clemency petition

Summary:

Warren and Lois Green owned and operated a Western Auto Store in Mount Vernon, Alabama.

On Warren's 40th birthday, December 1, 1977, they were murdered during an armed robbery of their store. They were forced into a back room at gunpoint, bound back to back with extension cords and shot in the head at point blank range. They left behind one daughter who was sixteen years old at the time of their murders.

Freddie Lee Wright was found guilty of the robbery and of their murders in 1979 and sentenced to die in Alabama's electric chair. He along with three other accomplices were on their way to rob another store when they decided to stop in Mount Vernon to purchase tape to repair a rip in the seat of their car. They made the decision to rob this store instead of going on to the other town.

His admitted accomplices, Roger McQueen, Percy Craig and Reginald Tinsley, all testified that Wright fired the fatal shots. All 3 subsequently were convicted of murder.

Craig and Tinsley served their time and are now believed to be living in the Mobile area. McQueen is serving time in a federal prison on an unrelated kidnapping conviction.

Wright's first trial ended in a hung jury. Doris Lacey Lambert, Wright's former girlfriend and the mother of his child, testified at the second trial that Wright admitted the murders to her just after they were committed. Years later, McQueen recanted his testimony.

ProDeathPenalty.com

Warren and Lois Green owned and operated a Western Auto Store in Mount Vernon, Alabama, a small town located approximately 30 miles north of Mobile.

On December 1, 1977, (Warren's 40th birthday) they were murdered during a robbery of their store. They were forced into a back room, bound back to back with extension cords and shot in the head at point blank range.

Warren was pronounced dead at the scene and Lois died about two hours later at a local hospital. They left behind one daughter who was sixteen years old at the time of their murders.

Freddie Lee Wright was found guilty of the robbery and of their murders in 1979 and sentenced to die in Alabama's electric chair.

He along with three other accomplices were on their way to another town 30 miles north of Mount Vernon to rob a store there when they stopped along the way at the Western Auto to purchase tape to repair a rip in the seat of their car.

They made the decision to rob this store instead of going on to the other town. One of the items stolen was Warren's new Seiko watch his wife and daughter had given him the night before for his birthday. It was recovered at a pawn shop in Mobile.

Freddie Lee Wright (Alabama)

Quixote.org

On March 3, 2000, the State of Alabama, with the acquiescence of the federal government, executed Freddie Lee Wright in the electric chair. The state and federal governments failed to ensure Wright's right to a fair and impartial trial, free of racial discrimination. The unfair and racially discriminatory trial resulted in Wright's execution.

Crime

Warren and Lois Green, a white couple, were shot and killed during an armed robbery at their Western Auto Store in Mount Vernon, Alabama. A woman entering the store later identified Theodore Otis Roberts as one of the robbers and he was arrested.

The state identified a handgun belonging to Roberts as the murder weapon. Months later, charges against Roberts were dropped and four other black men, including Freddie Lee Wright, were indicted in the case. Wright's three co-defendants named him as the shooter in the robbery, and he was tried and convicted of armed robbery and murder.

Salient Issues

Wright's first trial ended in a mistrial with eleven out of twelve jurors voting to acquit. - No physical evidence linked Wright to the crime. - Wright's co-defendants testified against him in exchange for receiving lesser sentences.

Two of those co-defendants later recanted. One named another man as the killer. - The man who was originally arrested for the crime was never tried, even though his gun was identified as the murder weapon. - Key exculpatory evidence was suppressed by the prosecution. - The prosecution in Wright's second trial excluded all African-American persons from serving on the jury. - The detective who did much of the state's investigation admitted in court that he "bullshits his witnesses to get confessions" and that he lied to one of the co-defendants toward this end. - Two state Supreme Court justices voted to stay Wright's execution finding clear and convincing evidence of his innocence.

Trial

It took two trials to convict Freddie Lee Wright. The first trial, with a mixed-race jury, voted eleven to one in favor of acquittal, resulting in a mistrial. An all-white jury convicted him of armed robbery and capital murder in the second trial.

The prosecution in Wright's first trial relied on the testimony of two of his co-defendants. One later recanted his testimony, saying the prosecutor threatened him with the electric chair if he did not name Wright as the shooter.

The other later provided a written affidavit saying that he, too, was pressured by the prosecution to name Wright. This second co-defendant named another man as the killer. In exchange for their testimony, both men were allowed to plead guilty to lesser charges.

One received a ten-year sentence and the other was permitted to serve his Alabama sentence concurrently with a sentence he had for another crime in Mississippi. The third man received a 25-year sentence but was later paroled. In spite of these witnesses' testimony at trial, a mixed-race jury voted eleven-to-one to acquit Wright of all charges, resulting in a mistrial.

The same witnesses the state used to convict Freddie Wright were later deemed to be non-credible witnesses when they admitted that they had only fingered Wright to avoid the death penalty.

Wright's second trial took place before an all-white jury. The state's new witness was Doris Lambert, Wright's former girlfriend and the mother of their child. She claimed Wright had confessed his guilt to her, although in his first trial she had planned to testify for him, and was never called to the stand.

The prosecution suppressed Lambert's history of drug addiction and mental illness. Also, Lambert reportedly received help regaining custody of her children in exchange for her testimony against Wright. Wright's lawyer claimed he had been unable to locate a key alibi witness, an insurance agent, with whom Wright did business shortly before the murders. The jury discounted the testimony of Wright's friends, who were with him in a club at the time of the murders. Wright was found guilty of capital murder and sentenced to death.

Appeals

Wright's attorney continued to represent him in the appeals process, even after claims of ineffective representation were raised. Wright's attorney was subsequently disbarred.

The District Attorney acknowledged that he should have disclosed evidence about Doris Lambert's psychiatric history and about deals made with Wright's co-defendants. In the course of denying Wright's habeas corpus petition, the U.S. District Court was critical of the state's conduct.

The court also wrote that "numerous imperfections in the state court proceedings were revealed," that "some of these imperfections like the state's failure to disclose certain exculpatory materials - do not in any way deserve the blessing of this Court."

However, it believed that a federal court was not the proper forum in which to re-try the case, so it denied relief and the Eleventh Circuit Court of Appeals affirmed. The Eleventh Circuit found that virtually all of these claims were procedurally barred from review because they had not first been presented to the state courts.

Two Alabama Supreme Court Justices voted to stay Wright's execution citing evidence that "his conviction resulted from a lack of a fair trial" and "the likelihood that we are sending an innocent man to his death." Wright was, nevertheless, executed on schedule.

Conclusion

Freddie Lee Wright was convicted despite compelling evidence of his innocence and overwhelming evidence that he failed to receive a fair and impartial trial, free from racial discrimination.

The State of Alabama withheld information from defense lawyers. It failed to provide Wright with competent legal representation. It excluded all African-American persons from the jury in order to secure a conviction - a practice later found to be an unconstitutional form of racial discrimination. (Batson v. Kentucky) Nonetheless, both state and federal courts, including the U.S. Supreme Court, upheld both Wright's conviction and his death sentence.

CCADP - Freddie Wright Homepage

SUMMARY OF FACTS RELATING TO MY INNOCENCE

TO WHOM IT MAY CONCERN WITH PROFOUND EXPRESSION OF MY REGARD.

I am a Alabama death row inmate that has nearly run the complete appellate gauntlet and am in dire need of any and all intervention. I have no doubt that because of recently publicized events in regards to death row inmates being found innocent of the crimes they have spent many years on death row for, the internet has been consumed by request such as my own.

Any attempt on my part to distinguish my case, from the many others innocent death row inmates now being housed throughout the United States would be futile. I can only stress, that because my case/appeals have reached the 11th Circuit Court of appeals and the overwhelming demands for your type of assistance, my options have run out.

Below I have briefly summarize the facts relating to my innocence each and everyone can be verified in their totality . . .

(1). I was convicted of murder and robbery at a local Western Auto Store, two individuals were killed. Stock was removed from the store by the assailants. Several of the stolen items were eventually recovered. Another person Theodore Robinson was subsequently arrested and charged with these crimes.

(2). Ms. Charlene Tilton, at the time of the crime was the girlfriend of Mr. Robinson. Ms. Tilton gave a statement to Det. Stroh, which lead to Robinson's arrest, a weapon was discovered subsequent test of projectiles removed from the victims and test fired from the weapon by the Alabama Department of Forensic Science resulted in a "match".

(3). Ms. Mary Johnson, a patron of the local Western Auto Store was leaving the store as a man later identified as Mr. Robinson was entering. Ms. Johnson notices four (4), men in an automobile later identified as being owned by Robinson at the front entrance, a short period of time before the discovery of the victims. (a). Ms. Johnson, was summoned to testify at Mr. Robinson's preliminary hearing where she confirmed under oath the above. (b). Ms. Johnson has never testified to the above facts at any stage of my trials or hearing to this date.

(4). An individual whose name is unknown to myself, but was identified by the investigating officers as being in possession of items removed from the crime scene, identified Robinson as the person from whom he received the stolen goods. Inquiry into the investigative file will result in the accurate name of this individual.

(5). Roger McQueen and Percey Craig, initially implicated me as the shooter in this crime. Prior to trial both attempted to recanttheir statements. Their attempts were met with the threat of prosecution of this capital offense, which led them to again implicate me as an member of the ones who robbed the store.

(6). A third accomplice Mr. Regintal Tinsley, initially implicated me in this crime, but prior to trial on his own volition requested to give a statement to my trial counsel exonerating me of any involvement in this crime, before the prosecution had the chance to convince him otherwise.

(7). Additionally Mr. McQueen, stated under oath that we first met in the month of February 1978, some three (3) months after the crime occurred, making our participation in this crime together impossible.

(8). Ms. Doris Lambert, a former girlfriend of mine testified that during a June 1977 confession to her Catholic Priest stating that I confessed my involvement in this crime. The murder/robbery occurred six (6), months after her confession making her statement an obvious lie.

(9). The trial court judge issued an order for the exclusion of any and all testimony relating to Mr. Otis Theodore Robinson and his involvement in this crime. Which hindered my defense and the presentation of exculpatory evidence.

All of the above was requested vis motion of discovery by the defense counsel, but the prosecution and/or person having control and custody of these facts, either by act or lack of action failed to disclose the information which has lead to the technical exclusion otherwise known as procedural barring of evidence of my "actual innocence".

