332 F.Supp.2d 302 (2004) | Cited 1 time | D. Massachusetts | August 18, 2004



This case presents for decision but a single, straightforwardquestion. It is this: Recognizing that "it is enough to show that[withheld] evidence undermines confidence in the verdict,"United States v. Conley, 323 F.3d 7, 10 (1st Cir. 2003),did the government's withholding of evidence in this case depriveKenneth Conley of "a fair trial, understood as a trial resultingin a verdict worthy of confidence[?]", Kyles v. Whitley,514 U.S. 419, 434 (1995).

I am not the first judge to address this question. The trialjudge answered the question "yes," United States v. Conley,103 F. Supp. 2d 45, 58 (D. Mass. 2000) and 164 F. Supp. 2d 216, 223-24 (D. Mass. 2001),1 and was removed by the Court ofAppeals from any further consideration of the case.

One judge of the Court of Appeals (a distinguished trial judgein his own right) answered the question with an unequivocal "no."United States v. Conley, 323 F.3d at 31 (Torruella, J.,dissenting). The matter having been remanded to the districtcourt for a "fresh look," id. at 15, and having been randomlydrawn to this session, it is my duty independently to answer thecentral question posed above.


In the early morning hours of January 25, 1995, Michael Cox("Cox"), a Boston police officer, was savagely beaten by fellowofficers who apparently mistook him for a suspect the officerswere pursuing. Criminal charges were never filed against theattackers, although two officers were later held civilly liableto the victim [Doc. No. 420 in Cox v. City of Boston, No.95-12729 (D. Mass. filed Dec. 18, 1995)].

In August 1997, a grand jury indicted Kenneth M. Conley("Conley") for perjury and obstructing justice. In June 1998,Conley was convicted of one count of perjury (in testifying thathe had seen no one else pursuing the suspect in question) and onecount of obstructing justice. He was acquitted of the other perjury count (with respect to having testified that he did notwitness the beating in question). Conley was sentenced to justunder three years in prison, but that sentence was stayed, and —to date — Conley has not served any of this sentence.2

On direct appeal, the First Circuit affirmed the conviction.United States v. Conley, 186 F.3d 7 (1st Cir. 1999) ("ConleyI"). Conley subsequently moved for a new trial in early 2000,identifying a number of pieces of new evidence he claimed wereeither newly discovered or wrongfully withheld. The trial judgediscussed the new evidence at some length and, withoutdetermining whether there had been a violation under Brady v.Maryland, 373 U.S. 83, 89 (1963), ordered a new trial in "theinterests of justice." United States v. Conley,103 F. Supp. 2d 45, 58 (D. Mass. 2000) ("Conley II").

On appeal, the First Circuit held that because the motion for anew trial was made more than seven days after the verdict, thedistrict court could not use the general "interests of justice"standard in Rule 33 of the Federal Rules of Criminal Procedure.United States v. Conley, 249 F.3d 38, 46 (1st Cir. 2001)("Conley III"). Conley then filed the instant habeas petition pursuant to28 U.S.C. § 2255 and the district court granted the motion, settingaside the conviction and ordering a new trial. United States v.Conley, 164 F. Supp. 2d 216, 223-24 (D. Mass. 2001) ("ConleyIV"). The district court found that the new evidence was sopowerful that it would probably cause an acquittal on retrialunder United States v. Wright, 625 F.2d 1017 (1st Cir. 1980),but it never reached the Brady claim. Conley IV,164 F. Supp. 2d at 223. On appeal, a divided panel of the First Circuit againreversed the lower court, holding that in Conley II, thedistrict court had decided that the Wright and Bradystandards could not be satisfied and that the First Circuit, inConley III, declined to remand, ruling that the sentence shouldnow be executed. The panel majority held that the lower court'sruling in Conley IV was therefore inconsistent with the law ofthe case, and it refused to address the merits of the Wrightand Brady claims.

The en banc court then granted Conley's petition forrehearing and withdrew the panel decision. United States v.Conley, 323 F.3d 7, 11 (1st Cir. 2003) ("Conley V"). Thecourt held that "the law of the case doctrine has no applicationhere and also that Brady but not Wright applies to [Conley's]new evidence claims made in [his] section 2255 motion." Id. Thecourt vacated the lower court's decision and remanded to anotherdistrict court judge for a "fresh look" "so that Conley can obtain a ruling on his Brady claim." Id. Judges Bownes andTorruella wrote dissenting opinions in which they argued that noremand was necessary because the appeals court could well decidethe Brady issue at that point. Id. at 16-17 (Bownes, S.J.,dissenting); id. at 23 (Torruella, J., dissenting). Indeed,Judge Torruella actually conducted the relevant Brady analysis,and he concluded that the evidence was immaterial under Brady.Id. at 30-32 (Torruella, J. dissenting).

Both the criminal and habeas cases were then remanded andrandomly drawn to this session of the Court.3


Pursuant to the mandate of the First Circuit, this Court, indischarging its duties, has done all those things one mightreasonably expect — and two that are less usual.

