Supreme Court of the United States

William H. Kelley,

v.

James V. Crosby, Jr.,

Secretary of the Florida Department of Corrections.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

____________

____________

Kenneth W. Starr

Steven A. Engel

Bridget O’Connor

Kirkland & Ellis LLP

655 15th Street, NW

Suite 1200

Washington, DC 20005

Thomas C. Goldstein

Amy Howe

(Counsel of Record)

Kevin K. Russell

Goldstein & Howe, P.C.

4607 Asbury Pl., NW

Washington, DC 20016

(202) 237-7543

April 8, 2005

Pursuant to Rule 37.2 of the Rules of this Court, The Honorable

John J. Gibbons, the Honorable Timothy K. Lewis, the

Honorable William H. Sessions, Thomas P. Sullivan, the Florida

Innocence Initiative, and the Center on Wrongful Convictions

support of the petition for a writ of certiorari. Counsel for petitioner

has consented to the filing of this brief, but counsel for

respondent has refused consent.

and other public officials. The Honorable John J. Gibbons

served as a judge of the United States Court of Appeals for the

Third Circuit from 1970 to 1987, and as Chief Judge of that

court from 1987 to 1990. The Honorable Timothy K. Lewis

served as a judge of the United States Court of Appeals for the

Third Circuit from 1992 to 1999, and of the United States District

Court for the Western District of Pennsylvania from 1991

to 1992. He also served as an Assistant District Attorney for

Allegheny County, Pennsylvania from 1980 until 1983, and as

an Assistant U.S. Attorney for the Western District of Pennsylvania

from 1983 until 1991. The Honorable William S. Sessions

served as a judge for the United States District Court for

the Western District of Texas from 1974 to 1980, and as Chief

Judge of that court from 1980 to 1987. He also served as Director

of the Federal Bureau of Investigation from 1987 to 1993,

and as U.S. Attorney for the Western District of Texas from

1971 to 1974. Thomas P. Sullivan served as the U.S. Attorney

for the Northern District of Illinois from 1977 to 1981. He also

served as Co-Chair of the Illinois Governor’s Commission on

Capital Punishment.

University School of Law’s Center on Wrongful Convictions are

organizations devoted to identifying and rectifying erroneous

convictions and other serious miscarriages of justice.

prosecutors comply with the procedures constitutionally reii

quired to ensure the fairness and accuracy of the criminal trial –

particularly when the death penalty is at stake. This interest derives

treatment of criminal defendants in capital litigation is essential

to maintaining the integrity of, and public confidence in, the

criminal justice system.

This brief focuses on petitioner’s serious allegations of

prosecutorial misconduct – specifically, the allegations that Assistant

State Attorney Hardy Pickard suppressed evidence that

would have impeached the credibility of John Sweet, on whose

testimony the State’s case, and thus petitioner’s sentence of

death, rested. The district court found, after a careful review of

the record, that this wrongfully withheld evidence undermines

confidence in the jury’s verdict sufficiently to require vacating

contrary ruling fails to account for the realities of criminal

prosecutions and neglects the important public policies underlying

allowing the decision below to stand would erode public

confidence in the capital punishment system and increase the

possibility of future wrongful convictions.

Absent this Court’s intervention, there is the very significant

prospect that an innocent man will be executed as a consequence

of the prosecution’s withholding evidence that the Constitution

concededly required to be disclosed. The prejudice

from that constitutional violation is further exacerbated, however,

when one considers petitioner’s additional claim that the

performance of his trial counsel was constitutionally deficient.

the Court’s attention from the perspective of individuals and

groups which, through their substantial experience, have unique

effect on juries and on confidence in the justice system that

arises from the failure to disclose evidence encompassed by

iii

Amici therefore should be granted leave to file the attached

Respectfully submitted,

Kenneth W. Starr Thomas C. Goldstein

Steven A. Engel Amy Howe

Bridget O’Connor (Counsel of Record)

Kirkland & Ellis LLP Kevin K. Russell

655 15th Street, NW Goldstein & Howe, P.C.