I am in desperately need of any and all help, if there is any additional information needed please do not hesitate to contact me. It's clear if I don't get help I am going' to lose my life, I await your response...

Sincerely, Freddie Lee Wright

Freddie's PENPAL REQUEST !

My name is Freddie Lee Wright, #Z-389, I am African-American, presently incarcerated on Alabama death row, since July 5, 1979. At the present time my future is looking pretty bleak, but I am still very much hopeful that things will change and my life won't end here by my being put to death. I am now down to my last two rounds of appeals. I hope my present situation won't keep any one from writing. I really need some one I can relate to doing whatever time I have left. I am 47 years old, born April 29, 1951, dark brown complexion, weight 229. Home town Mobile, Alabama. I am open-minded, with a good sense of humor, I am also sincere. My life may be ending but I still have a lot to offer through friendship in the way of touching others heart and minds, to enlighten them about myself and my many walks in life. I am interested in hearing from any one who is sincere, open-minded and down to earth. Age, sex, race or religion doesn't matter. Freddie Lee Wright

Running Out Of Time

By Freddie Lee Wright

My name is Freddie Lee Wright. I have spent the past 20 years fighting for my life here on Alabama's Death Row. My last appeal for a rehearing in the United States Circuit Court (11th Circuit) was denied. I now have until July 20 to file my final appeal to the United States Supreme Court. If the Supreme Court lets stand the ruling from the 11th Circuit, my appeals will become final and I will have no chance to prove my innocence.

I am accused of committing two murders during a robbery. I was said to have been the trigger man of a four-man robbery team. It took the State of Alabama two separate trials to convict me of these murders I did not commit. The first trial was held before a mixed jury-- seven whites and seven blacks -- and ended in a mistrial. After the two alternate jurors were excused, a vote of 11-1 for acquittal was returned, causing a mistrial. The one juror, a white female who held out voting to convict and causing the mistrial, admitted several years later in an interview with my appellate attorneys that she did not believe I was guilty, but she felt "someone must be severely punished for such a senseless crime," and I was "the only one left that could receive the level of punishment deserved" so she held out causing the mistrial.

The second trial was presented to an all-white jury and the State put on one additional witness, then suppressed her mental health records. I was convicted and sentenced to die in Alabama's electric chair.

Now I will go back to mid-November 1977 and tell you my story. I am a native of Mobile, AL and had returned there to find an apartment for my fiancée, Hazel Craig, and our two daughters (one eight, the other just over a year) who were then living in Long Beach, California. In Mobile, a friend of mine, Reginald Tinsley, whom I had known for 5 or 6 years and with whom I had worked on several jobs, introduced me to Percy Craig (no relation to my fiancée) and Roger McQueen. I met those two men during the week of Thanksgiving, 1977, and, on Thanksgiving Day, Roger McQueen and Percy Craig came over to my sister's home in Craig's car to invite me back to Craig's house for Thanksgiving dinner. I accepted the dinner invitation.

McQueen and I then drove to Prichard, Alabama, to pick up my ex-girlfriend, Doris Lacey Lambert (mother of my 29 month-old son), and McQueen, Doris, and I drove back to Craig's apartment, where we had dinner with Craig and his girlfriend, Donna Lockett. This was on Thanksgiving Day 1977 -- I believe the date was November 24.

The next time I saw Percy Craig was on the night of November 30, 1997. He and I spent most of that night at a local gambling house. On December 1, I spent the morning at my sister's house with Carl Harrington and Barbara Brazelton. While I was there, a gentleman from the insurance company arrived. I paid my sister's insurance with part of an $80 or $86 rebate check from the phone company. I used the rest of that check to buy an additional insurance policy for my son. If this insurance agent could have been found at the time of my trial, he could have verified that I was with him at the time that Craig, McQueen, and the State claimed I was with the robbery team on the way to Jackson, Alabama.

At approximately 10:00 a.m. on December 1, 1977, Barbara, Carl, and I left my sister's house and went to the Ebony Club, where we stayed until between 1:45 and 2:00 p.m. Earlier that morning (before I went out to the Ebony Club with Barbara and Carl), Craig, McQueen, and Tinsley had stopped by my sister's house.

Craig wanted to borrow money, and asked if I had anything "to get high on." I gave him $25 and three "hits" of THC. Before he left, Craig asked to borrow my gun -- a .38 caliber Smith and Wesson revolver. I gave it to him. He was a friend of my friend, Tinsley, and I did not question him. I had been out with Craig the previous night gambling and I figured that Craig, McQueen, and Tinsley were going back to the gambling house to try to win back some of the money Craig had lost the night before.

As a point of information, I should say that guns were a way of life for most of us, and the gambling house was in a rough area. Everyone in there gambling would either have his gun out on the table or on his person where it could be seen. Because carrying a gun most of the time was our way of life, I thought nothing of it when Craig asked to borrow my gun. I had no idea before or after the fact that they were going to commit a robbery and double-murder.

Shortly after Carl, Barbara, and I returned from the Club to my sister's house, Craig and Tinsley showed up again. They said they had stopped by earlier but had left when they found no one home. I noticed that Tinsley was extremely nervous and agitated, but I attributed this to his probably being high. Craig did not return my gun at that time, nor did I ask for it. I was busy getting ready to go out to dinner, after which I would be on my way to Tallahassee with Carl, who played for the Bishop State Community College basketball team and was considering a transfer to FSU (Florida State University). We were making the trip so he could talk to the FSU coach.

Craig left Tinsley at my sister's house when he left. Before going out to dinner, I called a cab for Tinsley and after he left in the cab, I went with Carl, Barbara, and Carolyn Miller, to Piccadilly Circle for dinner, then went shopping. One of the items I bought that day (Dec. 1) was a pair of shoes for my son.(The robbery and murder of which I was accused happened in Mt. Vernon, Alabama, around 11:30 a.m. or 12:00 noon. This was exactly the time I was at the Ebony Club with Carl, Barbara and Carolyn.)

After leaving the mall that evening, Carl and I dropped Barbara and Carolyn off at their homes, then went to Prichard, Alabama, to Doris Lambert's house for a short visit and to drop off the shoes for my son. We then returned to my sister's house. I borrowed several hundred dollars from her to insure that Carl and I had money for gas, motel, food and other expenses. Carl and I left Alabama around midnight Dec. 2nd, and arrived in Tallahassee early Friday morning. We checked into a motel near the FSU campus. Friday evening we attended a basketball game between Jacksonville State University and Dillard University. My nephew played on the Dillard Team and Carl knew several of the other players, so after the game we went to the motel where the Dillard players were staying in to visit with some of them.

On the afternoon we returned to Mobile (Saturday, December 3, 1977), I visited Percy Craig at his apartment. As I was leaving, he walked outside with me, opened the trunk of his car, and returned my gun to me, wrapped in some sort of cloth. When I inspected the weapon I saw that it was fully loaded with five .38 caliber "hollow point" bullets and, from the coating of oil on it, I saw that it appeared to have been freshly cleaned. I returned the pistol to my shoulder holster. I failed to ask, as in retrospect I realize I should have, why my gun had been freshly cleaned; the only reason would be if someone had fired it.

Later that week, maybe the 4th or 5th of December, I contacted my fiancée in Long Beach, California and told her I had found an apartment.We moved into the apartment (in the same complex where Craig and McQueen lived) between the second week and the end of March,1978. Six days after the December 1, 1977 robbery and murder of Mr. and Mrs.Warren Greene, in Mt. Vernon Alabama, Theodore Otis Roberts was charged with the crime after being identified by Mary Johnson.

A .38 caliber, blue-steel, Smith and Wesson revolver, identified by Roberts' girlfriend, Sharlene Tipton, as belonging to Roberts, was recovered. Ballistics tests later resulted in Roberts' gun being positively identified as the murder weapon. Ms. Tipton also led police to property Roberts had allegedly traded for drugs, but which belonged to the Western Auto Store. All this was reported to Mobile P.D. Detective Stroh and was reported in an affidavit by Detective Stroh, but it was never presented at either of my trials.

Ms. Mary Johnson's identification of Roberts:

On the morning of the crime, as Ms. Johnson was exiting the Mt. Vernon Western Auto Store, she "bumped into" a man -- later identified as Roberts -- as he was coming into the store. She also observed a light blue car in the parking lot with one person in the front passenger seat and three people in the back seat.When Ms. Johnson saw the news
report about the robbery and murders, she immediately called the police with information
of what she had seen.

After Roberts was arrested, Ms. Johnson was called back to the police department to view a "line-up." As she was entering the police station she recognized the same blue car she'd seen at the Western Auto Store -- a light blue Buick Riviera with an angel hood ornament. The car belonged to Theodore Otis Roberts. Ms. Johnson not only identified the car, she also positively identified Roberts, first in a photo layout, then in a live police line-up.

In February, 1978, Roger McQueen was arrested and sent to prison in Mississippi for unrelated robberies. While at the Parchman State Prison, McQueen talked of the Mt. Vernon, Alabama murders to another prisoner who went to the Warden with what McQueen had told him. The Warden, in turn, contacted the Alabama authorities. The Alabama authorities, along with the FBI, removed McQueen from the Parchman prison grounds, took him to a motel and interviewed him. He gave statements implicating himself, Tinsley, Craig, and me, with me being named as the trigger man.

When at the trial the Courts were presented with the eyewitness evidence of Ms. Johnson against Theodore Otis Roberts, they declared that Ms. Johnson had made a mistake in her identification "due to a striking resemblance "between Roberts and McQueen. This opinion was reached based solely on a statement to that effect made by Roberts' attorney. There is no evidence to show that this man or the Courts had ever seen Roberts and McQueen at the same time, viewed photos or other likenesses, or used any other means of comparison to reach this conclusion -- other than its being in his client's best interest. The only physical similarities between Roberts and McQueen are that they are both African-American and both wore "Afros," a hairstyle very common among black men in the late '70s.

Some time in the early part of 1978, I heard from Doris Lambert that she had heard a rumor that Craig, Tinsley, McQueen and I were involved in the crime. I told Doris that the only knowledge I had of the crime was what I'd heard on the news reports, and that someone had been charged with it. This was the one and only conversation I had with Doris Lambert about the murders until after I was arrested.

