JAMES A. DENNIS, Petitioner,
JOHN E. WETZEL, et. al., Respondents.
ANITA B. BRODY, J.
James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit. I will grant Dennis’ habeas petition, vacate his conviction and death sentence, and require the Commonwealth to retry Dennis within 180 days or let him free.
In this habeas petition brought pursuant to 28 U.S.C. § 2254, Petitioner James Dennis (“Dennis”) brings an assortment of claims challenging the legality of his conviction and death sentence he received for killing Chedell Williams in 1991. I will grant Dennis’ petition on the basis of exculpatory and impeachment evidence that the Commonwealth improperly withheld from the defense at the time of trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. While each piece of withheld evidence is, on its own, sufficiently prejudicial to entitle Dennis to a new trial, there can be no question that the cumulative effect of the Commonwealth’s Brady violations abridged Dennis’ constitutional right to due process of law. In the interest of avoiding unnecessary rulings on constitutional questions, I reserve decision on Dennis’ remaining claims. See Jamison v. Collins, 291 F.3d 380, 392 (6th Cir. 2002).
I. FACTUAL BACKGROUND
On October 22, 1991, two high school students, Chedell Williams and Zahra Howard, were walking up the steps of the Philadelphia Fern Rock SEPTA station when two men approached them yelling, “Give me your fucking earrings!” The girls fled down the steps; Howard hid behind a nearby fruit stand, while Williams ran into the street. The two men pursued Williams. One of them held a gun to her neck and shot her. The men then fled up the street, where they jumped into a car and sped away. Witnesses said there must have been a third participant who drove the vehicle, given how fast the perpetrators left the scene. Emergency services arrived within minutes, but Williams was pronounced dead at the hospital shortly after the shooting. Her earrings were missing, but her necklace and ring were untouched.
Dennis’ conviction was based solely on shaky eyewitness identifications from three witnesses, the testimony of another man who said he saw Dennis with a gun the night of the murder, and a description of clothing seized from the house of Dennis’ father that the police subsequently lost before police photographed or catalogued it. In short, Dennis’ prosecution was based on scant evidence at best. In the process, the Commonwealth covered up evidence that pointed away from Dennis. It ignored Dennis’ own explanation for where he was at the time of the murder: taking a bus from his father’s home to the Abbotsford Homes project. It allowed a witness who saw Dennis on that bus to give incorrect testimony about what time that interaction occurred. Police never recovered a weapon, never found the car that witnesses described, and never found the two accomplices. Despite Dennis’ lack of significant criminal history,  the Commonwealth charged him with a capital crime. There was virtually no physical evidence presented at trial; Dennis was convicted almost entirely through eyewitness identification.Although the crime was committed by at least two people, Dennis was the only person ever arrested or convicted for the crime.
There were numerous flaws with the investigation and prosecution of this crime, flaws that significantly diminish confidence in the outcome. The police focus on Dennis stemmed from neighborhood rumors that he had been involved. This focus appears to have led police to overlook disparities between the eyewitness descriptions of the shooter and Dennis, most importantly their descriptions of the shooter’s size. All five of the nine eyewitnesses who provided an estimate of the shooter’s height in their statements to the police described the shooter as between 5’7” and 5’10”, with four describing him as 5’9” or 5’10”. Not a single eyewitness described the shooter as small, short, or petite. However, Dennis is only 5’5” and 125-132 pounds, significantly smaller than the descriptions of the shooter. NT 10/14/92 at 74-75. Moreover, the victim, Williams, was 5’10”, Postmortem Report, Pet’r’s Br. Ex. 87, and yet none of the witnesses remarked that the shooter was much shorter than Williams, even though the shooter and Williams were standing close to each other when the shooting occurred.
