised

thousands of criminal prosecutions in the federal courts and in

the state courts of Tennessee. This case is atypical. The

prosecution of Petitioner fell far short of the standards of our

state court system and, indeed, below what we understand the

federal constitutional minimum standards to be. In our view,

the record below taints all members of the Tennessee Bar and

especially those of us who had the privilege of representing

the State of Tennessee or the United States in the courts of our

State and in the federal courts.

This case presents to the Court a complex procedural

question involving the interaction of certain federal statutes

and court rules. Amici Curiae do not purport to address that

question in this brief. Instead, we inform the Court of our

view that there are substantial constitutional issues underlying

the procedural issue addressed by the parties. Petitioner’s

prosecutorial misconduct claims have never been fully

addressed by the federal courts. Amici urge the Court to

resolve the procedural issues in a manner that permits review

of the Petitioner’s serious claims of prosecutorial misconduct.

STATEMENT OF THE CASE

In state and federal habeas petitions, Petitioner

presented claims and evidence of prosecutorial misconduct in

4

his capital tnal. Because of procedural rulings below, no

federal court has addressed these constitutional claims in their

totality. If this Court agrees with Petitioner that the District

Court should have granted his Rule 60(b) motion, Petitioner

will finally have an opportunity for meaningful federal review

of prosecutorial misconduct that denied him a fair trial and

that undermines confidence in his death sentence.

The prosecutorial misconduct in this case involved the

withholding and misrepresentation of evidence on key issues,

including: the identity of the person who did the stabbing; the

circumstances of a prior homicide used as an aggravating

circumstance in support of the death penalty; and Petitioner's.

mental condition, a condition that should have been presented

to the jury in mitigation of the death sentence and that would

have shed light on Petitioner’s bizarre inculpatory testimony

in the penalty phase ot «ne trial.

The district court held that it could not address most of

Petitioner's prosecutorial misconduct claims, because they had

not been raised in a petition for discretionary review to the

Tennessee Supreme Court. Abdur’Rahman v. Bell, 999 F.

Supp. 1073, 1080 (M.D.Tenn. 1998). The district court

addressed two issues it found to have been exhausted: the

prosecutor's failure to provide trial counsel the lab report

stating that no blood was found on the coat or other clothing

Petitioner had worn on the night of the crime, and the

prosecutor's failure to provide defense counsel a transcript of

Petitioner's 1972 trial for murder. 999 F. Supp. at 1083. That

transcript would have made clear to counsel that the earlier

event did not involve gangs and drugs, as the prosecutor

asserted, but was the result of homosexual assaults on

Petitioner in prison. In addition, the transcript included

testimony from two psychiatrists, including one for the

government, that Petitioner was not able to control his

behavior, information that would have been crucial in

Petitioner's sentencing hearing.

—

5

Of the two issues it addressed, the district court found

that the former was not misconduct because the prosecutor

had supplied the lab report to Petitioner’s prior counsel, and

the latter failure to disclose evidence, although unlawful

under Brady, did not, “standing alone,” warrant habeas relief.

999 F. Supp. at 1090. Because the district court did not

consider the extensive remaining misconduct in the case, it

did not address how these two matters related to Petitionier's

claim that the prosecutor undertook a concerted effort to

withhold and distort evidence he knew would make it difficult

to secure a death sentence. Nor did the court consider the

aggregate effect of the misconduct on Petitioner’s sentencing-

phase defense and on the jury’s search for the truth. No

federal court has addressed the full range of the prosecutor's

misconduct.+

SUMMARY OF ARGUMENT

Early in his investigation, the prosecutor recognized

flaws in his case for a death sentence against Petitioner. The

! Both the Tennessee Supreme Court and the district court

noted other misconduct by the prosecutor. The Tennessee

Supreme Court found that the prosecutor’s conduct in getting

improper evidence before the jury “bordered on deception.”

State v. Jones, 789 S.W.2d 545, 552 (Tenn. 1990). The

district court found that the prosecutor misrepresented to

defense counsel the circumstances of Petitioner’s prior

conviction. Abdur’Rahman vy. Bell, 999 F. Supp. 1073, 1099-

1100 (M.D. Tenn. 1998)(“[t}]he prison murder was not about

drugs and gangs as represented by the prosecution to defense

counsel”). In addition, as the district court recognized, the

habeas petition raised numerous other allegations of

prosecutorial misconduct, none of which was addressed by

the district court, because it deemed them not to have been

exhausted. 999 F. Supp. at 1082 n. 8. See also Rule 60(b)

Motion at pp. 7-8.

6

scientific evidence strongly suggested that Petitioner was not

the stabber, raising doubts the prosecutor knew would

preclude capital punishment. The evidence at the habeas

corpus hearing indicates that the prosecutor masked the

weaknesses in his case by suppressing key documents and

presenting misleading testimony from an accomplice.