I later confronted Craig and Tinsley about the crime. Both denied any involvement, although Tinsley again became agitated and nervous. On several occasions after that, conversation about the crime came up, but there was never any mention of my being involved, nor did they admit their involvement. On the morning of July 28, 1978, Mobile police officers went to Craig's apartment and arrested him, then came to my apartment and arrested me. Tinsley was taken into custody later that day.

I was told by Detectives that I could be placed at the scene of the crime based on statements given by Craig and McQueen. This, despite the fact there was never any eyewitness identification of me (other than Craig and McQueen claiming I was the shooter). No fingerprints of mine were ever found at the crime scene, and no other physical evidence linked me to this crime. A man named Joe Nathan Berham did, however, testify that some time in January 1978 he was given a watch by someone in the car in which he was riding. He also admitted that it was passed to him over the seat back, and that he couldn't say who had handed him the watch. This watch was later recovered from a pawn shop and identified as the Seiko brand watch belonging to Mr. Warren Greene (murder victim). Pawn shop records indicated that it had been pawned by Berham. Still no tie to me.

While I was incarcerated at the Mobile County Jail awaiting trial, I called Ms. Lambert an estimated 44 times -- once a week for the eleven months I was there. During those conversations she repeatedly expressed her belief that I was innocent because she knew me as a person not in the habit of lying to her about anything, no matter how serious the situation.

After the first trial began, she spoke to my attorney, asking if there was anything she could do to help prove my innocence. After my attorney had this brief conversation with Doris, he returned to the courtroom and asked me if there was anything she could testify to that would help prove me innocent. I told him I wasn't aware of her having any knowledge of anything helpful other than her firm belief that I was innocent. She was never called to testify. The trial ended in a mistrial. Shortly thereafter, I was rescheduled for a second trial. I spoke again with Ms. Lambert, telling her of my anticipation of an acquittal and my plans for my life after I was acquitted.

Those plans were to take my two daughters and fiancée back to California and get on with my life. This plan didn't sit well with her. Ms. Lambert told her mother she would see me dead before she saw me with another woman, and her mother testified to that at the second trial. Doris was jealous even though she was married to someone else and trying to get a divorce at the time. She was also very dependent on me as a friend she could "pour her heart out to" about anything without fear of judgment for her drug use, and for financial support. If I went back to California, she would lose all of this. I believe this is the reason she made the complete turnaround from telling my attorney she believed me to be 100% innocent, before she heard my plans to move back to California, to claiming that I had confessed to her right after the murders had occurred.

According to Lambert's testimony, I confessed the murders to her in June 1977 -- six months before the murders were even committed. My attorneys were not allowed to present Ms. Lambert's mental health records. The records showed Ms. Lambert to be "manipulative," a pathological liar, a drug addict (cocaine and THC), had homicidal and suicidal fantasies, had borderline retardation, and heard the voice of her father (who'd been dead since she was about 13 years old) speaking to her. The mental health records I am speaking about are not a few remote incidents, nor are they from Ms. Lambert's distant past. They cover the years from 1973 up to within months of her testifying at my second trial.

Another problem with Ms. Lambert's reliability as a witness is the fact that she was pressured by the State. They told her that if she didn't testify, she would never regain custody of her children. The state had removed the children from her custody and put them in the care of her family or her husband. Before she testified against me, she was placed in a shelter for battered women, although she never claimed to have been battered.

At one time, she changed her mind and refused to testify. This resulted in her being taken from the shelter and locked up in the County Jail.

After testifying against me, full custody of her children was restored, and the State provided services such as transportation for her children to and from school. My fiancée, Hazel Craig, had similar pressure applied to her.

She had gone back to California and, after returning to visit me in jail, was detained at the jail after visitation on a "trumped-up" charge of having left a damaged apartment when she moved. The claims that Ms. Craig was responsible for "leaving behind a damaged apartment" and that being the reason she was placed in the Mobile County Jail are ludicrous.

First, all damage to the apartment was caused by the Mobile County deputies in their search for my gun, and the security deposit Hazel and I had paid had already been withheld. There is just no justification for her incarceration. (The police found my gun on the morning of my arrest, July 28, 1978, and it was implicated in the crime.) Helen Craig was later asked about testifying against me, but at that time she said she knew nothing and would not testify. She was returned to the County Jail where she remained until the first trial was declared a mistrial. She was then immediately released.

During both trials, Reginald Tinsley -- the only person to give a statement exonerating me -- had escaped and was known to be staying in New Orleans, Louisiana. Deputies at the county jail mentioned to me on several occasions that they were going to New Orleans to observe Tinsley's last known address because the State was keeping him under surveillance. They knew enough about his whereabouts to go and arrest him in New Orleans within a few days after I was found guilty and sentenced to death. I could be wrong, but I think they did know exactly where he was. If he had been arrested we could have stopped my trial until he was back in Mobile to testify on my behalf that I wasn't with them and I didn't kill the Greens. His testimony would have hurt the State's case.

Craig and McQueen both attempted several times to recant their statements implicating me, but were not allowed to do this. The District Attorney told them that if they "didn't give us Wright" they would be charged with capital murder and would also face the death penalty. Craig and McQueen had no choice but to comply by continuing to implicate me. The D.A., Chris Galanos, is now a judge in Mobile. He shouldn't have been handling my case because he was Tinsley's attorney before he was appointed D.A.

The State was also granted its motion to prevent any mention of Roberts' being initially charged with the murders. The state's purpose in filing the motion to get any and all evidence suppressed that had to do with Roberts' being initially charged with this murder and robbery was to build a stronger case against me. If the jury had heard all the evidence the state had against Roberts, which was a much stronger case than the one against me, the jury would most likely have believed that Craig and McQueen were lying when they said I was with them and I killed the Greens after robbing their store. If the evidence against Roberts had been given to the jury, my acquittal would have been likely.Where are they now?

Percy Craig: sentenced to ten years for his part in the above crime. Status unknown.

Roger McQueen: Given plea agreement in which he would do no time in Alabama upon completing Mississippi 30-year sentence for unrelated robbery. Presently incarcerated in federal prison for robbery/kidnapping committed after his release.

Tinsley: Sentenced to 25 years. Granted parole and released. Presently residing in Mobile, AL.

The foregoing is true and correct to the very best of my knowledge. Some of these facts do however require me to rely on memories after spending these past 20 years on death row.  

Freddie Lee Wright May 29, 1999

Freddie Lee Wright

Mobile Register

Freddie Lee Wright, who came within one vote of being acquitted in his 1st capital murder trial 21 years ago, only to be convicted and condemned to die in a 2nd trial a month later, was executed in the state's electric chair early today at Holman Prison.

Wright, 48, convicted of the murders of a popular Mount Vernon couple in their hardware store in December 1977, was pronounced dead at 12:11 a.m. He made no statement before his death.

Over 2 decades, Wright, a former cook and dishwasher from Mobile, who family members said grew up on the streets, maintained his innocence. He denied he was at the store the day Warren Green, 40, and his wife, Lois, 37, were slain.

According to trial testimony, the Greens were each shot once in the head as they sat tied back-to-back in a rear room of their Western Auto store in Mount Vernon, about 30 miles north of Mobile.

Among the witnesses to Wright's execution was Kim Green, daughter of the slain couple. Other witnesses included Wendy Sancher Wright, the condemned man's wife, and Ryan Russell, a private investigator who had helped Wright through the years of appeals.

Outside the prison gates, some 70 family members and friends of the Greens gathered to show support for Kim Green and pay their respects to her late parents. They stood in the cold in a cordoned-off area alongside the highway that runs in front of Holman, about a half-mile from the execution site. "One of the officers said this is very unusual to have this many people," said Kathy Simison, a friend of the Greens from Mount Vernon. "He said it was a testimony to them that this many family and friends would be here."

Wright's journey through the appeals process over the years was thwarted at every level. And in the last week, he saw his chances of surviving Friday morning depleted one by one as desperate appeals were turned down by the Alabama Supreme Court, the Alabama Court of Criminal Appeals and, late Wednesday, Gov. Don Siegelman. "It is clear to me that the death penalty is appropriate in this case," Siegelman said in a prepared statement.

On Thursday, Wright spent time saying goodbye to relatives, including his wife Wendy Sancher, whom he married in a ceremony at Holman on Friday, said prison system spokesman John Hamm. He also met with the prison chaplain, Hamm said. Just hours before Wright's scheduled execution, McDonough had filed new appeals with the Alabama Supreme Court and the U.S. Supreme Court, asking for stays of execution. About 5 p.m., the state Supreme Court voted 7-2 to deny Wright's appeal.

One of the dissenters was Justice Douglas Johnstone of Mobile, who wrote: "Whether Wright is electrocuted or injected seems insignificant compared to the likelihood that we are sending an innocent man to his death." At 9:30 p.m. the U.S. Supreme Court rejected his appeal on a 5-4 vote, sealing Wright's fate. Wright's appeals over the years had been based largely on his lawyers argument that dying at the hands of the state in the electric chair is cruel and unusual punishment.

In a recent telephone interview with a New York radio station, Wright condemned capital punishment. "The death penalty itself, it's not about justice," Wright said. "It's about vengeance.

I mean, and the bad part about vengeance is, most people believe in the system so strongly, even if it's an innocent man or when it's been evidence presented to show the person on death row is not the person who committed that crime. "We shouldn't have capital punishment, period, the way the scales of justice work," Wright told the radio audience. "I mean, it's not fair. It's not applied equally in no form or fashion. I mean, the way our system done changed now, a person, innocent, doesn't even matter any more."

The execution of another Alabama inmate, Robert Lee Tarver, was blocked last month by the U.S. Supreme Court when he challenged the state's use of the electric chair. But the court, on a 5-4 vote, later decided not to review the matter. Alabama's last execution was carried out Jan. 7 when David Ray Duren became the 20th person put to death in the state since it resumed executions in 1983.

Wright was convicted in Mobile County Circuit Court of shooting the Greens on Dec. 1, 1977, apparently to eliminate witnesses following an armed robbery. His admitted accomplices, Roger McQueen, Percy Craig and Reginald Tinsley, all testified that Wright fired the fatal shots.

All 3 subsequently were convicted of murder. Craig and Tinsley served their time and are now believed to be living in the Mobile area. McQueen is serving time in a federal prison on an unrelated kidnapping conviction. When McQueen has finished the kidnapping sentence, McDonough said, he will be returned to Alabama to begin serving the murder sentence for his part in the hardware slayings. Wright's 1st trial, before a mixed-race jury ended with the panel unable to reach a unanimous decision. The vote was 11 to 1 for acquittal.