Suite 1200 4607 Asbury Pl., NW

Washington, DC 20005 Washington, DC 20016

(202) 237-7543

April 8, 2005

iv

TABLE OF CONTENTS........................................................... iv

TABLE OF AUTHORITIES...................................................... v

ARGUMENT.............................................................................. 1

I. Prosecutorial Misconduct Undermines Public

Confidence In The Criminal Justice System And

Contributes To Wrongful Convictions. ............................... 2

II. Certiorari Is Warranted In This Case Because

Prosecutors Suppressed Impeachment Evidence, In

A. Prosecutors Withheld Key Impeachment Evidence

from Petitioner.............................................................. 6

B. The Suppressed Evidence Undermines Confidence

in the Jury’s Verdict. .................................................. 15

C. The Decision Below Also Inverts the Constitutionally

Prescribed Incentives for Prosecutors to Disclose

Exculpatory Evidence................................................. 18

III. The Assistant State Attorney Who Prosecuted Petitioner

Has A History Of Misconduct In Capital Cases................ 19

CONCLUSION......................................................................... 20

v

http://www.oranous.com/innocence/JuanMelendez/mele

ndezorder.htm ....................................................................... 20

/dpi/MandatoryJustice.pdf ...................................................... 4

vi

http://ccjr.policy.net/proactive/newsroom/

release.vtml?id=18200........................................................ 4, 5

vtml?id=26641........................................................................ 5

1A ......................................................................................... 20

http://www.law.northwestern.edu/depts/clinic/wrongful/

Causes/Snitch.htm .................................................................. 5

1

The Honorable John J. Gibbons, the Honorable Timothy

K. Lewis, the Honorable William H. Sessions, Thomas P.

Sullivan, the Florida Innocence Initiative, and the Center on

In this case, it is undisputed that the prosecution withheld

counsel to undermine substantially the credibility of essentially

the prosecution’s only witness, thereby causing the jury

to discredit his testimony entirely. But the court of appeals

deemed the constitutional violation immaterial because petitioner’s

counsel was able to impeach the witness in other

ways, supposedly rendering any additional evidence merely

“cumulative.” This case presents an ideal vehicle to address

petitioner explains, see Pet. 16-19, has divided the courts of

relieve prosecutors of any constitutional duty to disclose

other, available impeachment evidence? The lower courts

are obviously in need of the substantial further guidance that

can be provided by a ruling from this Court on the fully developed

record in this case.

The decision of the court of appeals reverses the grant of

a writ of habeas corpus in a capital case in which the conviction

and sentence of death turned almost entirely on the credibility

of that one witness. There was no physical evidence

linking the defendant to the crime. Put another way, there is

no doubt that the conviction and sentence must be vacated if

writing of this brief or made a financial contribution to the brief. S.

Ct. R. 37.6. The letter signifying petitioner’s consent to the filing

of this brief is on file with the Court.

2

this Court reverses the ironic view of the court of appeals that

that guts the credibility of their central witness if that

witness is already in sufficient disrepute.

In 1940, Robert H. Jackson remarked that “[t]he prosecutor

has more control over life, liberty, and reputation than any

other person in America. His discretion is tremendous.”

continue to control critical points in the criminal justice

system, exercising wide-ranging discretion at virtually every

step from the decision to charge through sentencing. Perhaps

most significantly, a prosecutor “generally commands resources

vastly superior to those available to the defense attorney.”

While prosecutors wield significant control over the

criminal justice system, they also are entrusted with a “special

in the context of attorneys representing the United

States, but in terms that apply equally to state and local prosecutors,

the prosecutor

is the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation

to govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case,

but that justice shall be done. As such, he is in a peculiar

and very definite sense the servant of the law,

the twofold aim of which is that guilt shall not escape

or innocence suffer. He may prosecute with

3

earnestness and vigor – indeed, he should do so. But,

while he may strike hard blows, he is not at liberty to

strike foul ones. It is as much his duty to refrain from

improper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to

bring about a just one.

Because of the special role and responsibilities with

which he has been entrusted, a prosecutor’s misconduct not

only deprives the defendant of his right to a fair trial, but also

has a harmful effect on the criminal justice system as a whole.

Society wins not only when the guilty are convicted

but when criminal trials are fair; our system of the

administration of justice suffers when any accused is

treated unfairly. * * * A prosecution that withholds

evidence on demand of an accused which, if made

available, would tend to exculpate him or reduce the

penalty helps shape a trial that bears heavily on the

defendant. That casts the prosecutor in the role of an

architect of a proceeding that does not comport with

standards of justice * * *.

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

In capital cases, prosecutors exercise even more discretion

– determining, for example, whether to bring capital

charges and, if so, whether to offer a plea bargain in exchange

for a lesser sentence. Because, as this Court has emphasized,

(1976), a prosecutor’s obligation to ensure a fair and accurate

trial assumes even more importance. As a report by the Constitution

committee of death penalty supporters and opponents – including

former judges and prosecutors – who have proposed a series

of reforms to reduce the risk of wrongful convictions.

4

Society may feel justified in authorizing its representatives

to skirt the line between playing the game

rough and playing it fair when it comes to convicting

those who are apparently guilty and making certain

that they are confined and society is protected.

Whether such practices are ever warranted, skirting

the line with the potential of denying fair play cannot

easily be justified when the issue is whether to execute

rather than to imprison.

MandatoryJustice.pdf. And when a prosecutor withholds evidence

in contravention of his obligation to ensure a fair trial,

the “extreme nature and finality of death” mean that the consequences

of the withholding are that much more severe,

“creating the real risk that the truth will be hidden, and, as a

result, increasing the likelihood of executing an innocent person.”

The suppression of evidence at issue in this case is unfortunately

not uncommon in capital cases. A study of capital

cases over more than two decades, commissioned by the Senate

Judiciary Committee, concluded that prosecutorial suppression

of evidence was the second-most common cause of

error resulting in reversal – surpassed only by ineffective defense

counsel (which the district court also found to warrant

habeas relief in petitioner’s case, see Pet. App. 117a). See

newroom/release.vtml?id=1800. Moreover, that study

observed, the “failure of police and prosecutors to disclose

evidence before trial is one of the main reasons post-trial litigation

over the reliability of capital verdicts takes so long * *

5

http://ccjr.policy.net/proative/newroom/release.vtml?id=2664

1.

The effect of the prosecution’s misconduct is particularly

pernicious in this case because it took the form of suppressing

evidence that would have substantially undermined the credibility

of the State’s key witness. This scenario too regularly

recurs in capital cases: a study of ninety-seven death row inmates

who were wrongfully convicted between 1972 and

2002 concluded that the combination of misconduct by law

enforcement officials and false testimony by “snitches” or

other witnesses with incentives to curry favor with prosecutors

was a major factor in those wrongful convictions. See

http://www.law.northwestern.edu/depts/clinic/wrongful/Causes/

Snitch.htm.

The lengthy delays, high error rates, and numerous examples

of wrongful convictions in capital cases erode

“[p]ublic faith in the courts and the criminal justice system

whether one supports or opposes the death penalty as a

matter of conscience, there must be broad agreement that the

penalty should only be administered after trials that are reliable

and free of constitutional error.

prospect that the prosecutor abused the special trust

reposed in him, with the deeply troubling consequence that a

man who may be innocent will be executed. This result

would in turn lead to the broader consequence that public

confidence in the administration of the death penalty will be

further undermined and, in all likelihood, that more capital

defendants will be wrongfully convicted.

This Court has held that “[t]here are three components of

able to the accused, either because it is exculpatory, or because

it is impeaching; that evidence must have been suppressed

by the State, either willfully or inadvertently; and

263, 281-82 (1999). The first two criteria are unquestionably

met here; only the third is genuinely disputed.

The State suppressed three documents – a Massachusetts

court order, an investigative report prepared by a Florida law

enforcement officer, and a trial transcript – that would have

provided petitioner’s trial counsel with substantial material to

impeach the testimony of the State’s star (indeed, essentially

only) witness, John Sweet. The first two documents would

have demonstrated a link between Sweet’s testimony in petitioner’s

case and his deal for immunity from a long list of

charges in Massachusetts, such that Sweet had an incentive to

testify falsely; the third document would have revealed that,

prior to his own trial for Maxcy’s murder, Sweet had responded

to his girlfriend’s suggestion that he frame petitioner

by admitting that he did not know him.

The court of appeals concluded, however, that the suppressed

evidence was not material because petitioner’s counsel

was able to impeach Sweet’s testimony to a lesser extent

by “effectively capitaliz[ing]” on the arguments that the

documents supported, thereby rendering the documents themselves

merely cumulative. Pet. App. 82a, 99a. That holding

is not only legally erroneous and in conflict with rulings of

other circuits, but also perversely creates an incentive for

prosecutors to withhold crucial evidence in precisely the

kinds of cases, such as petitioner’s, in which it is most likely

to make a difference.

The centerpiece of the State’s case against petitioner was

the testimony of John Sweet, who had himself twice been

tried on first-degree murder charges in connection with

Maxcy’s 1966 murder. Pet. App. 121a. The first trial ended

7

verdict that was later reversed on appeal – ironically, because

of the trial judge’s failure to admit testimony that undermined

the credibility of Irene Maxcy, Sweet’s paramour and the

on his own behalf in both trials and denied any involvement

In 1981, Sweet was “facing criminal charges in Massachusetts

of prostitution, narcotics distribution, arson, bribery,

counterfeiting, loan sharking, and hijacking. With authorities

closing in on him Sweet went to them first.” Pet. App. 122a.

While in “protective custody” in Massachusetts, Sweet met

with Florida law enforcement officials and implicated petitioner

was awarded immunity for the charges that he faced in Massachusetts.

Rather, Sweet’s immunity in Massachusetts was directly

related to his cooperation with Florida officials.

Petitioner was indicted on first-degree murder charges in

December 1981. Pet. App. 122a. Despite petitioner’s repeated

requests, the prosecution failed to turn over several

key pieces of evidence, including “evidence of Sweet’s true

immunity deal, the transcript of John Sweet’s first trial, a police

report which recorded [a witness’s] inability to positively

identify a picture of [petitioner] shortly after the murder, and

government had itself authorized the destruction of most of

the physical evidence collected at the crime scene long before

had paid an associate, Walter Bennett, to arrange Maxcy’s

murder, and that Bennett had in turn hired petitioner and another

that he “had received immunity in Massachusetts for a

number of crimes” and – on cross-examination – that he had

“received immunity in Florida for the Maxcy case and for the

8

At the second trial, during his closing statement, Assistant

State Attorney Hardy Pickard directly addressed the issue

of Sweet’s immunity and, thus, his credibility. Pickard told

the jury that

John Sweet got immunity from Massachusetts on a

long list of things. It has nothing to do with the

Maxcy case or giving them Kelley on the Florida

cases. He already had his immunity from Massachusetts

on loan sharking, whatever that long list of

things were. He didn’t have to give them Kelley to

get immunity.

Pet. App. 70a n.37. That false statement by the prosecutor –

which the defense could not challenge because the prosecution

had flouted its constitutional obligation to disclose material

hours after the jury began its deliberations, it sent the trial

court a note indicating that it had voted three times and was at

and subsequently sent the trial court a question:

As the Jury, we would like to know if John J. Sweet

received immunity in Florida for the first-degree

murder and perjury before he gave information on

the Maxcy trial, and if he had anything to gain by his

testimony.

jury that although the court could not “comment on the evidence,”

the jury “ha[d] the right to request that certain portions

jury resumed its deliberations, returned a verdict of guilty

During his state post-conviction proceedings, petitioner

tioner’s request for prosecution and investigative files, made

pursuant to the Florida Public Records Act, yielded a series of

documents that – despite petitioner’s repeated pretrial requests

– had not previously been provided to him. Several of

these documents would have provided petitioner’s trial counsel

with substantial ammunition with which to impeach the

testimony of Sweet, the State’s star witness.

One of the items that the prosecution failed to turn over

to petitioner’s trial counsel was the so-called “Mitchell report,”

an investigative report prepared by Florida Department

of Law Enforcement Special Agent Joe Mitchell that detailed

Florida’s cooperation with the Massachusetts authorities in

interviewing Sweet and negotiating his immunity deals. The

report relates Agent Mitchell’s February 21, 1981 conversation

with the director of a Regional Organized Crime Center

in which Mitchell learns that Sweet was in protective custody

in Massachusetts and “had advised that he had been responsible

for hiring Kelley in connection with the VON MAXCY

murder in Sebring, Florida, during the year 1966.” The report

expressly indicates “that Sweet was willing to testify in behalf

of the State of Florida, provided he could be granted immunity

in the 1966 case,” Pet. App. 130a, and that the Massachusetts

police were “requesting assistance from the Florida

Department of Law Enforcement in checking into the investigation

On March 6, 1981, Mr. Pickard and other law enforcement

officials from both Florida and Massachusetts met with

Sweet’s attorney in Florida “to discuss actions to be taken in

conjunction with the information provided by John Sweet,

and the request by the Massachusetts authorities.” Six days

later, Mr. Pickard and other Florida officials conducted a “detailed

interview” with Sweet in a Massachusetts district attorney’s

office in which Sweet admitted to paying Walter Bennett

to arrange Maxcy’s murder and claimed that petitioner

was one of the hitmen hired by Bennett. Pet. App. 74a, 74a10

75a n.41. Moreover, although the Florida officials had presumably

traveled to Massachusetts to learn about Sweet’s involvement

in the Maxcy case, the interview also included the

prospect that Sweet would assist in the investigation and

prosecution of Massachusetts cases as well: “Mr. Sweet emphasized

that he * * * was agreeable to provide information

pertaining to Kelley’s current activities and also had agreed to

“he was agreeable to testify for the State of Florida, in connection

The Mitchell report ends by noting that after reviewing

the Maxcy case, Mr. Pickard and other Florida officials had

identified “several areas of potential problems which may or

may not exist which could affect a successful prosecution of

William Kelley by the State of Florida.” First and foremost

among these “potential problems” is that “[t]he testimony of

John Sweet * * * would be in conflict with testimony he provided

in 1967 * * * which would automatically place his testimony

in the impeachable category.” Pet. 17 n.8.

The prosecution also did not provide petitioner with a

copy of a Massachusetts state court order that expressly

granted Sweet immunity in Massachusetts. Significantly, the

Florida officials and offered to testify regarding the Maxcy

available to Kelley’s defense team,” Pet. App. 71a n.39, are unavailing:

this Court has never recognized any “public records” exception

any event, information concerning Sweet’s immunity deal should

be imputed to Pickard because of the close cooperation between

Taken together, the Mitchell report and the immunity order

would have provided petitioner’s trial counsel with powerful

ammunition with which to undermine Sweet’s credibility.

First, the information contained in the Mitchell report

would have been directly responsive to the question sent to

the trial court by the jury – viz., whether “Sweet received

immunity in Florida for the first degree murder and perjury

before he gave information on the Maxcy trial.” Pet. App.

130a. The answer to that question is that, as the Mitchell report

indicates, Sweet was willing to testify only “provided he

that the jury posed such a question strongly suggests

both that Sweet’s immunity deals played a crucial role in its

deliberations and that it harbored doubts about Sweet’s motivations

for testifying – doubts that the suppressed evidence

would have further reinforced.

Second, the report and immunity order render highly suspect

Hardy Pickard’s closing argument to the jury, in which

he stated that Sweet “didn’t have to give [Massachusetts officials]

Kelley to get immunity” because he “already had his

immunity” from that state. Pet. App. 70a n.37. Pickard’s

statement is belied by the timing of events related to his immunity

deal: the immunity order indicates that Sweet did not

receive immunity in Massachusetts until the day after he implicated

Third, as the district court found, the two documents

“proved Sweet had a deal for immunity on numerous serious

felonies in Massachusetts which were inextricably connected

to Sweet’s implication of Kelley in the murder of Maxcy.”

Pet. App. 129a-130a. Not only is this finding by the district

court is entitled to deference, but it is in fact corroborated by

mony to federal prosecutors in light of “extensive cooperation” between

federal and state investigators). Finally, even if petitioner’s

trial counsel had obtained a copy of the immunity order, that order

would have been significant only when considered in conjunction

with the Mitchell report, which was also withheld from petitioner.

12

Pickard himself, who testified at petitioner’s federal evidentiary

hearing that – contrary to his representations to the jury

– he was “sure” that Sweet “ha[d] something to gain in Massachusetts”

11. But, in any event, “the manner in which both states

worked together to secure Sweet’s cooperation,” Pet. App.

132a, and the fact that the immunity order was issued immediately

after the March 12, 1981 meeting described in the

inference that Sweet’s Massachusetts immunity deal depended

on his cooperation with Florida officials, such that he

indeed “had [something] to gain by his testimony”: a powerful

incentive to testify falsely to curry favor with the Massachusetts

officials responsible for his immunity there.

Prior to his trial, petitioner requested that the prosecution

provide him with a copy of the transcript from Sweet’s first

trial in 1967. Pet. App. 132a, 186a. Although Mr. Pickard

responded with a letter indicating that he was “unaware of the

status” of the transcript and suggesting that petitioner obtain a

copy from the court reporter, the State subsequently acknowledged

that it actually had a copy of the transcript in its files

assist him, petitioner did not receive a copy of the transcript

until his state post-conviction proceedings, when he obtained

The transcript “contained almost three hundred pages of

Sweet’s testimony,” which, the district court found as a matter

of fact, “would have been valuable in impeaching” him.

Pet. App. 132a. First, the transcript contained testimony regarding

several tape-recorded telephone conversations be-

proceedings also testified at the federal evidentiary hearing

that Sweet’s immunity hinged on “provid[ing] the information that

the law enforcement officials from Massachusetts and Florida were

looking for.” See Pet. 10-11.

13

trial, Sweet testified that he believed Irene Maxcy’s assurances

conversations, Irene Maxcy “begged Sweet to work a deal

with the police by framing someone in” her husband’s murders.

someone whom Sweet could frame, Sweet responded that he

trial, Sweet testified, however, that he had in fact known that

Irene Maxcy’s telephone was bugged, and he testified at petitioner’s

trial “that he lied to the police and others about knowing”

of fact, access to the first trial transcript “could reasonably

because these discrepancies in Sweet’s testimony could have

been used to seriously undermine his credibility. In particular,

notwithstanding Sweet’s later testimony that he had lied

about not knowing petitioner, the jury could have determined

that Sweet’s original version of events was at least as credible

as the version that he offered at petitioner’s trial.

Second, Sweet testified at length during his first trial regarding

Irene Maxcy’s allegedly deviant sexual conduct. Pet.

App. 132a. By contrast, in his testimony at petitioner’s trial,

Sweet professed his love for Mrs. Maxcy. If presented with

Sweet’s testimony from his first trial, the jury would, as the

district court notes, “have thought carefully about the credibility

of a man who made such allegations about a woman he

transcript would have demonstrated the specific lengths to

which Sweet was willing to perjure himself to stay out of

prison and would thereby have provided petitioner with additional

testimony immaterial “because the Florida Supreme Court * * *

concluded that evidence of [Irene Maxcy’s] alleged deviancy would

not have been admissible at [petitioner’s] trial,” Pet. App. 83a-84a,

14

In addition to the three documents discussed above,

prosecutors also withheld other exculpatory evidence. For

example, although petitioner’s counsel argued to the jury that

none of the fingerprints taken at the crime scene had been

identified as petitioner’s, prosecutors withheld a report that

compared fingerprints taken at the scene and from the victim’s

car and which expressly found that none of the prints

taken at the scene matched petitioner’s. As the district court

explained, “commenting that [petitioner’s] fingerprints were

nowhere to be found in the criminal investigation is not the

same as being able to present a report to the jury stating such

an absence of [petitioner’s] prints.” Pet. App. 136a.

Prosecutors also failed to provide petitioner’s trial counsel

with a police report regarding the identification of petitioner

by a clerk at the motel where petitioner allegedly

stayed during his trip to Florida to commit the crime. Pet.

App. 134a. Although petitioner’s trial counsel was provided

with a similar report, and although both reports contained descriptions

of a “William Kelley” that do not resemble petitioner,

the discrepancies between petitioner’s appearance and

the description in the undisclosed report are even more

Addressing the withheld report, the district court found that

“if defense counsel had been in possession of the undisclosed

police report, counsel would have been in a better position to

such evidence “need not have been independently admissible to

have been material. Evidence is material if it might have been used

to impeach a government witness, because ‘if disclosed and used

effectively, it may make the difference between conviction and acquittal.’”

the limited space available to him, the court of appeals addressed it,

15

cross-examine [the clerk] concerning the actual negative photographic

identification, something far more exculpatory than

Despite the State’s unquestioned duty to disclose all of

this suppressed evidence, the court of appeals found no constitutional

violation because it disagreed with the district

court’s conclusion that there was “a ‘reasonable probability

that * * * the result of the proceeding would have been different.’”

Eleventh Circuit’s conclusion that petitioner’s trial counsel

“effectively capitalized * * * on every potentially valuable

both the extraordinarily close nature of petitioner’s case

and the extent to which the State’s case depended on Sweet’s

testimony implicating petitioner, which preclude dismissing

the suppressed evidence as “cumulative.” Rather, this Court’s

own precedents lead to the inevitable conclusion that as a result

of the prosecution’s suppression of the evidence, the verdict

reinstating petitioner’s death sentence despite substantial

evidence that petitioner is actually innocent should therefore

be reversed. Because this case represents a recurring factual

scenario in criminal prosecutions, this Court’s intervention is

all the more required.

This Court has made clear that a defendant’s constitutional

rights are violated when the government fails to disclose

evidence that is material – that is, when there is a “reasonable

probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.”

at 682 (Blackmun, J.)). Put another way:

The question is not whether the defendant would

more likely than not have received a different verdict

16

with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a

verdict worthy of confidence. A “reasonable probability”

of a different result is accordingly shown

when the government’s evidentiary suppression “undermines

confidence in the outcome of the trial.”

This Court has further instructed that in determining

whether the suppressed evidence is material, it should be

at 436. Significantly, this Court has explained that the nature

of the case – that is, whether the case is a close one – is also a

factor to consider in determining whether the suppressed evidence

is material: “[i]f the verdict is already of questionable

validity, additional evidence of relatively minor importance

Finally, this Court has long recognized the pivotal role

that witnesses (and their credibility) play in criminal proceedings.

The jury’s estimate of the truthfulness and reliability

of a given witness may well be determinative of guilt

or innocence, and it is upon such subtle factors as the

possible interest of the witness in testifying falsely

that a defendant’s life or liberty may depend.

360 U.S. 264, 269 (1959). In particular, this Court has held

that evidence of immunity agreements is especially important

to a witness’s credibility, and its suppression thus likely to

U.S. 150, 154-55 (1972) (when government’s case “depended

almost entirely on” one witness, his credibility “was therefore

an important issue in the case, and evidence of any understanding

or agreement as to a future prosecution would be

relevant to his credibility and the jury was entitled to know of

it”).

17

Petitioner’s case is a singularly close one: the conviction

and sentence of death hung by the slender thread of Sweet’s

testimony, and hence his credibility. Petitioner’s first trial

ended in a hung jury and a mistrial. See Pet. App. 122a. And

although his second trial ended in petitioner’s conviction, it

did so only after the jury had notified the court that it had

the Florida Supreme Court – in rejecting petitioner’s direct

appeal – took pains to “emphasize * * * that if even the

slightest hint of prosecutorial misconduct was present in the

which “additional evidence of relatively minor importance

might be sufficient to create a reasonable doubt.” 427 U.S. at

113.

The close nature of petitioner’s case assumes even

greater significance, however, because the State’s case

against petitioner depended so heavily on one individual’s

credibility. As the Florida Supreme Court acknowledged on

direct appeal, the State had “insufficient evidence to proceed

against [petitioner] until Sweet offered his testimony in

1981.” Pet. App. 169a. Not surprisingly, Sweet’s testimony

and credibility were the subject of considerable interest for

jurors in both of petitioner’s trials. During petitioner’s first

trial, the jury – which had already informed the court that it

was at an “impasse” – requested “that Sweet’s entire testimony

be read again” and, after hearing the testimony, announced

As reflected in their note requesting additional information

regarding Sweet’s immunity deal, jurors at petitioner’s

second trial were equally concerned about Sweet’s credibility.

