"A verdict worthy of confidence": The weakening of Brady's "materiality" requirement in Missouri.

• Author: Wasserman, Robert
• Position: NOTE

1. INTRODUCTION

   In 1993, Reginald Clemons was convicted and sentenced to death for his alleged participation in the brutal rapes and murders of two sisters at the Chain of Rocks Bridge in St. Louis, Missouri. Over twenty years later, and after several unsuccessful appeals by Clemons, the Supreme Court of Missouri vacated his convictions. The court found that the prosecution had failed to disclose evidence to Clemons's trial counsel that suggested that he may have given his confession involuntarily. The court concluded that this evidence was sufficiently important that the prosecution's failure to disclose it undermined confidence in the trial court's verdict.

   The court therefore held that the prosecution violated Clemons's due process rights under the Supreme Court's decision in Brady v. Maryland. However, Brady and its progeny held that the prosecution's failure to disclose evidence violates the defendant's due process rights only where the undisclosed evidence is material. For evidence to be material under Brady, there must be a reasonable probability that its disclosure would have changed the outcome of the defendant's trial. This Note will argue that the court in Clemons erroneously applied the Brady doctrine because the undisclosed evidence was immaterial. The result of Clemons's trial would have been the same even if the trial court had suppressed his confession because the State's evidence was over-whelming, and it simply did not need Clemons's confession to convict him. Because the allegedly undisclosed evidence was not material under Brady, Clemons's due process rights were not violated, and the court erred in vacating his convictions.

2. FACTS AND HOLDING

   On the night of April 4, 1991, sisters Julie and Robin Kerry took their cousin, Thomas Cummins, to the Chain of Rocks Bridge in St. Louis to see a poem they had painted on the bridge several years before. (1) As they walked east on the bridge, the cousins saw a group of four men approaching them. (2) The four men were at first friendly, and the groups parted without incident. (3) As the cousins continued to walk east toward the Illinois side of the bridge, they heard the footsteps of the four men behind them. (4) At that point, one of the men grabbed Cummins by the arm, walked him away from the group, and told him to lie facedown on the ground or be killed. (5) The four men then took turns brutally raping the Kerry sisters. (6) Cummins stated that the men threatened to throw the Kerry sisters off the bridge if they resisted. (7)

   While the assault was still going on, one of the men, who Cummins would later identify as Reginald Clemons, approached Cummins, told him that he had just raped his girlfriend, and asked him "how that felt." (8) Cummins replied that she was his cousin, not his girlfriend. (9) The man identified as Clemons then walked Cummins toward an open manhole and instructed him to climb onto the platform below, on which the Kerry sisters were already lying down. (10) The three cousins were then told to step down onto a concrete pier about three feet below the platform. (11) At this point, Cummins "saw an arm push Julie and then Robin off the bridge." (12) One of the men, who Cummins later identified as Antonio Richardson, told Cummins to jump from the pier, and he complied. (13) Cummins swam to the surface of the Mississippi river and "briefly had contact with Julie" but was unable to see her; he never saw Robin. (14)

   Cummins somehow swam to the river bank and climbed up to a road at around 2:00 a.m. (15) He then flagged down a driver and told him "that his cousins had been raped, and that he had been thrown off the bridge." (16) Police later arrived and questioned Cummins. (17) When it became light outside, the police discovered several items that the perpetrators had left on the bridge, including "an unused condom, a used condom, a pen, some change, and a cigarette butt." (18) They also found a flashlight engraved with "Horn I." (19) Julie's body was found in the river three weeks later near Caruthersville. (20) Robin's body was never recovered. (21)

   Officers took a statement from Cummins at 9:00 a.m., roughly seven hours after he had been forced to jump into the river. (22) The police became skeptical about Cummins's version of the events, and the investigation began to focus on him as the prime suspect. (23) The police then took a second statement from Cummins, which was largely consistent with his first. (24) Nevertheless, an "incident report that purportedly summarized Mr. Cummins' statements in the second recorded interrogation[] materially mischaracterized his statements to indicate" that he and Julie had been in a romantic relationship, and that he had actually never jumped from the bridge but had only gotten wet when he entered the river from the bank to search for the sisters. (25)