First, the Court familiarized itself with the record and theopinions of the Court of Appeals, solicited further briefs, andcarefully reviewed them. It then held a thorough hearing in whichboth parties were given ample opportunity to argue theirrespective positions. That's standard. In view of the Court of Appeals' having removed the trial judgefrom any further proceedings in this case, however, this Courthas consulted the trial judge's opinions only in a cursorymanner, sufficient to understand the procedural setting, and haseschewed any reflection on the factual findings made by the trialjudge. The Court adopted this approach to ensure that its ownconclusions would be derived totally from independent researchand reflection.

Finally, because the Court is faced with deciding as a matterof trial practice how the withheld evidence could have been usedbefore the jury (and what confidence one may have in a verdictwhere this is not possible), I have taken the time — twice — toread the entire trial transcript from start to finish, just asthe jury saw and heard it. This is quite different from even athorough review of the copious appellate record, replete withvarious data and memoranda that the jury never saw. I first madethis review during the quiet of an August vacation in 2003 andrepeated it over the holidays at the end of that year when theCourt was not sitting daily on trials. The Court formed atentative conclusion from its first transcript review. The secondconfirmed that conclusion.

IV. THE DATABASE Before presenting the reasoning that leads the Court to itsconclusion, however, it is necessary to set out in some detailthe data that leads the Court to its conclusion.

A. The Evidentiary Record

1. Evidence at Trial

In the early hours of January 25, 1995, after a homicide at arestaurant in Boston reportedly involving a police officer as avictim,4 several Boston Police cruisers responded. Themarked and unmarked cruisers pursued four black male suspects whohad fled the scene in a gold Lexus. Trial Tr. I at 67-70. Thesuspects turned into a cul de sac in Mattapan known as WoodruffWay, came to a stop, and fled the car. Id. at 72. One of thesuspects, Robert Brown ("Brown"), who was wearing a brown leatherjacket, ran toward a fence on the right-hand side. Id. at76-77.

The first police cruiser, occupied by Officer Cox, his partnerCraig Jones ("Jones"), and a security guard, Charles Bullard("Bullard"), who had accompanied the officers from the scene ofthe shooting, stopped to the left of the Lexus. Id. at 69;Trial R. II at 27-29. Cox, who is black, was clad in plainclothes, including jeans, a black hooded sweatshirt, and a blackdown jacket. Trial Tr. I at 65-66. Cox, the first witness at thetrial, saw Brown exit the Lexus, and Cox immediately chased after him, "right behind him," directly to the fence. Id. at76-77; Trial Tr. II at 30-31. Brown scaled the fence and hisjacket caught momentarily at the top. Trial Tr. I at 77; TrialTr. II at 95. Cox testified that he grabbed Brown's jacket in anattempt to pull him back over the fence, but Brown made it to thetop and dropped down to the other side. Trial Tr. I at 78; trialTr. II at 3-4.

As Cox prepared to climb the fence and continue the pursuit, hewas struck from behind with a blunt object by other policeofficers who apparently mistook him for the suspect. Trial Tr. Iat 85-87. The officers beat and kicked Cox repeatedly in thehead, back, face, and mouth. Id. at 87-89; Trial Tr. II at98-102. Cox heard an officer shout, "stop, stop, he's a cop, he'sa cop," and the officers fled. Trial Tr. I at 88-89. Cox wasseriously and permanently injured and had to be taken to thehospital for treatment. Id. at 94-95.

2. Conley's Earlier Grand Jury Testimony

In April 1997, a federal grand jury began investigating thebeating to determine which officers were involved and whetherexcessive force had been used. Trial Tr. III at 114. Itsubpoenaed Conley to testify, which Conley did under theprotection of statutory immunity.5 As the First Circuit summarized in affirming Conley's conviction on direct appeal,Conley testified to the following: Consistent with Cox's version of events, Conley testified that when he arrived at the dead end on Woodruff Way, his vehicle was about the fourth or fifth police car in line behind the suspects' gold Lexus, approximately forty feet away. . . . Also consistent with Cox's account, Conley testified that once the Lexus skidded to a stop, a black male wearing a brown leather jacket exited from the passenger side of the Lexus and ran to the right, towards a fence. Conley exited his vehicle in pursuit. While in pursuit, Conley observed the suspect scale the fence, drop down on the other side, and start to run. . . . Conley testified that he made all of these observations as he pursued the suspect, beginning from the time the suspect first exited the gold Lexus up to the time when the suspect landed on the other side of the fence and started to run. According to Cox's testimony, Conley made these observations at precisely the same time that Cox was chasing "right behind" the suspect. . . . However, before the grand jury, Conley testified that during that time he did not observe anyone — either in plain clothes or in uniform — between him and the suspect. In direct conflict with Cox's account, Conley testified as follows: . . . Q: Did you see anyone else in plain clothes behind him as he went towards the fence? A: No I didn't. Q: Did you see, as he went on top of the fence or climbed the fence, another individual in plain clothes standing there, trying to grab him? A: No I did not. Q: When you saw the suspect get to the top of the fence, did you see another individual in plain clothes grabbing part of his clothing — A: No I did not. Q: — as he went over the fence? A: No I did not. Q: So that didn't happen; is that correct? Because you saw the individual go over the fence? A: Yes, I seen [sic] the individual go over the fence. Q: And if these other things that I've been describing, a second — another plain clothes officer chasing him, and actually grabbing him as he went to the top of the fence you would have seen that if it happened is that your testimony? A: I think I would have seen that. . . . Conley further testified that when he got to the fence, he climbed over it in "approximately the same location" that he had observed the suspect go over the fence, and continued in pursuit. . . . Eventually, after chasing the suspect for approximately one mile, Conley apprehended him and effected an arrest.Conley I, 186 F.3d at 12-13 (citations omitted).

