On Monday, the U.S. Supreme Court handed down a per curiam opinion in Wearry v. Cain, a death penalty appeal from Louisiana. This latest decision is one in a long line that demonstrates Louisiana courts do not understand prosecutors’ obligations under Brady. Indeed, the Supreme Court noted in its opinion that Louisiana courts had “egregiously misapplied settled law” in ruling against the defendant.
Per curiam decisions from the Court are handed down without an oral argument or briefing from the parties on the merits and typically “signal that a case was uncontroversial, obvious, and did not require a substantial opinion.” (Occasionally, justices will dissent from per curiam rulings, as two did in Wearry.) In other words, these opinions often serve as a strong judicial rebuke of the losing side’s argument. Mr. Wearry prevailed on his allegation that prosecutors violated their Brady obligations, and the Supreme Court granted him a new trial; the State—and the Louisiana courts below that endorsed the State’s position—suffered the rebuke.
Contrary to Justice Alito’s dissent—which called for a full-blown merits review—the per curiam approach seemed appropriate here not only because the Louisiana courts’ denial of the claim below was out-of-line with well-established law, but also because the Louisiana courts have proven to be repeat offenders; they repeatedly fail to appropriately enforce prosecutors’ Brady obligations.
In Wearry, the defendant was convicted and sentenced to death for participating along with others in the armed robbery and killing of a teenager named Eric Walber. The State’s “star witness” at Wearry’s trial was Sam Scott, a self-identified witness—who, over two years after the crime, contacted the authorities for the first time while incarcerated, and whose account changed significantly multiple times before trial. Scott ultimately testified to the jury that he and Wearry had been playing dice when Wearry decided to rob Walber, who was driving past them at the time. Scott said that five men participated in the robbery, and three of them, including Wearry, had killed the victim. The State’s “other main witness” was Eric Brown. He testified that he had seen Wearry and others with the victim the night the crime occurred. Brown was incarcerated at the time of Wearry’s trial, admitted that he had made prior statements that were inconsistent with his testimony, and claimed that he was testifying not to curry prosecutorial favor on his own charges but out of compassion for the victim’s sister, whom he knew. In his defense, Wearry put forth an alibi, relying on witnesses who testified that he had been with them at a wedding 40 miles away during the crime.
After he was convicted, Wearry’s defense team discovered that the prosecution had withheld at least three categories of evidence. First, “previously undisclosed police records showed that two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility.” Indeed, one of them suggested Scott may have had a vendetta against Wearry; the other indicated that Scott told him that testifying against Wearry could help that inmate in his efforts to get out of prison. Second, contrary to his trial testimony, Eric Brown had twice asked authorities to reduce his sentence if he took the stand against Wearry. And, third, the prosecution failed to turn over medical evidence about one of Wearry’s co-defendants that showed Sam Scott’s story of how the offense unfolded was unlikely if not implausible.
On these grounds, the Supreme Court “conclude[d] that the Louisiana courts’ denial of Wearry’s Brady claim runs up against settled constitutional principles, and  a new trial is required as a result . . . .” Under Brady, a new trial is required when the prosecution suppresses evidence favorable to the defendant that is material to the question of the defendant’s guilt or punishment. Here, the Supreme Court held that it was “[b]eyond doubt” that the suppressed evidence undermines confidence in Wearry’s conviction: “The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi.” Seeing the State’s evidence for what it was, the Supreme Court called the Louisiana courts out for their egregious misapplication of the law.
How Did the Louisiana Courts Get It So Wrong?
Given the clarity with which the Supreme Court viewed the evidence, how did the Louisiana courts reach the wrong result? That question requires looking deeper into the case than the Louisiana Supreme Court’s opinion because that opinion only consists of one word: “Denied.” See State ex rel. Wearry v. Cain, 2013-2422 (La. 2/27/15), 161 So. 3d 620.
The post-conviction court—a trial judge in Louisiana’s 21st judicial district named Wayne Chutz—denied the Brady claim because he deemed the State’s violations were not material to the outcome. Remarkably, the court’s opinion fails to even mention the evidence revealing that other inmates had provided State investigators with information that undermined Scott’s credibility. And, for the categories of Brady evidence it actually did consider, rather than assess the combined impact that this evidence could have had on the jury’s decision had it been disclosed, the court isolated each category and held that none of them individually was material “taken in the context of all of the evidence produced at trial to incriminate the defendant.” (To read Chutz’s opinion, check out Appendix B of this document.)