   Cummins then agreed to submit to a polygraph test. (26) When he was finished, the polygraph examiner informed Cummins that the test results indicated he had been deceptive in his answers. (27) Police officers then told Cummins's father that his son's story did not make sense. (28) Cummins's father responded by urging his son to be truthful with the officers. (29) The police then interrogated Cummins again. (30) A police report purporting to summarize Cummins's statements during that interrogation was prepared. (31) The report indicated that Cummins had caused the deaths of the sisters after Julie rejected his sexual advances. (32) Cummins would later testify that after his father had left the interrogation room, the interrogating officers screamed at him, threatened him, and punched the back of his head several times. (33) He claimed that despite this coercion, he never made the inculpatory statements that were attributed to him in the police report. (34) After he was cleared of any wrongdoing in connection with the murders, Cummins would receive a $150,000 settlement from the City of St. Louis for the abuse he suffered at the hands of the police. (35)

   About the same time that the authorities charged Cummins with the murders, they "received a call from a woman who had seen a television news story about the search for the owner of a black flashlight." (36) The woman told the officers that the flashlight belonged to her family and "had been stolen a few days earlier." (37) The information she provided eventually led police to one of the men, Antonio Richardson, who, in turn, implicated Clemons and Marlin Gray in the murders. (38) The police then located Clemons who "voluntarily agreed to give a recorded statement." (39) Clemons's statement was consistent with what Cummins had told the police. (40)

   The police then located Gray, took him into custody, and interrogated him. (41) His statement also largely corroborated what Cummins had initially told police, but he denied that he was in the manhole when the cousins were pushed off the bridge. (42) While Clemons was in custody, his attorney and family members noticed swelling and an abrasion on the right side of his face. (43) The judge presiding over Clemons's case ordered that Clemons be medically examined; the doctor who performed the examination determined that Clemons had soft tissue swelling over the right side of his face. (44) Both Clemons and Gray then filed complaints with the St. Louis Metropolitan Police Department Division of Internal Affairs. (45) They alleged that the officers had beaten them in the interrogation room and that they provided their recorded statements only out of fear of further abuse. (46)

   Prior to trial, Clemons moved to suppress the statements he had provided to the police on the ground that such statements were the product of police coercion and brutality. (47) He called several witnesses who testified that they had observed swelling on the right side of Clemons's face following his interrogation. (48) The trial court, however, overruled his motion to suppress the confession, claiming that there was no credible evidence demonstrating how Clemons had received his injuries, if he did in fact receive them. (49)

   At Clemons's trial, the State's principal evidence consisted of Clem-mons's confession, the testimony of Cummins, and the testimony of Daniel Winfrey, who had been identified as the fourth perpetrator at the bridge. (50) Both Cummins and Winfrey testified that Clemons had raped the Kerry sisters, robbed Cummins, and had at least acquiesced in the group's decision to throw the cousins from the bridge. (51) Clemons "did not testify on his own behalf, but he did present witnesses who testified they observed Mr. Clemons' bruised face." (52) Clemons's attorney was not allowed to argue in his closing statements that police had coerced his confession by beating him because the court found that there was insufficient evidence to support such a claim. (53) The jury found him guilty on two counts of first degree murder. (54) At the penalty phase of the trial, the jury found twelve aggravating circumstances and recommended two death sentences. (55)

   After his trial and sentencing, Clemons filed his first of many motions for post-conviction relief. (56) These motions principally revolved around his claim that his confession should not have been admitted at trial because it was procured by means of physical force in violation of his due process rights. (57) He filed a writ of habeas corpus in a U.S. district court; that court denied relief on his Fifth Amendment claim but vacated his death sentence on other grounds. (58) The Eighth Circuit subsequently reversed the district court's decision and reinstated Clemons's death sentence. (59) Clemons then filed a writ of habeas corpus with the Supreme Court of Missouri on the basis of his "actual innocence." (60) The court then appointed a special master to examine the claims made in Clemons's petition in light of the evidence. (61)

   When Warren Weeks learned of the special master proceeding, he contacted Clemons's counsel...