3. Testimony of Cox, Walker, and Brown

At trial, the government adduced evidence that implicitlycontradicted Conley's grand jury testimony. First, Cox testifiedthat he ran "right behind" Brown to the fence and grabbed hisjacket in an attempt to pull him back over the fence. Trial Tr. Iat 77. Moreover, Cox testified that no one else was between himand Brown at any time. Id. at 85. Walker, the second witness, testified that as his car pulled upto the scene, he saw Cox — whom he knew — running from left toright in close pursuit of a black male suspect approximately"three feet behind" him. Trial Tr. II at 30-31. Walker observedthe suspect climb the fence and Cox reach for him. Id. at 76.After seeing the suspect drop to the other side of the fence,Walker ran straight ahead through a hole in the fence down ahill. Id. at 34-35. He testified that, after falling twice, heran toward where he thought the suspect ran, and saw two whiteplain clothes officers ahead of him in the street. Id. at35-36. Walker stated that one officer was tall (approximately6'2") and that that officer asked Walker for a flashlight. Thetaller officer ran off in pursuit of the suspect and Walker ranafter him. Id. at 36-37. The taller officer dropped his radio,which Walker returned to him after the officer captured thesuspect. Id. Walker further testified that he would notrecognize the tall officer, but agreed with defense counsel that"at all times the white officer who was about the same size asKen Conley was in front of [Walker]." Id. at 66.

Brown testified that he saw a black man wearing black clothingrunning after him as he ran toward the fence and that he feltsomeone touch his foot as he attempted to scale the fence. 94, 96. After he scaled the fence, Brown ran into a tree and split his tooth.6 Id. at 97. Dazed, Brown lookedback toward the fence and saw a black man wearing a black hoodbegin to climb the fence. Id. Brown stated that he saw anofficer strike the man in the hood and saw another officerbeating the man. Id. at 98-101. As Brown stood up to flee, hetestified that he made eye contact with a tall white officer onthe other side of the fence who was standing next to the officerswho were beating the man in the hood.7 Id. at 102.Brown ran but was later caught and arrested by the same tall,white officer he had seen at the fence. Conley arrested Brown.Id. at 103-04, 239-41.

4. Convictions Affirmed

The jury convicted Conley of perjury with respect to histestimony that he had not seen anyone behind Brown at the fence,but it acquitted him of perjury with respect to his testimonythat he had not witnessed the beating. It also convicted him ofone count of obstructing justice.

The First Circuit affirmed the convictions and stated that thetestimony of Cox, Walker, and Brown constituted "ample circumstantial evidence" of Conley's guilt. Conley I,186 F.3d at 19. The Circuit Court stated: By comparing Conley's testimony about the timing and location of his actions with the testimony of Cox, Walker, and Brown, the jury reasonably concluded that Conley lied when he stated that he did not observe Cox chasing the suspect. Conley testified that upon arrival at the scene, he observed Brown exit from the passenger side of the Lexus, run to the right, and climb over the fence. Most significantly, Conley testified that "within seconds of seeing [the suspect] go over" the fence he scaled the fence at the same location. Both Cox and Walker placed Cox at the exact same time at the exact same place where Conley claims to have climbed over the fence. According to their testimony, which we must view in the light most favorable to the verdict, Cox was "right behind" Brown, approximately three feet behind him, as Brown approached the fence. When Brown reached the fence, Cox was even closer. At that point, Cox was close enough to make contact with Brown and attempt to pull him back over the fence. Brown corroborated this version of events when he testified that a black man wearing a "black hoody" was behind him as he ran toward the fence and had just started to come over the fence after him when he observed the black man being struck on the head by a police officer. Brown confirmed that the person behind him was close enough to make contact with his foot as he scaled the fence. Conley's testimony that he scaled the fence "within seconds" of seeing Brown go over the fence, and that he scaled the fence in the same location as Brown does not square with the testimony of Cox, Walker, and Brown. Conley's version of the events provides for no reasonable gap in time during which he could have missed observing Cox at the fence. Indeed, Conley concedes that if the Cox/Walker/Brown version is true, he would have seen Cox at the fence. In reaching its verdict, the jury apparently found the Cox/Walker/Brown version more credible.Conley I, 186 F.3d at 19-20 (alteration in original) (emphasisadded) (internal citations omitted). B. The Brady Material in Question

The instant Motion to Set Aside Conviction Under Section 2255was filed on May 18, 2001, and claimed, inter alia, that"newly discovered [exculpatory] evidence" had previously beenwithheld by the government, and that the government's failuretimely to disclose that evidence constituted a Brady violation.Subsequent to Conley's conviction and sentencing, defense counsellearned that the government had failed to produce potentiallyexculpatory evidence in the government's possession. Thegovernment now concedes that the evidence ought have been turnedover to the defense.