Police showed most of the eyewitnesses photo arrays with Dennis’ photo. Not one confidently selected Dennis right away. One witness, Thomas Bertha, hesitated at first but then positively picked Dennis’ photo. 10/25/91 Bertha Stmt., Pet’r’s Br. Ex. 29. Howard, who was with Williams at the time of the murder, was less certain, and said that Dennis’ photo “looks like the guy but I can’t be sure. . . . He looks a little like the guy who shot Chedell.” 10/25/91 Howard Stmt., Pet’r’s Br. Ex. 45. James Cameron, a SEPTA worker who saw both the struggle and the shooting, viewed a photo array and said that Dennis’ picture “looks familiar but I can’t be sure.” 10/25/91 Bertha Stmt., Pet’r’s Br. Ex. 28. Notwithstanding their relatively uncertain identifications of Dennis in the days immediately following the shooting, these three individuals would ultimately become the Commonwealth’s only testifying eyewitnesses. At trial, after each had seen Dennis’ photo and his face in person during a line-up,  each of these witnesses identified him as the shooter without hesitation. Meanwhile, four other eyewitnesses did not pick Dennis as the shooter: Three did not pick his photo from the photo array, and a fourth, who tentatively identified Dennis’ picture, later chose another suspect from a line-up. Detectives never reported showing the ninth eyewitness, George Ritchie, a photo array, but years after the trial, Ritchie testified that he had in fact been presented with a photo array, and that the police had grown agitated when he could not pick out a suspect. PCRA Evid. Hrg. NT 5/6/05 at 35-39.
Further, the police arguably conducted misleading line-ups and identifications. After his arrest, Dennis volunteered to participate in a line-up. Although the defense requested that all eyewitnesses be present, the Commonwealth provided only four of the nine who gave statements immediately after the murder. Incidentally, the four were the only witnesses who had already initially identified Dennis from a photo array. Because discovery had not yet been exchanged, Dennis’ lawyer did not know about the other five eyewitnesses, or that three of them had failed to pick Dennis’ photo from the array. He therefore could not have challenged the line-up. The Commonwealth had still not completed discovery by the time of Dennis’ preliminary hearing, held on December 23, 1991. So when the Commonwealth presented only the three eyewitnesses who had identified Dennis at the line-up—Howard, Bertha, and Cameron—defense counsel still did not know about the other witnesses who had not identified Dennis as the shooter. Obviously, they were not called at the preliminary hearing to rebut the identifications made by the Commonwealth witnesses.
Police also failed to follow up on important leads. Although Howard told police that she had never seen the men who attacked Williams before, Williams’ aunt and uncle, Diane and Mannasset Pugh, told police that Howard had told them only two days after the murder that she recognized the perpetrators from her high school, and that two people named “Kim” and “Quinton” had been there. 10/14/91 Act. Sheet, Pet’r’s Br. Ex. 68. Another of Williams’ aunts, Elaine Parker, also told police that Howard mentioned Kim and Quinton’s presence, and had told her that the getaway car had been following Williams and her around for a whole week. Parker Stmt., Pet’r’s Br. Ex. 58. However, police never asked Howard about her inconsistent statements—and never informed the defense of these comments.
The police and prosecution also failed to turn over a series of documents relating to the statement of William Frazier with detailed, credible information about the murder—even though police turned over numerous other tips and statements relaying neighborhood rumors. Frazier, an inmate in the Montgomery County Jail, gave a statement first to the Montgomery Police and then to the Philadelphia police relaying a phone call he had had with two friends who told him that they and a third friend had committed the Williams murder. The statement included credible details, such as describing where on her body Williams had been shot and identifying Williams as “Kev’s” girlfriend. Frazier Stmt., Pet’r’s Br. Ex. 42. Frazier described the three men as all being taller than 5’7”. Importantly, at least one of the men knew Howard from her high school; in this way, both Frazier’s statement and Howard’s statement to the Pughs corroborate each other—and neither were turned over to the defense. Police failed to investigate fully Frazier’s claims, and the defense never learned of Frazier’s statement until a decade after trial.
