A few weeks ago, the U.S. Supreme Court decided that it will hear two consolidated cases involving allegations that the government suppressed exculpatory evidence in a decades-old murder prosecution in Washington, DC. The cases are Turner v. United States and Overton v. United States, and they arise from the 1984 murder of a woman named Catherine Fuller (the case with the Turner caption has six joint defendants). Because the Supreme Court does not often consider the prosecutorial duty to disclose favorable evidence to defendants, its decision to grant certiorari in Turner and Overton warrants attention. A deeper look at the cases and the circumstances reveals several important things: a troubling prosecution; a problematic appellate court opinion minimizing the effect of State misconduct; and early signs that the Supreme Court will forego this opportunity to provide guidance and clarity to litigants and courts struggling to guard against prosecutorial misconduct.
The murder of Catherine Fuller was a high-profile crime. She was killed in an alley in Northeast DC on the evening of October 1, 1984 in a brutal manner, robbed, sodomized and savagely beaten. The police ultimately arrested over a dozen young individuals for the crime. According to the Washington Post, “[o]f 13 people charged, 10 defendants, from 16 to 25 years old, went on trial in 1985, and eight were convicted.” The D.C. Court of Appeals summarized the proceedings:
The police were unable to find the object used to commit the sodomy or to recover any usable fingerprints or other physical evidence that could identify the perpetrators. The medical examiner could not determine from Fuller’s injuries how many persons were involved in assaulting her. After conducting more than 400 interviews, investigators developed the theory that Fuller was assaulted and killed by a large group of teenagers who initially set out, on the spur of the moment, to rob her. A total of thirteen individuals believed to have been members of that group were indicted. Two of them, Harry Bennett and Calvin Alston, pleaded guilty and agreed to testify for the government. A third defendant, James Campbell, whose case was severed for trial after his attorney became ill, eventually pleaded guilty as well. The remaining defendants—the seven appellants before us now and their co-defendants Steven Webb, Alphonzo [sic] Harris, and Felicia Ruffin—went to trial in the fall of 1985.
The defendants who were ultimately convicted and petitioned the Supreme Court are Charles Turner, Christopher Turner, Russell Overton, Levy Rouse, Clifton Yarborough, Kelvin Smith, and Timothy Catlett.
At trial, the prosecution relied primarily on three types of evidence. First, and most damaging, was the testimony of Bennett and Alston, the two defendants who pleaded guilty and agreed to testify against the others in exchange for leniency in charging and sentencing. Their testimony conveyed the broad structure of the crime, which was the group assault theory that law enforcement had embraced. Second, there were four eyewitnesses who each testified to seeing some of the defendants at the crime scene. Three of the four stated that they personally witnessed the attack on Fuller. Third, a detective testified that he overheard Christopher Turner make inculpatory comments to Overton. (The State also introduced an inculpatory statement made by Clifton Yarborough against him.)
The defendants largely put on alibi defenses. Some of these defenses conflicted with each other. And some alibis were effectively impeached.
The jury struggled to reach a verdict in the case. It deliberated for seven days, and then acquitted two defendants (Alphonso Harris and Felicia Ruffin), convicted six, and reported that it could not reach a verdict with respect to Christopher Turner and Overton. The jury then deliberated for two more days and finally convicted Turner and Overton as well.
Lots of Suppressed Evidence
A man responsible for several violent robberies in the immediate vicinity of the murder had been identified by multiple witnesses who saw him at the crime scene apparently concealing something and running away when the police arrived. Although the police learned his identity, it was never disclosed to the defendants, and all of the information about him was thus never shared with the jurors.
More than 20 years after they were convicted and sentenced, the defendants obtained a wealth of information that had been in the State’s possession, but that they had never before seen. This exculpatory evidence fell into three broad categories: (1) witness statements identifying two other possible suspects in the case—James McMillan and James Blue; (2) statements from witnesses in the alley around the time of the crime that call the State’s theory of the crime into question; and (3) four types of impeachment evidence that would have hurt the credibility of the State’s key witnesses. This quintessential Brady information formed the basis of a post-conviction claim for a new trial based on the State’s due process violations.
Each category of suppressed evidence denied the jurors who heard the case an opportunity to consider all the available evidence. Most disconcertingly, the State did not disclose that the witness who found the victim’s body, waited for the police to arrive at the scene, and saw two men run away when the police came (one of whom appeared to be concealing something) had actually identified those men by name. He told the police they were James McMillan and Gerald Merkerson. The prosecution never revealed these names to the defense teams. They also concealed statements from two other witnesses who confirmed that McMillan was in the alley and behaving suspiciously. Indeed, McMillan was a police suspect. And, “the police knew”—and did not tell the defense—“that McMillan lived . . . about three doors down from the alley and that he had violently assaulted and robbed two other middle-aged women walking in the vicinity three weeks after Fuller’s death.”
