u states court of appeals third circuit -...

No. 13-9003

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

JAMES A. DENNIS, Appellee,

v.

SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT GREENE; SUPERINTENDENT, STATE

CORRECTIONAL INSTITUTION AT ROCKVIEW; DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA,

Appellants.

On Appeal from the United States District Court for the Eastern District of Pennsylvania, No. 11-1660

Before the Honorable Anita B. Brody

BRIEF FOR FORMER JUDGES AND PROSECUTORS AS AMICI CURIAE IN SUPPORT OF APPELLEE

CATHERINE M.A. CARROLL Counsel of Record GIDEON M. HART DAVID WAKE WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000

April 18, 2014

Case: 13-9003 Document: 003111593021 Page: 1 Date Filed: 04/18/2014

TABLE OF CONTENTS

Page TABLE OF AUTHORITIES .................................................................................... ii

INTEREST OF AMICI CURIAE .............................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 2

ARGUMENT ............................................................................................................. 5

I. THE SPECIAL ROLE OF THE PROSECUTION IN THE CRIMINAL JUSTICE SYSTEM DEMANDS ROBUST BRADY COMPLIANCE THAT EASILY COVERS THE EVIDENCE AT ISSUE HERE .............................................. 5

A. Consistent With Brady And Its Progeny, Widely Accepted Prosecutorial Practice Favors Comprehensive Disclosure .............................................................................................. 6

B. Generally Accepted Brady Practices Called For Disclosure Of The Evidence At Issue In This Case ............................ 10

II. THE REASONING OFFERED BY THE COMMONWEALTH AND STATE COURT UNDERMINES BRADY POLICY AND CONFLICTS WITH CLEARLY ESTABLISHED FEDERAL LAW ................................................ 14

A. Inadmissible Evidence Should Not Be Categorically Exempt From Brady ............................................................................ 15

B. A Habeas Petitioner Should Not Be Required To Prove The Credibility Of Suppressed Impeachment Evidence In A Post-Conviction Hearing To Satisfy The Materiality Standard ............................................................................................... 20

CONCLUSION ........................................................................................................ 24

APPENDIX ............................................................................................................. A1


ii

TABLE OF AUTHORITIES

CASES Page(s)

Berger v. United States, 295 U.S. 78 (1935) ....................................................... 5, 23

Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986) ................................................. 18

Bradley v. Nagle, 212 F.3d 559 (11th Cir. 2000) .................................................... 16

Brady v. Maryland, 373 U.S. 83 (1963) ........................................................ 1, 5, 6, 7

Coleman v. Calderon, 150 F.3d 1105 (9th Cir. 1998) ............................................. 16

Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011) ................................................... 4

Commonwealth v. Dennis, 715 A.2d 404 (Pa. 1998) ............................................... 10

Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008) ........................................... 3, 15

Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003) ..................................................... 16

Felder v. Johnson, 180 F.3d 206 (5th Cir. 1999)..................................................... 16

Giglio v. United States, 405 U.S. 150 (1972) .......................................................... 12

Hoke v. Netherland, 92 F.3d 1350 (4th Cir. 1996) .................................................. 17

Johnson v. Folino, 705 F.3d 117 (3d Cir. 2013) ...................................................... 16

Kyles v. Whitley, 514 U.S. 419 (1995) ............................................... 6, 11, 17, 19, 20

Madsen v. Dormire, 137 F.3d 602 (8th Cir. 1998) .................................................. 16

People v. Ramos, 614 N.Y.S.2d 977 (App. Div. 1994) ............................................. 8

Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996) ....................................................... 17

Slutzker v. Johnson, 393 F.3d 373 (3d Cir. 2004) ................................................... 21

Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801 (10th Cir. 1995) ......................................................................... 19


https://web2.westlaw.com/find/default.wl?cite=799+f.2d+593&referenceposition=593&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3











https://web2.westlaw.com/find/default.wl?cite=17+a.3&referenceposition=3&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

https://web2.westlaw.com/find/default.wl?cite=715+a.2d+404&referenceposition=404&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3


https://web2.westlaw.com/find/default.wl?cite=295+u.s.+78&referenceposition=78&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3




iii

United States v. Agurs, 427 U.S. 97 (1976) ....................................................... 17, 24

United States v. Bagley, 473 U.S. 667 (1985) ................................................... 11, 18

United States v. Derr, 990 F.2d 1330 (D.C. Cir. 1993) ........................................... 16

United States v. Gil, 297 F.3d 93 (2d Cir. 2002) ............................................... 16, 18

United States v. Morales, --- F.3d ----, 2014 WL 1203140 (7th Cir. Mar. 25, 2014) ............................................................................................... 16

United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) ................................................ 7

United States v. Phillip, 948 F.2d 241 (6th Cir. 1991) ............................................ 16

United States v. Velarde, 485 F.3d 553 (10th Cir. 2007) .................................. 16, 18

Williams v. Bitner, 455 F.3d 186 (3d Cir. 2006) ..................................................... 17

Wood v. Bartholomew, 516 U.S. 1 (1995) ......................................................... 15, 16

RULES

ABA Model Rules of Professional Conduct (2013) .................................................. 9

Pennsylvania Disciplinary Rules of Professional Conduct (2014) ............................ 9

OTHER AUTHORITIES

Armstrong, Ken & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999 .......................................................................................... 7

Bibas, Stephanos, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959 (2008-2009) ...................................... 7

Brady v. Maryland Material in the United States District Courts: Rules, Orders and Policies, Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States, Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States (Federal Judicial Center, Washington D.C., May 31, 2007) ....................................................... 9











https://web2.westlaw.com/find/default.wl?cite=2014+wl+1203140&referenceposition=1203140&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

iv

Casale, Robert M., et al., Gould v. Commissioner of Correction and the Conundrum of Being Legally Guilty But Actually Innocent in the Criminal Justice System, 86 Conn. B. J. 262 (2012) ........................... 22

