The Volokh Conspiracy - En Banc Sixth Divides on Habeas Petition (and En Banc):

Yesterday, a divided en banc panel of the U.S. Court of Appeals for the Sixth Circuit divided over convicted murderer Stephen Bell's habeas claim, as well as over whether en banc review should have been granted in his case, Bell v. Bell.

Bell was convicted of both first and second degree murder in a Tennessee court over 20 years ago. Since then, he has been challenging his conviction arguing, among other things, that he received ineffective assistance of counsel and the state failed to turn over material that could have impeached a prosecution witness, in violation of Brady v. Maryland. A federal district court denied Bell's habeas petition, but a divided Sixth Circuit panel reversed on Bell's Brady claim. A majority of active Sixth Circuit judges voted to rehear the case en banc, vacating the panel decision. Yesterday, the en banc court voted 8-6 to affirm the district court's denial of Bell's habeas petition.

The key issues dividing the court was whether the prosecution unlawfully withheld evidence of an alleged tacit agreement between it and a jailhouse snitch who testified for the prosecution and subsequently received more lenient treatment from the government. As Judge Gibbons wrote for the Court majority:

although we do not take issue with the principle that the prosecution must disclose a tacit agreement between the prosecution and a witness, it is not the case that, if the government chooses to provide assistance to a witness following a trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady. "The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony." Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (emphasis in original). To conclude otherwise would place prosecutors in the untenable position of being obligated to disclose information prior to trial that may not be available to them or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement.

Because Bell could not demonstrate the existence of an actual agreement between the prosecution and its witness.

In addition to dividing on Bell's Brady claim, the court also divided over whether an en banc rehearing should have been granted in the case. In a separate dissent on this question, Judge Moore argued that the court did not have sufficient grounds for an en banc because there was no intracircuit conflict, nor did the case present "a matter of exceptional public importance." Judge Gibbons responded to this charge in a footnote:

FN2 Judge Moore's dissenting opinion questions the justification for granting en banc review in this case, asserting that the case does not present a question of exceptional public importance but only a difference of opinion as to what facts permit the inference of a tacit agreement. As explained infra . . . , it is precisely the panel majority's conclusion that the facts of this case permit such an inference that would create a new definition of Brady material and a new legal rule broadly applicable in federal criminal prosecutions as well as habeas proceedings. If the panel majority's opinion remained as binding precedent, the impact would be enormous. While ordinarily factual issues do not merit en banc rehearing, this one does.

	[Jonathan Adler, January 5, 2008 at 3:45pm] Trackbacks En Banc Sixth Divides on Habeas Petition (and En Banc): Yesterday, a divided en banc panel of the U.S. Court of Appeals for the Sixth Circuit divided over convicted murderer Stephen Bell's habeas claim, as well as over whether en banc review should have been granted in his case, Bell v. Bell. Bell was convicted of both first and second degree murder in a Tennessee court over 20 years ago. Since then, he has been challenging his conviction arguing, among other things, that he received ineffective assistance of counsel and the state failed to turn over material that could have impeached a prosecution witness, in violation of Brady v. Maryland. A federal district court denied Bell's habeas petition, but a divided Sixth Circuit panel reversed on Bell's Brady claim. A majority of active Sixth Circuit judges voted to rehear the case en banc, vacating the panel decision. Yesterday, the en banc court voted 8-6 to affirm the district court's denial of Bell's habeas petition. The key issues dividing the court was whether the prosecution unlawfully withheld evidence of an alleged tacit agreement between it and a jailhouse snitch who testified for the prosecution and subsequently received more lenient treatment from the government. As Judge Gibbons wrote for the Court majority: although we do not take issue with the principle that the prosecution must disclose a tacit agreement between the prosecution and a witness, it is not the case that, if the government chooses to provide assistance to a witness following a trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady. "The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony." Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (emphasis in original). To conclude otherwise would place prosecutors in the untenable position of being obligated to disclose information prior to trial that may not be available to them or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement. Because Bell could not demonstrate the existence of an actual agreement between the prosecution and its witness. In addition to dividing on Bell's Brady claim, the court also divided over whether an en banc rehearing should have been granted in the case. In a separate dissent on this question, Judge Moore argued that the court did not have sufficient grounds for an en banc because there was no intracircuit conflict, nor did the case present "a matter of exceptional public importance." Judge Gibbons responded to this charge in a footnote: FN2 Judge Moore's dissenting opinion questions the justification for granting en banc review in this case, asserting that the case does not present a question of exceptional public importance but only a difference of opinion as to what facts permit the inference of a tacit agreement. As explained infra . . . , it is precisely the panel majority's conclusion that the facts of this case permit such an inference that would create a new definition of Brady material and a new legal rule broadly applicable in federal criminal prosecutions as well as habeas proceedings. If the panel majority's opinion remained as binding precedent, the impact would be enormous. While ordinarily factual issues do not merit en banc rehearing, this one does.