At his retrial a month later, an all-white jury convicted Wright, a black man, of capital murder and sentenced him to death. According to court records, Doris Lacey Lambert, Wright's former girlfriend and the mother of his child, testified at the second trial that the day after the murders, Wright told her "he had went out with some of his friends ... to Mount Vernon and that he killed two people with a gun." Lambert had not testified at the first trial.

McDonough said evidence of Lambert's psychiatric history, in possession of the Mobile County district attorney's office during the trial, was suppressed. According to McDonough, Lambert suffered from hallucinations, which included homicidal and suicidal fantasies and conversations with her father, who died when she was 7 years old.

The prosecutor in the case, Chris Galanos, who later became a circuit judge and retired last year to go into private practice, said last week that Lambert's testimony was key in Wright's conviction.

Early in the investigation of the murders, another man was implicated by his girlfriend, and a gun linked to the man was later labeled as the murder weapon by a forensic expert, according to McDonough. But some time later, McQueen contacted authorities from a Mississippi prison, telling them he was a participant in the store robbery and knew who the killer was.

When Wright was arrested at his home, McDonough said, police found a gun that was later identified by the same forensic expert as "consistent" with the murder weapon. Wright always denied he was at the store that day but was inconsistent in accounting for his whereabouts. He told one investigator he was at a basketball game when the Greens were killed. He told police he was at a private club. A handful of witnesses at the trials corroborated Wright's claims.

During Wright's trials, McQueen testified that Craig told Wright to "make sure the people were taken care of" because "the people would have identified the car." McQueen testified that Wright was the last to leave the store and when he returned to the car the others "asked him what took place and he said that he had took care of both people." McQueen said he challenged Wright to prove it and Wright handed him "2 empty cartridges from the gun."

At a 1996 federal hearing in Mobile, however, McQueen recanted his trial testimony and said that he had lied when he identified Wright as the killer. McQueen looked over at Wright from the witness stand and said: "I'm sorry, dude."

Freddie Lee Wright

Associated Press & Rick Halperin

A man convicted of shooting a couple to death while robbing their rural hardware store in 1977 was executed in the electric chair early Friday. Freddie Lee Wright, 48, a former dishwasher and cook, was sentenced to death for killing Warren and Lois Green. They were bound together with an electrical cord and shot in the head in their store in Mount Vernon, north of Mobile. Wright made no final statement.

He had based his final appeal on the claim that the electric chair is inhumane, but it was rejected by the state Supreme Court, 7-2. State officials said Wright also raised the issue on appeal in 1985. In a 5-4 decision Thursday night, the U.S. Supreme Court denied Wright's last chance for a stay of execution. Wright was black and his victims were white, and his appeals also raised the issue of racial discrimination. His lawyers said a biracial jury voted 11-1 to acquit Wright, leading to a mistrial, before an all-white jury convicted him.

Alabama, Georgia and Nebraska are the only states that use the electric chair as their sole means of execution. Florida recently amended its laws to give inmates the option of lethal injection. Wright becomes the 2nd condemned inmate to be put to death this year in Alabama and the 21st overal since the state resumed capital punishment in 1983. Wright also becomes the 20th condemned inmate to be put to death this year in the USA and the 618th overall since America resumed executions on Jan. 17, 1977.

Freddie Lee Wright

Associated Press

An Alabama prisoner was set for execution early Friday for a double slaying at a rural hardware store as his attorney introduced arguments in appeals courts against use of the electric chair, hoping to block his death.

Freddie Lee Wright, 48, a former dishwasher and cook from Mobile, was convicted and sentenced to death in 1979 for the fatal shootings of Warren Green and wife Lois Green. The couple were bound together with an electrical cord and shot in the head during a robbery at their hardware store in Mount Vernon, north of Mobile. Gov. Don Siegelman on Wednesday denied Wright's petition for clemency as the case headed for the Alabama Supreme Court and then the U.S. Supreme Court.

"It is clear to me that the death penalty is appropriate in this case," Siegelman said in a statement. Wright was scheduled to die at 12:01 a.m. (CDT) Friday at Holman Prison. Wright's case has had at least 14 post-trial reviews, one of the judges reviewing the conviction said this week in refusing to stop the execution.

Wright's attorney, Brian McDonough of New York, took his challenge to use of the electric chair as inhumane to the state Supreme Court on Thursday after being turned down by the Alabama Court of Criminal Appeals. The appeal says Alabama's electric chair, which delivers 2,000 volts, is "nearly an antique." It claims the headgear is poorly designed and that the structure, built in the 1920s, is now a torturous means of execution.

Assistant Attorney General Clay Crenshaw said Thursday that the state hasn't responded to Wright's electric chair challenge because it's procedurally barred at this point in the case. But he said the chair is not an antique "All the electronic equipment on the electric chair was replaced in 1991, so it's not antiquated," Crenshaw said. He said Wright raised this issue on appeal in 1985.

The Dec. 1, 1977 killings that put Wright on death row came on Warren Green's 40th birthday. His wife was 37. The Greens were survived by an only child, who planned to witness the execution at Holman Prison with 2 uncles. Now married and a mother of 3, daughter Kim Green testified before a legislative panel Wednesday in opposition to use of lethal injection as an alternative to the electric chair. "I don't feel that a convicted killer has a right to choose what form of execution they should have," Green told lawmakers who took no action on the lethal injection proposal.

Alabama, Georgia and Nebraska are the only states that use the electric chair as their sole means of execution. 3 co-defendants testified against Wright at his 2nd trial in Mobile. During his appeal, Wright's attorney raised the issue of racial discrimination, saying an all-white jury convicted the black man of killing the white victims.

The 1st trial ended with a mistrial with an 11-1 vote for acquittal from the biracial jury. The accomplices later were convicted, but only Wright received the death sentence. The store robbery netted a stereo set, a television and a gold watch,which was Lois Green's birthday present for her husband.

The execution of another Alabama death row inmate, Robert Lee Tarver, was blocked last month by the U.S. Supreme Court when he challenged the state's use of the electric chair. But the court, on a 5-4 vote, later decided not to review the matter, clearing the way for Wright's electrocution.

Attorneys for Wright say that, unlike Tarver, Wright raised the challenge to the electric chair both during his direct appeal and his federal proceedings, and that state court rules allow it to be reviewed again based on new evidence. Alabama's last execution was Jan. 7 when David Ray Duren was put to death.

  

Freddie Lee Wright

Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

In the Supreme Court of the United States - October Term 1999

Statement of The Case

This is a case involving the rampant suppression of exculpatory and impeachment material which, had it been disclosed, would have altogether crippled the states capital murder case against Freddie Lee Wright.  After a jury had voted 11 to 1 to acquit Mr Wright at his first capital murder trial, the State suppressed key evidence regarding the troubled psychiatric history of its main witness at the second trial.  It also suppressed evidence that someone other than Mr. Wright had committed these murders.  Finally, it suppressed evidence that the testimony of at least one of Mr. Wright's two co-defendants had been included by a secret arrangement in which that co defendant would serve no time in prison for his role in these murders.

Having secured a tainted and unreliable conviction by suppressing this evidence throughout Mr. Wright's direct appeal and state post conviction proceedings, the state now argues that its own successful misconduct prevents this recently discovered evidence from being considered by the Federal Courts.   It also argues that none of this highly exculpatory and devastating impeachment material can be "material."  What the State conveniently ignores, among other things, is the admission by the former District Attorney who prosecuted both of the cases against Mr. Wright that this was Brady material that should have been turned over to the defense.   As the following facts demonstrate, no other conclusion is possible.

The Murders and the State's Case Against Theodore Otis Roberts

On December 1, 1977 a Western Auto  store  in Mount Vernon, Alabama was robbed.  The owners, Warren and Lois Greene, were tied up and murdered with a .38 caliber handgun.

Just prior to the robbery, a customer named Mary Johnson was leaving the Western Auto store when a man passed her on his way into the store.  Mrs. Johnson had a good opportunity to observe the man, who turned out to have been the lead member of the robbery team.

After the robbery was reported on the news, Mrs. Johnson contacted the police.  From a police photo spread,  she identified the man she had seen entering the store as Theodore Otis ''Beat the  WorId") Roberts.  On the basis of Mrs Johnson's impartial eyewitness identification of Roberts, he was arrested a few days later whIle drivIng a blue car  that Mrs Johnson identified as having been parked outside the store just prior to the murders.  After Roberts  was arrested, Mrs. Johnson picked him out of a lineup and later identified him again at his preliminary hearing. Id.

The Mobile County Police then obtained a search warrant for a .38 calibre handgun traced to Roberts.  In support of the application for a search warrant, Mobile County Detective Albert Stroh executed a Search Affidavit (the "Stroh Affidavit") in which Detective Stroh swore under oath that he had spoken with Robert's girlfriend, that Roberts girlfriend had been with Roberts twenty-four hours a day, and that Roberts' girlfriend had told Detective Stroh that Roberts handgun was in fact the weapon used in the double murders.

A search warrant was then issued.   Pursuant to that warrant, the police recovered a .38 caliber handgun which Alabama State  toxicologist  James  Small  subsequently  identified  as positively being the murder weapon.  This  corroborated  the inculpatory statement  which  Roberts'  girlfriend  had made  to Detective Stroh.  On the basis of this evidence -- Mrs. Johnson's identification of Roberts and his car, the statements by Roberts' girlfriend   incriminating Roberts and  the  ballistic identification of Roberts' handgun as being the murder weapon --Roberts was indicted for the murder of the Greens and bound over for trial.

The State Suppresses the Evidence Against Roberts

In the summer of 1978, the police received information that an inmate at Parchman State Penitentiary in Mississippi named Roger McQueen had knowledge of the murders.   The police then interviewed McQueen in  Mississippi.   After  having interviewed McQueen, the police then arrested Mr. Wright as well as two other individuals - Percy Craig and Reginald Tinsley. McQueen and Craig eventually were to testify that McQueen (not Roberts) was the first member of the robbery team to enter the Western Auto store.  They disclaimed any involvement by Roberts and implicated Mr. Wright as the triggerman instead.  Following these arrests, all charges against Roberts were dropped.

