Tenth Circuit Bends the Rules for a Defendant Due to Prosecutorial Indiscretion

By Megan Marlatt

In Douglas v. Workman, two Oklahoma inmates on death row were granted new trials due to prosecutorial indiscretion.  Yancy Douglas and Paris Powell were both convicted of murdering a fourteen year old girl in 1993.  Nos. 01-6094, 06-6091, 06-6093, 06-6102 (10th Cir. Mar. 27 2009).  The district court granted Powell a new trial, but, after receiving the same evidence, denied Douglas a new trial.  The Tenth Circuit, however, granted defendant Douglas the relief of a new trial under Brady v. Maryland despite the fact that he failed to meet the requirement under 28 U.S.C. § 2244(b)(2)(B)

Under 28 U.S.C. § 2244(b)(2)(B), because Douglas filed a claim for relief under Brady while his first habeas petition was pending, his Brady claim should be considered a second or successive request.  Ordinarily, second or successive habeas petitions require the defendant to show that the facts underlying the claim could not have been discovered previously and that the evidence as a whole with the new facts would prove by clear and convincing evidence that no reasonable factfinder would find the defendant guilty.  However, the Tenth Circuit provided an exception for Douglas due to the unique circumstances of his case.

In 1999, after both Douglas and Powell were convicted, the prosecution’s key witness recanted his testimony implicating the two defendants.  Other evidence indicated that the witness had not only lied about the defendants’ involvement in the murder, but he also claimed the prosecutor Brad Miller had not secured a deal for him on unrelated pending charges.  In fact, throughout the period of time it took to convict both Douglas and Powell, the prosecutor had helped the witness get reduced sentences for five different offenses.  At trial, the prosecutor allowed the witness to testify that he had received no deal as well as that he clearly saw the defendants shoot at the murdered girl and himself, when he had previously told the prosecutor that he could not identify his assailants.  More importantly, Brad Miller argued in his closing statement that because the witness had not been given a deal, he should be viewed as credible.

The Tenth Circuit found that, though the facts underlying Douglas’ habeas claim clearly were only available after Douglas filed his initial habeas petition, it was not clear that no reasonable jury could convict him.  Because of the unique facts of this case, however, the Tenth Circuit decided to allow Douglas to supplement his initial habeas petition with his Brady claim.  “Because the prosecutor acted willfully, and not just negligently or inadvertently, his conduct warrants special condemnation and justifies permitting Mr. Douglas to supplement his initial habeas petition.”