Buffey v. Ballard, No. 14-0642, West Virginia Supreme Court of Appeals

The West Virginia Supreme Court issued a very important opinion this last week, Buffey v. Ballard (filed November 10, 2015).  And while there is much to celebrate because an innocent person has now been exonerated, it is alarming to see the extent to which state actors, and even judges, acted to prevent what was clearly a wrongful conviction from being overturned.  A brief review of the case:

• Nov. 30, 2001—Brutal sexual assault of victim.  Victim gave statement, rape kit obtained
• Dec. 7, 2001—Petitioner arrested for other break-ins and, after 9 hour interrogation, gave a statement that implicated himself, which he quickly recanted.
• Dec. 18, 2001-  Counsel appointed
• Jan. 29, 2002—Counsel filed Motion to Compel because State had not complied with discovery
• Jan. 22, 2002—Laboratory received rape kit
• Feb. 8, 2002—Lab tentatively concluded DNA did not belong to petitioner
• Feb. 9, 2002—Retesting began
• April 5, 2002—Report excluded petitioner
• July 12, 2002- Report mailed to Detective with Clarksburg Police Department

On January 30, 2002, the State extended “time-limited plea offer” which petitioner signed on February 6, 2002.  On February 11, 2002, petitioner pleaded guilty, but judge withheld sentencing pending sentencing report.  On April 29, 2002, the report was finished, and petitioner continued to maintain he did not assault victim.  Then, the plea hearing was held on May 21, 2002, and petitioner was sentenced to 70- 110 years in prison.

• Nov. 14, 2002—Petitioner filed request for habeas relief.
• Early 2003–Counsel appointed
• March 31, 2003—Counsel filed amended application for relief based on the suppressed DNA testing that she discovered.
• March 12, 2004—Evidentiary hearing conducted.
• April 2, 2004—Petition denied finding the DNA results to be “inconclusive.”
• The West Virginia Supreme Court of Appeals denied certiorari.
• July 1, 2010—With the Innocence Project involved, counsel filed Motion for Post-Conviction DNA Testing under a recently enacted state statute.
• December 2012—circuit court authorized search of CODIS database with DNA profile.  Search revealed that sperm source was Adam Bowers, an inmate who was 16 years old at time of assault, lived a few blocks from the victim, had a history of sexual violence, and had been the victim’s paper boy.
• July, 2013—evidentiary hearing, and court denied petitioner’s claim.  The court found that the DNA exclusions did “not . . . unequivocally determine whether or not [the Petitioner] was actually present [at the crime scene] and a participant in the various activities giving rise to the . . . criminal charges.”
• Petitioner then appealed this denial of relief.

The West Virginia Supreme Court of Appeals does a really great job (and useful for those of us litigating the issue in court) of analyzing the issue of a defendant’s right to Brady evidence prior to entering a guilty plea and how the issue has been handled in other jurisdictions. The Court helpfully points to United States v. Fisher, 711 F.3d 460 (4^th Cir. 2013), that makes it quite clear that Solicitors in our area of the country should be disclosing this evidence.  In that case, the Fourth Circuit held that a law enforcement officer’s false statement in a search warrant affidavit constituted impermissible government conduct.  Id. at 464.  The court found that the misconduct induced the guilty plea and found that “[i]f a defendant cannot challenge the validity of a plea based on subsequently discovered police misconduct, officers may be more likely to engage in such conduct, as well as more likely to conceal it to help elicit guilty pleas.”  Id. at 469.

Also helpfully, the West Virginia Court notes that courts have been diligent in emphasizing that a prosecutor’s office cannot avoid its Brady responsibilities by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case.  See Cone v. Bell, 556 U.S. 449 (2009); Kyles v. Whitley, 514 U.S. 419 (1995); Carey v. Duckworth, 738 F.2d 875, 878 (7^th Cir. 1984).

Then, analyzing the facts of this case, the Court concluded that the State’s failure to disclose favorable DNA test results obtained 6 weeks prior to petitioner’s guilty plea hearing violated his due process rights.  The matter has now been remanded back to Harrison County for an order granting habeas relief and allowing petitioner to withdraw his guilty plea.

Justice Allen Loughry offered an exceptional concurrence in this opinion.  He wrote his concurrence, he states, “to emphasize the role of the prosecutor and the potentially devastating effects when the prosecutor fails to act in the interests of justice.”  As he eloquently notes:

“When the State fails in this obligation, it is not only the rights of the individual defendant that are compromised, but the public’s confidence in our system of justice as well.  This is not merely a high-minded academic proposition.  The public’s ever-eroding confidence in our syste of justice is well-documented as the images of the good, honest, hard-working police officers, prosecutors, and judges are often tarnished as the result of the improper actions of a few unscrupulous public servants. . .  There is simply no room in our judicial system for unethical evidentiary gamesmanship.  The critical need to prevent the prosecution from employing ethically dubious methods to achieve a conviction is proven where, as here, the suppressed evidence, under any reasonable construction, qualifies as exculpatory in nature.  Accordingly, I respectfully concur.”

     The importance of this case cannot be understated.  It recognizes what many already believe to be true—that the State has an affirmative obligation to provide any and all exculpatory evidence to a defendant and his or her attorney, whether before trial, or a guilty plea.  It’s hard to believe there is debate on this issue, but there is.  Hopefully more state courts will follow West Virginia’s lead and ensure that justice is done in every state.