A recent decision in the 4th Circuit, Juniper v. Zook, sheds some light on how Brady violations can occur. In that case, a capital murder prosecution, prosecutors failed to disclose to the defense evidence from an eyewitness that potentially identified another suspect other than the defendant. The reason?
“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 Deputy Commonwealth’s Attorney Evans, a 911 chronology— which, according to Petitioner, the prosecution also did not disclose to Petitioner’s trial counsel—coupled with Mings’s trial testimony that Petitioner committed the murders before Mings 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.” Id. at 1156. Deputy Commonwealth’s Attorney Evans’s affidavit further maintained that the Roberts materials were not “material[ly]” exculpatory—and thus not subject to disclosure under Brady—because (1) “Wendy Roberts’ statements on January 16, 2004 were factually inconsistent with the documented event chronology of the Norfolk Police Department response and activities in and around [Keshia’s apartment] on January 16, 2004…..” (emphasis added).
Tha’s right, per the prosecution, evidence that contradicts their theory of the case they consider not material.
As the Court of Appeal rather dryly observes in granting the defendant’s habeas corpus request, “But the “factual inconsisten[cy]” between the Roberts materials and the statements of the first 911 caller and Mings is precisely what renders the Roberts materials exculpatory and impeaching for purposes of Brady.”