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3rd Circuit Upholds Ruling Overturning Death Sentence for Failure to Disclose EvidencePersuading the federal courts to overturn a murder conviction is no simple matter, but lawyers for Zachary Wilson have now done it twice -- in two unrelated murder cases -- and the latest decision also throws out a death sentence. In the first case, the defense argued that prosecutors improperly struck blacks from the jury. In the second case, the defense argued that the prosecutor had improperly withheld information that could impeach key goverment witnesses.
The Legal Intelligencer2009-12-28 12:00:00 AM
Persuading the federal courts to overturn a murder conviction is no simple matter, but lawyers for Zachary Wilson have now done it twice -- in two unrelated murder cases -- and the latest decision also throws out a death sentence.
Both rulings are victories for defense teams led by Assistant Federal Defender Michael Wiseman, who successfully argued Wilson's habeas petition before U.S. District Judge John R. Padova and then defended Padova's rulings in appeals to the 3rd U.S. Circuit Court of Appeals.
In the first case, Wiseman argued that prosecutors improperly struck blacks from the jury when Wilson was tried for the February 1982 shooting of David Smith following a dispute over a game of craps.
By the time the case had made its way through the courts, a full-blown scandal had erupted in the Philadelphia district attorney's office over the videotape of a training session led by former Philadelphia homicide prosecutor Jack McMahon in which he discussed jury selection techniques prosecutors should use to exclude most African-Americans.
It was McMahon who prosecuted Wilson's first murder case and the 3rd Circuit declared that the video was "compelling evidence" that McMahon "regularly acted with discriminatory animus toward African-American jurors."
"There can be no doubt that if McMahon practiced in Wilson's trial what he preached in the tape, he violated Batson," the late Judge Edward R. Becker wrote in a 2005 decision joined by 3rd Circuit Chief Judge Anthony J. Scirica and Judge Jane R. Roth.
Soon after that ruling, Padova overturned Wilson's second murder conviction -- for the August 1981 gangland-style slaying of Jamie Lamb in a North Philadelphia bar -- after concluding that prosecutors had violated Brady v. Maryland by failing to disclose critical facts about three of the government's key witnesses.
Now a new 3rd Circuit panel led by Roth has upheld Padova's 2006 ruling, declaring that prosecutor Arlene Fisk (now an Assistant U.S. Attorney) had improperly withheld information that would have been considered important to the defense for its value in impeaching the witnesses.
"In light of the importance of the testimony of these three witnesses and the significant impeachment value of the undisclosed information, we conclude that Wilson's right to due process, as set forth in Brady, was violated by the Commonwealth's failure to disclose this information," Roth wrote in an opinion joined by Judges Theodore A. McKee and Michael A. Chagares.
Fisk could not be reached for comment on the ruling in Wilson v. Beard.
According to court papers, Fisk had called two eyewitnesses -- Jeffrey Rahming and Edward Jackson -- who identified Wilson as the shooter.
The third witness was Lawrence Gainer who testified that while he and Wilson were incarcerated together, Wilson had confessed to Lamb's murder and had told Gainer that he killed Lamb "because Lamb had killed [his] adopted brother, Ronnie Williams."
But defense lawyers set out to show that Fisk withheld important facts from the defense about each of the three witnesses.
Roth noted that the prosecution's case "was based almost entirely on the testimony of Jackson, Rahming, and Gainer."
Wiseman argued that the prosecutor withheld information about Jackson's prior conviction for impersonating a police officer; Rahming's history of mental health problems and psychiatric intervention; and evidence that a police detective provided Gainer with interest-free loans.
All of that information, Wiseman argued, could have been used to impeach the witnesses.
Roth agreed, writing: "There can be no dispute that all of this information would have been favorable to Wilson and could have been used to impeach the Commonwealth's three primary witnesses at trial and to undercut the Commonwealth's case against Wilson."
Assistant District Attorney David Curtis Glebe argued that Padova erred in holding that the prosecutor "suppressed" information about Jackson's criminal record because such information is public and could easily have been discovered by a diligent defense lawyer.
Roth disagreed, saying the 3rd Circuit has "clearly held that the prosecution bears the burden of disclosing to the defense a prosecution witness's criminal record, whether or not an explicit request has been made by defense counsel."
The argument that Fisk suppressed the information is even stronger, Roth found, because Fisk "failed to disclose this information when asked by the [trial judge] during a charging conference for the witnesses' criminal histories."
Roth also found that a competent defense lawyer would have quickly uncovered a valuable cache of impeachment fodder in Jackson's criminal files because the mental health evaluations conducted in connection with his prosecutions revealed a history of "headaches and blackouts" and an inability "to form adequate perceptions," that he is "easily confused," has "dissociative tendencies," "blackouts," "motor visual problems," "weak" "long and short term memory," "poor judgment," and "distorted perceptions of reality."
Combined with the suppressed information about Rahming's "long history of mental health problems," Roth found that the defense would have been about to mount a serious challenge to both of the government's eyewitnesses, effectively rendering the verdict unreliable.
Assistant District Attorney Thomas Dolgenos said in an interview that he was "disappointed" by the ruling and that he believes Fisk never violated Brady. He said no decision has yet been made about whether to pursue any further appellate options.