Cohen, Andrew, Another Chance for the Justices to Say No to Prosecutorial Misconduct, The Atlantic, Feb. 8, 2014, available at http://www.theatlantic.com/national/archive/2014/02/another-chance-for-the-justices-to-say-no-to-prosecutorial-misconduct/283731/ ......................................................................................... 8

Department of Justice, Criminal Resource Manual, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm ................................................................................................... 10

District Attorney’s Association of the State of New York, Ethical Guidelines for Prosecutors (Aug. 2012), available at http://www.daasny.org/Ethics%20Handbook%209.28.2012%20FINAL.pdf ..................................................................................................... 10

The Editorial Board, A Prosecutor is Punished, N.Y. Times, Nov. 8, 2013 ................................................................................................................. 8

Gershman, Bennett L., Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685 (2006) ........................................................................................... 7

Gillers, Stephen, In the Pink Room, in Legal Ethics: Law Stories 119 (Luban & Rhode eds., 2006) ........................................................................... 8

Goldfarb, Phyllis, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607 (1990) ......................................................................................... 22

Harris, Donald J., et al., Dispatch and Delay: Post Conviction Relief Act Litigation in Non-Capital Cases, 41 Duq. L. Rev. 467 (2002-2003) ................................................................................................... 22

Johnson, Carrie, Report: Prosecutors Hid Evidence in Ted Stevens Case, All Things Considered, NPR, Mar. 15, 2012, http://www.npr.org/2012/03/15/148687717/report-prosecutors-hid-evidence-in-ted-stevens-case ......................................................................................... 8


v

The Justice Project, Expanded Discovery in Criminal Cases, A Policy Review (2007) .................................................................................................. 7

Liebman, James S., et al., A Broken System: Error Rates in Capital Cases, 1973-1995 (2000) ................................................................................. 7

Memorandum from David W. Ogden, Deputy Attorney General, to Department Prosecutors (Jan. 4, 2010), available at http://www.justice.gov/dag/discovery-guidance.html ...................................... 9, 10, 11, 12

Primus, Eve Brensike, Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings, 24 Crim. Just. 6 (2009) ................................... 21


INTEREST OF AMICI CURIAE1

Amici curiae are former prosecutors and judges who maintain an active

interest in the fair and effective functioning of the criminal justice system. Amici

believe that just treatment of criminal defendants is essential to protect the integrity

of, and public confidence in, the criminal justice system—particularly where the

death penalty is at stake. The prosecution’s responsibility under Brady v.

Maryland, 373 U.S. 83 (1963), to disclose all material favorable evidence in its

possession plays a vital role in meeting that goal by ensuring that the justice

system operates not merely to produce convictions, but to afford every defendant a

fair trial worthy of confidence.

After reviewing this case, amici are left with the troubling conclusion that

prosecutors in Mr. Dennis’s case did not completely fulfill their Brady

responsibilities and that, as a result, we cannot have confidence in the verdict. To

put it bluntly, the question whether to disclose the evidence at issue here should not

have been a close call. Regardless of the prosecutor’s personal assessment of its

persuasiveness, the evidence at issue—a prior inconsistent statement by the

prosecution’s star witness that tended to exculpate the defendant, a document that

1 Amici are listed in the Appendix to this brief. Amici have moved for leave to file this brief. No party or counsel to a party authored this brief in whole or in part or contributed money intended to fund the preparation or submission of this brief. No person—other than amici and their counsel—contributed money intended to fund the preparation or submission of this brief.



2

undermined the credibility of an important government witness and bolstered the

defendant’s alibi defense, and a file of investigation reports exploring the

possibility that someone else may have committed the crime—was classic Brady

material. Amici submit this brief because the state court’s decision excusing the

prosecution’s suppression of this evidence not only unreasonably applied Brady

and its progeny, but also threatens to erode the standards of fairness to which

prosecutors ought to hold themselves. Instead of promoting conscientious

adherence to the Brady obligation, the legal principles applied here by the state

court enable prosecutors to avoid these responsibilities and create strong incentives

for them to do so, at the expense of the public’s confidence in the fairness of the

criminal justice system. As a result, the state court’s decisions both undermine

confidence in the verdict in Mr. Dennis’s case and threaten the important

protections of Brady for every defendant.

SUMMARY OF ARGUMENT

The suppressed evidence at issue in this case is prototypical Brady material

that the Commonwealth should not have hesitated to disclose. Under Brady and its

progeny, the materiality of the evidence in question is clear. When police or

prosecutors encounter evidence that provides promising fodder for the

impeachment of key witnesses at trial or that reveals avenues for further

investigation into alternative theories of the case, the proper course is to disclose the


3

evidence. The Commonwealth’s failure to do so here—particularly given the

cumulative force of the evidence—undermines confidence in the verdict in Mr.

Dennis’s case and contravenes the prosecution’s basic duties of candor and fairness.

Despite the significance of the suppressed evidence, the state court held that

the evidence was not material. In doing so, the state court made a series of legal

rulings that the district court properly found to be contrary to and unreasonable

applications of clearly established Supreme Court precedent. This brief focuses on

two aspects of the state court’s analysis that pose particularly troubling concerns

with respect to the administration of the Brady obligation.

First, the state court held that the Brady obligation extends only to evidence

that is “material and admissible.” Commonwealth v. Dennis, 950 A.2d 945, 968

(Pa. 2008) (emphasis added). As the district court correctly explained, this ruling

is contrary to clearly established Supreme Court authority. Moreover, a rule that

inadmissible evidence cannot be the basis of a Brady claim would undercut the

protections of Brady by requiring police and prosecutors to evaluate the potential

admissibility of favorable evidence before deciding whether to disclose it. That

inquiry would be difficult to administer, as it requires a predictive judgment

whether a trial court will admit the evidence in a trial that has yet to take shape.

