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July 2017 , Page 05 

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From the President: Turner v. United States

By Barry J. Pollack

Read more From the President columns.

“The difference between the two cases lay in the Government’s files — evidence of obvious relevance that prosecutors nonetheless chose to suppress.”
Turner v. United States582 U.S. ____ (2017) (Kagan, J., dissenting)

Most Supreme Court opinions have a significant national impact. On June 22, 2017, the Supreme Court decided Turner v. United States, a case that not only has national implications, but also to me, is highly personal. While, like all lawyers, we like to tell stories about our wins, most stories criminal defense lawyers have to tell end in losses. The story of Turner v. United States is a long one, spanning 37 years. It ends in a loss. The story deserves to be told, however, not just to bemoan the result, but also to highlight the role we play as criminal defense lawyers, the clients we represent, and the reasons we do what we do.

The story of this case began in 1984. Given the Orwellian nature of the tale, the year seems fitting. The story seemingly ended 33 years later when the Supreme Court ruled, 6-2, that the government withheld significant evidence that the crime was not perpetrated by the six petitioners before the Court, who each had spent decades in jail, but rather by another individual who was never prosecuted. Yet the six-justice majority ruled that the withheld evidence was not material. In the majority’s view, the trial the petitioners received in 1985, in which the jury heard evidence that implicated the defendants, but never heard any evidence that the crime was committed by someone other than the defendants, was good enough. The fact that the trial did not include evidence of a different perpetrator did not undermine the confidence of these justices in the jury’s verdict.

In October 1984, Ronald Reagan was about to win re-election in a landslide. It was morning in America. The crack epidemic, and the violence it brought with it, had not yet descended on our cities. Reagan was fighting fictional welfare queens who were milking the system at home, and fighting the evil empire of the Soviet Union abroad.

The corner of Eighth and H Street, Northeast, in Washington, D.C., was the heart of a predominantly African American, working class community. While it had its share of petty thieves and small-time drug dealers, it was not the violent and dysfunctional place that many inner city neighborhoods already were, and which many more were about to become.

That is why it was shocking when on a rainy late afternoon in October 1984, the body of Catherine Fuller was found in a garage off an alley behind Eighth and H Street by an area street vendor. Mrs. Fuller had been beaten, brutally sodomized with an object, and murdered. Who had so violently attacked and killed this petite, defenseless working woman?

The police had no suspects, but received an anonymous tip that a neighborhood group of young men had been involved. The so-called Eighth and H crew was not an organized gang or crew. Such things did not exist at the time. Rather, it was a group of loosely connected young men who lived in the neighborhood. Some of them used drugs, some of them sold drugs, and some of them engaged in petty crimes. Others did none of these things.

The police theorized that this was a robbery gone bad and set out to prove it. They interviewed scores, and eventually hundreds, of people, using aggressive interrogation tactics and threatening those interviewed with life sentences if they were implicated in the crime and did not cooperate by telling the police who participated. Soon, the police had a small number of people claiming that, while they were not participants, they were there and saw who committed the crime. Since not every witness identified the same people, the police soon had a lengthy list of people whom at least someone claimed was a participant.

Ultimately, the police arrested 17 people for participating in the murder of Catherine Fuller. They obtained pleas from a couple of these individuals, who decided to cooperate and testify against others rather than risk life in prison.

Following massive pretrial publicity, 10 of the defendants were tried in a single trial. A number of cooperators testified to seeing a large group of people committing the assault. The two plea-bargained witnesses said they participated in the large group assault. And, a witness who was not suspected of participating and had no agreement with the government also testified that he saw a large group assault. This evidence resulted in the convictions of eight of the 10 defendants. Two were acquitted. Thirty-three years later, the Supreme Court characterized the evidence of a supposed large group assault as so strong that contrary evidence — that, in fact, the crime was committed by a lone assailant who was not among the people charged  — would necessarily have been disbelieved by the jury.

Yet even at trial, the government’s evidence was far weaker than it appeared. Each of the cooperating witnesses had significant credibility problems. There was no physical evidence tying any of the defendants to the crime scene. The street vendor who found Mrs. Fuller’s body had been in the vicinity all afternoon, but never saw a large group of people. Nor did any of the hundreds of other witnesses interviewed by the police in the course of the investigation, other than the handful of compromised witnesses the government presented at trial.

