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Despite harsh language from the Sixth Circuit for a Hamilton County prosecutor who committed “flagrant” and “severe” misconduct, two recent reversals in a 1992 Ohio murder case have not received much media attention. Yet Gumm v. Mitchell is noteworthy for the Sixth Circuit’s withering criticism of the prosecution in the case, which suppressed a wealth of evidence and inflamed the jury against the defendant.

Darryl Gumm and codefendant Michael Bies were convicted of kidnapping, attempting to rape and murdering a 10 year old boy, and were put on Ohio’s death row. The men later had their death sentences vacated under Atkins v. Virginia because they are both intellectually disabled.

A district court granted relief on four of Gumm’s claims in federal habeas and the Sixth Circuit affirmed in December, 2014. Those claims included the following two about prosecutorial misconduct:

  • that the government failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 82 (1963),
  • that the prosecutor’s elicitation of inflammatory testimony and admission of psychiatric reports constituted prosecutorial misconduct, causing a denial of due process.

As to the first claim, there was no physical evidence tying Gumm to the crime scene so the state was forced to make its case using what the Sixth Circuit termed, “Petitioner’s demonstrably unreliable confession and egregiously prejudicial and unreliable testimony and hearsay statements contained in the psychiatric report.”

The court found that a “whole slew” of material evidence that the state failed to disclose to defense counsel demonstrated that other suspects were near the scene at the time of the crime, including one whom confessed to the crime on two occasions. The court concluded,

“Considering the quality and quantity of the evidence that the state failed to disclose, the potential for that evidence to have affected the outcome of Petitioner’s trial is inescapable.”

The court also had words for the Ohio Court of Appeals, which had previously found that the undisclosed evidence would not have put the case in a different light. On page 34 of its opinion, the Sixth Circuit calls the Court of Appeals’ finding “measly”:

“The Ohio Court of Appeals’ measly statement regarding the merits of Petitioner’s Brady claim constituted an unreasonable application of clearly established federal law because no reasonable jurist could have found that the disclosure of this small mountain of exculpatory evidence, much of which was admissible or would clearly have led to admissible evidence, would not have undermined confidence in the verdict in this case.”

As to the second claim of prosecutorial misconduct – eliciting inflammatory testimony – the court also found Gumm’s constitutional rights had been violated by the prosecutor:

“Although unrelated and removed in time from the crimes in this case, the prosecution put forth unreliable hearsay statements regarding cruelty to animals and bizarre sex acts to suggest that Petitioner had a propensity to commit acts like the crimes in question…

[T]he intentional and deliberate manner by which the prosecutor obtained the testimony and the ultimate propensity argument made during his rebuttal closing argument constitute improper conduct.”

Indeed, the court found that “the prosecutor’s decision to argue hearsay statements as fact to the jury ought to be ‘universally condemned'” (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

Clearly dismayed by the state’s conduct in the case, the Sixth Circuit upheld the district court’s ruling, saying “This is such a case in which extreme malfunctions in the state criminal justice system prejudiced Petitioner and caused him to suffer extreme violations of his constitutional rights.” Calling the prosecutor’s misconduct “flagrant” and “severe”, the court vacated Gumm’s conviction.

Hamilton County prosecutor Joe Deters responded to the court’s decision by blaming the public defender, telling WKRC Cincinnati, “We’re going to go out and interview these witnesses and see what they really said. I don’t believe anything that comes out of the public defender’s office.”

Bies also had his conviction thrown out because the state withheld material evidence in the case. The state is considering appealing the decisions to the United States Supreme Court.

The opinion in Gumm’s case is available here.

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