*2 ELY, Before MERRILL and Circuit Judges, Judge. STEPHENS, District Judge. Circuit MERRILL, Appellant was convicted of bank rob- bery appeal and has taken this from judgment. question presented The sole is denying District Court erred sought by motion for new appellant upon the that the Gov- deliberately ernment concealed evidencе might clearly operated which favor.
If there had been such conceal right appellant’s process to due violated and entitled to new was Maryland, Brady trial. State10 L.Ed.2d 215 S.Ct. (1963); States, 343 Thomas v. United (9th F.2d 49 Upon principal trial the issue was identity. Appellant identified as em- robber two bank ployees. appellant On motion for re- prior
cited that
to trial
had ordered Government counsel to dis-
appellant
close to
the close of
any
case the
Government’s
pro-
witness favorable
his case and to
person
request. Appel-
duce such
at his
lant
counsel
showed
affidavit of his
following
submission
the case
had ad-
Government counsel
appellant’s
vised
counsel that at about
robbery
the time of the
a witness had
vaulting
high
fence
observed
behind the bank. The affidavit stated
process
further,
United
lack of due
“Said Assistant
States
is to be met and
Attorney
showing
declined to further
such a
was not made here.
general
there
witness.” Thus
was both
require
every
To
pretrial request
for favorable evidence
just
case of
what it
Gov
spe-
the hands of
Government
ernment learned from a
too
witness casts
request
cific
for the
wit-
*3
heavy a burden on a defendant.
In our
ness
his existence became known.
when
judgment,
where
is at issue and
what the
therefore need not consider
We
the defendant has
that the
shown
Gov
might
duty
prosecutor
the
ernment has failed to disclose the exist
request.
of such a
the absence
See
ence of an
self,
to the crimе it
Maryland,
Giles v. State
102,
entry upon
flight
or to
or
from the
(1967)
793,
known by defendant upon agree him majority motion. It is here I or- argued .necessary denying that such a der motion for new trial should establishing hearing if burden the defendant’s be set aside and that a further transcript ability We do have before us a not to the witness’s person observed, hearing Ap- ability on motion for new trial. but rather to his designated pellant transсript person’s specify the course of that proceeding part appeal. flight record on from the scene. Apparently unable, he production 3. The value of disclosure and transcript. diligent effort, to secure that may outweighed legiti- in some cases be unreportеd reporter’s Either it was or the prosecution, mate of the such as interests notes have been lost. protection witness from intimida- only showing by preservation 2. Here the the Govern- tion the defendant or appears anonymity. ment which in the record relates undercover However, on motion should held. No excuse at all is offered for main- agree hearing taining do not anonymity of the witness. inquiring limited to what the The observation is made anonymous boy only years learned from the nine time, old at the but this witness. is not offered as a reason and besides many years children of even tendеrer The defendant moved for a new trial testify are called in both civil sup- regularity. criminal cases pressed evidence favorable to the ac- only justification offered cused. A on the mo- held suppression ment for of information in- tion and it was denied for the reason ferentially in- the evidence known cluding witness, ment was not ac- simply is not in fact favorable. Obviously majority believes, cused. *4 government say All that the will on the do, government as I that the has not subject boy positive that the “was not suspicion been candid the court and (presumably whether he the bank rob- hangs heavy in thе air. ber) alley, up alley, ran down the the January 12, The trial commenced on jumped over the fence.” To me this January 14, 1965. On the appears insolent, flippant, to be a if not partial filed a statement of evi- disposition subject. the of dence favorable to the defendant. Later Initially gov- the law relies the day, government repre- on the same the weigh ernment to the information avail- partial sented to court the state- to able it and in faith determine complete ment was a Jan- statement. On possessed by information the uary 15, 1965, after the case was sub- governmеnt is favorable to the defend- mitted the to the and while obviously ant. But the conduct of deliberating, counsel for the government the an inference raised ment told defense counsel of the existence suppressing it is favorable evidence of a witness who had observed a longer up thе to is no vaulting high a fence the at behind bank government to make the decision as to robbery, about the time of the this whether what it knows is or is not government witness furnished the with a favorable. government statement then counsel At the on the motion for new gov- refused to The witness. the court, government in the trial the steadfastly ernment has ever since re- gov- made a disclosure as to the fused to disclose the concerning potential ernment knew the give copy witness and has refused to of of the witness. The trial judge witness’ statement to the defendant. opinion that what was sufficiently disclosed was not favorable appears There to be no doubt but that to affect the outcome of the trial. But concerning the information the unnamed government’s lack candor has been witness was communicated to defense completeness such of the dis- counsel in the context court’s order suspect, sug- closure is- witness to disclose the of all witnesses gestion majority opinion in the might who furnish evidence favorable judge might discretion re- to If the accused. not witness was quire to witness test “to in fact known to be favorable to the de- government’s accuracy repre- fendаnt, the Assistant United States At- sentations as to what it had learned torney nothing should have said at all. from him.” appears government But now something suppressing knows which it is potentialities am disturbed strong injustice phrase, it is fa- precise “the is- vorable to government the defense or it would be will- sue what had learned ingly question.” disclosed. from ex- witness For robbery says informa- might that he has government cease inter- ample, the man on trial. tion clear the which will deliberately rogation to of a witness doesn’t know what knowledge evidence favorable avoid be, it knows but would would back