Sunday, April 2, 2017

Replay of Brutal Murder Might Have Been Avoided

      Catherine Fuller was brutally murdered on her way home from a late-afternoon shopping trip barely two miles from the U.S. Capitol one month before Ronald Reagan's landslide re-election in 1984. Longtime Washington-area residents still recall the murder and the long trial a year later that ended with the convictions of 11 black youths for what prosecutors depicted as an opportunistic robbery that turned into a savage gang-style killing.
      Three decades later, the gruesome events were replayed at the U.S. Supreme Court last week [March 29] as two of the defendants asked to have their convictions thrown out because the prosecution withheld evidence potentially useful to their defense. Charles Turner and Russell Overton are asking the justices to put themselves in the impossible position of deciding whether the jury that deliberated on their fate for a full week would still have convicted them if the withheld evidence had been turned over back then.
      Frustratingly, the reopening of the case might have been avoided under current Justice Department policies that take a broad view of the government's disclosure obligations under a well-established Supreme Court precedent, Brady v. United States (1970).  Brady requires the government to give the defense any potentially exculpatory information in its files. Today, the government concedes that the prosecution violated Brady by failing to turn over evidence from two witnesses pointing toward the possibility that someone else could have killed Fuller.
      Jerry Goren, the Harvard-trained lawyer who led the prosecution team and now lives in California, testified in the later post-conviction hearing that he investigated the evidence from the witnesses placing another black youth, James McMillan, in the vicinity around the time of the killing. McMillan, who would later be convicted of a somewhat similar murder, was said to have been seen concealing some object that could have been the lead pipe used to sodomize Fuller before she died.
      In his 2012 testimony, Goren said that homicide detectives interviewed the witnesses, but he did not give the information to the defense because he did not find their accounts credible. Prosecutors naturally suspect defense attorneys will grasp at any straws, however insubstantial, to try to conjure up reasonable doubt in some jurors' minds. So a minimalist approach to Brady naturally leads prosecutors to withhold evidence if they think they can get away with it.
      Representing Turner in the Supreme Court arguments, attorney John Williams had no doubt that the withheld evidence would have been helpful to the defense at trial. "This whole case would have been cast in a different light," Williams told the justices. The prolonged deliberations on Turner and Overton after the jury had convicted nine other defendants showed that jurors had doubts about their guilt, he said. Deanna Rice echoed the point in the five minutes she was allotted for divided argument representing Overton.
      For the government, deputy solicitor general Michael Dreeben had the unenviable task of explaining away a now-admitted Brady violation. The evidence to suggest an "alternative perpetrator theory" was "weak and speculative," Dreeben told the justices. By contrast, the evidence of a group attack on Fuller was "strong" and corroborated by some of the members of the group who testified for the government in hopes of a shorter sentence. Given all that, Dreeben said, there was "no reasonable probability" that the jury would have rejected the government's theory in favor of a single perpetrator.
      The justices were somewhat hard to read in what was for them an unusually fact-specific set of arguments, but Justice Elena Kagan was one of three — along with Ruth Bader Ginsburg and Sonia Sotomayor — who voiced discomfort with the withholding of the evidence to suggest an alternative perpetrator. "It would have been a completely different trial," Kagan told Dreeben.
      Dreeben explained the long jury deliberation by detailing the difficulties of a case that could have been a Law and Order episode.. The prosecution witnesses' testimonies naturally "diverged" in places, the veteran criminal law specialist conceded, given the "chaotic" pace of events in the killing. The prosecution's reliance on some of the participants was also perfectly natural, Dreeben said.
      The government looked for other witnesses, but none came forward, he said. The community in what was then a run-down neighborhood felt "under siege," he said. And the reality, Dreeben continued, is that in criminal cases "it's frequently the case that the only people who can really tell you what happened are those who participate."
      Ginsburg followed by bluntly asking Dreeben to explain the withholding of the evidence. At the time, Dreeben replied, the government's policy was to comply with Brady but to do no more. Todya, under policies adopted in 2006, prosecutors are instructed, according to Dreeben, to "go above and beyond Brady and disclose information that a defendant might use even if it is not [required]."
      The evidence of other witnesses in the case surfaced only in 2001 through doubts raised in a story by a Washington Post reporter, Patrice Gaines, and work by researchers with the Mid-Atlantic Innocence Project. Turner and Overton have now been arguing in court for more than a decade to try to reopen their case. A well-regarded D.C. Superior Court judge, Frederick Weisberg, reaffirmed the convictions after the 2012 hearing; the D.C. Court of Appeals upheld his ruling in an exhaustive, 94-page opinion in June 2015.
      Government lawyers routinely cite the importance of finality in urging appellate courts to spurn defendants' post-conviction petitions. Supreme Court handicappers are forecasting a ruling to uphold these convictions. In this painful reminder of a brutal killing, however, the government itself is to blame for the doubts cast on a hard-won verdict so long ago.

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