In a difficult and factually-intensive en banc death-penalty decision, the Sixth Circuit addressed what standard to apply in reviewing the materiality prong of a Brady claim in a habeas appeal. It will come as little surprise to many court observers that the court answered with the sort of “super deference” that has characterized much of the last decade of AEDPA jurisprudence, and even less of a surprise that the petitioner lost. The case is Montgomery v. Bobby, published today.
As with any murder case on habeas review, the facts here are messy, involving a double-murder with a robbery-motivation, two individuals who were complicit in the crime, one who said the other did it while taking a plea offer, and the other taking the fall. The evidence was bad for both men, but worse for Montgomery. There was some question as to when the murder actually occurred, and the prosecution settled on a theory regarding one date. The police, however, had taken statements from witnesses saying that they had seen the victim alive in a car days after the date on which the murder was said to have happened. That police report was not handed over to the defense, and never materialized until years later after a FOIA request. Although Montgomery lost in state court, the district court granted a writ of habeas corpus in light of the Brady violation.
As to the first two Brady factors, nobody disputes that the evidence was favorable to Montgomery as both potential exculpatory and impeachment evidence, or that it was willfully or inadvertently suppressed by the State. The action in this case was in the third factor: materiality.
The majority determined that the materiality factor was not met. The test for materiality under Brady requires a “reasonable probability that the suppressed evidence would have produced a different verdict,” which the panel distinguished from the mere possibility that the evidence would produce a different verdict. Here, there was certainly strong evidence against Montgomery, including purported eyewitness testimony of the shootings, Montgomery’s admission that his gun was used in the shootings, and the fact that Montgomery possessed the gun after the shootings. The Brady evidence — which undermined the prosecution’s theory only about the date on which the murders occurred — certainly did not exculpate Montgomery entirely.
Where the withheld evidence would perhaps have proved more useful was in impeaching Montgomery’s accomplice, who had a considerable motivation to lie. The majority reiterated, however, that “[e]vidence that is merely cumulative to evidence presented at trial is not material for purposes of Brady analysis.” Brooks v. Tennessee, 626 F.3d 878, 893 (6th Cir. 2010). The Sixth Circuit is unusually quick to find that impeachment material is “cumulative” when a witness was already impeached at trial, and, according to the majority, Montgomery had thoroughly explored his accomplice’s motivation to lie and factual inconsistencies. This case therefore adds to a line of other cases in which relief is denied due to lack of materiality under Brady. See Bell v. Bell, 512 F.3d 223, 237 (6th Cir. 2008) (en banc); Brooks, 626 F.3d at 893-94. While some other circuits have found that impeachment evidence is not cumulative where it presents an entirely different subject on which to impeach a witness rather than merely piling on more evidence of the same type, the majority disagreed and made special note that “[t]his argument is beside the point.”
A thorough dissent from Judge Clay minces few words in criticizing the majority’s application of Brady to the facts of this case. Among other things, Judge Clay disagreed that Sixth Circuit precedent required a finding that the Brady evidence was cumulative, and pointed to numerous cases that held or implied that “new evidence” is not cumulative if it “differs both in strength and subject matter from the evidence actually presented.” Because this Brady evidence was of an entirely different type than had been previously used and would present a different avenue for impeachment, relief should have been granted. Judge Clay also scolded the majority for its “rubber stamping” of the facts as viewed by the state courts.
Judge Merritt’s forceful dissent is especially noteworthy. He points out that the majority has effectively conflated the Brady standard with the Strickland standard in creating a presumption of “trial regularity,” even in the face of “blatant prosecutorial misconduct.” Thus, Brady’s bright-line Due Process rule has been morphed into the sticky Strickland standard, at the expense of Brady’s insistence on deterring prosecutorial misconduct. Judge Merritt argues that the exact opposite standard should apply: “If, as the Supreme Court states, prosecutors are bound to know and follow the Brady rule, and in fact do know its meaning, and even so they then conceal the exculpatory evidence from the defendant, the inference should be that they concealed it because they believed it would hurt their case.”
As of today, however, the presumption appears to point in the opposite direction, and Brady claims face an uphill battle on habeas review.