And this rule permits a prosecutor substantially to narrow his or her disclosure



4

obligations by hypothesizing a basis for excluding the evidence at trial, even if the

evidence is otherwise material.

Second, the state court concluded that certain suppressed impeachment

evidence could not be material for Brady purposes because Mr. Dennis failed to

prove in the post-conviction court that the impeachment evidence was credible and

convincing. See Commonwealth v. Dennis, 17 A.3d 297, 309 (Pa. 2011); see also

Commonwealth Br. 99-105. That holding should be rejected. The value of

impeachment evidence—here, a key prosecution witness’s prior inconsistent

statement suggesting that someone other than Mr. Dennis committed the crime—

lies not necessarily in establishing the defendant’s innocence but in undermining

the force of the prosecution’s case at trial. Moreover, the state court’s rule sends a

message to prosecutors that they may safely suppress even obviously favorable and

material impeachment evidence if they anticipate that the defendant will be unable

to prove the truth of the impeachment evidence in an evidentiary hearing years or

decades after the criminal trial.

The district court appropriately applied the AEDPA standard to reject the

state court’s reasoning, which, if accepted, would have multiple deleterious effects

on the criminal justice system. The effectiveness of the Brady rule in securing fair

adjudication of criminal trials depends upon careful compliance by prosecutors.

Courts should therefore articulate rules that incentivize the disclosure of


https://web2.westlaw.com/find/default.wl?cite=17+a.3&referenceposition=3&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

5

exculpatory evidence and that provide clear guidance to prosecutors to prevent

potential miscarriages of justice. The state court’s rulings in Mr. Dennis’s case, in

contrast, create opportunities for prosecutors to withhold Brady material under

vague and incorrect legal standards. In this case, the state court applied those rules

to excuse the prosecution’s suppression of evidence that should have been

disclosed. This Court should affirm the district court’s decision granting Mr.

Dennis’s habeas petition.

ARGUMENT

I. THE SPECIAL ROLE OF THE PROSECUTION IN THE CRIMINAL JUSTICE SYSTEM DEMANDS ROBUST BRADY COMPLIANCE THAT EASILY COVERS THE EVIDENCE AT ISSUE HERE

The Commonwealth asserts (Br. 7) that federal habeas courts “wield

enormous power” in the criminal process, but the power of the prosecutor is far

greater. As the Supreme Court has recognized, the prosecutor is the “architect of

[the] proceeding.” Brady v. Maryland, 373 U.S. 83, 88 (1963). The prosecutor

decides whether and which charges to bring, what evidence to present in court,

what arguments to make to the jury, and what information to share with the

defendant, whose resources often pale in comparison. With that power comes the

obligation to use it not merely to win the government’s case, but to ensure “that

justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). The Brady

obligation lies at the heart of that duty of fairness. In this case, the prosecution did




6

not fulfill this responsibility fully, instead suppressing evidence that, under widely

accepted practices, ought to have been disclosed.

A. Consistent With Brady And Its Progeny, Widely Accepted Prosecutorial Practice Favors Comprehensive Disclosure

The Brady rule stems from the prosecutor’s basic responsibility to ensure a

fair trial. In Brady, the Supreme Court recognized that the “suppression by the

prosecution of evidence favorable to the accused … violates due process where the

evidence is material to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Brady, 373 U.S. at 87. And the touchstone for

materiality under Brady is whether the defendant received a fundamentally fair

trial. See Kyles v. Whitley, 514 U.S. 419, 434-435 (1995) (“One does not show a

Brady violation by demonstrating that some of the inculpatory evidence should

have been excluded, but by showing that the favorable evidence could reasonably

be taken to put the whole case in such a different light as to undermine confidence

in the verdict.”). The Brady decision thus created a rule of fairness that recognizes

the importance of uncovering the truth to the fairness and integrity of criminal

proceedings. See Kyles, 514 U.S. at 440; Brady, 373 U.S. at 87 (“Society wins not

only when the guilty are convicted, but when criminal trials are fair.”).

Significant costs arise when a prosecutor, in pursuit of a conviction,

inadvertently cuts corners or even intentionally seeks to get away with less than

full compliance with Brady. Much of that cost, of course, is borne by the






7

defendant in the particular case. But Brady violations impose a social cost as well

by eroding public confidence in the fairness of the criminal justice system. As the

Supreme Court observed in Brady, “our system of the administration of justice

suffers when any accused is treated unfairly.” 373 U.S. at 87. Despite these costs,

however, individual prosecutors—under pressure to achieve convictions—often

experience countervailing incentives to limit disclosure.2 Consequently, Brady

violations are unfortunately “among the most pervasive and recurring types of

prosecutorial violations.” Gershman, Reflections on Brady v. Maryland, 47 S. Tex.

L. Rev. 685, 688 (2006); see also United States v. Olsen, 737 F.3d 625, 626 (9th

Cir. 2013) (“There is an epidemic of Brady violations abroad in the land.”)

(Kozinksi, C.J., dissenting). Studies have documented Brady violations resulting

in thousands of illegally obtained convictions.3 Unfortunately, these reported cases

are only the tip of the iceberg, as many if not most Brady violations are never

2 See, e.g., Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959, 984 (2008-2009). 3 See, e.g., The Justice Project, Expanded Discovery in Criminal Cases, A Policy Review (2007) (describing instances of prosecutorial misconduct resulting in convictions due to the failure to disclose Brady material); Liebman et al., A Broken System: Error Rates in Capital Cases, 1973-1995, at 5 (2000) (finding that prosecutorial suppression of evidence accounted for 16 to 19 percent of reversible errors); Armstrong & Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999 (finding 381 homicide convictions reversed nationwide from 1963 to 1999 due to prosecutors’ concealment of exculpatory evidence).