The prosecutor relied heavily on a prior honucide

conviction in his request for the death penalty. In order to

prevent the defendant from explaining mitigating facts

concerning this prior offense, the prosecutor misrepresented

those facts to defense counsel and falsely represented that an

FBI agent would testify to the prosecutor’s version of the

events if the defense put those circumstances at issue.

The prosecutor was aware that Petitioner had a

significant mental health history and had engaged in psychotic

behavior that might mitigate the death sentence and that might

have explained his bizarre testimony at the sentencing

hearing. The prosecutor suppressed police reports

documenting Petitioner’s psychotic symptoms and provided

false information concerning Petitioner’s mental history to the

state agency charged by the court with evaluating Petitioner’s

mental state.

The evidence presented at the habeas corpus hearing

indicates that the prosecutor’s conduct was a gross deviation

from the standards of the legal profession. The prosecutor’s

duty is to seek justice, not merely to convict. American Bar

Association, Standards for Criminal Justice: The Prosecution

Function, 3-12(c) (3d ed. 1993). The deception engaged in by

the prosecutor in this case is incompatible with that duty.

The prosecutor’s conduct also deprived Petitioner of

due process. The pivsecutor engaged in the knowing

suppression of favorable evidence, Brady v. Maryland, 373

7

U.S. 83 (1963), and the knowing misrepresentation of

evidence. Miller v. Pate, 386 U.S. 1 (1967).

The record of this case indicates that the prosecutor

engaged in a pattern of deception that deprived Petitioner, and

ultimately the jury, of information that would have

fundamentally altered the calculus in the sentencing phase of

Petitioner’s trial. No valid interest will be served by allowing

Petitioner to be executed without federal review of the full

course of prosecutorial misconduct that occurred in this case.

ARGUMENT

I. The Prosecutor Withheld and Misrepresented

Evidence to Convince the Trial Jury that

Petitioner, Rather than an Accomplice, Performed

the Stabbing.

Evidence that Petitioner was the actual stabber was

crucial to the jury's willingness to impose the death penalty.

The prosecutor testified in the district court that he knew that

Nashville jurors are “tougher to- get death sentences from”

than other Tennessee jurors. H.T. 905. They will not impose

death verdicts unless they can be “sure beyond a shadow of a

doubt that the person the state is seeking the death penalty on

was in actuality responsible for the murder.” Id. The

defendant must be the “shooter or the sticker.” H.T. 907. In

his sentencing-phase summation, the prosecutor’s co-counsel

stated that “the main issue in this case was who was the

sticker, who wielded that knife.” T.T. 1944.

The prosecutor understood that, if all of the evidence

were known, it would be difficult to persuade the jury that

Petitioner was “the sticker.” In a March 24, 1987 internal

memorandum, the prosecutor listed several “Weaknesses in

the Case” for “seek[ing] the death penalty.” H. Ex. 42. First

was the difficulty of proving that Petitioner himself was the

stabber. The surviving victim, Norma Norman, was

8

blindfolded and did not see who stabbed the deceased or

herself. H. Ex. 42. Ms. Norman had described Petitioner as

wearing a full-length black “gangster coat.” T.T. at 1343.

Police had seized the “long black coat” at Petitioner’s home

shortly after the incident.’ At trial, the prosecutor displayed

the coat seized from Petitioner’s home as the “gangster coat”

worn during the murder. T.T. at 1673. There was, however,

no blood found on any of the clothing seized from Petitioner,

including the coat that witnesses said Petitioner wore during

the incident. See T.T. at 277, 292, 322, 331-333, 341.

The prosecutor understood the significance of the lack

of blood on the long black coat. As he explained to a

supervisor, “[p]hotographs of the decedent’s house show

blood spattering all over the kitchen.” H. Ex. 42. Likewise,

the pole reports and the autopsy report confirmed that the

stabbing had produced a copious quantity of blood. H. Ex. 1-

4; H. Ex. 14. The lead detective observed the “large amount

of blood splattering on items near the victim [and] on the

walls, bar, and divider,” H. Ex. 3, and concluded, as he

explained in the habeas proceedings, that the blood splatter

would have occurred following each blow to the heart. H. Ex.

110 at 42-43.2 The prosecutor concluded in the report to his

2 The prosecutor’s file memorandum noted that it was very

unlikely the coat had been cleaned or replaced with a different

coat, because the police also found a shotgun under

Petitioner’s bed, and he surely would have disposed of the

gun if he cleaned or replaced the coat. See H. Ex. 42 at 678.

In any event, forensic tests would have detected traces of

blood, even if the coat had been cleaned. H.T. 35-36, 59-61.

