U.S Court of Appeals Doubts that Prosecutors Promise Favorable Treatment as a Reward for Testifying…Really?!?

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The U.S. Supreme Court in a 1963 landmark decision, Brady v. Maryland, held that, as a matter of due process, prosecutors in criminal cases have a duty to disclose evidence favorable to a defendant upon request provided the evidence is material to either guilt or punishment. What constitutes “material” evidence has long been a source of legal confusion and disharmony within the justice system, notwithstanding the Supreme Court’s attempt in United States v. Bagley in 1985 to defines materiality; specifically, favorable evidence is material if there is a “reasonable probability” that its disclosure prior to trial would have changed the outcome of the proceedings.


Thus, the definition of “materiality” became the subject of post-conviction inquiry and gave prosecutors cover when they withheld or concealed favorable evidence before trial.  Prosecutors who intentionally hide favorable evidence know they will have the opportunity in post-conviction proceedings to simply argue that disclosure of the evidence would not have changed the outcome of either the verdict or punishment. They can argue the prosecution presented sufficient evidence independent of the suppressed favorable evidence to sustain both conviction and sentence, rendering Brady’s duty to disclose practically meaningless.


In the wake of Brady and its progeny, the American Bar Association, and the bar associations in 49 states, have adopted Rule 3.8(d) of the Model Rules of Professional Conduct that mandates disclosure of either exculpatory or mitigating evidence prior to trial without regard to materiality. The problem with Rule 3.8(d) is that it does not have the force of law. It is an ethical rule subject only to the jurisdiction and supervision of state bar associations—groups that do not have either the professional inclination or courage to discipline prosecutors who withhold or conceal favorable evidence, regardless of any post-conviction determination of its materiality.


In 2011, we posted a piece about the Supreme Court’s decision to hear a Louisiana murder case (Smith v. Cain) involving egregious suppression of favorable evidence. The American Bar Association filed an amicus curiae brief in the Smith case urging the Supreme Court to adopt Rule 3.8(d)’s broader duty to disclose favorable evidence independent of the “materiality” assessment required by Bagley. The ABA argued that Rule 3.8(d) required prosecutors as a matter of legal and ethical duty to disclose all favorable evidence regardless of its materiality and urged the Court to “recognize” this seemingly logical position. In 2012, we posted a follow up piece about the Supreme Court decision in which the court reversed Smith’s conviction but refused to even mention Rule 3.8(d), much less address its legal merits as suggested by the ABA. Several months later, we posted yet another piece about how Smith and other Supreme Court decisions, that prevented professional and personal accountability for intentionally hiding favorable evidence, have the effect of encouraging prosecutorial misconduct.


A recent decision (March 7, 2013) by the U.S. Court of Appeals for the Third Circuit in Grant v. Lockett perfectly illustrates our concerns about the impact of Smith.


The core facts of Taibu Grant’s case are: On January 8, 1997, Keith Gilliam was gunned down outside the Where It’s At Bar in Pittsburgh, Pennsylvania. Gilliam and his wife had been at the bar after work for a couple hours before deciding to leave around midnight. As he was walking toward his vehicle, Gilliam was approached by a lone gunman on foot who opened fire on Gilliam killing him and wounding another person named Leroy Butler. About five minutes later, a maroon Buick drove by the bar and the occupants opened fire, wounding two other people standing in front of the bar. The police subsequently recovered fifteen shell cases, four bullets, and bullet fragments in the street at the intersection of Lincoln and Lemington Avenues, where the bar was located. A forensic analysis determined that all the bullets were fired from the same gun—a weapon never found by the police. Thus, the gunman who killed Gilliam and wounded Butler probably was the same gunman in the maroon Buick who wounded the other two bystanders.


Besides Butler, there were three other witnesses (Gerald Bonners, Kim Oden and Mark Gee) at the scene, where Gilliam was killed and Butler wounded, who informed authorities that Grant was not the shooter. And, finally, two latent fingerprints found in the stolen Buick did not match Grant’s prints.


The police, however, found a witness named Christopher Moore who lived in an apartment about 250 feet from the bar. He informed the authorities that he was leaving his apartment when he heard some shots coming from a parking lot of a food mart located directly across the street from the bar. He saw a man dressed in a blue, hooded coat with what appeared to be a lighter blue horizontal stripe on it. He said he saw the shooter for only a few moments before he disappeared. But, a few minutes later, Moore saw a man he identified as Grant wearing the same clothing as the shooter in the food mart parking lot. He said he heard Grant yell, “I had to let loose of them niggers,” to someone standing nearby.


The problem with Christopher Moore is that he carried some heavy criminal baggage. He had two burglary convictions and a theft conviction in 1983 as well as two drug convictions in 1993. In fact, Moore was still on parole for one of the drug convictions at the time of Gilliam’s shooting death and when he testified at Grant’s trial. He had also been in the Where It’s At Bar on the night of the shooting—a violation of the conditions of his parole.


Another prosecution witness named Robert Gilbert testified he was heading to, and was near, the bar when he saw Grant walking towards him in a light blue North Carolina jacket. Gilbert’s testimony did not actually link Grant to the shooting incident. The prosecution called two other witnesses: Leo Butler, who testified he was wounded by the first shooter as he stood under a stoplight by Lincoln and Lemington Avenues, and who said Grant was not the shooter; and Gerald Bonner who testified he was standing in front of the bar talking to Butler when Gilliam was shot, and like Butler, he said the shooter was not Grant.


