Ernest Charles Downs v. Secretary, Florida Department of Corrections
738 F.3d 240
11th Cir.2013Background
- In 1977 Ernest Downs was tried and convicted in Florida of first-degree murder and conspiracy for the murder of Forrest Harris; Larry Johnson (co-defendant) was the State’s main witness and received immunity.
- Downs’s counsel Richard Brown had a contingency/bonus retainer promising $10,000 if Downs was acquitted of all felonies; Downs later alleged this created a conflict that affected trial strategy.
- At trial the defense presented no witnesses during the guilt phase; Brown testified post-trial that he chose not to call Downs or other defense witnesses based on strategic judgments (fear Downs would perjure himself or be impeached; weak alibi).
- Downs later discovered recorded jailhouse conversations (Barfield–Murray tapes) in which Barfield reported Johnson claimed to be the triggerman; the first intelligible tape was dated January 9, 1978—after the guilt-phase (Dec. 1977) trial.
- Downs exhausted state remedies (Rule 3.850 denial; Florida Supreme Court affirmed), was resentenced on Hitchcock grounds, then filed a federal §2254 petition raising Brady (withheld exculpatory evidence), conflict-of-interest (contingent fee), and ineffective-assistance (failure to call witnesses) claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady: State suppressed exculpatory evidence (Barfield→Murray→Spaulding) | Downs: tapes/ informant existence would have impeached State and shown Johnson was triggerman | State: recordings and intelligible statements were made after guilt-phase; Downs himself knew Johnson’s admission | No Brady violation — state courts reasonably found police didn’t have the info before trial and Downs had access to the statement |
| Ineffective assistance — failure to call Downs as witness | Downs: testifying could have supported innocence/absence as triggerman | State: Brown reasonably believed Downs was at scene, risked perjury/impeachment; tactical choice | No deficient performance — counsel’s decision was reasonable under Strickland |
| Ineffective assistance — failure to call Perry and Michael | Downs: they would have corroborated that Johnson was triggerman / provided an alibi | State: Brown investigated; found Perry unreliable and Michael’s alibi unsubstantiated; preserved opening/closing by resting | No deficient performance — tactical choice after investigation; not outside professional norms |
| Conflict of interest — contingent-fee retainer | Downs: bonus created a financial incentive against calling witnesses that might risk acquittal on all felonies | State: Brown credibly testified fee didn’t affect decisions; any hope for bonus faded early | No relief — even assuming an actual conflict, Downs failed to show the retainer adversely affected representation |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory/impeaching evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (actual conflict affecting representation can obviate showing of prejudice in multiple-representation context)
- Mickens v. Taylor, 535 U.S. 162 (2002) (Sullivan’s presumed-prejudice rule limited to multiple-representation context)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA requires deferential review; state-court decisions are upheld unless unreasonable)
- Williams v. Taylor, 529 U.S. 362 (2000) (definition of "clearly established Federal law" under AEDPA)
- United States v. Bagley, 473 U.S. 667 (1985) (materiality standard for impeachment evidence: reasonable probability of a different result)
- Dist. Att’y’s Office v. Osborne, 557 U.S. 52 (2009) (Brady disclosure obligation relates to pretrial/trial evidence in government possession)