# Amicus Curiae Brief — Abdur'Rahman v. Bell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0574%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 88

## Text

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.

—_— 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0574%3A14. Public record. Not legal advice.