> Expert testimony at the district court hearing confirmed that,

if Petitioner had squatted over the decedent as the prosecution

contended, he would have been copiously spattered with

blood. Abdur’Rahman v. Bell, 999 F. Supp. 1073, 1085

(1998) (citing T.T. at 37-39, 77).

9

supervisor that there were only two reasonable possibilities:

“Rither the defendant removes his coat before he began to

stab these people . . . or if the defendant did wear this coat the

entire time he obviously was not present when the stabbing

occurred.” H. Ex. 42.

The prosecutor had no evidence that Petitioner

removed his coat. In fact, the only neutral witness who saw

Petitioner during or shortly before or after the stabbing said

that Petitioner had on the long black coat. In a statement to

police shortly after the events, Norma Norman’s daughter said

that she had “peeped” out of her bedroom into the kitchen

during the incident and that Petitioner, the “light skinned”

man in glasses, “had on a wool coat.” H. Ex. 6.

Petitioner’s co-defendant, Devalle Miller, gave police

a three-hour oral confession in which he admitted taking part

in the assault but said that Petitioner was the stabber.* The

prosecution also interviewed Miller for an additional thirteen

hours over the course of four interviews during the week

before the guilt and sentencing phases of the trial. F.T. 1034-

8. Miller never said that Petitioner removed his coat and

strongly implied the contrary. Yet the prosecutor relied on

Miller to explain away the absence of blood from petitioner’s

clothing: “Miller stated that the stabbing of the deceased did

not produce the blood that was spattered, but that the blood

that was splattered occurred as the deceased gasped for air

after the defendant had gone to the second victim and begun

to stab her.” H. Ex. 42 (emphasis in original). Given his own

statements to his supervisor, his confirmatory testimony in

post-conviction proceedings, and the conclusion his lead

detective reached based on experience investigating homicide

scenes, the prosecutor surely knew Miller’s explanation was

* Miller fled Tennessee after the murder. The clothing he

wore during the incident was never located or tested for

blood.

10

inconsistent with the evidence and with his own internal

memorandum. See H.T. 917; H Ex. 42; H. Ex. 110 (pp. 42-

43).

The prosecutor shielded from the defense and the jury

this major weakness in his case. The jury heard none of the

evidence establishing that the person who did the stabbing

would have been covered with blood, that Petitioner's long

black coat -had no traces of blood and that witnesses saw

Petitioner in the long black coat and did not see him remove

it.

First, the prosecutor withheld from the defense the

police reports describing the “large amount of blood

splattering on the items near the victim . . . on the walls, bar

and divider.” H. Ex. 3; H. Ex. 1, 2, and 4. The prosecutor did

not turn over the lead detective's notes on the blood splatter,

nor did the detective describe the blood splatter to the jury.

T.T. 1583-1625. Second, the prosecutor withheld from the

defense Shonta Norman's statement that Petitioner (the "light

skinned” man "in glasses") "had on a wool coat" when she

looked into the kitchen after hearing the decedent making a

choking sound that probably was the result of the stabbing. H.

Ex. 6. Third, the prosecutor withheld from tnal counsel the

lab report showing no blood on Petitioner's coat, pants and

shoes, H. Ex. 9A; the prosecutor gave this report to

Petitioner's original lawyer but did not give it to Petitioner's

trial counsel, who requested discovery. °

2 The district court found no Brady violation in the

prosecutor's failure to give trial counsel the lab report,

because he had given it to prior counsel. 999 F. Supp. at

1089. The district court ruled that defense counsel was

ineffective for failing to obtain the report. The district court

did not rule on the prosecutor's purposeful distortion of the

evidence concerning the identity of the stabber, of which the

withholding of the lab report was only one aspect.

11

The prosecutor took advantage of defense counsel's

lack of information® and presented to the jury a version of the

facts the prosecutor knew was irreconcilable with the physical

and medical evidence. The prosecutor presented Devalle

Miller's testimony that Petitioner "squatted over [the victim]

stabbing him,” with no testimony that Petitioner removed the

black coat. The prosecutor thus created the misleading

impression, contrary to his own understanding, that Petitioner

could have stabbed the victim while wearing the long black

coat. The prosecutor also elicited testimony from Miller that

would resolve the apparent inconsistency between this version

of events and the lack of blood on the coat, had defense

counsel realized the conflict. Méiller testified that, after

Petitioner stabbed the victim, “[h]e backed up off the victim, a

couple of feet, and just stood, you know... ."__T.T. 1472.

Then, Miller testified, the victim started going into

convulsions. Miller testified that the victim was lying face

down and when the convulsions started, the “blood started

spewing from his nose and out of his mouth.” T.T. 1472-73.