Prior to Mr. Wright's trial,  his defense counsel Al Pennington,  Esq. moved for and obtained a May 28,  1979 Court Order directing the State to produce "Any material information which the State has which tends to negative the guilt of the accused," as well as any agreements between the State and any witnesses against Mr. Wright.

Notwithstanding the Court's Order and its independent constitutional obligations to produce exculpatory material, the State withheld Mrs. Johnson's identification of Roberts as well as the Stroh affidavit from Mr. Wright.  (RB - 42, 43).  The only evidence they produced was Mr. Small's earlier identification of another unspecified handgun (Roberts' gun) as the murder weapon.

When Mr. Pennington questioned representatives of the State as to whether they had any other evidence against Roberts, they misled him by falsely representing that the gun was the extent of their case against Roberts.  1(R8 - 55, 56).  At no time was Mr. Pennington ever informed of the heart of the case against Roberts, including Mrs. Johnson's identification of him and the incriminatIng statements which Roberts'  girlfriend had made to the police.

The Initial Mistrial

The case against Mr. Wright then went to trial before a mixed race jury in April 1979. Mr. Wright is black and the Greens were white.  It was the first capital murder trial for the newly elected Mobile County District Attorney Chris Galanos, who had just taken office two months earlier.

The  evidence  against  Mr.  Wright  was  weak.    The foundation of the State's case was the testimony of McQueen and Craig, both of whom had criminal records and were themselves admitted culpable participants in the robbery.   (Tinsley did not testify) .  The State also introduced ballistic testimony from Mr. Small to the effect that a handgun traced to Mr. Wright was ''consistent with'' the murder weapon.   This was far weaker than the positive identification which Mr. Small had previously made of Roberts' handgun as being not just "consistent with" -- but as definitely being the murder weapon.

On the basis of this evidence,  the mixed race jury voted eleven to one to acquit Mr. Wright.  A mistrial was then declared.  This placed the District Attorney in an embarrassing position.  First, it had been in the awkward position of having to dismiss the capital murder charges against Roberts.  Second, after having dismissed the charges against Roberts, it had come within one vote of losing the case against Mr. Wright.

The Second Trial

The second trial went forward about a month later. Having come within one vote of acquittal before a mixed race jury, this time the State used virtually all of its preemptory challenges to keep all blacks off of the jury at the second trial.   Out of the ten peremptory challenges exercised by the State, at least seven of the sC!uck jurors were black and oflig a one was white.  This ensured an all white jury.

In addition to excluding all blacks from the all white jury at  the  second trial,  the  State  searched  for  some  new evidence that could spell the difference between victory and defeat.  This new evidence came in the form of a witness named Doris Lacey Lambert, who ha4 not testified at the first trial.

Ms. Lambert was a former girlfriend of Mr. Wright who had borne him a child out of wedlock before he left her for another  woman.    At Mr.  Wright's  second  trial,  Ms.  Lambert testified that Mr. Wright had purportedly confessed his role in the killings to her.   The impeachment of Ms. Lambert on cross-examination consisted of nothing more than a minor shoplifting conviction as well as whatever jealousy she may have harbored toward Mr. Wright.   Other than Lambert,  the case against Mr. Wright remained essentially the same as at the first trial.  No mention was made of Roberts, or the evidence inculpating Roberts, at the first or second trials.

With Ms.  Lambert being the  only difference  in  the presentation of the State's  case between the first and second trials, the all-white jury convicted Mr. Wright of capital murder at the second trial and he was then sentenced to death.

The Suppression of Doris Lambert's Psychiatric Records

I Unknown to Mr. Wright, at the time Doris Lambert was called to the stand, the State was in possession of impeachment material that would have effectively destroyed her credibility had it been produced to the defense.   This consisted of five years'  of psychiatric records which  the District Attorney's office had obtained from the Mobile County Community Health Clinic where Ms. Lambert had been receiving treatment.   These psychiatric records cast severe doubt on Ms. Lambert's mental health and her reliability as a witness.   Among other things these records reflected that:

-    she suffered from auditory hallucinations, and believed she was having  conversations with a father who had been dead since she was seven years old;

-   she had been diagnosed as borderline retarded by the professionals treating her;

-    she had a history of entertaining homicidal fantasies and suicidal ideations of her own;

-    she had a history of drug use, including THC and cocaine;

-    she had been on psychiatric medication for years.

-    she had been described as "manipulative" by the professional that treated her; and

In addition to suppressing evidence of Roberts'  role as the murderer and the mental instability of its key witness, the State also concealed a secret and lenient deal between itself and Roger McQueen.

The State Suppresses An Undisclosed Deal With Roger McQueen

After Mr. Wright was convicted and sentenced to death in July 1979, McQueen himself went to trial for the murder of the Greens in the fall of 1979.   On October 4,  1979, McQueen was convicted of second degree murder and received a twenty-year sentence that was to run consecutively with the thirty-year sentence for armed robbery which he was already serving  in Mississippi.

Both McQueen and Craig had testified at Mr. Wright's trial that they intended to plead guilty to first degree murder. Undoubtedly this testimony enhanced their credibility.  Whatever distaste the jury had for their criminal backgrounds and their role in the murders was ameliorated by their willingness to accept responsibility for their own actions by pleading guilty to a first degree murder charge that carried a heavy sentence.

This facade turned out to be a lie.  Three weeks after his conviction, McQueen tiled a notice of appeal and a motion for a new trial.  In his motion for a new trial, McQueen claimed that the State had violated a secret deal pursuant to which it would reward his testimony against Mr. Wright by prosecuting him only for robbery, and by promising him that any sentence he received on the robbery conviction would run concurrently with his Mississippi sentence.

One would have expected a strong and vigorous response from the State denying such a clandestine arrangement.  Instead, the State never refuted McQueen's allegations or opposed the motion.   Nor did a court ever rule upon the motion.   Instead, less than a month after the motion was  filed,  McQueen mysteriously withdrew both his notice of appeal and his motion for a new trial for no apparent reason.

In  support of this  motion McQueen  proffered an affidavit by his co-defendant Percy Craig stating not only that McQueen had been offered this deal, but that Craig too had been promised he would only be prosecuted for robbery in return for his own testimony against Mr. Wright.

Thirteen years later --  in  the  summer of 1992  -- McQueen was released from Parchman State Prison without being returned to Alabama to serve a day for his role in the murders of the Greens.  This was entirely consistent with what McQueen had claimed in his motion that the State was promising him all along.

It  was  not  until  McQueen  was  later  arrested  on unrelated  federal  charges,  and his  release  from prison was reported in the local media, that an embarrassed State of Alabama attempted to procure his return to Alabama by claiming inexplicably that his release from Mississippi had been a mistake and issuing a belated detainer for his return.  However, when the State was eventually ordered in this federal habeas corpus proceeding to produce a detainer showing that it had attempted back in 1979 to assure McQueen's return to Alabama upon the completion of his sentence in Mississippi, the State could not produce one.

The Impact the suppressed Evidence Would Have Had at Trial

In sum,  the State's case against Mr.  wright rested largely on two pillars:  (1)  the combined testimony of the coparticipants McQueen and Craig; and (2) the testimony of Doris Lambert.  Both McQueen and Craig both had criminal records and were themselves culpable participants it the robberies.   Their testimony alone had been insufficient... for the State to obtain a conviction at the first trial, even with the jury having been deceived into believing that McQueen and Craig were accepting responsibility for their actions by pleading guilty to  first degree  murder,  instead  of  being  informed  that  McQueen  (and apparently Craig as well) had received a lenient deal in which McQueen would not serve a day in prison in exchange for his testimony against Mr. Wright.  Had this deal been disclosed to the jury it would certainly have obliterated whatever credibility the purportedly remorseful McQueen and Craig had.

This would have left the State's case resting upon Doris Lambert.   She had been largely unscathed during cross-examination, with her "impeachment" consisting of nothing more than a minor shop lifting conviction as well as her position as a disappointed former girlfriend.  Had the jury known of her five-year psychiatric history, as well as her drug use, it would have crippled her credibility

Not  orily would  the  suppressed  Brady material  have destroyed the credibility of the key fact witnesses directly linking Mr. Wright to the crime, but it would have presented the jury with the following evidence against an alternative murder suspect (Theodore Otis Roberts) :   (1) the identification of an impartial eyewitness placing Roberts and Roberts'  car at the crime scene; (2) the statement by Roberts' girlfriend to a Mobile County detective that she was with Roberts twenty-four hours a day and that his handgun was in fact the murder weapon;  (3) ballistics evidence conclusively establishing Roberts' handgun as the murder weapon.

The State had once considered this enough to indict Roberts for capital murder.    Certainly this would have been enough -- when coupled with the impeachment  evidence destroying the credibility of Lambert and McQueen -- to raise more than a reasonable doubt as to Mr. Wright's guilt.

The State Habeas Corpus proceedings

In June  1987,  Mr.  Wright  filed a  state collateral challenge to his conviction in the Alabama state courts.  During the course of this proceeding his state postconviction counsel obtained a copy of the preliminary hearing transcript of Mrs. Johnson's testimony in the Roberts proceeding.   This was the first time this evidence had come into Mr. Wright's possession, and even then it was obtained from Roberts  lawyer and not from the State.  Mr. Wright then argued in the state postconviction proceeding that the State had suppressed the transcript of Mrs. Johnson's testimony in violation of Brady v. Maryland, 373 U.S. 83 (1963),  and  that  trial  counsel  had  been  ineffective  in  not conducting an investigation into the reasons, why Roberts had been indicted for the very same murder as Mr. Wright.

The Alabama  state  courts  rejected  this  petition by finding that:   (1) the transcript of Mrs. Johnson's testimony had not been "suppressed" because information about Roberts' case had been reported in the local newspapers (albeit seven months before Mr. Wright was arrested); and (2) her identification of Roberts was not "material" because it did not eliminate the possibility of.Mr. Wright having also been present at the robbery.  The courts also found that Mr. Pennington had made a strategic decision not to investigate why someone else 'had been indicted for the same murders as Mr. Wright -- notwithstanding his denial that he made such a strategic decision and the lack of any countervailing evidence that he had.   The Alabama Court of Criminal Appeals affirmed this holding,  and certiorari was denied by both the Alabama Supreme Court as well as by this Court.