Although the government has argued that "subsequent proceedingshave fleshed out that Conley's Brady claim is that four piecesof non-disclosed evidence would have impeached Walker'scredibility," Resp't Mem. [Doc. No. 27] at 9, the claim is not solimited. The en banc majority in Conley IV ruled that thisCourt must analyze "all of the items of supposed new evidence"under the Brady doctrine, considering their "significance" withrespect to "whether the Brady-qualifying items of new evidence(taken together) undermine confidence in the verdict."323 F.3d at 15. Indeed, the limitations on "subsequent proceedings" urgedby the government apparently stem only from Judge Torruella'sdissent, but this Court, of course, is bound by the mandate ofthe majority. Listed below is the inventory of Brady evidence that Conleyargues warrants relief. Items labeled "1" through "8" were partof 246 pages of previously undisclosed material originallysubmitted to the district court for in camera inspection.

1. Walker's Internal Affairs Division Testimony

During the summer of 1999, defense counsel obtained thepreviously-undisclosed transcript of an interview with Walkerconducted on March 27, 1995, by the Boston Police InternalAffairs Division ("IAD"). Pet'r App. of Exs. [Doc. No. 29], Ex.18. Therein, IAD asked Walker to review a series of photographsand identify the two white officers he claimed to haveencountered at the bottom of the hill on Woodruff Way. Id. at22. Walker identified photographs of two officers — Joseph Teahanand Michael DeStephano — but he did add that he was "not sureabout these photographs." Id. at 23-25. Conley also arguesthat, in the same portion of Walker's testimony, Walker"suggested that the two officers he encountered at the bottom ofthe hill may have arrived there long after Brown jumped the fenceand fled the scene," Pet'r Opening Br. [Doc. No. 28] at 109, butthe substance of Conley's argument is unclear.

2. Joint Federal-State Investigation of Brown

At trial, defense counsel impeached Brown with his arrests andconvictions, including an arrest for state narcotics offensesthat had occurred after Brown's grand jury testimony. Trial Tr. II at 144-53. The government elicited testimony from Brownsuggesting that he had not committed drug offenses following hisgrand jury testimony. Id. at 154-58. Conley argues that theinference the government sought to have the jury draw was thatthe offenses had been trumped up by the Boston Police Departmentin retaliation for Brown's cooperation in the Cox investigation.Trial Tr. IV at 70-71.

In December 1999, defense counsel learned that Brown had beenindicted for drug offenses pursuant to a joint federal-stateinvestigation that was ongoing at the time of trial. Pet'r App.of Exs., Ex. 4A ¶ 23. The relevant cocaine sales for which he wasindicted took place after he testified before the grand jury butbefore Conley's trial.

3. The FBI Memorandum

An FBI Memorandum dated April 9, 1997 (the "FBI Memo"),contains a request for authorization to have Walker submit to apolygraph examination before trial. Pet'r App. of Exs., Ex. 21.The FBI Memo indicates that Walker had expressed some uncertaintyabout his recollection of what occurred during the incident inquestion and that he agreed to take a polygraph examination.Id. at 2. It states that "Walker also suggested that perhaps ifhe was hypnotised [sic] he might truly recall what was going onversus what he indicates was tunnel vision." Id. The FBI Memocontains a hand-written note indicating that Walker's attorney subsequently told the FBI that Walker would not be taking thepolygraph. Id. at 1. Walker did not take the test.

The FBI Memo also presents what the government argues isinformation defense counsel had at trial, but chose not toexploit. Specifically, it states that Walker's presentrecollection was that he did not see anyone running behind Coxtoward the fence. During a previous IAD interview (properlydisclosed to defense counsel prior to trial), Walker had statedthat he had seen someone behind Cox, but could not identify theperson or give a description other than to say it was a policeofficer. The FBI Memo further states that Walker's explanationfor the later change in his testimony was that he felt compelledduring the IAD interview to say that he saw something. Id. at2. "He felt this way because he knows [Cox] and likes [Cox]" and"felt bad that he could not say what happened and thereforeconvinced himself that he actually saw someone or something."Id.

4. Walker's Form 26 Report (the "Skeletal Report")

Prior to Walker's initial IAD interview, IAD requested thatWalker submit a report regarding the incident. Walker filed abrief, five-sentence report in response. Pet'r App. of Exs., Ex.22. The report contained few of the details Walker subsequentlyrecounted at the IAD interview and later at trial.

5. The Foley Memorandum Another document contained in the in camera submission wasa memorandum written by Lieutenant Kevin D. Foley ("Foley")several days after the beating (the "Foley Memo"). Pet'r App. ofExs., Ex. 23. Foley was Commander of the Anti-Gang Unit of whichCox was a member. Foley therein described events that occurred onWoodruff Way, including a statement that Officers Gary Ryan andThomas Teahan came upon Cox lying on his back on a patch of iceas they were "returning to their motor vehicle." Id. at 2.

6. Walker's Unit Incident History Log

Also withheld during trial was Walker's Unit Incident HistoryLog (the "Incident Log"), which is a computerized contemporaneouslog generated by the police dispatcher summarizing OfficerWalker's activities on January 25. Pet'r App. of Exs., Ex. 24.The Incident Log contained some information about Walker'sactivities prior to the incident at Woodruff Way that conflictedwith Walker's own Activity Log, which he prepared that night.