That version of events seemed to place the stabber far enough

away from the victim to avoid being covered with blood, but,

as the prosecutor knew, it was inconsistent with the medical

evidence. In closing, the prosecutor assured the jury that

“Devalle Miller told you the truth,” T.T. 1944.

® Even though the prosecutor withheld crucial police reports

and other documents, competent defense counsel might have

learned enough about the facts to challenge the prosecutor's

version of events. The prosecutor realized that defense

counsel knew little about the facts, see H.T. 1040-41, and

exploited that lack of preparation. The prosecutor's conduct

was no less improper because competent counsel might have

minimized the damage. In fact, in the view of Amici, the

prosecutor's exploitation of defense counsel's inadequacies in

order to win at any cost was a gross deviation from his

obligation to seek justice.

12

Thus, the prosecutor successfully hid from both the

defense and the jury evidence tending to prove that Petitioner

was not the stabber. Even though prior counsel had the lab

report, the prosecutor's failure to produce it to defendant's trial

counsel, when another lab report was produced as potentially

“material to the preparation of the defense,” H. Ex. 62, “had

the effect of representing to the defense that the evidence

[did] not exist.” Bagley v. United States, 473 U.S. 667, 682-

83 (1985) (an incomplete response to a specific discovery

request may cause more harm than a complete non-

disclosure).

As a result, defense counsel never appreciated the

significance of the evidence that Petitioner wore the coat

throughout the incident. Even if defense counsel had seen the

lab report regarding the coat, the prosecutor’s failure to

produce the evidence of where and when the blood splattered

masked the significance of that report. Neither the defense

nor the jury heard the evidence demonstrating that whoever

stabbed the victim must have been covered with blood, or the

recollection of Shonta Norman that Petitioner was wearing the

coat when she observed him during the incident.

The prosecutor's conduct was improper. The

prosecutor engaged in a “deliberate deception of the court and

jury” in violation of the most fundamental standards of due

process. Mooney v. Holohan, 294 U.S. 103, 112 (1935). He

knowingly withheld exculpatory information, Brady v.

Maryland, 373 U.S. 83 (1963), and knowingly misrepresented

the physical evidence in the case. Miller v. Pate, 386 U.S. 1,

7 (1967).

The prosecutor’s conduct in this case bears a

disturbing resemblance to more recent conduct by this same

prosecutor which required reversal of a different first degree

murder conviction. In Garrett v. State, 2001 WL 280145

(Tenn. Cr. App. March 22, 2001), this same prosecutor argued

13

to a jury that the defendant locked the victim in the room of a

house and then burned the house down. The Tennessee

appellate court reversed the defendant’s murder conviction,

because the prosecutor suppressed a report in which the Fire

Detective said the door to the room was, in fact, unlocked.

This misconduct resulted in a public censure of this

prosecutor by the Tennessee disciplinary board, In_re

Zimmermann, No. 24039-5-CH (Tenn. S. Ct. Disciplinary Bd.

of Prof. Resp. May 28, 2002), which was the second public

censure this prosecutor has received. .

In the view of Amici, the misconduct in this case

likely affected the jury's decision to impose a death sentence.

’ For the prosecutor’s history of similar misconduct, see the

lower court opinions in this case, State v. Jones, 789 S.W.2d

at 552 (Zimmermann’s actions in promising not to pass

prejudicial indictments to the jury then doing so “bordered on

deception”); Abdur’Rahman v. Bell, 999 F. Supp. at 1089-90

(Zimmermann improperly withheld exculpatory evidence

from, and misrepresented facts to, the defense); and in other

cases, see, e.g., In re Zimmermann, 1986 WL 8586 (Tenn. Cr.

App. 1986) (Zimmermann’s violation of disclosure rules

constituted “abuse of . . . proceedings of the court”);

Zimmermann v. Board of Prof. Resp., 764 S.W.2d 757 (Tenn.

1989) (Zimmermann reprimanded for improper comments to

the press); In re Zimmermann, No. 12128-5-LC (Tenn. S. Ct.

Disciplinary Bd. of Prof. Resp. Sept. 30, 1994) (Zimmermann

publicly censured for public statements questioning a tnal

judge’s candor); State v. Middlebrooks, 995 S.W.2d 550, 558-

59 (Tenn. 1999) (Zimmermann’s representations to the jury in

a capital case displayed “either blatant disregard for . . . or a

level of astonishing ignorance of .. . the law”); State v.

Vukelich, 2001 Tenn. Cr. App. LEXIS 734 (2001)

(Zimmermann “strongly admonished” for soliciting the same

“patently improper” testimony that had prompted a prior

reversal).

14

As the prosecutor knew, the jury likely would not have

imposed the death sentence if it had doubts whether Petitioner

was the stabber. Absent the prosecutor's successful efforts to

distort the evidence, the jury would have had doubts whether

Petitioner carned out the murder.

il. The Prosecutor Withheld and Misrepresented

Evidence to Distort the Nature of Petitioner's 1972

Homicide Conviction.