8

uncovered.4 And when they are uncovered, they cast a shadow of impropriety over

the whole criminal justice system in the eyes of the public.5

In light of these costs, and consistent with Supreme Court doctrine, the bar

has recognized that criminal trials are better informed and fairer to the accused

when prosecutors carefully adhere to the Brady obligation. For example, both the

Pennsylvania Rules of Professional Conduct and the American Bar Association’s

model rules of professional conduct emphasize the prosecutor’s responsibility to

“make timely disclosure to the defense of all evidence or information known to the

4 Exposure of a Brady violation, when it occurs, often results from events unrelated to the criminal prosecution. For example, in People v. Ramos, 614 N.Y.S.2d 977 (App. Div. 1994), the Brady evidence that ultimately freed a young teacher—after he spent seven years in prison for a crime that may never have occurred—surfaced only when the complainant brought a civil suit in which insurance company attorneys disclosed the exculpatory evidence to the defendant. See Gillers, In the Pink Room, in Legal Ethics: Law Stories 119, 137 (Luban & Rhode eds., 2006). 5 See, e.g., Cohen, Another Chance for the Justices to Say No to Prosecutorial Misconduct, The Atlantic, Feb. 8, 2014, available at http://www.theatlantic.com/ national/archive/2014/02/another-chance-for-the-justices-to-say-no-to-prosecutorial-misconduct/283731/ (accusing prosecutors of “hid[ing] exculpatory evidence and def[ying] a federal judge in a death penalty case”); The Editorial Board, A Prosecutor is Punished, N.Y. Times, Nov. 8, 2013 (describing conviction of former prosecutor for suppressing evidence in a murder trial, resulting in an innocent person spending 25 years in prison); Johnson, Report: Prosecutors Hid Evidence in Ted Stevens Case, All Things Considered, NPR, Mar. 15, 2012, http://www.npr.org/2012/03/15/148687717/report-prosecutors-hid-evidence-in-ted-stevens-case (describing suppression of evidence in nationally prominent case).


9

prosecutor that tends to negate the guilt of the accused or mitigates the offense.”6

Similarly, a January 2010 guidance memorandum published by the United States

Department of Justice instructs that Brady disclosures should be broad and

comprehensive.7 The memorandum provides detailed instructions on the steps a

prosecutor should take to meet his or her responsibility to ensure a fair trial

generally and to comply with Brady in particular, discussing such issues as where a

prosecutor should look for Brady material, what documents and evidence he or she

should review before making disclosures, and what procedures to follow in making

disclosures. Additionally, it advises that “[p]rosecutors are also encouraged to

provide discovery broader and more comprehensive than the discovery

obligations.”8

6 ABA Model R. Prof. Conduct 3.8(d) (2013); Pennsylvania Disciplinary Rules of Professional Conduct 3.8 (2014); see also generally Brady v. Maryland Material in the United States District Courts: Rules, Orders and Policies, Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States, Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States (Federal Judicial Center, Washington D.C., May 31, 2007). 7 See Memorandum from David W. Ogden, Deputy Attorney General, to Department Prosecutors (Jan. 4, 2010) (“DOJ Guidance Memo”), available at http://www.justice.gov/dag/discovery-guidance.html (“The guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice.”). 8 Id. at Step 3: Making the Disclosures.


10

As these materials indicate, careful and comprehensive Brady compliance is

widely accepted as a best practice among prosecutors’ offices.9 The sovereign’s

interest is not advanced when a prosecutor secures a conviction by taking a

restricted view of Brady’s requirements. And clearly established federal law does

not and should not leave leeway or uncertainty that permits or invites prosecutors

to fall short in carrying out their Brady obligations.

B. Generally Accepted Brady Practices Called For Disclosure Of The Evidence At Issue In This Case

As a matter of Brady doctrine and best practices, each of the three categories

of suppressed evidence at issue in Mr. Dennis’s case was prototypical Brady

material that should have been disclosed.

1. Cason welfare check receipt. The Pennsylvania Supreme Court found

that police came into possession of Latanya Cason’s time-stamped welfare check

receipt during their pre-trial investigation.10 Although the Commonwealth disputes

9 See generally id.; see also Dep’t of Justice, Criminal Resource Manual, § 9-5.001(F) (government policy “encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information”), available at http://www.justice.gov/usao/eousa/foia_reading_room/ usam/title9/5mcrm.htm; Dist. Attorney’s Assoc. of the State of New York, Ethical Guidelines for Prosecutors, at 14-16 (Aug. 2012), available at http://www.daasny.org/Ethics%20Handbook% 209.28.2012%20FINAL.pdf (stating importance of Brady compliance). 10 Commonwealth v. Dennis, 715 A.2d 404, 408 (Pa. 1998) (“During their investigation, however, the police came into possession of a Department of Public Welfare (DPW) receipt showing that Cason cashed her check at 1:03 p.m.”).



11

the persuasive weight of this evidence, there is no doubt that the receipt, on its

face, tends to impeach Ms. Cason’s damaging testimony for the prosecution that

she did not see Dennis at the bus stop until more than two hours after the shooting.

A733. That impeachment value alone called for the document’s disclosure. See

United States v. Bagley, 473 U.S. 667, 676 (1985) (holding that impeachment

evidence must be disclosed under Brady). In addition, the document tends to

support Mr. Dennis’s alibi defense that he was boarding a city bus more than a

mile away from the scene at the time of the shooting, rendering the evidence all the

more relevant. See A731-733, A1735-1737. A prosecutor applying best practices

would have turned this document over to the defense, and the failure to do so

violated established Supreme Court precedent, as the district court held. A16.11

2. Howard statement. One of the prosecution’s key witnesses was Zahra

Howard, a friend of the victim who was present at the time of the shooting.

