Saturday, December 6, 2014

Notes from the Oral Arguments for Bomani Shakur's Final Appeal of the Death Penalty Sentence


2 December 2014

These are informal notes taken by a supporter. The hearing progressed quickly and was filled with legal jargon and case citations, so these notes are incomplete. Bomani Shakur's state name is Keith LaMar. Throughout these notes where “Bomani” shows up, “Keith LaMar” or “Mr. LaMar” was said in court. I wrote “Bomani” cuz fuck the state. The notes include the judges' questions and comments, but I wasn't able to record which judge said/asked what. I also include some comments on the context and indications of where my notes are incomplete in brackets.

Also, full audio is online here

Case Information

Case Number 11-3131

Keith LaMar, Petitioner-Appellant vs. Mark C. Houk, Warden, Respondent-Appellee

Oral Arguments held in the united states court of appeals for the sixth district, Judges Rogers, Clay, and Kethledge presiding

Oral Arguments by Bomani's Lawyer, David Doughten

Doughten: Bomani was convicted of five homicides based on witness testimony. No DNA or physical evidence. At trial, Bomani testified on his own behalf and had five witnesses to testify in his favor. The credibility of the witnesses against him is an issue. The legal issue is a Brady issue [note: my understanding of this issue is that prosecutors have the burden and responsibility of providing defendants with evidence they possess that could be favorable to the defendant or exculpatory, meaning that the evidence would prove the defendant's innocence]. Bomani deserved the Brady material in his case but the prosecutor refused to give it. Instead, the prosecutor played a mix-and-match game with the witness statements, giving 40 statements but not indicating which of the 72 witnesses made them. It was unclear which witness made which statement. The trial judge went along with this and told the defense to go talk to all the witnesses themselves.

Judge: How many witnesses on the list were still incarcerated at that time?

Doughten: They all were. The prosecutor had made some promises to the witnesses to protect them if they testified against Bomani. That should have been revealed.

Judge: The prosecutor told the defense to take the court up on its offer to pay for investigative expenses to interview all the witnesses again. Why not interview them all again? [The judge also offered a hypothetical example here.]

Doughten: The burden in Brady is on the prosecutor. You can't switch the burden to the defense. Some of that evidence was exculpatory. There are no cases from the united states supreme court to support the shifting of that burden. Your hypothetical example suggests that the state did not have the burden, but it does.

Judge: Why was it so much harder for the defense to interview the witnesses than for the prosecution?

Doughten: The defense didn't have anything to offer the witnesses in exchange for their interviews or testimony. They couldn't offer the witnesses protection for becoming snitches.

Judge: People being reluctant to give statements would have been problematic. If they wouldn't be interviewed, then there would have been problems with them testifying in court.

Doughten: Yes, but in that case they could have been subpoenaed. And the defense would have had the opportunity to develop that part of their defense. But the prosecutor argued a lack of materiality of these witness statements. Materiality is key here. If there are witnesses saying that they did not see Bomani in the yard, that is material.

Judge: With the Brady issues, though, there are no witnesses who say that they did not see him in the yard. Some say he did participate [in the Lucasville prison uprising riot and murders of suspected snitches] and some said he did not. Why was the ohio state supreme court not right when it said that people saying they did not see him there was not the same thing as him not being there?

Doughten: Materiality is important. If the witnesses said in their interviews that he was not there, then that's a Brady issue.

Judge: The interviews are fragmentary statements, not complete, comprehensive accounts.

Doughten: In Kyles [not sure of this case citation or spelling of the name], the court said the prosecution should err on the side of providing material. In this case, the ohio supreme court allowed the prosecutor to determine what was material or not.

Judge: I'm looking at a different part of Brady than you are.