The state alleged Petitioner's 1972 conviction for

second degree murder while in a federal prison as an

aggravating circumstance supporting the death penalty. H.

Ex. 59. The prosecutor anticipated, and expressed concern in

his memorandum to his supervisor, that the defense would

attempt to diminish the significance of the prior conviction by

explaining that the murder occurred when Petitioner was

trying to prevent a homosexual rape. H. Ex. 42 at 679. The

prosecutor obtained a transcript of the earlier trial, but did not

produce the transcript to the defense. Instead, he brought an

FBI agent who had been involved in the earlier case to attend

this trial and listed him as a witness. With the agent present,

the prosecutor related to defense counsel that the 1972

homicide had resulted from "a turf war in the prison between

the two gangs as to who would control the drug trade in the

prison.” H. Ex. 136 at 25. That threat dissuaded defense

counsel from presenting the defendant’s explanation of the

circumstances of the prior homicide, circumstances the

district court found could have mitigated the impact of this

prior homicide on the jury’s decision whether to impose

death. 999 F. Supp. 1073, 1095 n. 27.

At the state habeas proceeding, the prosecutor

admitted that his purpose was to prevent the defense from

“getting into this 1972 murder,” H. Ex. 136, ex. 9, and

claimed that he had related to defense counsel what he had

been told by the FBI agent who investigated it. The FBI

15

agent testified in a deposition, however, that the killing

occurred in response to a dispute between Petitioner and the

decedent concerning rumors of homosexual conduct between

them. According to the agent, after Petitioner confronted the

decedent, Petitioner lost control and stabbed him. H. Ex. 136

at 18-19. The killing was not about a drug turf war, as the

prosecutor told defense counsel.®

The federal district court found that defense counsel

was ineffective in not investigating Petitioner’s prior

convictions. 999 F. Supp. at 1099. The district court also

found that the prosecutor had misrepresented to defense

counsel the circumstances of the 1972 conviction, 999 F.

Supp. at 1089, but believed that the prosecutorial misconduct

claim was not properly before it. Thus, no federal court has

ruled on the prosecutor’s conduct in purposefully misstating

the record of the 1972 trial in order to dissuade Petitioner

from explaining to the jury the circumstances of this prior

homicide in a light that might have affected the jury’s

determination whether to impose the death sentence.

The prosecutor’s misconduct was egregious. If, as it

appears, he made a representation to defense counsel he knew

to be false in order to cut off an avenue of defense, that

falsehood violates all standards of professional conduct. See

National District Attorney’s Association (NDAA), National

Prosecution Standards 6.5 (2d ed. 1991) (“Counsel should

proceed with candor, good faith and courtesy in all relations

with opposing counsel”); Tennessee Supreme Court Rule 8,

® Because the prosecution theory was that this killing was

motivated by drug turf, the threat that an FBI agent would

testify about an earlier killing with the same motivation would

have been devastating. See T.T. 1941, 1979 (closing

argument linking evidence that the defendant was trying to

“take over” drug turf to prior murder); see also id. at 1981,

1984, 1985 (rebuttal argument).

16

Code of Professional Responsibility, DR 7-102(A)(5) (a

lawyer shall not knowingly make a false statement of law or

fact). It also violates the prosecutor’s fundamental duty “to

see that, so far as possible, truth emerges.” Giles v.

Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring in

the judgment). See Wood v. Bartholomew, 516 U.S. 1, 9

(1995) (per curiam) (confirming that, if the prosecution’s

denial that polygraph examinations of the two witnesses

existed were an intentional misstatement, the Court “would

not hesitate to condemn the misrepresentation in the strongest

terms”).

In the experience of Amici, the existence of a prior

homicide, particularly one in prison, is a significant factor in

the jury’s determination whether life imprisonment is

sufficient to guarantee the safety of the community. A killing

over gangs and drugs presents a very different picture of the

cold-bloodedness and dangerousness of a defendant than does

an outburst stemming from a series of homosexual assaults on

the defendant while he was incarcerated and unable to escape

from them. In the view of Amici, the prosecutorial

misconduct that has been described in this case was sufficient

to have swayed the jury’s determination whether to impose a

sentence of death.

Ill. The Prosecutor Withheld and Misrepresented

Evidence Regarding Petitioner’s Mental Health.

The prosecutor’s false representation to defense

counsel of the facts of the 1972 homicide was part of an even

larger distortion. The prosecutor systematically suppressed

and misrepresented the evidence of Petitioner’s mental illness

and the connection between that mental illness and

Petitioner’s past and present crimes.

