United States v. Antonio Walter and Kenneth Bell, 7th Circuit, filed 8/29/17: REVERSAL based on Brady Violation

You have to love an opinion that starts off like this:

            The Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), might seem a bit strange to someone who thought that the adversary system in criminal cases allows each side to adopt a “no holds barred” litigation stance.  But that is not the way the Constitution structures criminal procedure.  From the Fifth Amendment’s privilege against compulsory self-incrimination, to its double-jeopardy clause, to the rights conferred by the Sixth Amendment both to be informed of the nature and cause of the accusation and to be confronted with witnesses, to the due process right to be convicted only upon proof beyond a reasonable doubt, the system is replete with safeguards for an accused…In the end…we conclude that the Brady error requires a new trial for both defendants.

Factually, these two defendants were charged with conspiracy to distribute heroin in the West Side of Chicago.  The Court notes that the case was not strong and that there was not any direct evidence tying either defendant to the conspiracy. Instead, the government relied on a number of highly problematic, credibility-impaired witnesses to make its case.  All seven government witnesses had been charged with, or convicted of drug crimes, and six of them testified pursuant to plea agreements that would have reduced their sentences.

The Brady evidence was this:  The government failed to disclose a damaging remark made by Dushae Nesbitt, one of the government witnesses about another government witness, Edmund Forrest.  Forrest was already a problematic witness.  Initially providing only lukewarm support for the government’s case during trial, after lunch and his chat with the prosecution, his “memory improved.”  He then testified that Bell dropped off heroin to Walter around three times a month and that cash from that day’s sales was usually handed over to Walter. During the trial, Nesbitt was out in the hallway talking to an FBI agent.  He told the agent that Forrest, while out on bond and cooperating with the government, was still “at the table” (meaning, selling heroin) and was selling for a supplier named KMART. This contradicted his trial testimony that he had given up drugs while on bond. The government didn’t tell defense counsel.

The government later disclosed this information to trial counsel by way of three letters.  While pending sentencing, counsel made a motion for a new trial based, in part, on this disclosure.  The district court judge denied the motion.

To win a Brady claim, a defendant “bears the burden of proving that the evidence is (1) favorable, (2) suppressed, and (3) material to the defense.”  United States v. Walker, 746 F.3d 300, 306 (7th Cir. 2014) (internal quotation marks and citation omitted).  The Court found there was no doubt the information was not disclosed in time for trial counsel to use it at the trial.  The real question was its materiality.  Evidence is material under Brady “if there is a reasonable probability that, had [it] been disclosed to the defense, the result of the proceeding would have been different.”  Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quotation marks omitted).  The Court found this testimony to be very important stuff.  First, it was unambiguous in its claim that Forrest was still dealing drugs, and that he lied about it on the stand.  But also, this evidence about “KMART” might have led the jury to believe that he, KMART, had taken over this area of Chicago and that if there was only room for one supplier in this market, that person would be KMART and not Bell.  But also, if the jury believed Nesbitt’s statements, it would show that Forrest was actively disregarding his cooperation agreement, his bond, and the law.  If questioned, Forrest might have invoked the Fifth!  Or, it would have damaged his credibility since he was no longer a “reformed former drug dealer.”  In short, it was important testimony, despite the government’s claims that he was already not a credible witness.

The Court reiterated that it’s possible that even if Nesbitt’s evidence had been disclosed, the defendants might have been convicted, but that’s not the standard.  The standard is only a “reasonable probability” that disclosure would have changed the result of the proceeding.  The Court found that standard met in this case.

Excellent and thoughtful opinion authored by Chief Judge Wood.