Abdur 'Rahman v. Colson, No. 09-5307 (6th Cir. Aug. 17, 2011) (to be published). Majority of Chief Judge Batchelder and Judge Siler. Judge Cole in dissent.
Death-penalty case out of Tennessee. Long appellate process. This opinion arises from 2254 claims. The petitioner argued that the prosecution had withheld Brady evidence: pre-trial statements by an accomplice that a sort of gang had influenced the crime and coerced the petitioner into committing it; and a detective's account of the petitioner's self-destructive behavior while in custody (showing serious mental-health issues). Petitioner argued that this evidence may have allowed one or more jurors to conclude that life in custody rather than death was appropriate.
The majority rejected the petitioner's cumulative-error argument on procedural grounds.
The majority found that the petitioner knew of the exculpatory information in the accomplice's statements. The majority also concluded that the petitioner may have known the essential facts of the detective's report on the head banging. Or the petitioner's counsel should have discovered the facts through investigation. And suppression of the report (by the prosecution) did not undermine confidence in the sentence. The majority found that the evidence "would have done little to establish Abdur 'Rahman's mental illness." Or it could have been viewed, according to the majority, as evidence of culpability. The majority affirmed, finding no Brady violations.
Judge Cole dissented. His dissent is worth reading and brings to the forefront issues of justice, the role of counsel (for both the government and the defense), and the challenges defense counsel face.
He writes, "To be sure, the majority has put forth support for its positions, as I have for mine; but viewed at a distance a pattern emerges, and it reveals that the majority’s animating concern—even in this
pre-AEDPA case—has not been to ensure that a conviction was had without constitutional error, but to efface in the name of federalism, finality, and comity any errors that were present."
He continues, "Getting there is easier than you think. It merely requires a ceaseless commitment to privilege formalism over every other legal value; nowhere is that simpler to do than in the thicket of the Great Writ. If we chop claims into enough pieces and deal with each in a way that is perfectly abstracted from the reality of the death-penalty courtroom, all the errors vanish. The spell does break eventually, when someone looks hard enough to see past the sleight of hand. Whether the revelation will come to a person with the authority to spare Abdur’Rahman, and in time, I do not know."
He finds that "At least one juror could reasonably be predicted to see the case in a different light and vote for life after considering all the withheld evidence in mitigation and the detrimental effect that evidence would have had on the prosecution’s case for death."
His conclusion is haunting: "A parting thought. Whatever your take on the merits of Abdur’Rahman’s claims, one thing about this case is undeniable: the prosecutor desecrated his noble role. He failed grossly in his duty to act as 'the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88 (1935). Abdur’Rahman may face the ultimate penalty as a result; Justice will bear a scar."