Armed with this newfound information, the defense investigated McMillan and discovered that two months after serving time in prison for the two other area robberies,
he killed a 22–year–old woman (“A.M.”) in an alley behind . . . only a few blocks from where Fuller was murdered. This crime had some striking similarities to the attack on Fuller: McMillan abducted A.M. as she walked down the street and dragged her to a secluded spot in the alley, ransacking her personal belongings and leaving them strewn along the path of abduction. After forcing A.M. into a narrow space behind a parked car, McMillan stripped off her underwear, beat her ferociously, and sodomized her. A.M. suffered grievous injuries and died three days later. McMillan was convicted of her murder and remains incarcerated.
Not only did law enforcement prevent the defense from learning McMillan’s identity, but it also concealed witness statements implicating another possible perpetrator. A few weeks after Catherine Fuller was murdered, a woman named Ammie Davis was being interviewed by a police officer about her independent complaint of police misconduct. Davis told the officer that she had information about a homicide, and said that she saw a man names James Blue grab Fuller and take her into an alley. The team working on the Fuller homicide prosecution eventually interviewed Davis several months later yet did not disclose her statements regarding Blue to the defense teams. Shortly before trial, Blue shot and killed Davis. He was convicted of her murder and died in prison in 1993.
In addition to the information about other suspects, law enforcement suppressed evidence that could have undercut the State’s theory of the case. Three witnesses—Jackie Watts, Willie Luchie, and Ronald Murphy—told police that they had been walking near the alley around the time that Catherine Fuller was killed. Luchie and Watts heard some groaning noises coming from inside the garage where her body was later found, and Luchie stated that both garage doors were closed. These statements had the power to cut against the State’s theory that there were almost a dozen attackers because only one or a small number of people could have been in a closed garage attacking the victim.
Lastly, the third category of Brady material included various pieces of impeachment evidence. One witness lied to police about hearing an interaction between an eyewitness and the cooperating witness Alston. The State also failed to notify the defense that a key eyewitness (named Carrie Eleby) had been using Phencyclidine (PCP), a dissociative drug, throughout their investigation. Moreover, the State withheld grand jury testimony that partially impeached some of Alston’s testimony. Finally, one of the key eyewitnesses named Maurice Thomas claimed that he told his aunt about what he had seen. Police failed to tell the defense that when they interviewed his aunt, she informed them that Thomas had never told her anything about witnessing the murder.
The Lower Court Decisions
The defendants brought their claims in post-conviction motions for relief under the District’s Innocence Protection Act. A trial court held a multi-week evidentiary hearing in 2012. In addition to all of the exculpatory evidence, the petitioners brought forth recantations from Bennett and Alston, the two purported perpetrators who cooperated with the prosecution. These men stated that police coerced them into testifying and supplied them with the details of the crime to which they testified. The petitioners also put on the testimony of forensic experts who challenged the State’s contention that the victim was killed by a large group of individuals in that alley and garage. Despite the presentation of this evidence, the trial court denied the request for a new trial. At bottom, the court held that the petitioners couldn’t clear the “materiality” requirement of a Brady claim: that there was a reasonable probability of a different outcome at trial if the State had given the defense the exculpatory information.
The petitioners appealed the ruling to the D.C. Court of Appeals. In 2015, that court affirmed the lower court’s decision, again denying the request for a new trial. That opinion, available here, is the decision that the Supreme Court will review. Hopefully, the Court will recognize its fairly serious flaws in interpreting Brady.
A Skewed Reading of Brady
Like the lower court, the D.C. Court of Appeals did not doubt that the State had suppressed evidence, and that some of the suppressed evidence would have been favorable to the defendants. The only legally salient issue—“the primary and dispositive question with respect to all of appellants’ Brady claims”—was materiality. In deciding the materiality question, the court made a number of implicit interpretive moves that colored the result (or justified the result the court planned to reach). Because the court technically cited the correct cases and legal standards, these unstated moves need to be unpacked to see precisely where the decision went wrong.