Doughten: The FBI planted a microphone in one witness's head. That witness said he heard Bomani but did not see him. Another witness said the person he saw was probably Bomani but only after a state trooper suggested that. One witness's testimony shows that the state trooper suggested Bomani's name. The issues are that the credibility of the witnesses is at question and also the prosecutor did the mix-and-match game with with witnesses' statements that did not identify Bomani. Brady is a different standard that Giglio [another important legal precedent] because there was no physical evidence. The decision to be made about the credibility of the witnesses is the jury's decision to make. The prosecutor should not be the one making the credibility decisions. Part of the Brady standard is to ensure that the prosecution hands over all favorable and exculpatory evidence is handed over to the defense. That's why the ohio supreme court was wrong in its ruling.

Judge: Which statements would have helped you the most?

Doughten: One witness said that one of the inmates was killed in retaliation for snitching on the aryan brotherhood. That would have been a motive to kill that inmate. The difference with Bomani is that no one had snitched on him in the past and he had no motive for killing anyone.

Judge: So there's value in testimony that would show that someone else had a motive?

Doughten: None of the victims had ever done anything to give Bomani a motive to kill them. The jury learning about other people having a motive for the would have shown them that it wasn't just the Muslims starting a riot and Bomani taking the opportunity to kill people for no specific reason.

Judge: So someone else having a motive is important?

Doughten: Yes, testimony about that would have been exculpatory or at least favorable.

Judge: When the defense was denied the Brady material, what did they do to avail themselves of the Brady material on their own?

Doughten: That material wasn't revealed until two subsequent trials after Bomani was convicted. The prosecutor changed his approach and made the materials available. In the Matthews and [not sure of the other person's name] trials, that information was revealed. The defense filed for a new trial when that information was revealed.

Judge: So at that time, what did the defense do?

Doughten: My understanding from the record is that the defense tried to interview the witnesses but did not have any luck because they wouldn't talk to them.

Judge: How many witnesses did they try to interview? Isn't that important to know?

Doughten: No. The prosecutor has the burden to provide this material when they have it.

Judge: If this information is available another way, that could lower the Brady obligation.

Oral Arguments by the Scumbag Lawyer for the Despot Warden

Scumbag: Bomani's motion to re-open his case was untimely filed. This court should reverse that court's finding that it was timely filed.

Judge: The motion was filed five days after and the petition would have been timely had not our court reversed itself on its procedure. So he had every reason to believe it was timely filed.

Scumbag: The warden does not dispute that when Bomani filed his petition, the circuit court precedent at that time would have allowed for that filing. But there's another issue in terms of equitable tolling [not sure what this legal concept means]. [Scumbag lawyer said something about something being different for habeas petitions by death-sentenced prisoners, but I didn't understand it.]

Judge: That's asking a lot of petitioners to anticipate how the court would reverse on of its decisions.

Scumbag: Brannaugh [spelling?] case says that an application to re-open a direct appeal is part of the direct appeal itself. That was undone by Lopez v. Wilson, but panels in between those two decisions disagreed. There are three cases from this court mentioned in the appellee briefs: Henderson, Johnson, and Shorewood [I could be wrong about these names]. These cases talk about situations in which the habeas petitioner relied on the circuit court precedent and was diligent in his filings.

Judge: How was your opponent not diligent?

Scumbag: The appeal was filed almost five years after the 90 days allowed for in the 26B rule about re-opening direct appeals.

Judge: So why is that not just a reason for the state court to deny the appeal? Why is that a reason for us to adjudicate the federal habeas petition?

Scumbag: For equitable tolling purposes, Johnson v. united states shows that diligence in both state and federal actions should be looked at. All three of these cases require diligence on both the state and federal sides. The courts put in the extra effort of determining diligence. The warden's position is that Bomani was not diligent, he slumbered on his rights for more than four years. Also, his affidavit requesting to excuse the delay in his filing was fingerpointing, placing blame on his attorneys. This is not an excuse for a lack of diligence.

Judge: Wouldn't we be inclined to do a Teague v. Lane [not sure of this case citation] analysis to determine the impact of the change of precedent?

Scumbag: Harper v. [not sure of this name] is the appropriate case to review.