The Federal District Court Habeas Corpus Proceeding

On September 15, 1994 Mr. Wright filed a petition for a writ of habeas corpus in the Southern District of Alabama.  It was not until the federal proceeding that the remaining Brady material was uncovered.   Both the Stroh Affidavit and the secret deal between McQueen and State were uncovered by new counsel for Mr. Wright shortly prior to the filing of the federal habeas corpus petition.  Neither of these items had been produced by the State.

The District Court granted Mr.  Wright an evidentiary hearing, which was scheduled for October 1, 1996.  Shortly prior to that evidentiary hearing,  the Mobile  County District Attorney produced its file on this matter to Mr. Wright's counsel.  Included in the materials produced by the District Attorney just prior to the evidentiary hearing were the five years'  of mental health records for Doris Lambert.  This was the first time these records were ever produced by the State to Mr. Wright, and they were not finally produced until seventeen years, after Mr. Wright had been tried and  sentenced  to  death  on  the  basis  of Ms.  Lambert's testimony.

Among the witnesses called by Mr. Wright at the federal evidentiary hearing was his trial  counsel  Mr. Pennington. Mr. Pennington testified that none of the Brady material in this case -- Mrs. Johnson's eyewitness identification of Roberts, the Stroh Affidavit,' the secret deal with McQueen, or the mental health records of Doris Lambert -- were ever produced to him at any time. He also denied that he had ever made a "strategic decision" not to investigate why someone else had been indicted for the murder of the Greens.

Far  from  having  made  a  strategic  decision  not  to investigate why someone else had been indicted for the murders, Mr. Pennington testified that he had questioned state law enforcement representatives as to their evidence against  Roberts  and was misleadingly assured that the gun was all they had.   (One witness for the State denied making such a statement and the other simply could not  remember) . The State never informed him of Mrs. Johnson's eyewitness identification of Roberts or the statements by Roberts' girlfriend to the police.

Roger McQueen also testified at the federal evidentiary hearing.  In a dramatic recantation of his trial testimony, McQueen testified that Mr.  Wright had not killed the Greens and even apologized to Mr. Wright from the witness stand.  He also testified about the deal between himself and the State. Although the District Court stated on the record at the hearing that McQueen was not credible (this being the same McQueen for whose credibility the state had vouched by calling him as a witness at both of Mr. Wright's murder trials),  the Court's subsequent written opinion contained no such-finding and accepted McQueen's testimony that there was a secret deal between him and the State.

The state. could not produce a single witness who could testify that any of this material was ever turned over to the defense.    On  the  contrary,  former  District  Attorney  Galanos admitted repeatedly on the stand that all of the foregoing was Brady material that should have been disclosed to the defense (although he denied the existence of a secret deal between the State and McQueen).  He also agreed that his office was not relieved of  its  Brady obligations  simply because a piece of information appeared somewhere in the newspapers.

Notwithstanding the admission by the very prosecutor who had tried both cases against
Mr. Wright that this was all Brady material, the District Court denied relief.

In the course of denying the petition,  the District Court was extraordinary critical of the State's conduct.   After stating that "the apparent misfeasance, of the State in this case raises a good deal of concern" (R4 - 71 - 15), the Court wrote in its  conclusion  that  "numerous  imperfections in the state court proceedings were' revealed," that "some of these imperfections -- like the  State's failure to disclose certain exculpatory materials -- do not in any way deserve the blessing of this Court," and that "the State should feel fortunate that it will not have to retry a case nearly twenty years after the fact ...  (Id. at 39-40).

The Eleventh Circuit Decision

The District Court had found that Mr. Wright's Brady claims arising from the Stroh Affidavit, the Lambert mental health records, and the McQueen agreement had been procedurally defaulted because Mr. Wright did not raise them before the state courts. However, the District Court  properly found that the State's suppression of these records constituted 'cause' for any procedural default. Having found that there was  "cause"  for procedural default, he nevertheless found that there was no "prejudice" to Mr. Wright because these materials would not have been "material" under Brady and its progeny.

At no time throughout the District Court proceeding did the State ever deny that suppression of this material would have constituted "'cause" for a procedural default. On appeal, however, the State argued for the first time that the suppression of this material did not constitute "cause" because -- even though it was indisputably suppressed at trial -- there was no showing that the State had prevented Mr. Wright's state postconviction counsel from discovering  this  evidence  during  the  state  postconviction proceeding.   The Eleventh Circuit agreed,  finding that "Wright presented no evidence indicating that the State's postconviction counsel did anything to suppress the above-referenced items or did anything to impeach Wright 'from learning about these items of evidence during the State postconviction proceeding."  (totally ignoring the fact that the states failure to raise this argument before the District Court had made it unnecessary for Mr. Wright to even attempt to make such a showing) . (Opinion at 12).  The Court also found that there was no "prejudice" excusing any procedural default, because not a single item of this information would have been "material" under Brady.

REASONS FOR GRANTING THE WRIT 

A claim that was never presented to the state courts is procedurally barred from federal habeas corpus review unless the petitioner can demonstrate "cause" for flis failure to raise the a claim in the state courts as well as "actual prejudice". Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); Wainwright v. Sykes, 433 u.s. 72 (1977).

This Court has defined "cause" as something "external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753.  Thus "the existence of cause. . . must ordinarily turn on whether the prisoner can show  that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."   Ibid., quoting Murray v. Carrier, 477 U.S. 478, 488 (I~986).   That external factor may consist of "a showing that the factual or legal basis for a claim was not reasonably available to counsel    .  .  or that "'some interference by Officials . . . made compliance impracticable

II

Strickler V. Greene, No. 98-5864 (June 17, 1999), slip op. at 10 n. 24 quoting Carrier, 477 U.S. at 488.

In Strickler, this court held that a habeas corpus petitioner had established cause for failing to raise a Brady claim prior to a federal habeas corpus proceeding where

"(a)  the  prosecution  withheld  exculpatory evidence; (b) petitioner reasonably relied on the   prosecution's   open   file   policies fulfilling the prosecution's duty to disclose such  evidence;  and (c)  the  Commonwealth confirmed petitioner's reliance on the open file policy by asserting during state habeas proceedings   that  petitioner had  alteady received  'everything known   to  the government.'"

· Slip op. at 32.  The Court then stated that "We need not decide in this case whether any one or two of these  factors would be · sufficient to constitute cause, since the combination of all three surely suffices."  Ibid.

That question is presented here.   It is a question of serious constitutional importance which puts the Eleventh Circuit's decision in conflict not only with at least two other Circuits, but with the Eleventh Circuit's own prior precedent.   In Julius V. Jones,  875 F.2d 1520  (11th Cir.  1989)  [add cert.  denied),  an earlier Eleventh Circuit panel had held that the prosecutor's suppression of Brady material at trial alone provided "cause" for a procedural default.

Defense counsel in Julius had not asked the State for Brady material either on direct appeal or in a prior habeas corpus proceeding,  because  they assumed that  the  District Attorney's office had complied with the Constitution by providing all Brady material at trial -- an expectation that should not be considered unreasonable in our system of justice.  The Eleventh Circuit held that the State's Suppression of Brady material constituted "cause" for any procedural default:

This Court is unwilling to hold on the facts of this case,  if the prosecutor failed to produce  evidence which was required to be produced under Brady and which failure was unknown to defendant's counsel, the claim is procedurally barred because defense counsel did not ferret  out the violation. Defense counsel should be able to rely on a belief that prosecutors will comply with the Constitution and will produce Brady material on request.

The Seventh and Eighth Circuits have held to the same effect.  Fairchild V. Lockhart, 979 F.2d 636,  640 (8th Cir. 1992)  ("the prosecution told Fairchild's attorney, that he had turned over his entire file, leading the attorney to believe that he had received everything that existed.  Therefore, Fairchild had cause for not discovering this evidence earlier"); Lewis V. Lane, 832

1 They further stated that they had onty come to suspect that this might not be true when the Alabama Supreme Court  reversed a conviction in another case because of the failure of the same District Attorney's office to provide clearly exculpatory materials in violation of Brady.  Ex parte Womack, 547 So.2d 47 (Ala. 1988). Julius, 875 F.2d at 1525.

26 1446,  1457  (7th Cir.  1987)  (".  . we agree with the district court that the conscious effort of these two state officials deliberately to conceal crucial information relating to petitioner's sentencing was "an objective factor external to the defense  (which impeded counsel's efforts to comply with the state's procedural rules").  See also Amadeo V. Zant, 486 U.S. 214, 222 (1988)  ("If the District Attorney's memorandum was not reasonably discoverable because it was concealed by Putnam County officials,  and  if  that  concealment,  rather  than  tactical considerations, was the reason for failure of the petitioner's lawyers to raise the jury challenge in the trial court,  then petitioner  established  ample  cause  to  excuse  his  procedural default under this Court's precedents.") .   Thus,  the Eleventh Circuit's decision to reward the State's own wrongdoing in this case conflicts not only with the positions of two other Circuits, but with its own prior holding in Julius.

This Court should resolve this conflict and clarify the law by holding that the State's suppression of Brady material at a trial constitutes "cause" for a procedural default irrespective of whether the particular factual circumstances of Strickler are present or not.

Any other result would seriously undermine Brady by allowing a prosecutor to reap the  benefits of their own misconduct as long as they can keep the evidence hidden until  state postconviction proceedings have run their course.

Recognizing the "special role" played by the American prosecutor in the search for truth in criminal trials, this Court reiterated in Strickler that the prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty .     whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done." Strickler, slip op. at 9, quoting Berger v. United States, 295 U.S. 78, 88 (1935) -- a view that is apparently not shared by the State of Alabama in this case.

It is sheer effrontery for the State to chide defense counsel  for  having  trusted  the  State  to  live  up  to  its obligations at trial, and by not repeatedly requesting the State to  produce  exculpatory  and  impeachment  material  in  state postconviction proceedings.  The alternative would be to assume that prosecutors do not obey the law or prior Court discovery orders,  and  to  deluge  the  state  postconviction  courts  with discovery motions seeking material that the State was already required to produce at trial.   The interests of Brady and the court system would be ill-served by such a ruling, as this Court recognized in Strickler:

Mere  speculation  that some exculpatory material may have been withheld is unlikely to  establish  good cause for a discovery request on collateral review.   Nor, in our opinion,  should such  suspicion  suffice  to impose a duty on counsel to advance a claim for which they have no evidentiary support. Proper respect for state procedures counsels against  a  requirement  that  all  possible claims  be raised  in state collateral proceedings, even when no known facts support them.   The presumption, well established by "'tradition and 'experience,' "that prosecutors  have  fully"  'discharged  their official   duties,'    "United  States  v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), is inconsistent with the  novel  suggestion  that  conscientious defense counsel have a procedural obligation to asset constitutional error on the basis of mere  suspicion  that  some  prosecutorial misstep may have occurred.

