Long v. Hooks, Fourth Circuit Court of Appeals, Filed January 8. 2020: How the Federal Courts Use the AEDPA to Deny Justice
How do federal courts use the AEDPA to deny justice?
Ronnie Wallace Long has lived in prison for 43 years after a conviction for rape and burglary in 1976. 30 years after his conviction, he learned that the state of NC had a wealth of exculpatory information at the time of his trial that they hid from the defense.
Worse, he learned that the state’s witnesses and the prosecutor lied to jurors about what evidence they had and what had been tested. After reading the Fourth Circuit’s opinion, I cannot see how any person would not reach the conclusion that Long is most likely innocent of the crimes for which he was convicted and that he would have been acquitted had his jury known what we know today.
And yet, the Fourth Circuit denied his petition. Why?
What is the Standard for a Brady Violation on Appeal?
Brady violations, or when the state fails to disclose material evidence that is favorable to a defendant, are almost always litigated on appeal or in post-conviction relief proceedings. Why? Because, if the evidence is discovered before trial, there may have been a Brady violation, but it is moot – the defendant now has the information.
And so, the standard for whether a Brady violation occurred and whether it warrants reversal of a conviction asks, “What would have happened at trial if the evidence had been disclosed?”
First, the evidence must be favorable to the defense. Second, it must be material to the defense – it must create a “reasonable probability of a different result” and “undermin[e] confidence in the outcome of the trial.”
The state violates Brady when the prosecution fails to disclose material evidence favorable to a criminal defendant. 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 432 (1995). Evidence is material if it creates a “reasonable probability of a different result,” Kyles, 514 U.S. at 434, thus “undermin[ing] confidence in the outcome of the trial.” United States v. Bagley, 473 U.S. 667, 678 (1985). It is not enough for the withheld evidence to create the possibility of a different verdict; a different result must be reasonably probable. Strickler v. Greene, 527 U.S. 263, 291 (1999); United States v. Agurs, 427 U.S. 97, 109–10 (1976); see also Richter, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just conceivable.”)
The state court found that the withheld evidence would have had no impact on the outcome of the trial, and found that Long had failed to prove by a preponderance of the evidence that exculpatory evidence had been withheld – the wrong burden of proof for a Brady violation.
A petitioner does not have to prove by a preponderance of the evidence that the Brady violation occurred – he must show “that there is a reasonable probability that a jury would find him innocent, given the new evidence.” The state court’s statement of the burden of proof directly contradicted US Supreme Court precedent…
First, the state court incorrectly applied federal law to Long’s case in denying relief for the Brady violation, resulting “in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
Second (details below), the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Either of these should be sufficient to overcome the “high bar” of the AEDPA, but they did not according to the Fourth Circuit.
Why Does the Majority Find that the AEDPA Bars Long’s Habeas Petition?
The majority opinion seems to rest their decision on the fact that the state court found that the withheld evidence had no impact on the outcome of the trial.
Inexplicably, rather than questioning the state court’s decision that the withheld evidence had no impact on the outcome of the trial, the Fourth Circuit finds that the state court’s decision itself is a reason to uphold the state court’s decision:
Here, the state court found “the cumulative [e]ffect of any [new evidence] with any value is so minimal that it would have had no impact on the outcome of the trial.” J.A. 1359 (emphasis added). This reasonable finding adequately supports the state court’s decision that any newly disclosed evidence falls short of the kind of materiality that Brady requires.
How does that make sense? The Fourth Circuit explains that they must examine each ground supporting the state court’s decision and that the federal court can reverse the state court’s decision only if “each ground supporting the state court decision is examined and found to be unreasonable.”
The Fourth Circuit then says that the state court’s conclusion that the withheld evidence had no impact on the result is a “separate ground” for the state court’s conclusion. According to the Fourth Circuit, the state court’s conclusion that the evidence had no impact is alone sufficient for the state court to reject Long’s claim:
“Because the state court’s no impact conclusion is “sufficient” to reject Long’s claim, ‘it is irrelevant that the court also invoked [an improper] ground.’ Parker v. Matthews, 567 U.S. 37, 42 (2012); see also Littlejohn v. Trammell, 704 F.3d 817, 831 (10th Cir. 2013).”