7. The Booking Reports

The government also turned over subsequent to trial the bookingreports for the four shooting suspects apprehended on WoodruffWay. An entry on Brown's booking sheet indicated that he was notinjured at the time of his arrest. Pet'r App. of Exs., Ex. 26.

8. The Other Form 26 Reports The government had also withheld forty Form 26 reports preparedby other officers in connection with the incident. Conley'sreport was three pages and, according to Conley, was among themost detailed of those submitted. Pet'r App. of Exs., Ex. 6.


A. The Legal Framework

The Supreme Court has held "that the suppression by theprosecution of evidence favorable to an accused upon requestviolates due process where the evidence is material either toguilt or to punishment, irrespective of the good faith or badfaith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87(1963). The government's duty extends to circumstances in whichit failed to volunteer exculpatory evidence never requested orrequested only in a general way. United States v. Agurs,427 U.S. 97, 108 (1976). In this case, the government concedes thatit had a duty to turn over the information and documents inquestion.8 Therefore, the question presented is whether the evidence ismaterial. Evidence is material "if there is a reasonableprobability that, had the evidence been disclosed to the defense,the result of the proceeding would have been different."Strickler v. Greene, 527 U.S. 263, 280 (1999) (internalquotations omitted). Significantly, "[t]he question is notwhether the defendant would more likely than not have received adifferent verdict with the evidence, but whether in its absencehe received a fair trial, understood as a trial resulting in averdict worthy of confidence." Kyles v. Whitley,514 U.S. 419, 434 (1995). To constitute "reasonable probability," "it isenough to show that the evidence undermines confidence in theverdict." Conley IV, 323 F.3d at 10.

1. Conley's "Analytical Approach"

In his Opening Brief, Conley fleshes out an interesting — butnot persuasive — analytical approach for the Court in this case.The legal standards of materiality as defined by the SupremeCourt are not in dispute, but the same cannot be said for thetheoretical framework advanced by Conley. Both sides concede thatthis Court must determine whether the Brady evidence inquestion is sufficient to undermine confidence in the jury'sverdict. Conley, however, argues that, in order for this Court to determine whether its confidence is shaken by the Bradyevidence, the Court must first determine the soundness of thejury's verdict itself. In other words, Conley contends that theCourt must review the trial record to determine the

quantum of Brady evidence needed to undermine confidence in that verdict. To the extent review of the trial record leaves the Court with strong confidence that the government's case was overwhelming and properly tried, that the defense was consistently vigorous, and that the jury's verdict represented a reasoned consideration of the merits, then one would expect that only the most compelling Brady evidence would be sufficient to shake that confidence. On the other hand, to the extent the Court concludes that the prosecution was shaky, that it involved considerations other than the defendant's own guilt or innocence, that it relied upon extraneous and highly prejudicial information, and that it was abetted by improper argument at trial not effectively checked by the trial judge or the defense, then in that context one might consider a lesser potency of Brady evidence as sufficient to undermine "confidence" in a verdict that was only marginal to begin with.Pet'r Opening Br. at 4.

For support of this analysis, Conley cites a single, butrelevant, Supreme Court decision and a district court decisionfrom this District. In Agurs, the Supreme Court stated that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evince [sic] is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.427 U.S. at 112-13 (emphasis added) (internal footnote omitted).The Court postulated: If, for example, one of only two eyewitnesses to a crime had told the prosecutor that the defendant was definitely not its perpetrator and if this statement was not disclosed to the defense, no court would hesitate to reverse a conviction resting on the testimony of the other eyewitness. But if there were fifty eye witnesses, forty-nine of whom identified the defendant, and the prosecutor neglected to reveal that the other, who was without his badly needed glasses on the misty evening of the crime, had said that the criminal looked something like the defendant but he could not be sure as he had only had a brief glimpse, the result might well be different.Id. at 113 n. 21 (quoting Comment, Brady v. Maryland and theProsecutor's Duty to Disclose, 40 U. Chi. L. Rev. 112, 125(1972)) (internal quotation marks omitted); see also UnitedStates v. Sheehan, 442 F. Supp. 1003, 1008-09 (D. Mass. 1977)(Freedman, J.).

Some a priori evaluation of the verdict appears necessary,given the First Circuit's admonition that "[t]he government'sevidence at trial was assuredly adequate for conviction, but itwas always circumstantial because no one testified that he or shesaw Conley looking at Cox in pursuit of Brown and Conley neveradmitted seeing him." Conley IV, 323 F.3d at 16. Indeed, theCircuit Court described the inferences for this case as"depend[ing] importantly on testimony as to the position ofdifferent actors at different times in a confused and changingscene in the dark of night." Id. Whether such guidance from theSupreme Court and the First Circuit contemplates consideration ofthe entirety of Conley's criticisms of the record, however, isnot clear. Conley posits that "extraneous and prejudicial evidence andargument" likely improperly influenced the jury's verdict.Specifically, Conley alleges six ways in which "prejudicial" or"extraneous" evidence and argument may have corrupted theverdict, such that the Court's confidence in the jury's findingsshould already be "shaky."