An analogy may help illustrate the problem with this faulty judicial reasoning. The postconviction court’s opinion looked at the State’s case like a Jenga tower, and it conducted its analysis by starting with the first violation and simply taking one block away to see if the tower fell. When it did not, the court reconstructed the complete tower and then looked at the next violation as if it were just another single block to be removed. But, the Supreme Court has long made clear that all of the Brady violations need be addressed in the cumulative. The judge should have taken as many blocks from the tower as the State withheld. (And, it should have taken those blocks from the base levels because the suppressed information struck at the foundation of the State’s case.) Had it done so, the tower would have collapsed just like “a house of cards.” In the Supreme Court’s words, “the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively . . . .”
Wearry v. Cain Follows a Pattern that Reflects Louisiana Judicial Intransigence . . .
The Louisiana Supreme Court’s failure in Wearry was a failure to intervene and keep lower state courts in line. If this week’s case sounds familiar to SCOTUS-watchers, you may recall the 2012 Supreme Court opinion in Smith v. Cain. There, the US Supreme Court overturned a Louisiana defendant’s murder convictions because prosecutors suppressed evidence that revealed that the State’s star witness could not provide a description of the alleged perpetrators. That was another “easy case,” an 8-to-1 ruling in the defendant’s favor authored by Chief Justice Roberts. The Louisiana Supreme Court had also written a one-word opinion in that case: “Denied.” See State v. Smith, 2009-1164 (La. 9/24/10), 45 So. 3d 1065. What may be most spectacular about Smith was that not a single Louisiana judge who reviewed the matter ever even found that the State improperly withheld evidence from the defendant. Perhaps something is amiss in the Bayou state.
Even beyond Smith v. Cain, there is substantial evidence that Wearry represents an additional attempt to promote judicial compliance with Brady in Louisiana. Another pivotal U.S. Supreme Court case about Brady obligations came out of Louisiana in the mid-90s. In Kyles v. Whitley, the Supreme Court reviewed a case in which the state courts in Louisiana—as well as a federal district court and the Fifth Circuit Court of Appeals—had denied the defendant’s claim that evidence suppressed by the prosecution warranted a new trial. There, the Supreme Court granted Mr. Kyles a new trial and emphasized a point that it reiterated in Wearry—courts reviewing Brady violations must assess “the cumulative effect of the evidence.”
Brady was decided in 1963; Kyles was decided in 1995; Smith was decided in 2012. The precedents should by now be crystal clear. But, as the Louisiana courts apparently continue to disregard binding precedent, SCOTUS is taking the unusual step of performing straight up error-correction. As one law professor has noted, “The upside of the Supreme Court embracing an error-correction role is clear: not only are errors corrected, but lower courts – particularly state supreme courts and federal circuit courts – receive the important message that they should strive hard to get it right even in little cases.” Wearry vindicates this view but is no “little” case—until today’s decision, Mr. Wearry was facing execution. Indeed, as his lawyers have made clear, the ruling is a critical if long-overdue step in the process of proving their client’s innocence.
. . . And That Pattern Continues
Yet another Louisiana Brady case involving a death-row inmate is in the Supreme Court’s queue.
The Louisiana Supreme Court in February this year reaffirmed a decision that deprived capital defendant David Brown of Brady relief. Brown discovered after his trial that the prosecution withheld evidence indicating that two of the co-defendants were significantly more culpable than he for the murder of a prison guard that occurred during an escape attempt. Before Brown’s trial, an inmate who was friends with one of his co-defendants, Barry Edge, informed the State that Edge had told him that the killing happened because of a decision that Edge and another co-defendant made. If Brown had possessed this evidence during the trial, he could have used it to persuade jurors that he was less culpable for the murder and thus less deserving of the death penalty. Confronted with this Brady material post-trial, the trial court granted Brown a new penalty phase to determine whether he deserves a life-without-parole sentence or the death penalty. But, the Louisiana First Circuit Court of Appeal reinstated Brown’s death sentence, and the Louisiana Supreme Court reaffirmed the First Circuit, inexplicably holding that the suppressed evidence was not actually favorable to Brown. In its words, the suppressed statement “inculpates” two other co-defendants but “provides no additional evidence as who actually killed” the victim. One dissenting justice pointed out that the decision to sentence a man to death requires an assessment of his “moral culpability,” and evidence suggesting that Brown did not actually plan or intend to kill the victim certainly goes to that question.
Given that the Louisiana Supreme Court handed down a totally unsupportable finding that mitigating evidence was somehow not favorable to a capital defendant at his sentencing phase, it appears that the U.S. Supreme Court will soon have yet another opportunity to drop the hammer and make clear that the Louisiana courts need to take Brady, prosecutorial misconduct, the death penalty—and, better yet, their role as judges—more seriously.