The jury took a full week to reach verdicts on eight of the 10 defendants. They reported they were hopelessly deadlocked on two others  — Chris Turner and Russell Overton. The judge ordered them to continue to deliberate with respect to those two. The jurors later reported to the media that in the ensuing days, they took between 40 and 50 votes on these two defendants before finally convicting them as well.

As Paul Harvey used to say, “And now for the rest of the story.” The street vendor testified that he saw two people acting suspiciously right outside of the garage where he had found Mrs. Fuller’s body. They both ran off as the police arrived. The street vendor could give only a vague physical description of each.

What the defense was not told was that two other witnesses followed the street vendor into the alley. Each saw the two men. Each knew the men and identified them as James McMillan and Gerald Merkerson. The police showed the street vendor a photo array that included McMillan and Merkerson and one of the defendants, and asked if the street vendor recognized either of the men he saw that night. Plainly, they did so believing that if the defendant was one of those men, that fact would be evidence of his guilt. But the vendor did not recognize the defendant. Instead, he identified McMillan and Merkerson as the two men he saw. Thus, the police now had three independent identifications of McMillan and Merkerson as the men who were near the body, acting suspiciously, and fleeing upon the arrival of the police. None of this was shared with the defense.

The police also knew that within two weeks of the Fuller murder, McMillan, acting alone or with one other person, had violently assaulted and robbed two other woman within a couple of blocks of where Fuller was murdered. Since the defense did not know that McMillan was one of the men seen at the Fuller murder scene, it was unable to make any use of McMillan’s ongoing crime spree against women in the neighborhood.

The identity of McMillan as the person at the Fuller crime scene was not the only thing suppressed by the prosecution. The government witnesses at trial all described Mrs. Fuller being dragged into the garage and assaulted in the garage where the street vendor later saw her body. The garage doors were open, with people moving in and out of the garage during the attack. The garage doors were open when the street vendor found Mrs. Fuller’s body.

Yet right around the time that the coroner estimated as Mrs. Fuller’s time of death, three people were walking through the alley. None of them saw a large group of people. Two of them heard moans from inside the garage. One of them recalled that the garage doors were closed.

The most reasonable inference from this evidence is that the attack took place with the garage doors closed, in the garage’s small confined space, which would not have accommodated a large group of people. When the attack ended, the assailant(s) left, leaving the door open.

For the government’s trial theory to have been correct, on the other hand, the attack would have to have occurred with the doors open. Someone would then have had to have closed the doors after the attack, something none of the government witnesses claimed happened. And then some mystery person would have to have reopened the doors before the street vendor found the body.

Alternatively, the witness who distinctly recalled the doors being closed and had no apparent bias, could have been mistaken. And the large group of people would somehow have to have gone unnoticed by all three of these people. Just as they had also been unnoticed by the street vendor.

No one can say for sure which of these scenarios is correct. What we do know is that the government never disclosed the existence of these three witnesses to the defense.

Flash forward 25 years. It is 2010. Patrice Gaines, a freelance journalist, wrote a piece that was published in the Washington Post calling into question the guilt of the seven men still in prison for the murder of Catherine Fuller (one died in prison). One of these men, Chris Turner, had written to the Mid-Atlantic Innocence Project asking it to review the case. MAIP had recruited lawyers to represent several of the men.

One of those lawyers, one who had undertaken to represent Chris Turner, later became a D.C. Superior Court judge, sitting on the same court where Turner and the others had been convicted in 1985. No longer able to continue representing Chris, he asked me to do so. Little did I know that I would do so for the next seven years or that Chris’ case would likely stay with me for the rest of my life.

What followed was a three-week evidentiary hearing in D.C. Superior Court on a postconviction petition filed by the seven surviving defendants. This go around, rather than being represented by court-appointed attorneys with limited resources, the defendants were represented by MAIP, Williams & Connolly, Skadden Arps, O’Melveny & Myers, and other talented and well-resourced lawyers.