Petitioner has an extensive, well-documented history

of mental illness, none of which was presented to the jury. As

17

the district court recognized, Petitioner was diagnosed in 1964

as having a “paranoid personality." 999 F. Supp. at 1098. In

1972, a psychiatrist testified that Petitioner suffered from a

Borderline Psychosis that caused him to lose control under

stress. 999 F. Supp. at 1100. Petitioner repeatedly had

exhibited psychotic symptoms, including banging his head

against a wall when he was under stress. H.T. 123-124.

The district court correctly found that defense counsel

fell short of their duties in not investigating Petitioner’s

mental history and presenting it to the jury. 999 F. Supp. at

1096-98. But the prosecutor’s affirmative steps to conceal

that history are distinct from, and not excused by, defense

counsel’s failings.

When Petitioner was brought to the police station

following his arrest in this case, he began to cry and bang his

head against the wall. H. Ex. 7. Reports from the Davidson

County Sheriff's Department stated that Petitioner was

banging his head against the floor, requiring that he be placed

in a padded cell on “suicide” watch. H. Ex. 8. The

prosecutor never disclosed the police reports describing that

behavior. When the police report describing petitioner’s

arrest was turned over at trial as Jencks material, the facts

relating to petitioner’s extreme emotional distress had been

redacted. Id. -

The prosecutor expected that Petitioner's mental

illness likely would be an issue at trial and sentencing and

knew that Petitioner had raised his mental iliness in defense of

his earlier convictions. H. Ex. 15 (letter to Lewis Trammell,

Petitioner’s federal parole officer); H. Ex. 72 (defense counsel

notice of intent to rely on mental status defense). He obtained

the transcript of the 1972 homicide trial and sought

information from the prosecutor in the 1972 trial and from

Petitioner’s federal parole officer. From those sources, the

prosecutor learned that, in addition to claiming that he was

18

defending himself against a homosexual assault, Petitioner

had raised an insanity defense in the 1972 trial. A psychiatrist

testified at the 1972 trial that Petitioner was insane at the time

of the offense due to a mental disease (“borderline”

psychosis) that caused him to lose control under stress. H.

Ex. 131 at 43-46. The jury in that case rejected the first-

degree murder charge and convicted him of second degree

murder, and Judge Merighe sentenced Petitioner to a

psychiatric facility.

Upon motion of defense counsel in this case,

Petitioner was sent to the Middle Tennessee Mental Health

Institute ("MTMHI") for evaluation and a report to the court.

H. Ex. 22. MTMHI sought information from the prosecutor

concerning Petitioner’s mental history. The prosecutor

replied with information he knew to be false and calculated to

affect the MTMHI report, to discourage investigation into

Petitioner’s mental history and, instead, to paint Petitioner as

a cold-blooded killer. H. Ex. 34.

The prosecutor reported to MTMHI that, in the 1972

proceedings, Petitioner “moved the Court for a “pga

hearing and psychiatric evaluation as to his — « . the

Court ruled that the defendant was ee and . . there

defense at trial.” H. Ex. 34 at 3 (emphasis added). — | Ex.

36 (MTMHI report omitting mention of 1972 insanity

defense). That representation stands in stark contrast to the

prosecutor’s earlier report to his supervisors concerning the

1972 trial. There, the prosecutor reported that he had

“received a copy of the transcript of the defendant’s first trial

where he plead not guilty by reason of insanity.” H. Ex. 42 at

679.

In addition to his misrepresentation concerning

Petitioner’s assertion of an insanity defense, the prosecutor

—

es a eee

19

falsely informed MTMHI that the 1972 offense was a “cold

blooded premeditated murder” by Petitioner, the leader of a

“prison gang attempting to gain control over the victim’s

gang.” H. Ex. 34 at 201. The prosecutor knew that his

statement was false, that the 1972 incident involved a

homosexual advance or threats, that there was no evidence

that gangs or drugs were involved, and that the jury had

rejected a first degree premeditated murder charge and

convicted Petitioner of a lesser offense.

The prosecutor also withheld information that was

clearly relevant to MTMHI’s assessment of Petitioner. The

prosecutor did not inform MTMHI of Petitioner’s behavior

after his arrest or the fact that, upon his arrest, two days after

the offense, he was placed in a padded cell on suicide watch,

where he remained for two days. H. Ex. 7. Nor did the

prosecutor provide MTMHI with any records of the insanity

defense raised in the 1972 trial or of the 1970 assault, which

included a government motion for a psychological evaluation

prompted in part by Petitioner’s head-banging and suicide

attempts. H. Ex. 131.

