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Prosecutor’s Witness Prep Not Brady Violation

Deborah Elkins//October 6, 2015

Prosecutor’s Witness Prep Not Brady Violation

Deborah Elkins//October 6, 2015

Although a state habeas court found that a prosecutor had a pretrial discussion with a pharmacy owner about “fear” and the need to prove “fear” to convict defendant of attempted robbery of the pharmacy, the conversation was routine trial preparation, and the 4th Circuit reverses an order granting habeas relief based on the claim that the prosecutor violated Brady v. Maryland by not revealing that conversation to defendant.

‘Fear’ mongering

The district court granted Steven Watkins’ petition for a writ of habeas corpus under 28 U.S.C. § 2254, finding that the West Virginia prosecutor had, after trial, admitted to Watkins’ defense counsel that the victim of Watkins’ attempted robbery told the prosecutor before trial that he, the victim, had not been put in fear by Watkins on the date of the crime, an element essential to conviction under West Virginia law, and that the prosecuting attorney had failed to so inform Watkins. Based on this finding, the district court concluded the state habeas court had unreasonably applied Brady v. Maryland.

On appeal, the West Virginia officials claim the district court impermissibly found new facts and erred in failing to give the appropriate deference to the state habeas court’s factual findings and conclusions of law as to the Brady claim. We agree and reverse.

Watkins relies entirely on an amorphous statement made by the prosecutor to Watkins’ defense counsel Adkins after the trial had been completed. The record shows the prosecutor made a post-trial observation to defense counsel Adkins “to the effect that Mr. Zimm might not have been scared of Mr. Watkins” on the day of the attempted robbery. That evidence, however, does not mean that that information or belief was something known to the prosecutor before trial. To the contrary, the post-trial observation could have been based on something that some other unidentified person had said to the prosecutor post-trial, or that the pharmacy owner himself might have said to the prosecutor post-trial, or that amounted to mere retrospective speculation. In any of those circumstances, as well as others, it could not be said that the prosecutor possessed Brady material.

We conclude that the state habeas court did not base its decision on an unreasonable determination of the facts and we note that Watkins did not attempt to rebut the presumption of correctness by clear and convincing evidence. Similarly, we conclude that based on its entirely reasonable factual findings, the state habeas court did not apply the Brady rule in an “objectively unreasonable” manner. The facts found by the state habeas court do not impute information to the prosecutor before trial that the pharmacy owner had said he was not afraid. Without such a fact in the record and such a factual finding by the court, there could be no Brady violation.

To be sure, the state habeas court did find that the prosecutor and the owner had had a pretrial discussion about the definition of “fear” and the necessity of proving “fear” at trial. But that conversation was no more than routine trial preparation. As the state habeas court concluded, “Mr. Parsons’ statements to Mr. Zimm with regard to the element of ‘fear’ were an accurate way to describe elemental requirements to a lay person/witness and that there was no evidence that Mr. Parsons suggested or improperly influenced Mr. Zimm’s testimony.”

The district court’s order granting Watkins’ petition for a writ of habeas corpus is reversed.


Traxler, J.: I concur in the majority opinion. The West Virginia state court’s rejection of Watkins’ post-conviction claim — that the state prosecutor failed to disclose an alleged, exculpatory “lack-of-fear” statement made by the victim in violation of Brady –- was not an unreasonable one in light of the evidence presented in the state court proceedings.


Motz, J.: I agree with the majority that the state court did not base its denial of habeas relief on an unreasonable finding of the facts and that a federal court reviewing a state habeas ruling must defer to the state court’s factual findings. But for these very reasons, I cannot agree that the district court erred in granting habeas relief. For in holding that the district court impermissibly “placed its own gloss upon the state court’s factual findings,” the majority itself does precisely that.

Watkins established before the state habeas court a clear Brady violation: the prosecutor possessed and did not disclose evidence that a witness said that he was not afraid during the alleged attempted robbery; fear was an essential element of the crime; that witness was the state’s key witness on the fear element; and the fear element was hotly contested throughout the trial. Given the critical nature of the impeachment evidence here, it was unreasonable for the state habeas court not to conclude that the state had violated its Brady obligations.

The district court properly granted habeas relief. The majority’s contrary holding piles a further injustice on a man already victimized by improper governmental action.

Watkins v. Rubenstein (Niemeyer) No. 14-6513, Sept. 23, 2015; USDC at Charleston, W.Va. (Goodwin) Elbert Lin, Office of AG, for appellant; Michael Hissam for appellee. VLW 015-2-152, 69 pp.


VLW 015-2-152

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