A recent Fourth Circuit Court of Appeals opinion sheds light on a seemingly classic tale of prosecutorial misconduct. It involves a scandalously discredited detective, an affidavit from an experienced prosecutor so flawed that it reads like a second-year law student flunking a professional ethics exam, and it has a glorious footnote bomb in which a court slams the prosecution for shirking its constitutional obligations. But, more than anything, the court’s opinion in Juniper v. Zook is an exemplary judicial effort to apply the Brady doctrine with care and pride. The state courts that glossed over the defendant’s claims and even the federal district court that denied the Brady claims without an evidentiary hearing now have a shining example of what it means to take misconduct seriously.
Anthony Juniper has been on Virginia’s death row for over a decade, convicted of killing four individuals; Keshia Stephens, Rueben Harrison, Nykia Stephens, and Shearyia Stephens. Typical for Virginia death penalty cases, his case sped through state court appeals and state post-conviction, and his claims were denied outright. (The speed is especially troubling when one considers that VA is a high-use execution state—outstripped only by Texas for total number of executions in the modern death penalty era.) The Supreme Court of Virginia also rejected multiple requests to develop the facts showing that law enforcement suppressed evidence it should have disclosed to Juniper before trial. In federal habeas proceedings, the district court recognized that prosecutors improperly withheld Brady evidence, but determined—without having an evidentiary hearing—that the exculpatory information was not material and thus did not warrant a new trial. Last month, the Fourth Circuit vacated the district court’s ruling on the Brady question and remanded the case for an evidentiary hearing.
While any federal habeas reversal is remarkable, this case has multiple storylines.
To start with, the lead detective, R. Glenn Ford, was convicted in federal court and sentenced “to 12 years and 6 months in prison for taking bribes from criminals and lying to the FBI about it in other investigations.” Moreover, he gained notoriety for helping Virginia obtain some of the most prominent wrongful convictions in the nation through his work on the “Norfolk Four” case. While Ford himself was being prosecuted, lawyers learned that notes he took while working on Juniper’s case had never been turned over to the defense team at trial. The undisclosed notes revealed that investigators had interviewed one of Keshia Stephens’s neighbors, Wendy Roberts, and shown her a photo line-up in which she identified someone other than Juniper as the culprit.
The intrigue does not stop with the dirty lead detective and his downfall; this case also involves an experienced prosecutor who hid the Wendy Roberts information displaying no regard for professional ethics. In the federal district court, the prosecution submitted a sworn affidavit from Deputy Commonwealth’s Attorney Phillip Evans II, the lead prosecutor at Juniper’s trial. Wendy Roberts’s statement to police totally contradicted the timeline the prosecution presented at trial; she stated that she heard gunshots after 1:00 p.m. The Commonwealth had presented evidence at trial indicating that the murders took place well before that time. The Fourth Circuit described the contents of Evans’s affidavit:
Deputy Commonwealth’s Attorney Evans’s affidavit also described the prosecution’s rationale for not disclosing the Roberts materials to Petitioner’s trial counsel before trial. According to  Evans, a 911 chronology . . . coupled with [a prosecution witness’s] trial testimony that Petitioner committed the murders before [that prosecution witness] first called 911, “clearly proved that the murders of the four victims occurred prior to the first Norfolk Police Department response initiated at 12:44 p.m. on January 16, 2004.”
Long story short? Evans claims that he did not turn over the exculpatory information because it contradicted the information he was relying on. It doesn’t take a logic whiz to see that the very reason the evidence is exculpatory is that it contradicts the prosecution’s version of events. Evans’s basis for withholding the evidence should be laughed out of court. Fortunately, the Fourth Circuit called him out, writing that “the ‘factual inconsisten[cy]’ between the Roberts materials and the statements of the first 911 caller and [the prosecution witness] is precisely what renders the Roberts materials exculpatory and impeaching for purposes of Brady.”
The Fourth Circuit did not limit its criticism of the Commonwealth to the Evans affidavit. Instead, it took prosecutors to task for advancing disingenuous arguments and failing to take earlier judicial opinions to heart. Take, for example, the prosecution’s claim that it was “highly likely” it actually did turn over the exculpatory evidence before the trial. The Fourth Circuit quoted directly the district court’s response to this far-fetched claim:
then why has [Virginia], throughout years of habeas proceedings steadfastly opposed production of the documents when [P]etitioner’s habeas counsel has sought them? If prosecutors had already shared the documents with trial counsel, what is it precisely that the Commonwealth and its various representatives have been so desperate to protect, and for what reason? The events leading up to this point, far from demonstrating a lack of concealment, show the Commonwealth’s entrenched resistance to transparency in this criminal prosecution and subsequent post-conviction proceedings.
Going further, the Fourth Circuit cited Evans’s wayward affidavit as a reason to doubt the idea that the prosecution actually turned the evidence over when it should have: that the “prosecutor seems to have fundamentally misunderstood his obligation under Brady provides further grounds to conclude that the prosecution suppressed the [exculpatory] materials, and potentially other exculpatory or impeaching evidence.” While this kind of analysis is fairly unusual, it is appropriate. If a party has given the court reason to believe it lacks credibility or competence (or both), those deficiencies should influence how the court evaluates the party’s claims. The Commonwealth did not just rely on Evans, however. The Fourth Circuit looked back to the lead detective and emphasized that “Ford’s subsequent conviction for accepting bribes and making false representations to courts only enhances the plausibility of improper suppression.”
Appellate courts often give prosecutors defending convictions in the appeals process a substantial amount of leeway. They seem reluctant to hold lawyers in this area responsible for the ethical foibles some other prosecutors may have made several years earlier. But, in the Juniper opinion, the Fourth Circuit did what courts should do: make the parties accept meaningful responsibility for the legal positions they advance. Here, the Fourth Circuit noted that the trial prosecutors were not the only ones who unethically suppressed favorable evidence: the post-conviction team for the Commonwealth “unjustifiably continu[ed] to resist its disclosure for years thereafter.”
On top of all of this, the Fourth Circuit dropped a glorious footnote: Here is footnote 7:
We have repeatedly rebuked the Commonwealth’s Attorney and his deputies and assistants for failing to adhere to their obligations under Brady. See Wolfe II, 691 F.3d at 423 (‘lambast[ing]’ Assistant Commonwealth’s Attorney for ‘not produc[ing] evidence to a criminal defendant unless he first deems it to be ‘material’ and credib[le]’); Muhammad v. Kelly, 575 F.3d 359, 370 (4th Cir. 2009) (refusing to ‘condone’ suppression of exculpatory and impeaching evidence by prosecution, notwithstanding that such evidence was not material, because ‘[a]s a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution’). We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth’s Attorney’s office continue to stake out positions plainly contrary to their obligations under the Constitution.
If it had somehow not made itself clear to this point in the opinion, the Fourth Circuit basically put up a billboard outside the prosecutors’ office reading “DO NOT VIOLATE THE CONSTITUTION. THANK YOU.”
As excellent as the Fourth Circuit’s decision is for all of the reasons mentioned above, its legal analysis on the specific question of whether the federal district court made a mistake when it denied the Brady claims without having an evidentiary hearing is outstanding. It spelled out the law, analyzed the issue in-depth and in line with the governing standard, and explained clearly how the district court’s opinion fell short. Any court looking for a serious review of a Brady claim, any defense attorney looking for a model of how to present compelling analysis, and any prosecutor thinking for a moment of trying to pull a fast one on the Fourth Circuit should read this decision. And then read it again.