First, Conley argues that the prosecution improperlycharacterized Conley's assertion of his rights and his acceptanceof immunity. The government introduced evidence that Conley hadasserted his Fifth Amendment rights and accepted immunity priorto testifying before the grand jury. Conley does not contest thefact of the assertion or the acceptance of immunity; rather,Conley argues that the government adduced the evidence and arguedit in such a way to suggest that Conley had something to hide andwas a constituent brick in the "blue wall of silence." Conleymaintains that he only asserted his rights and accepted immunitybecause his attorney advised him to do so, but the government"layered inferences of incrimination, reluctance, andconcealment." Pet'r Opening Br. at 62. Significantly, the juryreceived no limiting instruction regarding how to considerConley's assertion of his rights.

Second, Conley argues that the cumulative effect of excessiveevidence portraying Cox's beating prejudiced the jury. BecauseConley was not charged with beating Cox, much of the evidence depicting Cox's beating subjected Conley to unfairprejudice, he asserts.

Moreover, one of the government's "themes" was to portrayConley as attempting to obfuscate his role or knowledge of thenight in question. Conley claims that the government accordinglyattempted improperly to offer evidence that Conley failed toprepare a report of his "arrest" of Brown. Conley has submittedaffidavits of former commanding police officers that when, ashere, a police officer is called in to "assist," he is under noobligation to file a report. Conley testified consistent withthis "policy," but contends that the government improperlycharacterized the fact that he did not prepare a report as a"failure."

Additionally, Conley maintains, the government suggested thathis failure to complete a report somehow contributed to Brown'shomicide acquittal. Brown was acquitted of the underlyinghomicide charge and Conley never testified at his trial. Inclosing, the government argued that you don't need to know regulations or have any regulations before you to know, common sense, that a police officer who is involved in the capture of a fleeing suspect from a serious crime ought to make a record of that or make somebody know that in fact he's the witness who should testify. And in fact he didn't testify at the state trial of Robert Brown, the trial in which Robert Brown was acquitted.Trial Tr. IV at 36. Conley argues that such suggestions unfairlyprejudiced him. Conley also argues that the government improperly elicitedtestimony from Brown that he had been the subject of retaliationby the Boston Police Department for the cooperation he providedin connection with the Cox grand jury investigation. This, too,Conley argues, caused him to be prejudiced unfairly.

Finally, Conley states that he was prejudiced by the trialjudge's decision to allow jurors to use a ruler duringdeliberations. Somewhat dubiously, Conley maintains that, becausethe demonstrative exhibits submitted were not drawn to scale, useof the ruler may have prejudiced him.

The government, of course, flatly rejects this "analyticalapproach" as a thinly-veiled attempt to poison the well ofappropriately detached habeas review, and — although itsprocedural arguments are not relevant here — its substantivearguments are meritorious.

The government contests consideration of this independent"prejudicial" evidence and argument as violative of section 2255procedure. Specifically, in its reply brief, the governmentargues that these issues were raised neither on direct appeal norin the habeas litigation (either in the district court or onappeal). Although the government objects to the "framework" as anattempt to "backdoor" new claims that are already forfeited orwaived, the government's procedural objections are not correctlyframed. Conley is not expressly attempting to raise new claims for independent consideration; rather he is trying —impermissibly — to stretch the meaning of the Supreme Court's andthe First Circuit's guidance on the issue of materiality.

While consideration of the entire record must precede anyreasonable materiality analysis, such consideration does notinclude deliberation about the inevitably myriad ways in which apetitioner might subsequently attack the integrity of the jury'sverdict. That is, while consideration of the circumstantialnature of the instant case is critical, this Court does notengage in sweeping speculation about how the jury may or may nothave been influenced "improperly" by the inherent vicissitudes ofa trial. The First Circuit's fresh look mandate is not aninvitation to perform an unmitigated dissection of the evidenceadduced, trial strategies adopted, rulings rendered, andinferences gleaned. Rather, this Court's responsibility is todetermine whether there is a reasonable probability that thewithheld evidence in question — had it been available to defensecounsel — would have led to such an undermining of thegovernment's case that this Court no longer has confidence in thejury's verdict. In other words, this Court ought not engage in a"sufficiency of the evidence" redux under the guise of a Bradyanalysis.

Of course, at the end of the day, the materiality analysis isso case and fact specific, it may be difficult to conduct such a finely-parsed examination de facto. This Court, however,strives for such theoretic discipline.

B. Applying the Legal Framework

1. The Sockdolager9

For me, the sockdolager is the FBI memorandum (item 3, above).To understand why, it is necessary to recall what defense counselknew prior to trial —

Cox was an extraordinarily sympathetic victim — a Boston policeofficer struck down in the line of duty, viciously beaten andpermanently injured by fellow officers. With the governmentseeking to portray Conley as covering up for these officers, aconfrontational cross examination of Cox was not indicated andmanifestly would have been improper.

Walker, a fellow black officer, was obviously a criticalwitness. He professed to remember a number of details about theincident, some — such as Conley's position down the hill where hearrested Brown — were helpful to Conley as tending to show hecontinued in pursuit and did not remain at the fence observingother officers beating Cox. Moreover, defense counsel knew fromthe properly and timely produced grand jury testimony of Walker that he had gone so far as to embellish details in anunderstandable, if highly improper, attempt to help Cox, whom heliked. In his grand jury testimony, Walker stated that he"conjur[ed] up pictures" of what he "should have seen" that nightbecause Walker "started feeling guilty" that he did not see morethan he did. Pet'r App. of Exs., Ex. 28 at 54. This Court thusacknowledges that defense counsel already had significantammunition with which he could have impeached Walker for bias.