Misled by the prosecutor's representations, the

MTMHI evaluators reported to the court that they found no

issues regarding competency and no basis for an insanity

defense. The report did not mention the 1972 insanity

defense. The prosecutor then moved, in limine, to preclude

the defense from asserting any mental state defense. The

prosecutor cited the MTMHI report "clearly show[ing] that

the results of the defendant's evaluation reflect no diagnosis of

any mental disease, defect, emotional disturbance or even a

personality disorder.” H. Ex. 732

® The prosecutor's Motion also stated that "the co-

defendant...has no evidence” that Petitioner was suffering

from a mental disease. H.Ex. 73. Méiller had given the

prosecutor a statement in which he said that Petitioner "went

20

The prosecutor’s conduct was improper. He

suppressed exculpatory evidence in violation of Brady v.

Maryland and gave false information to the MTMHI, an

agency directed by the court to report on Petitioner’s mental

condition. See American Bar Association, Standards for

Criminal Justice: Prosecution Function 3-2.8 (a)

(Commentary) (3d ed. 1993) (“It is fundamental that in

relations with the court, the prosecutor must be scrupulously

candid and truthful in his or her representations in respect to

any matter before the court . . . it is essential if the prosecutor

is to be effective as the representative of the public in the

administration of criminal justice”).

The prosecutor’s conduct also had an effect on the

course of the sentencing hearing. His suppression of evidence

and false representations concerning Petitioner’s mental

history effectively discouraged any further examination into

Petitioner’s mental condition. Informed that an evaluation in

the federal system in 1972 revealed no basis for concerns

about competency or insanity, and provided with no current

evidence of mental illness,s MTMHI did little to further

investigate Petitioner’s mental illness. Everyone in the court

system, including MTMHI, the trial judge and defense

counsel, was lulled into the belief that there were no serious

issues concerning Petitioner’s mental condition.’

from day to night” and was acting "crazy." Notes on Miller's

statement indicated that it suggested "Insanity and [a]

mitigating factor." H. Ex. 73, 51 (pp. 166-67, 171, 177).

1° Of course, the district court is correct that defense counsel

should have obtained Petitioner’s records, because competent

counsel in a case that may result in the death penalty always

should be fully informed about the defendant’s background.

The fact that competent counsel might have been able to limit

the damage caused by the prosecutor’s suppression of

evidence and affirmative misrepresentations does not change

21

Dr. Craddock, the MTMHI psychologist who

evaluated Petitioner, testified in the habeas proceeding that,

when he conducted his evaluation, he had no information

from Petitioner's 1972 murder trial that Petitioner might suffer

from a Borderline Personality Disorder. H.T. 122. He had no

information about the current offense other than what he

received from the prosecutor. H.T. 151-52. After learning of

Petitioner's history and his conduct after his arrest in this case,

the psychologist did not take issue in the habeas proceeding

with another expert's diagnosis that Petitioner suffered from

Borderline Personality Disorder, and agreed that a person

with Borderline Personality Disorder can slip into a psychotic

state when under stress. H.T. 129-39, 140.

The consequence of these falsehoods was a sentencing

hearing where the prosecutor exercised free rein to paint

Petitioner as “a depraved man, not someone suffering from

severe extreme emotional disturbance, a depraved man.” T.T.

1981-82. The prosecutor could describe the evidence in its

most inculpatory light, asserting that the killing was purely for

Petitioner's "pleasure and enjoyment,” id., without fear of

contradiction by defense counsél or expert testimony. The

jury had no context in which to evaluate Petitioner’s conduct,

in this offense as well as the former, as anything other than

cold-blooded killings.

The prosecutor's successful withholding from the jury

of all evidence of Petitioner's mental illness also deprived the

jury of the context in which to evaluate Petitioner’s bizarre

testimony at the sentencing hearing, in which he testified that

he could not remember what happened on the night of the

killing and then incoherently “submit[ted] to the fact that [he

was] the individual . . . that stabbed Mr. Daniel Patricks.”

T.T. at 1864; see H.T. 471-72, 488. Dr. Sadoff, the

the fact that the prosecutor’s egregious misconduct had a

disastrous impact on the fairness of this sentencing hearing.

22

psychiatrist who examined Petitioner for the habeas hearing,

testified that Petitioner's behavior on the stand at the

sentencing hearing reflected his illness -- he fell apart under

stress. H.T. at 485-497. Had the jury known of Petitioner's

mental history, his testimony would have given it no

confidence that Petitioner was describing what actually

happened.

IV. The Prosecutor’s Conduct Violated Basic

Standards Governing the Legal Profession and

Deprived Petitioner of Due Process of Law.

The Constitution and standards of professional ethics

forbid prosecutors from winning convictions or death

sentences by deception. Many years ago, in Mooney v.

Holohan, 294 U.S. 103, 112 (1935) (per curiam), this Court

held that the prosecution’s knowing use of perjured testimony

violated the constitutional guarantee of due process of law.

