Sixth Circuit -- Montgomery v. Bobby

 Montgomery v. Bobby 

   Court reverses habeus grant for Brady  violation in death penalty case.

    Although the report that witnesses had seen victim alive after the time State argued that they had been killed was favorable to deft and suppressed, the question is materiality - did it prejudice the proceeding.  Here, the court holds that the other evidence of guilt was too overwhelming.  (Separately, after hearing that habeus had been granted on these grounds, witnesses had retracted.)  Not in for impeachment, given other substantial impeachments against witness.

    No error in not DQ'ing a juror who wrote the court a note explaining that she had been in psychiatric treatment and had experienced a dream about the defense psychiatrist as the devil.

   No reversible error in refusal to change venue, as petitioner has not demonstrated manifest error - deep and bitter prejudice throughout the community.

   No Brady  violation in nondisclosure of withdrawal of plea deal from non-testifying witness as not properly presented in District habeus petition.

   Concurrence: the suppressed report has zero exculpatory value, as deft clearly committed the crime.

   Special Concurrence:  Dissent is right on Brady claim, but no violation of clearly established federal law, as state court could reasonably have determined it to be non-material.

    Dissent - Coourt incorrectly confuses Strickland's presumption of trial court regularity with Brady's implication that suppression of the evidence is enough of an irregularity to pop that bubble. 

   Dissent:  I agree.

   Dissent:   Majority mis-characterizes facts, deference is too high - prevents painstaking search for constitutional errors.  By contrasting reasonable probability with reasonable possibility, majority gives a false spin to the former - the burden is lighter than that.  Suppressed report wasn't cumulative, as it changed the game. 

[Thou shalt not kill.  - TMB]