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En Banc Sixth Divides on Habeas Petition (and En Banc):

Yesterday, a 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 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, 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.

PersonFromPorlock:

"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."

Uhuh. I take it the duck test isn't a part of law school curriculum?
1.5.2008 4:18pm
DrGrishka (mail):
It looks like on the merits, it was 9-5. Judge DAUGHTREY stated that while her preferred course of action would be to dismiss the petition to rehear en banc as improvidently granted, she agrees with the Court's majority on the merits.
1.5.2008 4:36pm
Duffy Pratt (mail):
C'mon. We know the government would never do anything in secret.

I haven't read this case, but usually when something like this happens, the pro-death faction will assume error for the sake of argument, but decide its harmless error. Why didn't that happen here?
1.5.2008 4:43pm
Visitor Again:
I take it the duck test isn't a part of law school curriculum?

Nah, they smoked but they didn't inhale.
1.5.2008 5:27pm
byomtov (mail):
"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."

This is just plain stupid. Of course there's a pre-existing deal, and only a fool wouldn't realize it.

It is amazing to me that these sorts of deals with witnesses are even allowed. They are nothing other than bribery.
1.5.2008 10:09pm
TerrencePhilip:
The informant's self-interest--his hope for a shortened prison term-- was in fact exposed to the jury, AND argued to the jury by the defense attorney in closing.

After the trial, the prosecutor wrote a supportive letter to the parole board, and the parole board released the informant early.

But if there was no actual deal, then the defendant has received everything the law allows: the opportunity to attack the informant's credibility by arguing he had a hope, if not an actual deal, to testify in the prosecution's favor.
1.6.2008 2:00am
Visitor Again:
TerrencePhilip:
The informant's self-interest--his hope for a shortened prison term-- was in fact exposed to the jury, AND argued to the jury by the defense attorney in closing.

After the trial, the prosecutor wrote a supportive letter to the parole board, and the parole board released the informant early.

But if there was no actual deal, then the defendant has received everything the law allows: the opportunity to attack the informant's credibility by arguing he had a hope, if not an actual deal, to testify in the prosecution's favor.


You don't mention what the prosecution argued re the defendant's hope of a deal. Did the prosecution pooh-pooh it? Or what?
1.6.2008 11:51am