Defense counsel was thus faced with a nuanced tactical choice.He could well have impeached Walker with his known instances ofimproper embellishment, but would inevitably have faced thegovernment riposte that Walker had laudably given completetestimony and ought be considered credible because he hadincluded the details favorable to Conley. The quantum of dataprovided by Walker would largely have remained, challenged onlyby Walker's willingness to exaggerate details. Moreover, suchimpeachment ran the risk of impugning Walker's sympathy for Cox,a sympathy that is palpable throughout the trial record.

What defense counsel did not know was that Walker was so unsureof his memory of the event that he was suggesting he behypnotized in order to provide relevant detail. To me, this iscritical information, for it opens up an entirely new line ofcross examination — ability to recall — that puts Walker's entiretestimony at issue without in any way faulting Walker's natural sympathy for his injured colleague. Indeed, armed withthe hypnotism suggestion, defense counsel could well first haveundermined Walker's ability to recall at all with questions thatsupported his commendable desire to help in the face of a whollyinadequate memory, working in his willingness even to behypnotized (a medium dependant on suggestibility on the part ofthe hypnotizer), and then going on to point out that Walker hadgone so far as to embellish details out of whole cloth. Thiswould have been a far more attractive course (and could haveproduced a significantly more searching cross examination) thanthe choice facing defense counsel wrongfully deprived of thisinformation, as it would be grounded in Walker's admittedfrustration with his inability to recall important and relevantdetails.

Nor is this some a priori stretch of my imagination as atrial judge.10 The considered judgment of bench, bar, andscholars supports such an approach and confirms its utility.Consider:

Defense counsel Willie Davis, Esq. is an outstanding triallawyer, thorough in preparation, deft in cross examination, andtenacious in representing his clients. He has practiced before me continuously and professionally since his appearance for thedefendant in Commonwealth v. Wills, Norfolk Sup. Ct. Nos.79304, 79305, aff'd, 398 Mass. 768 (1986).11 Of him itmay be said (as General Lee said of Meade upon learning he hadreplaced Hooker), "He will make no mistake on my front, and if Imake one he will be quick to take advantage of it." The CivilWar: A Film by Ken Burns (PBS television broadcast,1990).12

Moreover, the mention of a need for hypnotism as a memoryenhancer would have an especial and pejorative resonance with thejury. Hypnotism has yet to gain widespread acceptance in thescientific community and has been treated with uniform skepticismby the courts when advanced as an evidentiary tool. As theSupreme Court has observed, "[t]hree general characteristics ofhypnosis may lead to the introduction of inaccurate memories:" the subject becomes "suggestible" and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to "confabulate," that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences "memory hardening," which gives him great confidence in both true and false memories, making effective crossexamination more difficult.

Rock v. Arkansas, 483 U.S. 44, 59-60 (1987) (emphasis added)(rejecting as unconstitutional a per se rule excludingdefendant's hypnotically-refreshed testimony). Finding thetechnique inherently unreliable, many jurisdictions adopt thepresumption that hypnotically-enhanced testimony isinadmissible.13 As is often the case, the uniformjudicial suspicion of the use of hypnotism as an investigative toolreflects the general public attitude. The jury here would likelyshare this attitude.

Then too, cross examination to demonstrate lack of recollectionis recognized as an entirely different tack — with differentskills and techniques — from cross examination to demonstratebias. Indeed, it is a fundamental principle of effective trialadvocacy that impeachment for inability to recall is asignificant cross-examination technique, separate and apart fromimpeachment for bias. See, e.g., Roger Haydock and John Sonsteng, Trial Advocacy Before Judges, Jurors and Arbitrators535-36, 541 (West Publishing Group 2d ed. 1999) (stating that"[b]ias and prejudice are factors which prevent a witness frombeing impartial," while "[s]ome witnesses might not actuallyrecall what they say they observed or perceived"); Steven Lubet,Modern Trial Advocacy Analysis and Practice 157 (NationalInstitute for Trial Advocacy 1993) (stating that "the concept ofimpaired recollection involves the occurrence of interveningevent damaging to the witness's recall [such as] the mere passageof time"); Peter Murray, Basic Trial Advocacy 192-93 (Little,Brown and Co. 1995) (noting that impeachment techniques includechallenging "both the witness's opportunity and ability torender accurate testimony [recall] and the witness's motive to doso [bias]"); L. Timothy Perrin, H. Mitchell Caldwell, & Carol A.Chase, The Art & Science of Trial Advocacy 327 (AndersonPublishing Co. 2003) ("The third impeachment possibility [afterbias and failure to perceive] is a failure of the witness'memory. By showing that the witness has forgotten importantfacts, the lawyer calls into question other parts of thewitness' testimony that the witness claims to remember and raisesdoubts about the witness' certainty of the witness' testimony."(emphasis supplied)).