Isn’t that kind of like saying, in a direct appeal, “The trial court determined that the defendant had no right to testify, and the trial court’s determination had no right to testify is sufficient to uphold the trial court’s decision not to allow the defendant to testify?”
It’s the state court’s conclusion that the evidence had no impact that is the subject of the appeal – it’s the very thing that the Fourth Circuit is supposed to analyze in deciding whether the state court made an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
All parties seemed to agree that the state court incorrectly applied clearly established law on the standard of proof for a Brady violation, although that did not concern the Fourth Circuit. Then, the Fourth Circuit rubber-stamped the state court’s decision, justifying it with… the state court’s decision?
Did the state court make an unreasonable determination of the facts? What were the facts?
What Did the Prosecution Hide?
As the dissent points out, the state court’s “no impact” conclusion is not an “alternate ground” supporting the state court’s decision. The dissent says it was not an alternate ground “because it was inextricably intertwined with the erroneous Brady standard mentioned above.”
I would add that it is not an alternative ground for the decision because it is the decision – the court’s conclusion that there was no impact on the outcome of the trial is the end of the matter. No impact, no prejudice, no Brady violation.
The dissent also points out that, even if the “no impact” conclusion were a separate ground that was sufficient to support the state court decision, it was “objectively unreasonable.”
Why was it unreasonable? What evidence did the state of NC withhold?
Results of Forensic Examinations
The alleged victim said that a man with “yellow” or “light-colored” black skin, wearing a leather coat, toboggan, and gloves, entered her house and raped her. She escaped to a neighbor’s house and the man fled the scene.
The only evidence connecting Long to the alleged crime was the alleged victim’s testimony – no physical evidence implicated him. To the contrary, there was ample physical evidence that suggested Long was not present at the scene, but the defense and the jurors never saw it…
A detective submitted 15 items to the crime lab for testing, including:
- Long’s hair, which did not match hairs that were found at the crime scene;
- The Victim’s clothing, on which Long’s hair was not found;
- Long’s jacket and gloves, which did not contain any paint or carpet fibers from the crime scene;
- Burned matches from the crime scene and matches found in Long’s car, which the lab determined were not the same matches; and
- Long’s shoes and shoeprint impressions from the crime scene, which were not a match.
All 15 items and the test results were contained in a lab report that was never turned over to the defense.
Before trial, the detective generated another report that stated he only transported the shoes to the crime lab for analysis – a report that is arguably helpful to the state because it says the shoes could have made the print because they had the same tread design, but that the analyst was unable to “conclusively identify Appellant’s shoes as the ones that made the print.”
It would take 30 years for Long to discover the original report and conclusions that, arguably, excluded him from the crime scene…
Vanishing Rape Kit
The hospital provided a rape kit to police which included the attacker’s semen – a fact that was never disclosed to the defense nor included in any of the police reports. For some reason, the police buried the rape kit and there is no record of any test results:
Surely there is no evidence more material in a rape case than the assailant’s semen, and yet, though the state obtained semen samples from the victim’s assailant, these samples went no further. Again, curious. Why might that be? Critically, this rape kit is not listed in either of Detective Isenhour’s reports, and there is no record of what happened to the rape kit after it was received by the police department or whether it was tested at all.
If the kit was tested and the tests indicated that the semen did not belong to Long, they were required to inform the defense. If the kit was tested and the results were inconclusive, they are still required to inform the defense. Given the pattern of conduct by police and prosecutor in the case, it is safe to assume that any test results were not helpful to the state of NC and therefore they never saw the light of day…
The State of NC Lied to Jurors in Order to Convict Long
The fact that the detective repeatedly lied to jurors in Long’s trial – a fact that must have been known to the prosecutor who was eliciting the testimony – is also a separate Brady violation.
The detective lied under oath and told the jurors that he only provided the shoes and shoeprint to the crime lab.
The detective lied under oath and told jurors that he remained with the crime lab as they tested the shoes – he did not. Rather, he picked up the shoes and the other items of clothing at least five days after he dropped it off.
The detective lied under oath and told jurors that Long’s clothing never left his custody.
The detective failed to tell jurors that he had submitted 15 items to the crime lab and received results that indicated Long was not present at the crime scene.