Improper police work characterized nearly the entirety of the investigation. On November 23, 1991, the same day that police arrested Dennis, they conducted searches of Dennis’ mother’s, father’s, and girlfriend’s homes. The search warrant receipt indicates that police seized two black waist-length jackets, one pair of red pants, and one pair of white sneakers. Search Warrant, Pet’r’s Br. Ex. 94. Although many witnesses mentioned that the shooter was wearing a red sweat suit, the receipt does not note the size of the clothes or what they were made of, and the clothing was lost before any photographs or even a full cataloguing of the items were taken. At the motion to suppress hearing held before trial, Assistant District Attorney Roger King told the court that “the articles are misplaced or mislaid. We do not have them physically in our custody.” NT 9/21/91 at 122. The clothing was never found before trial. However, the lead detective testified at trial that the jackets seized “fit the description of the jackets worn by the perpetrator of the homicide, ” that “they were the size of the defendant, ” and that Dennis’ father told detectives that the jackets belonged to Dennis. NT 10/15/92 at 4. Without any catalogued descriptions of the items, Dennis’ lawyer was unable to counter the detective’s assertions. This clothing was among the only physical evidence even discussed at trial. Police never found a gun, ammunition, or Williams’ earrings.
The jury also never heard about an important document that could have significantly buttressed Dennis’ alibi. Dennis had told police that he saw a neighborhood acquaintance, Latanya Cason, on the K bus the afternoon of the murder. He said he waved to her when they got off the bus,  sometime between 2:15 and 2:30 p.m. NT 10/14/92 at 76-78. When the police interviewed Cason, she corroborated Dennis’ story: She said she took the K bus, that she saw Dennis when she got off the bus, and that she waved. 1992 Cason Stmt., Pet’r’s Br. Ex. 33. The only discrepancy was what time this interaction took place. Dennis testified that he boarded the 1:56 p.m. bus—right at the time the murder occurred. Therefore, if Cason—a disinterested witness with no motive to lie—testified that she saw him at 2:15 or 2:30 p.m., the scheduled arrival time of the 1:56 p.m. bus to Abbotsford Homes, her testimony would have significantly bolstered Dennis’ defense that he was at another place when the shooting occurred.
Cason, however, testified that their interaction occurred much later, between 4 and 4:30 p.m. NT 10/8/92 at 138. She explained that she left work around 2 p.m., took the subway to North Philadelphia, picked up her welfare assistance check from “the 3-2 center, ” filled a prescription, ordered some fish, went to a few other stores, returned to pick up the fish, and then took the K bus home. Id. Only at that point did she see Dennis. She said that she could not have seen Dennis at 2 p.m. because she was just getting off work then. Id. at 139.
However, after trial, Dennis’ appellate counsel discovered Cason’s receipt from the Department of Public Welfare (“DPW”) center, showing that she picked up her welfare check at 1:03 p.m., which was noted in military time as 13:03 p.m. If Cason picked up her check at 1:03 p.m., she could not have been working until 2 p.m. When shown this receipt, Cason provided an affidavit to appellate counsel. She stated that the police had a copy of this receipt when they came to interview her, and that she had provided police with her only copy. She explained that she “may have thought that the 13:03, which is on the receipt, was 3:03.” 1997 Cason Aff., Pet’r’s Br. Ex. 34. She further stated that if she cashed the check at 1:03 as the receipt indicated, she would have seen Dennis “between 2 and 2:30 p.m. at the Abbotsford Homes, and not 4:00 to 4:30 that is in my statement.” Id.
Cason’s trial testimony cast serious doubt on Dennis’ explanation of his whereabouts on the day of the murder. Armed with the correct time of her check transaction, Cason could have been a powerful alibi witness for Dennis. As it stands now, her corrected timeline of the afternoon, in which she believes she did see Dennis between 2:15 and 2:30, throws Dennis’ guilt into serious question.