The consequences of the Eleventh Circuit's holding are particularly harsh and cruel when juxtaposed against this Court's holdings that there is no constitutional right to counsel during state postconviction proceedings.   [CITE COLEMAN].  If condemned prisoners  in state  postconviction  proceedings  are  not  even entitled to  a lawyer at all,  much  less  a  constitutionally effective one, then how can they be expected to unearth Brady material that they were previously unable to obtain even when they did have a constitutional right to counsel ?  Imposing such a burden on a petitioner in a state postconviction proceeding under these circumstances makes it all but impossible for even the most shocking Brady violations  to be  redressed  in  federal  habeas corpus proceedings.

In this case the Eleventh Circuit rewarded the State of Alabama for unconscionable derelictions of its ConstitutionaI obligations which had earned the State a rebuke from the District Court below.  A scolding by the District Court is not enough --only a fair consideration of the Brady claims on their merits is enough to vindicate the bedrock Constitutional principles  at stake here.  A rule that bars valid and meritorious Brady claims from being raised simply because defendants were too trusting of a the State would encourage prosecutorial gamesmanship and erode the continuing vitality of Brady.

II

THE ELEVENTH CIRCUIT'S HOLDING THAT THE SUPPRESSION OF THE PSYCHIATRIC RECORDS OF THE STATE'S KEY WITNESS, A LENIENT DEAL WITH A CO-DEFENDANT, AND  EVIDENCE  THAT  AN  ALTERNATE SUSPECT  ACTUALLY  COMMITTED  THE MURDERS, WAS NOT "MATERIAL" UNDER BRADY V. MARYLAND CONFLICTS WITH THE  DECISIONS  OF  EVERY  OTHER CIRCUIT  TO  HAVE  CONSIDERED  THE  ISSUE, AS  WELL  AS  WITH  THE ADMISSION BY THE FORMER DISTRICT ATTORNEY WHO PROSECUTED THE CASE THAT ALL OF THIS INFORMATION WAS BRADY MATERIAL

In addition to finding that there was no "cause" for a procedural default, the Eleventh Circuit found that "prejudice" did not  exist  because  the  suppressed  information  was  not "mater}al" under Brady.   However,  there is no doubt that Mr. Wright has established "actual prejudice as a result of the violation of federal law."  Coleman, 501 U.S. at 750.  While this Court has never given the prejudice standard "precise content," United States v. Frady, 456 U.S. 152, 168 (1982), it has required a  showing  that  the  constitutional  error  "worked  to  [the petitioner's] actual and substantial disadvantage."  Murray v. Carrier, 477 U.S. 478, 494  (1986)  (quoting Frady, 456 U.S. at (emphasis in original).  Such a showing is inherent in the nature of the violation where, as here,  the underlying norm (Brady) already requires a showing of materiality, defined as "'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler V. Greene, slip op. at 9, citing Kyles v. Whitley, 514 u.s4 419, 433-34 (1995) (quoting Bagley, 473 U.S. at 682).

Indeed, as the Court noted in Kyles, a determination of materiality  "necessarily  entails   the  conclusion  that   the suppression must have had  'substantial and injurious effect or influence in determining the verdict.'"  Kyles, 514 U.S. at 435 (citations  omitted).    Where, as  here,  that  "substantial  and injurious effect" produced a manifestly unreliable capital verdict and death sentence, it assuredly worked to petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."  United States V. Frady, 456 U.S. at 170 (emphasis in original).

Under Brady and its progeny, evidence is material where "there is a reasonable probability that, had the evidence been disclosed to the~ defense, the result of the proceeding would have been different.   A 'reasonable probability,'  is a probability sufficient to undermine confidence in the outcome."  U.S.  v. Bagley 473 U.S. 667, 681 (1985).  "The question is not whether the  defendant  would  more  likely  than  not  have  received  a different verdict, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."  Kyles V. Whitley,  514 U.S. at 434.  In determining materiality  the  suppressed  evidence  must  be  "considered collectively, not item-by-item."  Id

Not  only  must  the  suppressed  evidence  be  viewed collectively,  it must also be viewed against the backdrop in which Mr. Wright came within one vote of acquittal at his first trial.  Kyles, 514 U.S. 419, 455 (Stevens, J., concurring)  ("the fact  that  the  Jury was  unable  to  reach  a  verdict  at  the conclusion of the first trial provides strong reason to believe that the significant errors that occurred at the second trial were prejudicial"); Woodward v. Sargent, 806 F.2d 153, 158 (8th Cir. 1986)  (fact that jury vote was seven to five on first vote supports finding of prejudice).

In this case, the Eleventh Circuit's finding that this unique and shocking confluence of suppressed material was not "material" under Brady and Bagley, and thus did not constitute "prejudice"  for  any procedural  default,  places  it  in  sharp conflict with virtually every court to have dealt with any one of these factors, let alone all three at the same time.

A. The Lambert Psychiatric Records

The Eleventh Circuit held that the psychiatric records for Doris Lambert were not material betause they would have been inadmissible under Alabama law.  This was contradicted by former District Attorney Galanos, ;who admitted under cross-examination at the federal evidentiary hearing that these records were Brady material.  Implicit in this telling admission is his recognition that these records would have evisterated the credibility of his star witness and that the Alabama state courts before whom his office appeared every day would have permitted cross-examination on these records.

It  is  well  settled  in  the  Eleventh  Circuit  that evidence of psychiatric problems on the part of a Government witness must be disclosed to the defense under Brady.  See, e.g, United States  v.  Lindstrom,  698  F.2d  1154   (11th Cir.  1983); Greene Vs Wainwright, 634 F.2d 272  (5th Cir. 1981); United States v. Partin, 493 F.2d 750  (5th Cir. 1974).

The  same  is  true  in  the  First,  Fourth,  Fifth,  and Seventh Circuits, United States V. Boyd,  55 F.3d 239  (7th Cir. 1995)  (prosecution was obligated to disclose a history of drug use by one of its witnesses); United States V. Ellender, 947 F.2d 748, 57  (5th Cir.  1991)  (a letter from a psychiatrist treating a government witness  "qualifies as impeachment  material and therefore Brady required the government to disclose it");   United States V. Devim,  918 F.2d 280  (1st Cir. 1990)  (disclosure of a witness's psychological and criminal records was required); Chavis V. State of North Carolina, 637 F.2d 213, 220 (4th Cir. 1980)  (suppression of psychological records of a witness violated Brady where the prosecution's case depended "entirely" upon the credibility of that witness).

In characterizing Ms. Lambert's mental health history as one of "depression,"  (Opinion at 15), the panel made no mention whatsoever of their references to Lambert's

auditory hallucinations;
suicidal ideations;
homicidal fantasies;
extensive use of cocaine and THC;
her being borderline retarded;
her "manipulative" qualities; and
the fact that she had been on psychiatric medication for years.

The Eleventh Circuit quoted McElroy's Alabama Evidence  (3d ed. 1977) as standing for the proposition that psychiatric problems must rise to the level of "mental derangement or insanity" before they can be used on cross-examination.   However,  the  Court ignored another section from that very same treatise which was cited at oral argument and which establishes that such evidence is admissible under Alabama law:

Mental capacity is deemed highly relevant to the witness' ability to perceive, recall, and narrate ...

McElroy's Alabama Evidence, § 140.01(10) (3d ed. 1977).  Indeed, McElroy cited the Eleventh Circuit's  (and the  earlier  Fifth Circuit's)  decisions  in  Lindstrom  and  Partin  with  approval, further demonstrating that Alabama law would have permitted the same  vigorous cross-examination as the federal courts would have on these, mental health records.

Such  cross-examination would have been particularly admissible in Alabama because this was a capital criminal case.   According to McElroy, the Sixth Amendment requires that "inquiry into  mental  defect,  treatment  or  hospitalization  should  be permitted" in criminal matters.   Accord,  Baker v.  State,  568 So.2d 374 (Ala. Ct. Crim. App. 1990)  (greater leeway should be afforded on cross-examination where the witness is a key one for the State).

These  Sixth  Amendment  protections  are of  critical importance here.  The right to cross-examine Lambert about these records under Lindstrom and Partin derived not only from state law, but from the Constitution as well.   The State of Alabama could not unilaterally abrogate Mr.  Wright's  Sixth Amendment right to cross-examine a prosecution witness on her psychiatric health records, any more than it could unilaterally preclude him from cross-examining the State's witnesses at all.  However, as a fuller reading of McElroy makes clear, it does not purport to do so.

The Court also found material  because  trial  counsel "was able to call Lambert's credibility  into  question"  on shoplifting  conviction  and her jealousy toward Mr. Wright.  This was simply enough to discredit such a central witness  as  Doris Lambert,  who  constituted  the sole difference in evidence between the first and second trials.  Her psychiatric records would have raised serious doubt not only about her bias, but about her reliability, credibility, and her mental fitness.   If she heard her dead father talking to her, then surely no reasonable juror would trust her recollection of Mr. Wright's alleged confession in a capital murder case.

Lambert  wasn't  simply  a  marginal  witness.   She testified that Mr. Wright had confessed to the crime -- the best evidence the State had (and the only difference between the first two trials).  Her credibility had to be attacked from every side and without limit.  Credibility battles are won or lost on the weight and the extent of impeachment.   To suggest that trial counsel could simply have sat down as soon as he "was able to call Lambert's credibility into question" on one or two trivial matters -- and that this makes it alright for the State to withhold the best  impeachment  material  that  existed --  is contrary to Brady and established jurisprudence, as well as to any realistic notion of modern trial advocacy.