Although Ms. Howard initially could not confidently identify Mr. Dennis as having

been involved in the shooting, she eventually told police that she recognized Mr.

Dennis as the shooter and testified to that effect before the jury. A464-465; A590.

Unknown to Mr. Dennis or his counsel, however, a police activity sheet recorded 11 The fact that the receipt was in possession of the police rather than the prosecuting attorney does not exempt the document from disclosure. Kyles, 514 U.S. at 438; see also DOJ Guidance Memorandum at Step 1, B.1 (“With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material. The investigative agency’s entire investigative file … should be reviewed for discoverable information.”).





12

the statement of Chedell Williams’s aunt and uncle that shortly after the crime, Ms.

Howard told them she recognized the assailants from her high school. A1533,

A1506-1507.

The favorability and importance of this evidence to Mr. Dennis’s defense

should have been self-evident to prosecutors. At a minimum, that evidence, if

disclosed, would have undermined the reliability of Ms. Howard’s testimony at

trial. It also provided an important further lead for investigation into an alternative

theory of the crime. As with the Cason receipt, good Brady practice would have

counseled for disclosure of this police activity sheet. When a key witness gives

conflicting accounts of the crime to police or other witnesses, including a statement

that points the finger away from the defendant, it should be easy for the prosecutor

to conclude that disclosure is warranted. See Giglio v. United States, 405 U.S. 150

(1972) (applying Brady to the suppression of evidence relating to witness

credibility). The DOJ Guidance Memorandum, for example, indicates that

evidence of inconsistencies in a witness’s statements should always be reviewed by

the prosecution for disclosure.12

The Commonwealth argues that the Court should excuse the suppression of

the Howard evidence in light of Ms. Howard’s testimony at the post-conviction

12 See DOJ Guidance Memo at Step 1, B.7, B.8 (identifying “Statements or reports reflecting witness statement variations” as potential material that “should be provided to the defense as Giglio information”).



13

hearing, in which she denied recognizing the assailants from school and denied

remembering ever saying that she did. But the Commonwealth’s post hoc

argument misses the significance of the statement, which would have opened up

new avenues of pre-trial investigation by the defense and provided material for

powerful impeachment of Howard at trial. A prosecutor encountering evidence of

this nature should find the disclosure question straightforward and should not bank

on the possibility that the witness might not recall her inconsistent statement at a

hearing years later.

3. Frazier documents. The Commonwealth also suppressed six

documents relating to the police investigation into an alternative suspect in the

shooting. A1691-1696. These documents recorded a report by inmate William

Frazier that a person other than Mr. Dennis had admitted to the shooting, and they

described the limited steps the police took to follow up on Frazier’s report. As the

district court found, Frazier’s report included “credible details, such as describing

where on her body Williams had been shot and identifying Williams as ‘Kev’s’

girlfriend.” A7. The documents showed that police responded to Frazier’s report

by interviewing one of the individuals Frazier identified as having been involved in

the crime, who matched witness descriptions of the perpetrators more than Mr.

Dennis did. A1519; A1699-1791. When the individual denied involvement in the

murder, police took him at his word and conducted no further investigation. See


14

id. Prudent prosecutorial practice would have led the Commonwealth to disclose

these obviously relevant documents without pause. The documents revealed a

promising avenue for further investigation by defense counsel, particularly since

Frazier’s report, as noted by the district court, “contained internal markers of

credibility.” A14. Moreover, defense counsel could have used the documents at

trial to impeach the adequacy of the police investigation.

As with each of the prior two categories of suppressed evidence, this was not

a borderline case. The suppression of this evidence violated Brady and

contravened the prosecution’s principal obligation to ensure that justice is done.

II. THE REASONING OFFERED BY THE COMMONWEALTH AND STATE COURT UNDERMINES BRADY POLICY AND CONFLICTS WITH CLEARLY ESTABLISHED FEDERAL LAW

Despite the foregoing, the Pennsylvania state court excused the

prosecution’s suppression of this evidence. In reaching this conclusion, the

Pennsylvania court applied problematic legal principles that invite uncertainty and

run contrary to Brady. In defending this result, the Commonwealth argues in

effect that a prosecutor should have discretion to suppress evidence that the

prosecutor—who already believes the defendant to be guilty—personally finds

unpersuasive or unhelpful. This brief addresses two of those points below, both of

which, if accepted, would undermine the purposes of Brady by creating numerous

exceptions to and loopholes in the prosecution’s obligation to disclose. The district


15

court correctly rejected these positions under the AEDPA standard, and this Court

should affirm that decision.

A. Inadmissible Evidence Should Not Be Categorically Exempt From Brady

The Pennsylvania Supreme Court held that “evidence sought under Brady

must be material and admissible.” Commonwealth v. Dennis, 950 A.2d 945, 968

(Pa. 2008) (emphasis added). The court applied that rule in holding that the

Frazier documents were not material under Brady because they were not

admissible. Id. The PCRA court likewise applied that rule in finding the Howard

evidence immaterial, in a ruling that the Pennsylvania Supreme Court accepted.

A134. This rule misapplies clearly established federal law as articulated by the

Supreme Court of the United States, injects an uncertain and malleable exception

into the prosecution’s obligation to disclose favorable and material evidence, and

conflicts with the underlying policy rationales of the Brady decision.