Judge: The Teague v. Lane analysis is quite a bit different. Maybe it's inappropriate, but I haven't heard why. This case wasn't briefed here to any degree.

Scumbag: The 44D rule speaks to the question of the statute of limitations. Other issues are equitable tolling and timeliness of the filing. Harper is relevant to 44D. This is not about dealing with the merits or lack of merits of the habeas filing.

Judge: [Said or asked something here but I didn't catch it.]

Scumbag: The question before the court now has nothing to do with the criminal claim or the habeas claim, just the analysis of the timeliness of the habeas petition.

Judge: Is it that simple? We have to look at a lot of different elements here.

Scumbag: This case was statutorily untimely. If this court decides that the case was statutorily timely, though, there is no need to talk about equitable tolling. If equitable tolling is an issue, then this court is sitting as a court of equity.

Judge: So are you gonna talk about the Brady issues?

Scumbag: Regarding Brady, the warden's analysis is in line with the logic behind judge Kethledge's line of questioning about this issue. There were about 400 inmates in L6 during the riot. A number of them were compensated by the state as a result of a civil suit about the failure to protect them during the riot.

Judge: What about the mix-and-match?

Scumbag: The prosecutor gave the defense a list of 76 names that had been narrowed down from the 400 [the state consistently said 76 while Bomani's lawyer consistently said 72].

Judge: Your opponent is arguing that they were given a bunch of names and information but that everything was disconnected. What is your answer to that?

Scumbag: The defense was in possession of that information for three months before the trial and the court gave the defense $5000 in investigative fees to conduct their investigation. There was also a security concern about identifying some of the witnesses.

Judge: So how is the security of those witnesses helped by giving the defense a hard time with those materials?

Scumbag: [Said something about Brady violations here.]

Judge: You can't just give mix-and-match evidence. At some point, and I'm not saying that's true of this case, but at some point that's obfuscation.

Scumbag: The defense was not precluded from interviewing the witnesses.

Judge: So the prosecutor obfuscated the information then gave the defense the tools to unobscure the information? That's why it's not a Brady violation?

Scumbag: This wasn't the nicest approach, but the state of ohio acted within reasonable bounds.

Judge: If the prosecution has information favorable to the defense, they have to give it to the defense. What case would show an exception to Brady for security or some other reason? What case says they do not have to give the defense that information?

Scumbag: This case: [didn't catch the name]. Brady does not deal with delays in disclosure, just lack of disclosure. If the evidence in question isn't wholly within the prosecution's control (i.e., some of the evidence was in the witnesses' heads), then it's not a Brady violation.

Judge: But when you consider the witness statements that were given, how are those not necessary to give to the defense?

Scumbag: The prosecution acted within its bounds.

Judge: Is that what the state court ruled?

Scumbag: The ohio state supreme court ruled [I missed what this ruling was].

Judge: What about materiality? Some witnesses said they saw other inmates doing the murders. What about that?

Scumbag: Bomani used an alibi defense. He said he wasn't even there. But none of the witness statements put him outside of the L6 unit.

Doughten's Rebuttal

Doughten: The defense was given $5000 for investigation. At $100 an hour, that's 50 hours.

Judge: I've seen statements that the defense would have had all the investigative resources required.

Doughten: The united states supreme court would not have allowed that game to be played with the evidence. This material was not provided. The problem is that the trial judge went along with this. The ohio court was wrong in finding that this game was ok by Brady. Also, this case was not initiated four and a half years after the ruling. There was an appeal going on at the time and Bomani would have had to file a complaint of ineffective counsel against his lawyers who were representing him in the appeals.

Judge: How do you deal with the three cases saying to look at timeliness in state and federal proceedings?

Doughten: There was no lack of diligence in the state courts. There was timely action and a pending direct appeal in litigation the whole time. The appeal lawyer's decision later on was reasonable and timely.

The hearing then concluded and the court was adjourned.

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