“Such a contrivance by the state to procure the conviction and

imprisonment of the defendant is as inconsistent with the

rudimentary demands of justice as is obtaining the like result

by intimidation.” Id. As the Court explained in Brady v.

Maryland, extending Mooney te the suppression of evidence

favorable to the accused:

The principle of Mooney v. Holohan is not

punishment of society for the misdeeds of the

prosecutor, but avoidance of an unfair trial to

the accused. Society wins not only when the

guilty are convicted, but when criminal tnals

are fair; our system of the administration of

justice suffers when any accused is treated

unfairly. 373 U.S. 83, 87-88 (1963).

The same principle likewise forbids prosecutors from

misrepresenting evidence, Miller v. Pate, 386 U.S. 1 (1967)

(knowing misrepresentation of physical evidence violated

ee ee

A ek ee Ret. en een

23

Due Process Clause). Prosecutorial integrity is vital to ensure

that juries have the fullest opportunity to find the facts so that

criminal trials remain the “main event” in the criminal

process. Within our system of justice, “[t]he State’s

obligation is not to convict, but to see that, so far as possible,

the truth emerges.” Giles v. Maryland, 386 U.S. 66, 98

(1967) (Fortas, J., concurring in the judgment).

The standards of the legal profession also recognize

the special responsibilities of public prosecutors to seek

justice. Tennessee Supreme Court, Rule 8, Code of

Professional Responsibility, EC-7-13 (“the public

prosecutor’s duty is to seek justice, not merely to convict’);

State v. Spurlock, 874 S.W. 2d 602 (Tenn.Crim. App. 1993);

American Bar Association, Standards for Criminal Justice:

The Prosecution Function, 3-12(c) (3d ed. 1993) (same);

National District Attorney’s Association, National

Prosecution Standards, 1.1 (2d ed. 1991) (“the pmmary

responsibility of prosecution is to see that justice is

accomplished”’).

The pursuit of justice is incompatible with deception.

Prosecutors may not conceal facts or knowingly fail to

disclose what the law requires them to reveal. Tennessee

Code of Professional Responsibility, DR 7-102(A).

Prosecutors should be candid with opposing counsel, National

Prosecution Standards, 6.5.a, and may not “impede opposing

counsel’s investigation of the case." Id. 53.5.a. Nor may a

prosecutor (or any lawyer) legitimately deceive third parties.

Proposed Tennessee Rule of Professional Conduct 4.1(a)

(Dec.1, 2001) & Comment [1]; American Bar Association,

Model Code of Professional Responsibility DR 7-102(A)(5)

(lawyer shall not make false statement of law or fact).

Nowhere in our legal system is strict adherence to these

principles more vital than in cases in which the State seeks the

death penalty.

24

Prosecutorial misconduct such as that in this case

requires reversal if there is “any reasonable likelihood [that

the misconduct could] have affected the judgment of the

jury.” Giglio v. United States, 405 U.S. 150, 154 (1971). See

also Kyles v. Whitley, 514 U.S. 419, 433 (1995). The record

of this case shows that the prosecutor engaged in a pattern of

deception that deprived Petitioner, and ultimately the jury, of

information that would have fundamentally altered the

calculus in the sentencing phase of Petitioner’s trial.!

Together, Amici have many years of experience as

prosecutors and have tried or supervised countless criminal

cases, including those in which the death penalty was sought.

In the judgment of Amici, the consequences of the

prosecutor’s withholding and distorting of evidence in this

case were significant enough to have affected the judgment of

the jury. Combined, the impact of the prosecutor’s distortions

fundamentally changed the character of the trial. Kyles, 514

U.S. 419. It would be a serious miscarriage of justice for

Petitioner to be executed without any federal review of the

prosecutor’s conduct and its impact on the fairness of

Petitioner’s trial and sentencing.

CONCLUSION

For the foregoing reasons, Amici Curiae urge this

Court to reverse the judgment of the United States Court of

Appeals for the Sixth Circuit and remand the case for further

proceedings.

4 This brief has discussed the prosecutor’s misconduct in

three aspects of the case: the issue of who was the stabber;

the aggravating circumstance of the prior homicide; and

Petitioner’s mental condition. Other claims of prosecutorial

misconduct in the habeas petition further demonstrate a

pattern of misconduct and deception.

Ce eh ee Seen ee ee

Dated: July 10, 2002

25

Respectfully submitted,

Elizabeth G. Taylor

Ronald H. Weich

Zuckerman Spaeder LLP

1201 Connecticut Avenue NW

Washington, D.C. 20036

(202) 778-1800

Counsel for Amici Curiae

John F. Terzano

The Justice Project

1725 Eye Street, N.W.

Washington, D.C. 20006

William McLain

David A. Clarke School

of Law

4200 Connecticut Ave., N.W.

Washington, D.C. 20008