First, and most problematically, the court assumed that the jury believed the State’s case in its entirety and used that assumption as the baseline for a guilty verdict. In other words, to prevail on materiality, the defendants effectively had to dislodge the entire case. The court’s assumption is flawed both factually and legally. As the petition for certiorari in the Turner case points out (on page 24):
the court’s assumption that the jury believed the prosecution’s witnesses cannot be reconciled with the jury’s verdict . . . or even the words of the prosecutor. The prosecutor admitted that the case was a weak one that “easily could have gone the other way,” even without the withheld evidence. After the evidence was in, the jury took a week to return any verdicts. And, when it did return a verdict, it acquitted two of the defendants, and admitted that it was deadlocked as to two others . . . . That verdict itself shows that the jury did not believe all of the prosecution’s witnesses, especially given that prosecution witnesses implicated the acquitted defendants in the crime.
The assumption seems hard to square with other parts of the court’s opinion where it catalogues the way in which State witnesses were impeached at the trial. Indeed, at one point the court found that a key eyewitness gave some testimony that was “unbelievable on its face.”
Legally, the court did what the Supreme Court specifically cautioned lower courts not to do: it discounted the exculpatory evidence by supplying a scenario for how jurors could have disregarded it (within the framework of the State’s case) but ignored the reasons why jurors might not have. The court did not recognize that the real question is whether the suppressed evidence “could reasonably be taken to put the whole case in . . . a different light.”
In the Overton petition for certiorari, the petitioner underscores the way in which the appellate court altered the defense’s burden by heightening it to an extreme degree. The court wrote “what is at issue is the basic structure of how the crime occurred. This makes the burden on appellants to show materiality quite difficult to overcome, because it requires a reasonable probability that the withheld evidence . . . would have led the jury to doubt virtually everything” that the government’s witnesses claimed. The “virtually everything” standard looks far different and far more onerous than the standard requiring the petitioner to show that the disclosure of the exculpatory evidence could have changed the course of the trial such that the court should not maintain confidence in the verdict. A confidence-oriented analysis would presumably show some concern with the fact that the State hid from the defense the identities of two other suspects who stand out as plausible perpetrators. Distorting its analytical role, the court instead invented ways to discount the evidence, primarily by theorizing that the evidence would only suggest that there may have been even more perpetrators in the group than the prosecution had charged.
Second, the appellate court systematically discounted the impact on a jury of evidence that law enforcement conducted an inept investigation. The court concedes that Ammie Davis’s statement about Blue—though inadmissible hearsay as evidence that Blue was the perpetrator—could have been used by the defense to show that the police did not conduct a “diligent” investigation. The court then ruled that the impact of Davis’s statements “would have been negligible absent any showing either that more diligent investigation of Blue would have been productive, or that a lack of thoroughness went beyond the belated follow-up with Ammie Davis and infected the investigation in other ways so as to undermine the charges against appellants.” Not only does this put an unfair burden on the defense—something explored more below—but it also minimizes how unsettling evidence pointing to incompetence may be for a juror. Consider, for example, the OJ Simpson defense that resulted in his 1995 acquittal. More than that, and what the court did not acknowledge, is that the defense could have used the Davis statement to argue that law enforcement developed its theory and dug its heels in too early, unwilling to consider alternative scenarios that did not further implicate the thirteen arrestees. Combined with the additional categories of exculpatory evidence, the defense could very well have persuaded jurors that police were purposely ignoring otherwise compelling evidence that other suspects may have killed the victim because of bias or tunnel vision. In its “cumulative” analysis of the Brady materiality, the court failed altogether to consider this angle.
Third, the court’s opinion overstates the value of testimony given by “cooperating witnesses,” i.e., snitches. In discounting the evidence that other individuals may have committed the murder, the court wrote “the jury would have had to think not only that all the government witnesses were lying or mistaken . . . but that Alston and Bennett . . . were innocent even though they had each pleaded guilty to homicide . . . . That would not have been a plausible claim to make to the jury.” The opinion does not acknowledge the twin realities that testimony from informants is often unreliable and police often elicit false confessions in high-profile, high-pressure cases. Indeed, one can imagine that Alston and Bennett gave (false) incriminating statements when interrogated and decided that backing down from those statements would have been difficult if not impossible. The court may have been right that jurors would be reluctant to fully discount what Alston and Bennett testified to at trial, but the real question is whether the defense could have elicited enough doubt to alter the outcome. Given the difficulty the jury actually experienced in reaching its conclusions in this case, it seems the defendants may have met that standard.