Under Wood v. Bartholomew, 516 U.S. 1 (1995), it is clearly established that

where suppressed evidence is inadmissible, materiality is assessed no differently

than in any other case—i.e., by determining whether there is a reasonable

probability that the result at trial would have been different had the evidence been

disclosed. Id. at 5-6. In Bartholomew, the Court applied that materiality standard

to suppressed polygraph test results that were inadmissible at trial. Although the

Court found the polygraph results immaterial for Brady purposes, its analysis made




16

clear that inadmissibility was but one factor in the materiality determination. Id. at

5-8. The Court thus “beg[a]n” its analysis by noting the inadmissibility of the

evidence, but did not it end there, instead going on to consider the effect of

suppression on the defendant’s investigation and preparation for trial and

alternative theories defense counsel might have been able to pursue. Consistent

with that decision, most federal courts, including this Court, have had no trouble

concluding that suppressed evidence may potentially be material for Brady

purposes even where it is not admissible. See Ellsworth v. Warden, 333 F.3d 1, 5

(1st Cir. 2003) (en banc); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002);

Johnson v. Folino, 705 F.3d 117, 130 (3d Cir.), cert. denied 134 S.Ct. 61 (2013);

Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999); United States v. Phillip, 948

F.2d 241, 249 (6th Cir. 1991); Madsen v. Dormire, 137 F.3d 602, 604-605 (8th Cir.

1998); Coleman v. Calderon, 150 F.3d 1105, 1117 (9th Cir.), rev’d on other

grounds, 525 U.S. 141 (1998); United States v. Velarde, 485 F.3d 553, 560 (10th

Cir. 2007); Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000); United States v.

Derr, 990 F.2d 1330, 1335-1336 (D.C. Cir. 1993), overruled on other grounds by

36 F.3d 106 (D.C. Cir. 1994).13

13 In its recent decision in United States v. Morales, --- F.3d ----, 2014 WL 1203140 (7th Cir. Mar. 25, 2014), the Seventh Circuit indicated its inclination to join the majority of circuits on this point. Id. at *9 (“We find the Court’s methodology in Wood [v. Bartholomew] to be more consistent with the majority view in the courts of appeals than with a rule that restricts Brady to formally






https://web2.westlaw.com/find/default.wl?cite=948++f.2d+241&referenceposition=249&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3









https://web2.westlaw.com/find/default.wl?cite=134+s.ct.+61&referenceposition=61&referencepositiontype=s&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3



17

A limitation that categorically excludes inadmissible evidence from the

prosecutor’s disclosure obligation is contrary to the underlying rationales and

objectives of Brady. Brady and its progeny require prosecutors to take affirmative

steps to evaluate the exculpatory effect of evidence. See Kyles, 514 U.S. at 437-

438. Indeed, the success of Brady in ensuring fair and effective trials rests on the

expectation that prosecutors will actively seek to disclose exculpatory evidence to

avoid the conviction of innocent individuals by resolving “doubtful questions in

favor of disclosure.” United States v. Agurs, 427 U.S. 97, 108 (1976). Allowing

prosecutors to suppress evidence on the open-ended ground that it might not be

admissible in its current form conflicts with this premise and would result in

suppression of important evidence that otherwise meets the Supreme Court’s

materiality standard.

For example, limiting the Brady obligation to admissible evidence, or

creating an unusually strict standard for judging whether such evidence is material,

ignores the fact that disclosure of such evidence can affect the defense strategy and

admissible evidence.”). The Commonwealth cites the Fourth Circuit’s decision in Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir. 1996), but the existence of an outlier circuit does not mean the legal principle is not clearly established as federal law. See Williams v. Bitner, 455 F.3d 186, 193 n.8 (3d Cir. 2006) (“Even if our sister circuits had in fact split on the issue, we would not necessarily be prevented from finding that the right was clearly established.”); Pro v. Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996) (circuit split did not preclude finding that the law was clearly established).









18

in turn the trajectory of the case. See Bagley, 473 U.S. at 683 (stating that a

reviewing court should consider the “adverse effect that the prosecutor’s failure to

respond might have had on the preparation or presentation of the defendant’s case”

and must consider “the course that the defense and the trial would have taken had

the defense not been misled by the prosecutor’s incomplete response.”). In this

regard, the investigatory value of inadmissible evidence can be immense. In the

hands of competent defense counsel, an inadmissible hearsay statement

contradicting a potential witness’s other statements, for example, would prompt

further interviews with that witness or additional investigation. See Velarde, 485

F.3d at 563 (inadmissible evidence was material because it could have “led to facts

that the defense could use to effectively cross-examine” the witness); Gil, 297 F.3d

at 104 (inadmissible evidence was material where it would lead to further

investigation); Bowen v. Maynard, 799 F.2d 593, 612 (10th Cir. 1986)

(inadmissible evidence was material because “in the hands of the defense[] it could

have been used to uncover other leads and defense theories and to discredit the

police investigation of the murders”). In the current suit, both the Frazier

documents and the Howard statements could have been used for this very purpose.

Similarly, disclosure of inadmissible evidence about abandoned leads tends

to help defendants show when a police investigation has not been appropriately

thorough. Courts have consistently recognized evidence that serves this purpose to








19

be material for Brady purposes. See, e.g., Kyles, 514 U.S. at 446 (stating that the

defendant could have “examined the police to good effect” and “so have attacked

the reliability of the investigation”); Smith v. Secretary of N.M. Dep’t of Corr., 50

F.3d 801, 830 (10th Cir. 1995) (“[W]hile the knowledge the police were

investigating [other suspects] would arguably carry significant weight with the jury

in and of itself, that fact would also have been useful in discrediting the caliber of

the investigation or the decision to charge the defendant, factors we may consider

is assessing whether a Brady violation occurred.” (internal quotation marks

omitted)).