witness accused. the ac- the witness would favor up government’s he didn’t claim that my opin- situations, it is cused. In such anything to the accused.1 relate ion refusal to name the witness that a perhaps receive Or suppression of evidence favorable telephone from a call witness accused.2 Apрlication Kapatos, D.C., that he is See time learns Danise, (1962). F.Supp. for the crime. In view of this this tried parity dis- investigating powers important sequences between the witness defendant, I do commission of a murder was known to the of the state and the prosecution testify. imposes think it too onerous but not called to require attorney transcript prosecuting it to dis- had a burden state before the close signficance existence of a witness of this witness’ Grand Jury, case. did call him as a of Danise in the instant but very least, did not consider his At the since he testimony probative he had no made beсause aware credibility. requested ruling When confidence in his final should have ly testify respect prosecutor called to in the federal court *5 corpus proceeding, duty promises. in the habeas the fol in the His unilateral lowing (see footnote, page keep undisclosed faсts came out decision to petitioner, 886): Danise who saw invited the risk of error.” murder, had been convicted of the up walk shooting the street after the and v. Wil- ex rel. Meers See United States persons (1964), citing Cir., kins, the witness observed two other 2 F.2d 135 326 quot- escaping extremely suspicious approval Kapatos under cir- and with ing case page disappear appears in 1 from and from view. He what footnote cumstances opinion. opinion did ney District Attor- of that The con- not tell the. Assistant 888 following paragraph: investigated case because the cluded with the who Attornеy an alibi. “Petitioner’s defense was did not ask Assistant District Jury prosecution positive iden- The relied on tell him. He tried to the Grand by eyewitnesses. The in two it but cut off the middle. tification about was prosecution eyewit- police two other knew of to tell the officer He started positive state- if had made him the courtroom nesses who had taken to to see petitioner accused, to the that but ments effect ho could person police involved in crime. fed- not officer would not listen. The granted that their habeas There can bo no court the writ of eral pe- corрus conditionally material. ordered the would speculate opin- commenting discharged, to the effect in We cannot as tioner page would have had on the this 8S7: ion opportunity principle hear if it an an had “It lias been established opportuni- jurisprudence, that it. The ty by was denied of Supreme at least since our Mooney prosecution’s of the failure v. virtue decision Court acquaint 103, 340, Holohan, trial defense counsel and the 79 to judge 294 U.S. 55 S.Ct. (1935), witnesses. con with the names of the L.Ed. a state’s 791 prosecution may In the of this be con circumstances of so duct trary a prоper concepts justice witli denial was inconsistent of to fundamental fairness, process, and constituted a denial of standards as to constitute due judgment denial of a a cor conviction writ of habeas correctible process Therefore, pus.” the or- due of law. aрpeal page from is affirmed.” Rives, der And at 888: 66, U.S.App.D.C. purpose much Curtis of a is as “The referring appel- acquittal F.2d an innocent prosecution charge guilty one. lant’s conviction of it is tire usually favor- average or witnesses” concealed “evidence accused does stated, accused, “We manpower able to the may resources avail- or have the investigation violation that this would be a assume in its able to the state process of the Fifth clause he have access to due the crime. Nor does which has Amendment.” much of all of the usually оr obliterated removed On motion for a trial on the new be to determine examined likely that the defendant de- has been would have affected outcome of process nied due because the the trial. suppressed evidence favorable infrequently mindful am that not accusеd, be must determined very there are and sufficient rea- whether the evidence would be favorable disclosing sons for not of a enough likely make suggestion witness. judge produce trial would result. different to hold should decide whether such To make this determination in case open camera сourt in or where the witness is un- known to have probability objections all will overcome thought knowledge disclosed which analysis, But final disclosure. the testi- against if a reason is advanced disclosure mony of the witness must be taken. produc- the witness or witness, tion of must majority says pass upon sufficiency. its рersistence refusing ment’s name Barring of a sufficient existence raises an which inference against identifying producing reason “the meets defendant’s initial burden of witness, boy the identity I think that the whose suppressed the nature of the suppressed has been should be testimony.” An must inference only interrogated con- drawn from fact. The fact from which government, cerning suspicious told the drawn is the inference concerning everything he but can remem- government. conduct of But ber which is this case. This relevant to suppressed testimony nature only way justice can is the be done actually supplied by not at all appearance upheld justice and the except that it is inferred that tes- such preserved. timony probably will favor the accused. Ordinarily suppress- substance supplied ed evidence is to the court *6 step the in- defendant. is This dispenses step ference with. The is next supplied examine what has been defendant to determine sufficiently to the accused
to affect the outcome of a trial. But nothing
here furnishes testimony examined until ob- CHILDRESS, Jr., Appellant, John W. tained. suppression ENTERPRISES, INC., EARL WHITLEY suppression is the of his testi- witness Whitley, individually and Earl and as mony, whatever be. Viewed Whitley Enterprises, President of Earl light, conduct of the Inс., Appellees. given that evi- rise an inference No. 11365. dence in the form of Appeals United States Court of being suppressed defense Fourth Circuit. the ini- this should relieve defendant of Argued Nov. 1967. ordinarily tial bears. burden which point, At this should be Decided Jan. produce testimony, called just part actually of it government, whole known to but the by producing of it himself suppressed. because all of has been taken,
Then can