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Hide and Seek:
Unethical Prosecutors Hide the Grand Jury Testimony that would prove who really did it
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Prosecution lawyers hide the Grand Jury Testimony so it can’t be used to show that other folks killed Johnny Battle and that these other folks and witnesses lied in their testimony. No Grand Jury Testimony = Huge amounts of evidence for innocence lost, but the ambitious prosecutors didn’t want it to be heard, so they hid it.

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Second, Petitioners argue that the failure of the prosecution to produce the Grand Jury testimony of Mr. Jennings and Mr. Wood violated their right to a fair trial by denying them access to exculpatory information.

2. Failure to Release Grand Jury Transcripts Violated Brady v. Maryland
The prosecution’s failure to produce the Grand Jury testimony of Messrs.Wood and Jennings was a constitutional violation that prejudiced the Petitioners at trial. The trial record is replete with evidence that both men were present at the Godfather on November 1, 1974. Yet, they testified before the Grand Jury that they were not. The prosecution was aware of this discrepancy but did not produce the Grand Jury transcripts. Admittedly, defendants do not have a general constitutional right to discovery of all relevant evidence in criminal proceedings. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

Nonetheless, there are constitutional imperatives that govern the Governments conduct in disclosing and withholding evidence. In Brady v. Maryland, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87.

The standard for disclosure in criminal cases is materiality which, at least in the first instance, is determined by the prosecution. Evidence is material if there is a reasonableprobability that the disclosure of evidence would change the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985). See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (stating that evidence is not material if, in the absence of the suppressed evidence, the defendant received a fair trial, understood as a trial resulting in a verdict worthy of confidence); id. at 439 (the prosecution must make judgment calls about what would count as favorable evidence).

The Government argues that petitioners cannot show that the grand jury testimony of either Wood or Jennings is exculpatory . . . . Respondents Response at 36. The Court disagrees. As a general matter, false exculpatory statements can produce an inference of guilt. The combination of Ms. Heims testimony that Mr. Wood and Mr. Jennings were present at the Godfather; that Mr. Jones was among those who chased Mr. Battle; and that Barber and Jennings ran on foot to Mr. Richters house in Virginia, arriving distraught and wanting to hide, would have materially supported Petitioners trial argument that the unindicted phantoms (no longer phantoms, but identified persons) were more likely the murderers. Had they been aware of the false testimony, defense counsel might have presented Ms. Heim with more-particularized questions about Mr. Wood and Mr. Jennings.55 Of course, they could also have called both men to testify and to confront their own Grand Jury testimony in an effort to show that persons other than the Petitioners could have committed the murder.

The Court finds that the Grand Jury transcripts were material and could have changed the outcome of the case. The importance of such evidence may not have been obvious to the prosecution from the start. However, when it became clear that Messrs. Jennings and Wood may have lied before the Grand Jury and when it became clear that other phantoms may have killed Mr. Battle, the prejudice became more acute and production of these transcripts a constitutional necessity.

    55 With evidence of the Grand Jury testimony, Ms. Heim could have firmly established the actual presence of Messrs. Wood and Jennings and their false denials. The Rule would have prevented her from adding their implicating statements at the Richter house because it tended to implicate Mr. Richter. The failure of the prosecution to produce the Grand Jury testimony interfered with Petitioners rights to exculpatory information and the Rule interfered with their rights to capitalize upon it.

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