A fourth problem with the court’s opinion is one that plagues many Brady cases: the longer it takes for the defendants to discover suppressed evidence, the more difficult it is for them to establish that they deserve relief. Here, for example, the court held that the defense did not show that Davis’s statements about Blue’s responsibility for the crime would have led to a “productive” investigation. The problem? The defense acquired the evidence more than two decades after trial. Unfortunately, Blue killed Davis before the trial. And, Blue himself died in 1993. The passage of time destroyed the possibility that the defense could conduct a further investigation.
In other words, the longer the State suppresses evidence—the deeper it buries skeletons in the closet—the greater the burden the defendant must overcome. This creates troubling incentives and raises an obvious question about fairness: when the government is responsible for wrongful suppression, shouldn’t it bear the risks or burdens that arise when exculpatory evidence eventually emerges? (On a related question, because the defense does face a sometimes-onerous burden, one may reasonably conclude that information that became available after trial—like James McMillan killing another person in a manner similar to the crime—should be admitted to help them carry it. That’s a question the Turner petition raised directly to the Supreme Court, but, as explored below, the Court may not provide an answer.)
A fifth (and, for purposes of this post, final) problem with the D.C. Court’s opinion is that it registers no special concerns with the fact that law enforcement so callously ignored its Brady obligations during this prosecution. The opinion fails to name the officers and prosecutors responsible for the State’s failure to disclose evidence even though naming names is crucial to accountability. (For the record, former prosecutor Jerry Goren admitted to withholding evidence from the defendants.) Although the prosecution hid multiple categories of evidence from the defense, the court failed to reprimand the State for the alarming extent of suppression.
Perhaps most disturbingly, the opinion ratifies a lower court opinion that effectively excuses the misconduct that happened here. The trial court’s order attempts to soften the blow the defendants suffered by invoking a bygone era:
If one were to pick the bones of almost any murder case litigated around the time of the Fuller murder, one would inevitably discover . . . information that, in retrospect, were [sic] arguably favorable to the accused, would likely be turned over if the case were tried today, but were [sic] not turned over at the time through inadvertence or a narrow, though prevalent, understanding of the government’s obligations under Brady. . . . In an investigation this complex and extensive, it is almost inconceivable that mistakes would not be made.
This unrepentant framing of the case ignores that Brady had been the law of the land for more than 20 years before the petitioners’ trial. Rather than exhibiting concern with the quality of the conviction, the trial court cited the “inflamed  passions of the entire community” to excuse rather than scrutinize the State’s conduct. The appellate court’s opinion similarly spares law enforcement blame. At a time when constitutional protections are most needed—when circumstances include passions running high and a communal desire for vengeance—the courts minimized the constitutional constraints on law enforcement.
The Supreme Court Taking Its Own Narrow Approach
The Turner and Overton cases are clearly important on their own terms. They also present the Supreme Court with an important opportunity to provide clarity to some questions surrounding the Brady doctrine. But, the way in which the Court granted certiorari signals that it may do less of what it is meant to do—resolve confusion and splits in the lower courts—and do more resolving of fact-intensive disputes that only affects the parties. This “minimalist” approach—typical of the 8-justice Court—may satisfy the requirements of justice here, but would regrettably leave defendants around the country stuck with ambiguities and jurisprudential flaws that result in less fair trials.
The Turner petition asked the Supreme Court to decide a question that has produced different answers in different courts around the country: “Whether, under Brady v. Maryland, 373 U.S. 83 (1963), courts may consider information that arises after trial in determining the materiality of suppressed evidence”? The question was relevant here because the D.C. Court of Appeals determined that the defense could not rely on evidence of James McMillan’s 1992 murder of another woman in arguing the materiality of the suppressed evidence. Some courts, however, have found that post-trial information can help them make better assessments of whether the disclosure of exculpatory evidence would have been material.
In granting certiorari, the Supreme Court rephrased the question that it would answer. Rather than resolving lower courts’ disagreements about what information can be considered in the materiality determination, the Court will decide instead “[w]hether the petitioners’ convictions must be set aside under Brady v. Maryland.” While litigants regularly present pressing questions about how courts should analyze and administer Brady obligations, the Court rarely takes the opportunity to speak beyond the limited facts of the cases it takes up. Unfortunately, it looks like this is the most likely outcome again here. Even so, these cases present an important opportunity for the Court to clarify the problems with the way the lower courts continue to interpret and apply Brady and to answer some of the lingering questions that reside under the surface of these petitions. At the very least, given the current climate around prosecutorial misconduct and other recent missed opportunities, the Court ought to leave no doubt that the State violated the Constitution when it failed to disclose whole swathes of favorable evidence in a case with such incredibly high stakes.