In post-conviction applications presented at both the state and federal level, Taibu Grant claimed the prosecution engaged in misconduct because (1) it did not disclose Moore’s criminal history and parole status prior to trial and (2) it agreed to help Moore with his parole violation charge in exchange for the parolee’s testimony against him. In the alternative, Grant claimed he received ineffective assistance of counsel because defense counsel (1) did not exercise due diligence in discovering Moore’s criminal and parole history—all of which were in the records of the Clerk of Court’s office—and (2) did not call Oden or Gee as witnesses.


The state courts denied Grant’s post-conviction applications under two theories: First, the courts denied the Brady/prosecutorial misconduct claim, pointing (1) to defense counsel’s lack of due diligence in discovering the Brady evidence; and (2) the state was not required to disclose Brady evidence in a defendant’s possession or which he could have obtained with the exercise of due diligence. Second, the court denied the ineffective assistance claim, pointing (1) to Grant’s failure to offer any evidence that Moore was on parole either at the time of the crime or when he testified against Grant; and (2) to Grant’s failure to offer evidence that Moore had actually received favorable treatment in exchange for his testimony against Grant.


The U.S. District Court adopted the state courts’ factual findings and legal conclusions concerning both the Brady-related and ineffective assistance claims. The district court supplemented its findings by saying defense counsel’s failure to call Oden and Gee as witnesses was excusable since their testimony would have been “cumulative” to Butler’s and Gilbert’s testimony. The Third Circuit Court of Appeals agreed to hear Grant’s case, and elected to reverse his conviction on the basis of the ineffective assistance of counsel claim.


The appeals court was perturbed that both the state courts and federal district court had adopted the factual conclusion that Grant had failed to offer any evidence about Moore’s criminal history when, in fact, “ … the criminal docket sheet and a number of other court documents associated with Moore’s 1993 drug convictions were incorporated into the certified record through two [state] court orders granting [Grant] leave to supplement the record. The docket sheet in the supplemental record … states that Moore was sentenced to three to six years imprisonment for the convictions at issue, effective August 14, 1992 … Thus, it is beyond dispute that the state record supported Grant’s claim that, since Moore was not still in prison at the time of the shooting and Grant’s trial in 1997, Moore was on parole during that period.”


With regard to the second prong of Grant’s ineffective assistance claim (the alleged deal between the prosecution and Moore), the appeals court found that “ … a key prosecution witness’s prior criminal history and resultant parole status clearly constitute important impeachment evidence. It is beyond the range of professionally reasonable judgment to forego investigation of, and impeachment based upon, such evidence absent some apparent strategic reason that might explain or excuse counsel’s failure.”


Thus, and unfortunately predictable, the issue of whether the prosecution deliberately withheld material Brady evidence about Moore’s criminal history/parole status or made a deal with the parolee to help him with his parole status in exchange for his testimony against Grant was not explored. The appeals court, however, in a footnote observation said: “We do not suggest that the prosecutor made any offer of special treatment to Moore in exchange for his testimony. However, we do suggest that requiring evidence of such an agreement is as unrealistic as it is unreasonable. We doubt that any experienced prosecutor would be so naïve as to expressly promise a witness favorable treatment as a reward for testifying against a defendant at trial. The prosecutor would know that any such promise could be fatal to the witness’s credibility upon cross examination by even a modestly competent defense attorney. Although Moore testified he had such an agreement in his [post-trial] affidavit, we will not attribute such tactics to a prosecutor absent more evidence than appears here … that is not the point. The poison lurks in the bias that can arise from the witness’s subjective state of mind, regardless of whether the witness’s belief arose from an actual agreement with, or representation of, the prosecutor.”


The decision by the Third Circuit did not make an explicit finding that the prosecution had in its possession, and withheld it from defense counsel, Moore’s criminal history and parole status. The appeals court dodged this issue by laying all the blame at the office door of defense counsel. And, as for the alleged favorable deal in exchange for testimony, the appeals court was, we believe, disingenuous with its expressed “doubt” that an experienced prosecutor would engage in such conduct when, in fact, the practice is a significant, if not integral, component in the “plea bargaining” process throughout the nation’s criminal justice system. We know, and understand, career criminals like Christopher Moore: they do not testify for the prosecution because they are law-abiding citizens willing to perform their civic responsibility to prevent crime.  Criminals testify primarily for one reason, to get a benefit for themselves.


We do not know if Taibu Grant is guilty or not. The only eyewitness against him was an unreliable drug user/parole violator. We do not believe any criminal conviction should stand, much less a person having to spend the rest of his/her life in prison, based on testimony from such a career criminal.


The tragedy in a case like Grant’s is this: had the Supreme Court in Smith v. Cain gave Rule 3.8(d) legal force, or, at least raised it to the level of recognized ethical duty, a defendant’s guilt or innocence would be more clearly established because the jury would know about a witness’s criminal history/parole status and any “deal” he made with the prosecution. The prosecutor in such a case would have a binding ethical duty to disclose this kind of information without regard to its materiality, which is obviously seen through the jaded eye of the prosecutor. In other words, the issue of materiality would be decided by the jury, not by the prosecution. And last, but not least, the courts of appeals wouldn’t have to continually give disingenuous lip service to the purity of a prosecutor’s motives just to justify a conviction.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization