McCormick v. Parker, A Brady Win in the 10th Circuit! 2016 WL1743388 (filed May 3, 2016)

May 30th, 2016
Elizabeth Franklin-Best

It’s never easy to win a case on federal habeas review, and more difficult still to win on a Brady claim in federal habeas review.  This, then, is a very significant habeas victory. Although not in our circuit, this case is still an important one given SC’s reliance on the use of SANE nurses, and the possibility that this issue could arise here.

In short, McCormick was tried for two counts of sexual assault.  At trial, the State called its SANE nurse (“sexual assault nurse examiner”) to testify to her findings at the complainant’s sexual assault exam.  This SANE nurse testified that she was “certified by the Attorney General’s Office in the State of Texas” and that she had kept up with her continuing education requirements.  On cross-examination, she stated she was current on her Texas certification.  Welp.  Not exactly.  Her testimony was false.  With his habeas petition, McCormick attached an affidavit from the Office of the Texas Attorney General showing that, despite her testimony, she was not certified as a SANE nurse at the time of McCormick’s trial.  McCormick also submitted an agreed order from the Texas Board of Nursing finding that this nurse misrepresented herself as a certified SANE nurse “to patients, court officials and the public” from October 2006 to April 2007.

Under Brady v. Maryland, 373 U.S. 83 (1963) the prosecution has a duty to disclose material impeachment evidence that is favorable to the defense.  Id. at 825.  But that duty arises even if the prosecutor has no “actual knowledge of the existence of the evidence at issue” because—for Brady purposes—the “prosecution” includes “not only the individual prosecutor handling the case, but also . . . the prosecutor’s entire office, as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture.  Id. at 824.

Only one other court, before this Tenth Circuit’s opinion, has addressed whether SANE nurses are part of the prosecution for Brady purposes.  In that case, People v. Uribe, the California Court of Appeals found a Brady violation when the prosecution didn’t disclose a videotape of a sexual assault examination.  162 Cal. App. 4th 1457 (Cal. Ct. App. 2008).  Both here, and in the Uribe case, the courts found that Brady obligations were imputed to the SANE nurses because the examinations were conducted “at the behest of” law enforcement and as part of the criminal investigation.  That’s exactly how they are used in South Carolina as well.  The court concluded that the evidence was material because there was a reasonable likelihood the evidence could have affected the jury’s judgment, Wearry v. Cain, __U.S.__, 136 S. Ct. 1002, 1006 (2016), and therefore reversed McCormick’s conviction.  Very nice win, on a very important issue.

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