The police who investigated the case and the prosecutors who tried it all testified. The prosecutor conceded he had not told the defense that three witnesses had identified one of the two people at the crime scene as James McMillan, the man in the midst of a crime spree against women in the neighborhood. The prosecutor conceded he did not disclose to the defense the three witnesses who walked through the alley, saw no group of people, heard moans from the garage, and one of whom recalled the garage doors were closed. The prosecutor conceded that if the assault was occurring inside the garage with the garage doors closed, that would be inconsistent with a large group assault and consistent with a single perpetrator. A medical examiner testified that the injuries suffered by Mrs. Fuller were more consistent with a single perpetrator or a very small number of assailants than a large group of attackers. And, the two-plea bargained government witnesses testified that they perjured themselves at the original trial, were not involved in the assault, did not know who was, and testified to participating in a large group assault and identified the defendants as fellow perpetrators because they feared longer prison sentences if they had told the truth and denied their involvement.

The trial-level judge disbelieved the recanting plea-bargained witnesses. He noted that the medical examiner could not rule out a large group assault. Finally, he found that the evidence at trial of a large group assault was so compelling that even if McMillan was involved, that only meant he was part of the large group, not that the defendants were innocent. The court of appeals agreed.

In a last ditch Hail Mary, we filed a petition for certiorari. To get the Court’s interest, we framed the questions as important legal issues. We argued there was a split in the circuits. Still, we did not believe that there was any realistic chance the Supreme Court would take an appeal of a state case where the trial court ruled against us, a unanimous panel of the appellate court ruled against us, and rehearing en banc had been denied without a single dissent.

Miraculously, the Supreme Court not only granted cert., it also reframed the question presented broadly, asking whether the court below violated the petitioners’ rights under Brady v. Maryland. Expert observers of the Court saw this as a sign the Court was poised to reverse.1

Seven amici filed briefs with the Supreme Court for the petitioners. Of course, the National Association of Criminal Defense Lawyers was among them. Others filing on behalf of the petitioners included the Cato Institute, the Texas Public Policy Foundation, 34 former prosecutors, and the Innocence Network.

Chris Turner, who had been released on parole after serving 25 years, attended the oral argument. The six other surviving petitioners remained in prison. John Williams of Williams & Connolly did a superb job arguing for the petitioners. Michael Dreeben, one of the most experienced and talented Supreme Court advocates in history, represented the government. I know Michael Dreeben and have the utmost respect for him. When he walks into the Supreme Court, you can rest assured the United States will be well represented. And, most likely, it will win. It did here. The experts who predicted reversal were wrong.

Mr. Dreeben emphasized the numerous witnesses who said this was a large group assault, including two people who pled guilty to participating in such an assault. Surely, he argued, even if the jury had known of McMillan, it would not have believed the other witnesses were all lying or mistaken. Mr. Dreeben also assured the Court that the government today goes above and beyond its Brady obligations. The late Sen. Ted Stevens, the Duke lacrosse players, Judge Alex Kozinski, who has written about the epidemic of Brady violations, and many others might have begged to differ, but they were not represented before the Court.

Who lost? Chris Turner, for one. I have come to know and greatly admire Chris Turner. Indeed, I would be honored if he has come to consider me a friend. A high school graduate at the time of the Fuller murder, he had no criminal history whatsoever. He earned a college degree while incarcerated. He took every course available to him in the Bureau of Prisons. He was released on parole the first time he was up, despite the fact that he said he was innocent, thereby demonstrating he had not accepted responsibility for his supposed offense. From a prison cell, he got a Washington Post reporter and many top flight lawyers interested in championing his cause, and that of his co-defendants.

Since his release, he has been consistently gainfully employed  — despite a 25-year gap in his resume and being a convicted murderer. Throughout, he has remained positive. Serving as a role model and inspiration to his still-incarcerated co-defendants (which include his brother, as well as men whom he never knew prior to the trial) and to his lawyers.

It is inconceivable to me that Chris Turner participated in Catherine Fuller’s murder. I base this on having spent years with the evidence in this case, not on having gotten to know him over the past several years. Getting to know him, however, only reinforces my evidence-based conclusion.

While Chris lost, at least he is free. The other petitioners lost a chance at freedom. They remain incarcerated.

