563 S.W.3d 533
Ark.2018Background
- In April 2001 William Burton was murdered and Dorothy Lawson was raped and survived; Lawson later identified Kenneth Isom in a photographic lineup and at trial. A hair recovered in the rape kit matched Isom by DNA statistics offered at trial.
- Isom was convicted of capital murder and other offenses and sentenced to death; direct appeal and prior postconviction and DNA requests were denied.
- This Court reinvested jurisdiction in the Drew County Circuit Court to allow Isom to pursue a writ of error coram nobis limited to Brady-type suppression claims after inconsistent testimony by a prosecutor about whether scissors were recovered.
- At the coram nobis hearing the circuit court (Judge Pope) limited prehearing discovery, heard testimony about photo arrays, field notes, and investigator reports, and denied Isom’s motion to recuse the judge.
- The circuit court dismissed the coram nobis petition; the Supreme Court (majority) affirmed, holding (1) no Brady violation shown as to eyewitness and investigatory materials, (2) discovery limits were within discretion, and (3) recusal was not required. Two justices dissented, arguing appearance and evidence of actual bias required a new hearing.
Issues
| Issue | Isom's Argument | State/Respondent's Argument | Held |
|---|---|---|---|
| Whether the State suppressed favorable identification evidence (Brady) — alleged failed ID on Apr 4 and equivocation on Apr 5 | Lawson viewed two photo arrays; a nurse note and other records show an earlier failed ID and McKelvey report showed Lawson equivocated — suppression was material | The record supports that only one enlarged poster array was shown on Apr 5; McKelvey notes were available/used at trial and inconsistencies were credibility matters | No Brady violation; circuit court’s finding that no April 4 failed ID was not clearly erroneous; suppression not shown or not material |
| Whether McKelvey investigator notes (showing equivocation) were suppressed and impeaching | McKelvey report showing Lawson said “it’s 1 or 3” was not turned over and was impeaching/favorable | Report was used at trial to refresh/impair witness memory; defense counsel had opportunity to view and admit it | Not newly discovered Brady material; circuit court did not clearly err |
| Whether undisclosed field notes of witness Linda Kay Johnson were favorable/impeaching | Handwritten notes recording prior inconsistent statements would impeach her trial testimony about time/place of observation | The statements were not material to murder, and trial elicited the impeaching facts (failure to mention during first interview) | Notes not favorable material under Brady; circuit court did not err |
| Whether the circuit judge should have recused for actual bias or appearance of bias | Judge had previously prosecuted Isom, twice resulted in acquittals and once in conviction; as prosecutor he lobbied the governor to rescind Isom’s parole — creates appearance/possible actual bias; judicial conduct at hearing reinforced concern | Prior prosecution alone does not require recusal; lobbying about parole was within prosecutor duties and judge’s courtroom remarks/limited discovery do not show disqualifying bias | Recusal not required; judge’s conduct did not show actual bias or disqualifying appearance (majority). Dissent would reverse and remand for new hearing due to appearance/possible actual bias |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose favorable, material evidence)
- Kyles v. Whitley, 514 U.S. 419 (1995) (Brady duty extends to law enforcement evidence known but undisclosed to prosecutor)
- Strickler v. Greene, 527 U.S. 263 (1999) (elements of a successful Brady claim)
- United States v. Bagley, 473 U.S. 667 (1985) (materiality: reasonable probability of different outcome)
- United States v. Agurs, 427 U.S. 97 (1976) (Brady disclosure duty exists even without specific defense request)
- Rippo v. Baker, 137 S. Ct. 905 (2017) (recusal required where probability of actual bias too high to be tolerable)
- Larimore v. State, 327 Ark. 271 (1997) (coram nobis available for fundamental errors including Brady)
- Cloird v. State, 357 Ark. 446 (2004) (appellate review of circuit-court factual findings for clear error)