As the district court found, “[c]learly, the jury was vitally interested

in Sweet’s motivation for testifying as he did. If

Sweet had nothing to gain from his testimony, his testimony

would be more credible. On the other hand, if Sweet did have

anything to gain by his testimony, his testimony would be

18

more suspect.” Pet. App. 131a. It is plain from the record

that the suppressed evidence was precisely the kind of evidence

that could have eroded Sweet’s credibility with the

jury. That Sweet had previously stated that he did not know

petitioner; that his girlfriend had suggested to him that he

frame petitioner; and that he first informed Florida authorities

of his belief that petitioner had committed the crime right before

he negotiated a global deal with Massachusetts and Florida

authorities: this is exactly the kind of powerful evidence

that could have swayed the jury to disregard his newfound,

suspect, and convenient testimony. In other words, the

State’s suppression of evidence “undermines confidence” in

the outcome of petitioner’s trial and requires reversal.

case because the Eleventh Circuit has prescribed a constitutional

rule that is directly contrary to this Court’s admonition

that “a prosecutor anxious about tacking too close to the wind

that the prosecution’s suppression of impeachment evidence

was not material because petitioner’s counsel had some

other evidence with which to discredit the State’s star witness,

the decision below gives prosecutors a perverse incentive to

withhold the very evidence that would be most likely to make

a difference in a close case – viz., evidence that may result in

the jury’s discrediting a key witness’s testimony entirely and

therefore acquitting the defendant. If such evidence is on the

other hand withheld, and the jury credits the witness’s testimony

even though the witness has been impeached, defendants

may be wrongfully convicted. Such a scenario is not

merely hypothetical; rather, courts are frequently confronted

dence that is purportedly only “cumulative” of other impeachment

Although the prosecution’s suppression of evidence

would be troubling in any case, let alone a capital case, it is

particularly disturbing that petitioner’s case is not the only

capital case in which Hardy Pickard has been engaged in substantial

and pervasive misconduct. Rather, as the district

court observed, Mr. Pickard “has a habit of failing to turn

over exculpatory and impeachment evidence” in capital cases.

100 F. Supp. 2d 647, 692-95 (S.D. Ohio 2000) (notwithstanding

argument that defense counsel had “thoroughly impeached” key

witness, suppressed evidence not merely cumulative because it

“would have told * * * defense counsel more than they already

knew”; “when compared to the [prosecution’s] relatively weak case

* * *, the collective effect of the suppressed evidence in this case

undermines our confidence in [the] conviction and sentence”),

1056 (CA9 2002) (suppressed evidence material when “there is

reason to believe that the jury relied on a witness’s testimony to

reach its verdict despite the introduction of impeachment evidence

at trial, and there is a reasonable probability that the suppressed

impeachment evidence, when considered together with the disclosed

impeachment evidence, would have affected the jury’s assessment

would have impeached two key witnesses by illustrating additional

inconsistent testimony “merely cumulative” when defense “had

numerous other examples of contradictory statements made by both

regarding key witness’s second plea agreement when jury was

aware of initial plea agreement, as such “[e]vidence * * * is purely

cumulative for impeachment purposes”).

20

http://www.oranous.com/innocence/JuanMelendez/melendezo

rder.htm, a Florida court vacated the defendant’s conviction

and death sentence and ordered a new trial in light of, inter

Melendez was later released from prison after the State declined

Jan. 4, 2002, at 1A.

The parallels between Mr. Melendez’s case and petitioner’s

are striking. As in petitioner’s case, there “was no

physical evidence implicating the Defendant in the murder”;

rather, Mr. Melendez’s “conviction rested primarily on the

melendezorder.htm. In a motion for post-conviction relief,

Mr. Melendez presented evidence that Mr. Pickard had withheld

a variety of evidence from defense counsel. Emphasizing

that both Mr. Pickard and Mr. Melendez’s defense counsel

had “recognized the critical importance of [the key witnesses’]

credibility” in their closing arguments, the circuit

court held that “[t]he Brady evidence withheld by the prosecution

* * * seriously undermines the credibility of the two

key State witnesses who testified at trial.” She concluded:

“Viewed in its totality, this suppressed evidence calls into

question [the witnesses’] testimony to the degree that it undermines

confidence in the Defendant’s conviction and death

For the foregoing reasons, as well as those set forth in the

petition, certiorari should be granted.

21

Respectfully submitted,

Kenneth W. Starr Thomas C. Goldstein

Steven A. Engel Amy Howe

Bridget O’Connor (Counsel of Record)

Kirkland & Ellis LLP Kevin K. Russell

655 15th Street, NW Goldstein & Howe, P.C.

Suite 1200 4607 Asbury Pl., NW

Washington, DC 20005 Washington, DC 20016

(202) 237-7543

April 8, 2005