Evidence Inculpating Theodore Otis Roberts

The Eleventh Circuit's holding that evidence of someone else's guilt is not Brady material is nothing short of shocking, in light of the well-settled body of law (beginning with Brady itself) holding that evidence of another suspect's guilt is classic Brady material.  See, e.g., \Brady v'. Maryland, 373 U.S. at 86; Cannon v. Alabama, 558 F.2d 1211, 1215-16 (5th Cir. 1977), cert. denied, 434 4 u.s. 1087 (1978); Jarrell V. Balk4com, 735 F.2d 1242, 1257-8 (11th Cir. 1984), cert.~denied, 471 US. 1103 (1985); Sellers V. Estelle, 651.F.2d 1074, 1075-78 (5th dr. 1981), cert. denied, 455 U.S. 927 (1982).  Even former District Attorney Galanos himself recognized this.

The  State  apparently  believed  that  Mrs.  Johnson's identification and the statements contained in the Stroh affidavit - along with  the ballistics  report  of Mr.  Small  positively identifying  Roberts handgun as  the  murder  weapon  --  were sufficient  to  prove  Roberts'  guilt  beyond  a reasonable doubt because they indicted him and had him bound over for trial.  This is corroborated by former District Attorney Galanos' on admission during cross-examination at the federal evidentiary hearing that the evidence against Roberts was Brady that  should have been disclosed to the defense.

If this evidence was sufficient to establish Roberts' guilt beyond a reasonable doubt, then it would certainly have been enough to raise a reasonable doubt about Mr. Wright's guilt.  See, e.g., Ex Parte Kimberly, 463 So.2d 1109 (Ala. 1984)  (government's failure to produce statement indicating that defendant may not have been at crime scene required reversal); Patterson v. State,  530 So.2d 886  (Ala.  Crim.  App.  1988)  (failure to disclose another suspect required reversal as raising a reasonable doubt) .   The contrary reasons offered by the Eleventh Circuit are in conflict with established law and do not withstand even cursory analysis.

1. Mary Johnson's Eyewitness

Identification of Roberts Was Material Because It Would Have  Critically Undermined the Credibility of Percy Craig and Roger McQueen.

The  Eleventh  Circuit  found  that  Mary  Johnson's eyewitness identification of Theodore Otis Roberts as the lead member of the robbery team was not material because  "it did nothing to indicate that Wright was not at the crime scene, and it did nothing to contradict Craig and McQueen's testimony that Wright was the triggerman."  (Opinion at 11).  The issue is not whether or not Mrs. Johnson could exclude Mr. Wright physically from the crime scene,  but whether she would have materially damaged the credibility of Craig and McQueen,  thereby casting doubt on Mr. Wright's guilt.  It is clear that she would have.

Had the jury believed Mrs. Johnson, and been presented with evidence positively identifying Roberts'  handgun as  the murder weapon, as well as Roberts' girlfriend's statement to the police,  then they would have had to believe that Craig and McQueen had both heavy covering up the identity of the true killer. This would have been by far the most powerful impeachment material against them.

While the Court  stated that  "the  Johnson testimony would not have impeached Craig and McQueen because they were each impeached on several grounds..."   if (Opinion at 11), this impeachment involved nothing more than the omission of one or two prior convictions during their direct examination, as well as minor discrepancies between their preliminary hearing and trial testimony.   None of it went to the core of their version of events.  The testimony of Mary Johnson who would have been the sole  impartial eyewitness  --  would  have elevated their impeachment to an altogether different plane.  It would also have strongly pointed to Roberts himself as the killer.

2. The Stroh Affidavit

The  State  also  suppressed  a  Search  Affidavit  by Detective Albert Stroh swearing that Roberts'  girlfriend had identified Roberts' gun as the murder weapon.   The Court found the Stroh Affidavit to be immaterial because

[Mr. Wright] did not call Roberts' girlfriend as a witness at the federal evidentiary hearing.   Therefore,  it is unknown exactly what she would say, and accordingly, Wright has failed to prove that what she would say is material.  A Court cannot speculate as to what evidence the defense might have found if the information had been disclosed....

(Opinion at 13). There is nothing to leave to speculation.  Had Roberts'  girlfriend been called at Mr. Wright's trial back in 1979, only one of two things could have happened: she would have agreed with the statements in the Stroh Affidavit or she would have disavowed them.   If she disavowed them,  then undoubtedly Detective Stroh could have been called to the stand in rebuttal and affirmed them  (having previously sworn to their truth). Either way, the case against Roberts would have been strengthened and the case against Mr. Wright weakened. It does not matter what Roberts' girlfriend would have said at a federal evidentiary hearing twenty years later, because there is no scenario under' which her testimony could not have helped Mr. Wright at trial in 1979.

C. The McQueen Deal

Evidence of a deal between McQueen and the State was compelling impeachment material because it went straight to the credibility of a key witness against Mr. Wright.
See,  e.g. Giglio v. United States, 405 U.S. 150, 155 (1972)  (in which the Supreme Court reversed a judgment of conviction on the  sole finding that the government's witness was promised that he would not be prosecuted, and that this promise was not disclosed to the jury).  Seealso Demps v. Wainwright, 805 F.2d 1426, 1432 (11th Cir. 1986), cert. denied, Demps V. Dugger, 484 U.S. 873 (1987);. Ross v.  Heyne,  638  F.2d  979,  986  (7th Cir.  1980)  (reversal required where prosecution witness falsely denied the existence of a deal).  Former District Attorney Galanos recognized as much, when he conceded at the federal evidentiary hearing that such a deal would have constituted Brady material had it existed.

Without citing any authority whatsoever,  the Eleventh Circuit then engaged in clearly erroneous appellate fact-finding by concluding that there was no deal between Roger McQueen and the State of Alabama -- a finding the District Court never made. On the contrary, the District dourt implicitly assumed that a deal existed but then proceeded to address the issue of materiality.

The Eleventh Circuit's fact-finding made no mention of the undisputed facts that corroborate the existence of a deal, including:

*       McQueen had gone to trial and taken a verdict of second-degree murder;

*      he then filed an appeal from that verdict as well as a motion for a new trial premised upon the State's violation of a deal in which he would be permitted to plead guilty to in which he would be permitted to plead guilty to robbery and receive a sentence concurrent with one he was already serving in Mississippi for the same offense;

*       the State never opposed the motion for a new trial;

*      the appeal and the motion were mysteriously withdrawn by McQueen a few days later with no explanation;

*      in August  1992 he walked out of Parchman State Prison a free man just as he claimed the State had promised him; and

*      when ordered by the Court to produce a detainer prior to the evidentiary hearing in this matter, the State could not locate one.

Instead, the Court focused on the fact that the District Attorney "later had a detainer issued" on McQueen in1992 (thirteen years after one should have been issued) after his publicized release from prison had become an embarrassment to the State.   (R8-175) The State's  after-the-fact efforts to save face following McQueen's release do not undermine the existence of the deal back in 1979.

In addition to not mentioning a single one of these facts, the Court erroneously characterized  the deal itself. Specifically, the Court mischaracterized the deal as one in which McQueen would be allowed to plead guilty to second-degree murder, which (as his docket sheet reflects) carried a sentence of twenty years.  That was not supported by one shred of the record.  The sole characterization of the deal was for McQueen to plead guilty to robbery, a far lesser charge in whi&h he would not have to serve a day at all.  The State may have denied the existence of this deal (a denial which the District Court never accepted as true in its opinion), but it never suggested that there as a less lenient deal which would have permitted McQueen to plead guilty to second degree (as opposed to first degree) murder.

In sum,  this clearly erroneous appellate factfinding (which contravened the District Court's opinion) cannot surmount the overwhelming jurisprudence by this Court and others that evidence of secret,  lenient deals between the State and its witnesses go to the heart of the witnesses'  credibility and should have been disclosed under Brady and its progeny.

D. The Cumulative Effect of the suppressed Evidence

In both Kyles and Strickler, this Court affirmed that the materiality of exculpatory and impeachment evidence must be viewed cumulatively,  and not item by item in a vacuum.   See, e.g.  Strickler  at  3-4  (considering  the  remaining  evidence presented against the petitioner at trial absent the testimony of the witness whose credibility would have been damaged by the suppressed material); Kyles v. Whitley,  514 U.S.  at 419  (the materiality  of   suppressed evidence must be "considered collectively, not item by item.") . In Kyles, this Court reversed the decision below where there was "room to debate" whether the court "made an assessment of the cumulative effect of the evidence. . ." and the lower court's opinion contained a "repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative material was not the  touchstone . . . "

In Strickler,  this Court assessed the materiality of the suppressed evidence by separately considering the remaining evidence at trial absent the testimony of the witness whose credibility would have been impeached by the suppressed material. This court found that the suppressed evidence was not material only after satisfying itself that -- based upon the remaining evidence against the petitioner -- he had not established a reasonable probability that the result below would have been different.

Yet this is precisely what the Eleventh Circuit did not do in this case   After spending ten pages isolating the discrete items of Brady material into neat little compartments, and then finding each one immaterial in and of itself, the Court simply concluded in two cursory sentences that

Cumulatively, the Stroh Affidavit, the Lambert evidence,  and McQueen Agreement do not undermine confidence in the. verdict.  See Kyles V. Whitley, 514 U.S. 419 (1995). Most of the items would have been inadmissible at trial and the others would not have changed the outcome of the trial . . .  · Slip op. at  17-18.   

This attempt to reduce Kyles to an afterthough does not withstand scrutiny.  At no point did either the Eleventh Circuit or the District Court or any other court consider what would have happened if both Lambert and McQueen had been thoroughly discredited at Mr.Wright's second trial,  if evidence of a ppssible deal with Craig (Lo which Craig swore in support of McQueen's motion for a new trial) had been introduced as well, and if the jury had further heard that Mary Johnson (the sole impartial fact witness available) had identified Roberts and his car as having been at the store, that Roberts' handgun had
been conclusively identified as the murder weapon  (which the handgun  traced  to  Mr.  Wright  was  not),  and  that  Roberts' girlfriend had inculpated him in the murders.  The chances of Mr. Wright's not being convicted are not only "reasonably probable" (as required by Kyles and Strickler), but almost certain.

The Eleventh Circuit's failure to consider all of the Brady material cumulatively,  and to consider what the State's case would have looked like had all of the suppressed evidence come in    is not only totally contrary to this Court's holding in Kyles, but underlines the need for further guidance from this Court as to the manner in which materiality is to be assessed on a cumulative basis.

CONCLUSION

For the foregoing reasons,  a petition for a writ of certiorari should be granted.

Dated: July 20, 1999