But the petitioners are not the only losers. The criminal justice system is a loser. The criminal justice system failed the defendants and it failed the public. Prosecutors did not provide critical evidence to the defense. They thereby deprived the jury of that evidence. Even if you believe the defendants were guilty, the system failed.

The Supreme Court lost. This was not a shining moment for the Court. Rather than hold prosecutors to a standard that demands fair play and justice, they excused a failure to turn over critical evidence based on a belief that ultimately they got the right men. In sum, the ends justified the means. Even if you believe the petitioners were guilty, is letting guilty people go after they have served 30 years too high of a price to pay to send a message that the criminal justice system demands integrity? Apparently, six justices thought so.

Two justices thought otherwise. Justice Kagan’s powerful dissent began like this:

Consider two criminal cases. In the first, the govern­ment accuses 10 defendants of acting together to commit a vicious murder and robbery. At trial, each defendant accepts that the attack occurred almost exactly as the government describes  — contending only that he wasn’t part of the rampaging group. The defendants thus un­dermine each other’s arguments at every turn. In the second case, the government makes the same arguments as before. But this time, all of the accused adopt a com­mon defense, built around an alternative account of the crime. Armed with new evidence that someone else perpe­trated the murder, the defendants vigorously dispute the government’s gang-attack narrative and challenge the credibility of its investigation. The question this case presents is whether such a unified defense, relying on evidence unavailable in the first scenario, had a “reason­able probability” (less than a preponderance) of shifting even one juror’s vote.

Kagan, joined by Justice Ginsberg, of course answered yes to this question. In my book, Justice Kagan got it exactly right.

Notably, James McMillan went to prison for the other violent assaults he committed against women in Northeast D.C. in October 1984. He served several years in prison. Shortly after his release, acting alone, he violently attacked, sodomized, and murdered a woman in Northeast D.C., just a few blocks from where Catherine Fuller was murdered. Yet even knowing this, six justices were so convinced that Catherine Fuller was murdered by a large group rather than by McMillan that they are willing to overlook the government’s failure to provide the defense critical evidence implicating McMillan in the Fuller murder.

In my most recent president’s column, I talked about heroes. Justices Kagan and Ginsburg are heroes in this story for not succumbing to the majority’s willingness to turn a blind eye to the government’s failure to meet its obligations. While he lost his case, Chris Turner is a hero in this story for his grace, his determination to right a wrong, and for his unwavering support for those who suffered the same injustice and remain in prison. The Mid-Atlantic Innocence Project and all of the lawyers who gave countless hours of their time fighting this fight are heroes.

I said at the beginning of this column that the Supreme Court seemingly ended that fight. I used the word “seemingly” because I know that despite the Supreme Court’s decision, Chris, his co-defendants, and their lawyers will continue the fight to obtain their release from prison and clear their names. I salute all of them and am proud to work with them.

As my term as president of the National Association of Criminal Defense Lawyers ends, I wish to thank every single member of NACDL. It has been an extraordinary honor serving as president of this organization. Every day, in courtrooms all over the country, criminal defense lawyers face long odds, overzealous prosecutors, hostile judges, and a public that is often unsupportive, if not derisive, of the role we play. But we do what we do for the Chris Turners we encounter on a daily basis.

We do what we do because we care deeply about justice. Even when we fail to achieve it, we should take pride in having fought the good fight. We should pay tribute to those who have fought on our side. Most importantly, we should celebrate our clients. Each has qualities worth lauding. If we do not recognize and celebrate the best in our clients, sadly, often no one else will.

We should not allow our losses to defeat us. Rather, we should use them to motivate us in our next battle in the ongoing fight to achieve justice.

Notes

  1. See, e.g., http://www.scotusblog.com /2017/03/argument-preview-court-weigh-suppression-evidence-notorious-d-c-murder/(“When the convicted men asked the Supreme Court to take on their appeal, their two petitions presented three questions, all related to Brady, for the justices’ possible review. But in their order granting certiorari, the justices asked the men and the government to brief one, simpler question: whether the men’s convictions “must be set aside under Brady.” That change in the question presented, especially when combined with the highly fact-bound nature of the case, at least suggests that the justices granted review to reverse the men’s convictions.”).
About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
Washington, DC
202-626-5800
www.milchev.com
@millerchevalier
bpollack@milchev.com 

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