Beyond the problems with the investigation and prosecution of this crime, there were significant flaws with defense counsel’s investigation and trial preparation as well. Most glaringly, Dennis’ trial counsel never interviewed a single eyewitness. As a result, he never learned from eyewitness Ritchie that he had not picked Dennis out of a photo array, or that the detectives grew increasingly frustrated by this failure to identify Dennis. Despite receiving Ritchie’s police statement, in which he described the shooter as 5’9” and 170 pounds, and told the police that the shooter “looked right dead in my face” and that he “sure would” recognize the men involved, Dennis’ trial counsel never asked him to look at a photo array or attend a line-up. Further, although trial counsel was present at the line-up when eyewitness Anthony Overstreet picked another person, not Dennis, as the shooter, Overstreet was never interviewed by the lawyer, let alone called to testify at trial. As a result, the jury never heard that this eyewitness— who had the exact same vantage point as one of the Commonwealth’s central witnesses, Thomas Bertha—did not think Dennis was the shooter.
Dennis’ trial counsel also missed a crucial opportunity to impeach the only witness who claimed to have seen Dennis with a gun the night of the murder. Charles “Pop” Thompson, a member of Dennis’ singing group, testified that he saw Dennis with a gun matching the description of the murder weapon. The gun used in the murder was never recovered, and there was no other evidence linking Dennis to the weapon; indeed, Dennis testified that he did not possess a gun of any kind. Thompson therefore provided crucial testimony for the prosecution.
Had he investigated Thompson, Dennis’ trial counsel would have discovered that Thompson first told police about seeing Dennis with a weapon when he was under arrest for a violent assault of his pregnant girlfriend that left her in the hospital. Six months after Thompson gave police this statement claiming to have seen Dennis with a gun, the Commonwealth dropped the felony assault charges, without explanation. When Thompson testified at trial, Dennis’ counsel could not question him about his possible motive to lie, because he never investigated Thompson’s criminal history and never discovered the dropped charges. The jury therefore never heard information that could have significantly discredited Thompson’s testimony.
Overall, Dennis’ lawyer provided only a bare minimum defense. As stated above, he never interviewed or investigated a single eyewitness. He spent no more than 10 or 15 minutes with Dennis’ alibi witnesses, often just before their testimony, and made no effort to find documentary support, such as the SEPTA bus schedule, to buttress Dennis’ alibi. Though there was only minimal physical evidence in the case—a button with blood on it; the victim’s clothes, necklace, and artificial fingernails; and the bullet—Dennis’ lawyer failed to test any of it. Nor did he consult or retain any experts, despite the fact that the Commonwealth called two experts, a medical examiner and a ballistics expert, to testify. During the penalty phase, counsel presented very little mitigation. He requested no medical records or school records, and conducted no independent investigation, relying instead solely on Dennis and his family.
The jury deliberated for fewer than 5 hours before returning a conviction against Dennis. The presentation of evidence in penalty phase was completed in just over three hours. Although the court directed the jury to find, as a matter of law, the mitigating circumstance that Dennis had no significant criminal history,  the jury returned a verdict of death—after just 90 minutes of deliberation—without finding that mitigating factor. When the court sent the jurors back to correct the verdict sheet, they “deliberated” for another three minutes, before returning to the courtroom with the sheet filled out as instructed.
Given the circumstances of the investigation and trial, as described above, one cannot but harbor strong doubt as to Dennis’ guilt. The Commonwealth of Pennsylvania has committed a grave miscarriage of justice in convicting Dennis and sentencing him to die for this crime.
II. PROCEDURAL HISTORY
• In October 992, Dennis was convicted of first-degree murder, robbery, and related charges in the Philadelphia County Court of Common Pleas, and sentenced to death.
• On July 22, 1998, the Pennsylvania Supreme Court (4-3) affirmed Dennis’ conviction and death sentence on direct appeal. Commonwealth v. Dennis, 715 A.2d 404 (Pa. 1998) (“Dennis I ”).
• On September 15, 1998, Dennis filed a timely pro se petition pursuant to the Post Conviction Relief Act (PCRA). In December 1999, PCRA counsel was appointed and filed an amended petition, and, subsequently, a supplemental amended petition and a second supplemental petition on Dec. 1, 2000, and July 10, 2002, respectively.
• On December 12, 2000, Dennis filed a motion for discovery, seeking the jury selection notes of the prosecutor. Following briefing and oral argument, the PCRA court granted the Motion to Compel Discovery of the voir dire notes. After granting the Commonwealth’s request for reconsideration of the order, the PCRA court reinstated the discovery order on July 10, 2001.