Even more worrisome, a rule that categorically excuses the suppression of

even material evidence based on its inadmissibility at trial could be malleable and

potentially difficult for law enforcement to apply in practice. Predicting whether a

particular piece of evidence might be admissible at a trial that has not begun to take

shape is far from straightforward. Admissibility depends on the particular use to

be made of the evidence in the context of all the other evidence presented. Such

determinations cannot be made in the abstract, and asking prosecutors to do so at

best imposes a difficult burden and, at worst, invites prosecutors to shirk their

disclosure obligations whenever they can hypothesize a basis for exclusion.





20

B. A Habeas Petitioner Should Not Be Required To Prove The Credibility Of Suppressed Impeachment Evidence In A Post-Conviction Hearing To Satisfy The Materiality Standard

The state court held that Mr. Dennis failed to establish the materiality of the

suppressed Howard statement because the PCRA court did not find it credible that

Howard actually made the statements Williams’s aunt and uncle attributed to her in

the suppressed police activity sheet. Echoing this holding, the Commonwealth

argues (Br. 99-105) that suppressed evidence cannot be material if the habeas

petitioner does not prove the evidence credible in a post-conviction hearing. But

requiring a habeas petitioner to prove the credibility of impeachment evidence in a

post-conviction evidentiary hearing as a prerequisite to materiality would thwart

Brady’s purposes by making it too easy for a prosecutor to suppress important and

favorable evidence.

This rule would contradict clearly established federal law. Brady and its

progeny do not require a habeas petitioner to prove the credibility of impeachment

evidence through testimony in an evidentiary hearing. It is the petitioner’s burden

to establish that suppressed evidence such as the Howard evidence is material. But

that standard has never required proof in an evidentiary hearing. Rather, the

petitioner must establish that effective use of the suppressed evidence by

“competent counsel would have made a different result [at trial] reasonably

probable.” Kyles, 514 U.S. at 441. This Court has thus found impeachment



21

evidence to be material under Brady without requiring an evidentiary hearing after

the fact. In Slutzker v. Johnson, for example, this Court had “little doubt” that a

suppressed witness interview in which a prosecution witness made statements

inconsistent with her trial testimony “constitute[d] material impeachment

evidence.” 393 F.3d 373, 387 (3d Cir. 2004). In so holding, the Court did not

require the petitioner to prove through an evidentiary hearing that the witness in

fact made the statement that was attributed to her in the witness interview.

In defending the state court’s judgment, the Commonwealth takes too

narrow a view of the utility of impeachment evidence. When a prosecution

witness describes one version of events before trial and another version at trial, it is

the inconsistency itself—not just the truth or falsity of either statement on its

own—that weakens the witness’s credibility. Defense counsel can also use a prior

inconsistent statement to impeach the quality and thoroughness of the police

investigation. Moreover, a prosecution witness’s prior inconsistent statement can

provide important leads for investigation.

None of these beneficial uses can practicably be demonstrated in an

evidentiary hearing years after the fact. Post-conviction evidentiary hearings often

take place, as in Mr. Dennis’s case, many years after trial has concluded.14

14 See Primus, Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings, 24 Crim. Just. 6, 6-7 (2009) (reporting that post-conviction proceedings begin more than



22

Witnesses are less likely to provide helpful testimony several years after conviction

because the lapse of time impairs memory.15 Further, witnesses are often less

willing to contradict their sworn testimony years later than they might be if

challenged at trial itself.16 These factors all combine to reduce the likelihood that

habeas petitioners with otherwise meritorious Brady claims could prove the

credibility of impeachment material.

Moreover, the effectiveness of impeachment can only be evaluated in the

context of the trial itself. The PCRA court’s substitution of its own credibility

determination for the determination the jury might have made at trial ignores the

context in which Howard’s statement could have been used. The proper standard

is not whether, 17 years after the fact, a judge not involved in the finding of guilt

determines that a witness is credible or not, but rather, as stated in Slutzker,

whether the suppressed impeachment material could, with reasonable probability,

have affected the jury’s verdict. By that correct standard, as the District Court

four years after conviction in most jurisdictions); Harris et al., Dispatch and Delay: Post Conviction Relief Act Litigation in Non-Capital Cases, 41 Duq. L. Rev. 467, 492 (2002-2003) (reporting that Pennsylvania PCRA evidentiary hearings typically begin several years after first post-appeal filing). 15 See Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607, 614 (1990). 16 See Casale et al., Gould v. Commissioner of Correction and the Conundrum of Being Legally Guilty But Actually Innocent in the Criminal Justice System, 86 Conn. B. J. 262, 284 (2012) (describing it as a “rarity” for material prosecution witnesses to recant testimony post-conviction).


23

found, the Howard statement is material, as “the activity sheet would have shown

that she either lied to Williams’ close relatives … or she was lying at trial.” A22.17

Given the significance of Howard’s testimony to the prosecution’s case, there is a

reasonable probability that confronting Howard with the contents of the police

activity sheet could have led to a different outcome at trial.

The materiality rule as proposed by the Commonwealth would create

perverse incentives for prosecutors, potentially subverting the aims of Brady. Put

simply, prosecutors who withhold significant impeachment evidence should not be

shielded by a requirement that petitioners have to prove materiality in a post-

conviction proceeding. The criminal justice system works best when prosecutors

have every incentive to disclose favorable and material evidence to defendants

before trial, rather than suppressing it until years later.

* * *

A prosecutor’s duty is “as much … to refrain from improper methods

calculated to produce a wrongful conviction as it is to use every legitimate means

to bring about a just one.” Berger, 295 U.S. at 88. Careful observance of the

Brady obligation is central to this duty, and courts should adopt legal rules that

17 The Commonwealth argues (Br. 108) that this distinction ignores the possibility that Howard did not, in fact, make the statement at all and that the police activity sheet itself is false. Had the prosecution been forced to rely on such a claim at trial, however, it would have undermined the credibility of the police investigation, as the district court noted. A22.



