Richard A. Nicolas v. AG of Maryland, Richard Graham, Warden (4th Circuit Habeas loss on a Brady claim) or, Letting the Cheating Prosecutors Continue to Get Away with It (Op. No. 15-6616, filed April 27, 2016).

This case is a travesty of justice.  If ever there was a case where a circuit court of appeal was afraid to do the right thing for fear of being overturned due to lack of deference to the justice-strangling AEDPA, this is it.

Nicholas’s child was shot and killed.  Nicholas testified at trial that he took his child to the movies and that, driving home, a car started following closely behind him, “driving crazy.”  Nicholas pulled off onto Bowley’s Lane, and the car pulled in behind him and bumped his car. Nicholas said he got out of the car to confront the driver.  As he was walking around his car, he heard a gunshot and saw the car drive off.  He then ran to a nearby convenience store and called for help.  Officer Hannah arrived a few minutes later, they returned to the car and found the child dead.

The State didn’t believe Nicholas.  Its theory was that Nicolas murdered his own child.  In support of that theory, it argued that Nicolas never really wanted a kid since she was the product of a one-night stand, he was behind in child support payments, and he recently obtained a life insurance policy on the child.  Nicholas offered evidence that the Gerber life insurance policy was marketed in a way to save for the child’s future and that he became more involved in his child’s life as she grew older.  No murder weapon was ever found, nor was Nicholas ever connected, forensically, to the murder (Nicholas had guns, but there was no evidence his guns were used).

Witnesses for the state testified that Nicholas didn’t appear upset enough, but Nicholas explained that he has a debilitating stutter and that he knew he had to calm himself in order to speak.

By far the strongest “evidence” was testimony from the medical examiner regarding the lividity present in the child (how the blood settles after death).  Because the lividity was fixed on her back and left side, the ME gave the opinion that the child must have died about 2 hours prior to when the Officer moved her.  The State’s investigator’s report, however, noted that the child was still warm and that rigor mortis had not yet set in when the police arrived.

Now for the convoluted procedural history:

• Nicholas appealed and Court of Special Appeals affirmed.
• Nicholas filed state petition for post-conviction relief.
• Denied, and Court of Special Appeals summarily denied leave to appeal that ruling.
• Nicholas filed habeas petition.
• His attorney obtained information by FOIA—police notes detailing two potential witnesses who law enforcement interviewed during their investigation.

The witnesses claimed to have information regarding the shooting.  These witnesses were staying 1/8 of a mile away from Bowley’s Lane at a Holiday Inn.  They both told law enforcement they heard a loud noise—that sounded like a gunshot or a car backfiring—on the night the child was killed.  They also both advised that they saw a car speed off after the sound.   One of the witnesses said this happened close to 10:00 pm.  Law enforcement never disclosed these witnesses.

• Nicholas filed a motion to reopen state post-conviction proceedings because these documents had not been presented to state court. Federal court stayed the habeas proceedings while Nicholas went back to state court.
• In state court, Nicholas argued that these statements were Brady material. The circuit court denied the motion to reopen, finding that the statements were not favorable to Nicholas!
• The Court of Special Appeals then summarily denied Nicholas leave to appeal, and so Nicholas went back to federal court.
• Back in federal court, the district court conducted a review of the State’s file which led to more discovery! This time, the court found two letters written by the prosecutors to both the Officer and the medical examiner.  These letters confirmed how critically important the lividity evidence was to the outcome of the case.
• The federal court then stayed the proceedings so the State could then assess the importance of the witness statements in light of the now acknowledged importance of the lividity evidence.
• Once again the circuit court denied Nicholas’s motion to reopen his state post-conviction proceedings. It also explicitly adopted the earlier finding that these statements were not favorable to Nicholas and found that the statements were not material to the outcome of the trial even in light of the prosecutors’ letters.
• The Court of Special Appeals once again denied leave to appeal with a three page opinion finding that these letters did not render the undisclosed witness statements material.
• Court of Appeals denied Nicholas’s petition for writ of certiorari, and Nicholas once again went back to federal court.
• District court then granted relief on the Brady claim, but denied on other issues Nicholas raised. The district court found the state court based its holding on a unreasonable determination of the facts (which seems absolutely correct, in my humble legal opinion).  The court also found that the state court unreasonably applied Brady in holding the statements were not “material” (which, again, seems absolutely correct, in my humble legal opinion).  The district court vacated Nicholas’s conviction and remanded his case for a new trial.  The state appealed.

The Fourth Circuit Court of Appeals then reversed the district court finding that they “cannot disturb the state court’s ruling simply because it is incorrect; it must also be unreasonable.”  Harrington v. Richter, 562 U.S. 86, 100-01 (2011).  The Court noted that, while the circuit court did not catalogue all of the evidence offered by Nicholas at trial, it did expressly state that it had considered “the record as a whole” and found that the “undisclosed” witness statements were “not material.”  The Court also noted that these undisclosed witnesses might have testified in a manner favorable to Nicholas, but that the jury would have to parse through whether they really heard a gunshot, or whether it was a car backfiring.  The Court found that it was “not unreasonable for the state courts to conclude that, when considered with all the other evidence offered at trial, the statements would have made no difference to the verdict” (author’s note: even though the court found these clearly favorable statements were “not favorable” and when the sole issue in the case was time of death?!?).

Then the Court provides a completely impotent slap on the hands of these wayward prosecutors:

This is not to say that the district court’s disapproval of the prosecution’s failure to produce the witness statements prior to trial is not entirely understandable.  It is always better practice for the prosecution to disclose potentially favorable information before trial.  Only this practice ensures the fair trial that our justice system aspires to provide all persons.  Only this practice avoids the need for courts to determine the value of evidence in a hypothetical world.  If prosecutors follow this practice, no one has to worry after the fact whether the jury convicted the wrong person.

Tsk!  Tsk!  I’m sure it will  never happen again!   Those unnamed prosecutors certainly learned their lesson this time!  I have to believe we haven’t seen the last of this case.  This opinion absolutely screams for a petition for rehearing en banc.  Cases like this undermine completely the public’s sense of fairness in our criminal justice system.