• On October 21, 2004, the Pennsylvania Supreme Court reversed the order granting discovery of prosecutor’s jury selection notes, finding that the Batson v. Kentucky, 476 U.S. 79 (1986) claim had been previously litigated. The Court remanded the case for completion of PCRA review.
Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004) (“Dennis II ”).
• In May 2005, the PCRA court conducted several days of evidentiary hearings, and then subsequently denied Dennis’ claims for relief and dismissed his PCRA petition on September 15, 2005. Commonwealth v. Dennis, Case No. 92-01-0484, slip op. (Pa. Ct. Com. Pl. Nov. 17, 2005).
• On June 20, 2008, the Pennsylvania Supreme Court affirmed in part and vacated in part, remanding two claims to the PCRA court. Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008) (“Dennis III ”). The Pennsylvania Supreme Court remanded two claims to the PCRA court for further review: (i) Dennis’ claim that trial counsel was ineffective for failing to investigate potential alibi witness Anissa Bane; and (ii) Dennis’ claims that the Commonwealth suppressed material exculpatory evidence in violation of Brady, namely, the contents of the police activity sheet in which the Pughs allegedly provided information that could potentially impeach the testimony of eyewitness Zahra Howard.
• On March 17, 2010, after evidentiary hearings on remand, the PCRA court again dismissed Dennis’ petition. Commonwealth v. Dennis, Case No. 92-01-0484, slip op. (Pa. Ct. Com. Pl. Mar. 17, 2010).
• On May 13, 2010, Dennis appealed the dismissal.
• On Jan. 18, 2011, the Pennsylvania Supreme Court affirmed the PCRA denial. Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011) (“Dennis IV”).
• On March 8, 2011, Dennis filed a § 2254 habeas corpus petition to review his conviction and death sentence.
III. LEGAL STANDARD A. AEDPA
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a habeas court may not grant relief with respect to any claim adjudicated on the merits by the state courts unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The Third Circuit has interpreted these statutory provisions as a three-step inquiry, looking first to the “contrary to” clause, second to the “unreasonable application” clause, and finally to the “unreasonable determination of the facts” clause. Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011). For these purposes, “clearly established federal law” means “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
A state court decision is contrary to clearly established federal law under the first clause of § 2254(d)(1) when the state court (1) “arrives at a conclusion opposite to that reached by this Court, ” or (2) “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent].” Williams v. Taylor, 529 U.S. 362, 405 (2000). In either of these scenarios, because the state court decision is contrary to federal law, the federal court has de novo review over the state court decision. Johnson v. Williams, 133 S.Ct. 1088, 1097 (2013). When the state court correctly identifies the governing federal precedent but applies it in a debatable manner, the “contrary to” clause is not violated. Williams v. Taylor, 529 U.S. at 405-06.
A state court decision is an unreasonable application of clearly established federal law when the state court “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The habeas petitioner must show that the state court decision was objectively unreasonable and not merely incorrect. Id. at 410-411; Blystone, 664 F.3d at 417. “[S]o long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision, ” the state court’s application of federal law cannot be considered unreasonable. Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington, 131 S.Ct. at 786-87 (citations omitted). In other words, habeas review is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 787 (internal quotation marks omitted).
Finally, a federal court may grant habeas relief where the state court decision constitutes an unreasonable determination of the facts in light of the evidence presented to the state court. In considering whether the state court's decision satisfies that deferential standard, “a determination of a factual issue made by a State court shall be presumed to be correct.” § 2254(e)(1). To assess the reasonableness of a state court’s determination of the facts, a federal court must determine whether the state court’s factual findings are supported by sufficient evidence. See Miller-El v. Cockrell, 537 U.S. 322, 340-41 (2003); Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001) (§ 2254(d)(2) and (e)(1) “require meaningful federal court review of the evidentiary record considered by the state courts”). Of course, “deference does not by definition preclude relief. A federal court ...