Another police officer lied under oath and told jurors “that the matches he retrieved from Appellant’s family car were “of [a] similar nature” to burned matches found near the crime scene that were believed to have been left by the suspect,” although the crime lab’s report – which was never provided to the defense – excluded the matches:
This testimony was directly contrary to the withheld SBI Report, wherein SBI Agent R.D. Cone concluded that four of the five matchbooks collected in Appellant’s family car were eliminated as possible origins for the burned matches in the victim’s home. Of note, although Agent Cone could not exclude the fifth matchbook on that basis, he indicated that the burned matches from the scene “probably did not originate from this matchbook.” J.A. 1463.
Was the cumulative effect of this withheld evidence negligible? How could any reasonable person believe this would not have an impact on the outcome of the trial? Like the dissent, there is “zero doubt in my mind” that the withheld evidence would have impacted the outcome.
Far from being “so minimal that it would have had no impact on the outcome of the trial,” J.A. 1359, there is zero doubt in my mind that the cumulative effect of the suppressed evidence in this case “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
43 latent fingerprints were collected at the scene that were discovered by the Innocence Project in 2015 – none of the fingerprints or any test results were disclosed to the defense, and Long was excluded as the source of the fingerprints:
Then, in 2015, Long participated in the North Carolina Innocence Inquiry Commission’s Postconviction DNA Testing Assistance Program. Those efforts revealed 43 latent fingerprints taken from the crime scene that had not been disclosed. Testing excluded Long as the source of those prints.
Was the Evidence Overwhelming?
Was the evidence against Long so overwhelming that the omissions would not have made a difference?
The only evidence against Long was the testimony of the alleged victim.
All physical evidence was either exculpatory or inconclusive. The Fourth Circuit states that the withheld evidence does not matter because it does not impeach the alleged victim. But doesn’t it?
Despite the majority opinion’s conclusion, the alleged victim’s testimony and cross-racial identification were far from airtight, and it would have been seriously undermined by physical evidence that demonstrated 1) Long was not there and 2) someone else (the owner of the hairs and fingerprints that did not match Long) was there.
How did the identification happen?
The alleged victim was taken to the courthouse by officers to look at Long, who was in court on unrelated charges (and wearing a leather coat). She identified Long as her attacker – although the majority says that the “description matched the one given at the scene,” the dissent points out that this is wrong:
The victim said she had “no doubt” that Appellant was her rapist. She explained, “I will never forget his profile, the coloring of his skin . . . . ” J.A. 314–15. But of note, Appellant is a black man with dark skin, unlike the light skinned black man the victim described to police in the hours immediately following the rape.
Approximately 20 minutes later, police showed the alleged victim a photographic lineup that included Long. Long’s photo was the only one with a leather jacket, the type of jacket she said her attacker wore and the type of jacket Long wore in the courtroom when police showed him to her.
The trial court later asked her if the police told her which photo to choose, and she replied, “They could have, but I don’t know.”
When the trial court asked the victim, “Is it possible [the officers] could have asked you to pick out [Appellant]?” the victim replied, “They could have, but I don’t know.” J.A. 179.
Furthermore, Long provided an alibi – his mother testified that he was at their home at the time of the attack, that he spoke to his girlfriend and two-year-old son on the phone while he was home, and that she picked up the phone to talk to her grandson during the call.
Because Long’s habeas petition is a second or subsequent petition (filed after the discovery of the fingerprint evidence), Long must prove actual innocence. The dissent states:
Appellant faces an exceedingly heavy burden to prove his actual innocence by clear and convincing evidence, as he must in order to obtain relief on this second or successive habeas petition. See McQuiggen v. Perkins, 569 U.S. 383, 394–95 (2013); Schlup v. Delo, 513 U.S. 298, 327 (1995). However, Appellant has provided new, reliable evidence that helps to exculpate him as the perpetrator, casts doubt on the victim’s eyewitness identification of him, provides substantial impeachment value against the testifying officers, and calls into question the integrity of the investigation at large.
Could Long prove actual innocence? Unless the US Supreme Court takes up his case or the Fourth Circuit grants a motion to reconsider, neither of which is likely, he will not have the chance to try.
For what it’s worth, based on the same facts that the Fourth Circuit has just determined would not have impacted the outcome of the trial, I am convinced.
Federal Habeas Review Attorney in Columbia, SC
Elizabeth Franklin-Best is a federal habeas lawyer located in Columbia, SC.
For more information, call us at (803) 331-3421 or email us through our website to set up a consultation about your case.