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For the second time in the same case, the Troy Messenger reports, the Alabama Supreme Court has denied the petition of Pike County District Attorney Tom Anderson asking it to order a lower court to reverse its grant of a new trial for Andre Ellis, a man accused of two rapes and a burglary in a mobile home community in Troy, AL.

In January 2013, “[a]lthough there was no forensic or physical evidence linking Ellis to the alleged rape,” Ellis was convicted and sentenced to a total of 105 years.  But when he moved for a new trial, citing a litany of Brady violations by the DA’s office, Circuit Judge Jeff Kelley, in a very detailed opinion, vacated his convictions and granted his motion.

Judge Kelley found prosecutors had failed a disclose, among other things:

  • A police affidavit that one of the victims had IDed another man as her assailant, before IDing Ellis;
  • A statement by the same victim that she had not looked her assailant in the face, contradicting her trial testimony that ‘she would not forget the eyes of the rapist’;
  • Records of the same woman’s text messages that suggested the rape had occurred as Ellis’s car was seen on a security video departing the mobile home community;
  • Statements by the same woman about having sex with her boyfriend in the hours before the rape, contradicting her trial testimony;
  • Statements by her boyfriend that denied they had had sex, contradicting her own (suppressed) statements.

In short, the prosecutors had suppressed an entire defense case.  This was not all, however.  Before granting Ellis’s motion, Judge Kelley had ordered the DA’s Office to turn over, in camera, all witness statements and evidence in both rape cases.  But in his opinion, Judge Kelley wrote, “this court continues to have much concern regarding the State’s search for the truth as the evidence disclosed in camera makes reference to other interviews and statements—specifically Q.C., the other rape victim, which have never been provided in camera to the court as specifically ordered by this court.”

Thus, even as Tom Anderson’s office argued against granting a new trial, despite a mountain of undisclosed evidence, it disobeyed a court order to disclose all the evidence still in its possession.  Nonetheless, remarkably, Judge Kelley’s decision found, that “the [original] suppression or nondisclosure was not intentional or malicious on the part of the State.”

In petitioning the Supreme Court to reverse Judge Kelley’s decision, Anderson claimed, boldly, it might seem under the circumstances, that the trial court had “exceeded its discretion and its judicial authority in granting Ellis a new trial because…the trial court improperly combed the prosecutor’s files and incorrectly and improperly analyzed the contents in those files.”

The Alabama Supreme Court didn’t agree.  It reproduced Judge Kelley’s order nearly in full, found no error in his findings of Brady violations, and added that Alabama law,

expressly authorizes a trial court to impose sanctions against a party that fails to comply with a discovery order…Because the State violated the trial court’s discovery order by failing to produce any and all interviews and statements regarding Q.C., we find no error in the trial court’s ruling granting Ellis’s motion for a new trial [on all counts]…It is well settled that the ‘failure to comply with [such an order] is viewed with disfavor and is condemned.’

One might think that now, in the face of two losses in the Supreme Court and his office’s deeply flawed prosecution, Tom Anderson might decide to pursue other suspects.  But not so.  “It is was it is,” he told Stacy Graning for her article for the Troy Messenger. “We’re disappointed, and we respectfully disagree…but we know where we stand and we’ll muscle forward providing the victims are willing.”

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