Posted by Jonathan Adler:
En Banc Sixth Divides on Habeas Petition (and En Banc):
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1199565959
Yesterday, a [1]divided en banc panel of the U.S. Court of Appeals for
the Sixth Circuit divided over convicted murderer Stephen Bell's
habeas claim, as well as over whether en banc review should have been
granted in his case, Bell v. Bell.
Bell was convicted of both first and second degree murder in a
Tennessee court over 20 years ago. Since then, he has been challenging
his conviction arguing, among other things, that he received
ineffective assistance of counsel and the state failed to turn over
material that could have impeached a prosecution witness, in violation
of Brady v. Maryland. A federal district court denied Bell's habeas
petition, but [2]a divided Sixth Circuit panel reversed on Bell's
Brady claim. A majority of active Sixth Circuit judges voted to rehear
the case en banc, vacating the panel decision. Yesterday, [3]the en
banc court voted 8-6 to affirm the district court's denial of Bell's
habeas petition.
The key issues dividing the court was whether the prosecution
unlawfully withheld evidence of an alleged tacit agreement between it
and a jailhouse snitch who testified for the prosecution and
subsequently received more lenient treatment from the government. As
Judge Gibbons wrote for the Court majority:
although we do not take issue with the principle that the
prosecution must disclose a tacit agreement between the prosecution
and a witness, it is not the case that, if the government chooses
to provide assistance to a witness following a trial, a court must
necessarily infer a preexisting deal subject to disclosure under
Brady. �The government is free to reward witnesses for their
cooperation with favorable treatment in pending criminal cases
without disclosing to the defendant its intention to do so,
provided that it does not promise anything to the witnesses prior
to their testimony.� Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir.
2003) (emphasis in original). To conclude otherwise would place
prosecutors in the untenable position of being obligated to
disclose information prior to trial that may not be available to
them or to forgo the award of favorable treatment to a
participating witness for fear that they will be accused of
withholding evidence of an agreement.
Because Bell could not demonstrate the existence of an actual
agreement between the prosecution and its witness.
In addition to dividing on Bell's Brady claim, the court also divided
over whether an en banc rehearing should have been granted in the
case. In a separate dissent on this question, Judge Moore argued that
the court did not have sufficient grounds for an en banc because there
was no intracircuit conflict, nor did the case present "a matter of
exceptional public importance." Judge Gibbons responded to this charge
in a footnote:
FN2 Judge Moore�s dissenting opinion questions the justification
for granting en banc review in this case, asserting that the case
does not present a question of exceptional public importance but
only a difference of opinion as to what facts permit the inference
of a tacit agreement. As explained infra . . . , it is precisely
the panel majority�s conclusion that the facts of this case permit
such an inference that would create a new definition of Brady
material and a new legal rule broadly applicable in federal
criminal prosecutions as well as habeas proceedings. If the panel
majority�s opinion remained as binding precedent, the impact would
be enormous. While ordinarily factual issues do not merit en banc
rehearing, this one does.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/08a0002p-06.pdf
2. http://www.ca6.uscourts.gov/opinions.pdf/06a0320p-06.pdf
3. http://www.ca6.uscourts.gov/opinions.pdf/08a0002p-06.pdf
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