24

encourage prosecutors to resolve “doubtful questions in favor of disclosure,”

Agurs, 427 U.S. at 108. The legal principles applied by the state court and

advocated by the Commonwealth in this case would have the opposite effect,

excusing prosecutors’ suppression of classic Brady evidence that clearly should

have been disclosed. Those principles also violate clearly established federal law

and, as applied in this case, leave us with significant doubt as to the verdict.

CONCLUSION

The district court’s judgment should be affirmed.

Respectfully submitted.

/s/ Catherine M.A. Carroll CATHERINE M.A. CARROLL

Counsel of Record GIDEON M. HART DAVID WAKE WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6072

Dated: April 18, 2014



APPENDIX


A1

AMICI CURIAE FORMER PROSECUTORS AND JUDGES

Elizabeth K. Ainslie Assistant United States Attorney, Eastern District of Pennsylvania (1979-1985).

Hon. William G. Bassler

United States District Judge, District of New Jersey (1991-2006)

Judge, Superior Court for the State of New

Jersey (1988-1991)

Mary Beth Buchanan United States Attorney, Western District of Pennsylvania (2001- 2009)

Robert J. Cleary United States Attorney, District of New Jersey (1999-2002)

Acting United States Attorney,

Southern District of Illinois (2002)

Hon. Robert J. Del Tufo

Attorney General, State of New Jersey (1990-1993)

United States Attorney,

District of New Jersey (1977-1980)

New Jersey Director of Criminal Justice (1976-1977)

Member, New Jersey State Commission of

Investigation (1981-1984)

Prosecutor, Morris County, New Jersey (1965-1967)


A2

Thomas J. Farrell Assistant United States Attorney, Western District of Pennsylvania (1995-2000)

Hon. William J. Hughes

U.S. Ambassador to Panama (1995-1998)

U.S. House of Representatives, 2nd District of New Jersey (1975-1995)

Chairman, House Judiciary

Subcommittee on Crime (1981-1990)

Prosecutor, Cape May County, New Jersey (1960-1970)

Michael Murphy Prosecutor, Morris County, New Jersey

(1990-1995)

Former President, New Jersey State Prosecutors’ Association

Hon. Stephen M. Orlofsky

United States District Judge, District of New Jersey (1996-2003)

United States Magistrate Judge,


Carl Schnee United States Attorney, District of Delaware (1999-2001)

Hon. Herbert Stern United States District Judge,


United States Attorney, District of New Jersey (1971-1974)

F.L. Peter Stone United States Attorney,

District of Delaware (1969-1972)


A3

James J. West United States Attorney, Middle District of Pennsylvania (1985-1993)


CERTIFICATE OF BAR MEMBERSHIP

I, CATHERINE M.A. CARROLL, counsel for amici curiae, hereby certify

that I am a member of the bar of the United States Court of Appeals for the Third

Circuit.




CERTIFICATE OF COMPLIANCE PURSUANT TO FED. RULE OF APP. PROC. 32(a)(7)(C)

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby certifies

that this brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B).

1. Exclusive of the exempted portions of the brief, as provided in Fed. R.

App. P. 32(a)(7)(B), the brief contains 5,805 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed.

R. App. P. 32(a)(7)(C), the undersigned has relied upon the word count feature of

this word processing system in preparing this certificate.




https://web2.westlaw.com/find/default.wl?cite=FRAP+32(a)(7)(c)&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3


https://web2.westlaw.com/find/default.wl?cite=FRAP++32(a)(7)(b)&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

https://web2.westlaw.com/find/default.wl?cite=FRAP++32(a)(7)(b)&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

https://web2.westlaw.com/find/default.wl?cite=FRAP+32(a)(7)(b)&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3

https://web2.westlaw.com/find/default.wl?cite=FRAP+32(a)(7)(b)&rs=WLW12.07&vr=2.0&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&mt=Westlaw&clientid=USCA3



CERTIFICATE OF COMPLIANCE PURSUANT TO THIRD CIRCUIT RULE 31.1(c)

Pursuant to Third Circuit Rule 31.1(c), I, CATHERINE M.A. CARROLL,

counsel for amici curiae, hereby certify that the text in the electronic copy of the

Brief for Former Judges and Prosecutors as Amici Curiae in Support of Appellee is

identical to the text in the paper copies.

I further certify that the electronic copy of the Brief for Former Judges and

Prosecutors as Amici Curiae in Support of Appellee was scanned for viruses by

Trend Micro OfficeScan Client and no viruses were detected.




CERTIFICATE OF SERVICE

I, CATHERINE M.A. CARROLL, hereby certify that on this 18th day of

April 2014, I electronically filed the foregoing Brief for Former Judges and

Prosecutors as Amici Curiae in Support of Appellee with the Clerk of the Court for

the U.S. Court of Appeals for the Third Circuit using the appellate CM/ECF

system. Counsel for all parties to the case are registered CM/ECF users and will

be served by the appellate CM/ECF system.

I further certify that on April 18, 2013, I caused seven paper copies to be

served on the Clerk of the Court for the U.S. Court of Appeals for the Third Circuit

by Federal Express. I also caused one paper copy to be served by Federal Express

on the following:

THOMAS W. DOLGENOS Chief, Federal Litigation Unit RONALD EISENBERG Deputy District Attorney, Law Division EDWARD F. MCCANN, JR. First Assistant District Attorney R. SETH WILLIAMS District Attorney of Philadelphia RYAN DUNLAVEY Assistant District Attorney District Attorney’s Office Three South Penn Square Philadelphia, PA 19107-03499




u states court of appeals third circuit -...

Documents