Generally, the government responds that to take the tackoutlined above would require Conley to "disavow the theory of defense he embraced at trial." Resp't Reply Mem. [Doc. No. 149]at 31; see also Resp't Mem. at 21-23. The government andJudge Torruella in his dissent in Conley V, 323 F.3d at 31(Torruella, J., dissenting), argue that undisclosed evidence thatmight have been used to impeach Walker's credibility in generalis immaterial under Brady because the defense actually soughtto embrace Walker's testimony at trial. The defense pursued thisstrategy because Walker placed Conley at the bottom of the hill,away from the scene of the beating. Indeed, in closing, defensecounsel argued that the tall, white officer identified by Walkerhad to be Conley. Therefore, contends the government, all of thewithheld evidence that might have impeached Walker would not havebeen used.

This Court respectfully rejects this argument virtually out ofhand As a matter of multidimensional trial strategy, it wouldhave been quite possible for experienced defense counsel to argue— as Mr. Davis here sought to do — that Walker should be believedon certain issues, such as what he said he did not see at thescene, and simultaneously to challenge Walker's ability toperceive or recall. It simply will not do for the government toadmit that it had a duty during discovery to deliver a threelegged stool [Walker's earlier substantive statements, his grandjury testimony revealing bias, and the FBI memo revealing lackof memory] and then to complain that defense counsel precariously tried to balance on a two legged stool instead of grasping thebias leg and trying to smash the stool outright. It is preciselythis "damned if you do, damned if you don't" approach that thisCourt sought to address in its nationally acclaimed expansiveLocal Rules concerning discovery in criminal cases. See e.g.,Illinois Capital Punishment Commission Report, Recommendation 49,at 119-20, and chapter 8 of the technical appendix, availableat (last visited August 3, 2004).14Discovery issues are, of course, always best addressed pre-trial.See Daughtry v. Dennehy, 946 F. Supp. 1053, 1059 n. 2 (D.Mass. 1996) ("[After trial], given the very nature of theadversary process, neither the government nor the defense, muchless this Court, can say with any real certainty what ultimatelywill prove material. In the pre-trial situation, . . .materiality is largely in the eye of the beholder. [This Court'sprior pre-trial discovery orders] seek to make sure some eyeother than the government's will bear on thatdetermination.").15 In any event, after considerable reflection, this Court holdsthat the wrongful withholding of the FBI memorandum with itssignificant data bearing on Walker's inability to recall crucialevents so undermines confidence in the jury's verdict as to constitute "material" evidence.16 The writ of habeascorpus must therefore issue.

2. Best evidence in a supporting role.

Conley contends that the booking reports contained evidencethat would have impeached Brown's credibility. The bookingreports, prepared by a booking officer and signed by Brown,indicate that Brown did not suffer any injuries at the time ofhis arrest. Yet Brown testified at trial that he "split [his]tooth in half" when he ran into a tree after jumping the fence.Trial Tr. II at 97. Brown said that he "sat there for a minutebecause [he] was in pain." Id. Indeed, Brown's broken tooth wasthe only explanation offered by Brown regarding why he lingeredafter jumping the fence. The government did not respond to this argument in itsmemoranda.

Since pain from a chipped or broken tooth is a common humantribulation, and since the booking officer would appear to thejury as a more indifferent — and therefore neutral — figure,Brown's signature on the booking report that he suffered noinjury adds gravitas to the other extensive impeachment of Brown.Standing alone, however, this Court would not grant the writ dueto the nondisclosure of this evidence. Even so, the failure todisclose this evidence does tend to reinforce and confirm thepropriety of this Court's holding based on the FBI memorandum.

3. The other non-disclosed evidence

The remaining evidence that the government failed to disclosedoes not amount to much. Consideration of this evidence does notmake this Court any more disposed to issue the writ of habeascorpus than it would have been absent such consideration. Still,because further proceedings may well be in the offing, andbecause the First Circuit's "fresh look" mandate requires athorough review of all the evidence, this Court considers eachitem separately and all of them together.

a. Walker's IAD Testimony

During his first interview with IAD, Walker identifiedphotographs of officers Teahan and DeStephano as possibly being the officers he encountered at the bottom of the hill. Conleyargues that such an identification "could have cast further doubton the accuracy of Walker's recollection offered at trial." Pet'rOpening Br. at 89. Presumably, Conley might have argued at trialthat Walker's identification of those officers — who were in factnot at the bottom of the hill — demonstrated his faulty memory,that is, it may have cast doubt on his credibility in general.

Neither Walker nor the government, however, ever suggested thatWalker could identify Conley as the tall, white officer he saw.Walker asserted his uncertainty about the identification saying,"[l]ike I said, I'm not sure about these photographs but it lookslike the tall officer." Pet'r App. of Exs., Ex. 18 at 25. Indeed,it was totality of the circumstances, corroborated by Conley'sown testimony, that established that Conley was that officer. Thedefense was already aware of Walker's inability to identify thetall, white officer at the bottom of the hill. See J.A. at269-70, 272, 275, 285, 292, 296 (Walker repeatedly and mistakenlyreferring to the tall officer as Gary Ryan). Brady does notprotect a defendant who is aware of essential facts that wouldallow him to take advantage of the exculpatory evidence at issue.See United States v. Hicks, 848 F.2d 1, 4 (1st Cir. 1988).Therefore, this evidence does not contribute to an undermining ofthe verdict. b. Joint Investigation of Brown

The fact that a joint federal-state investigation of Brownwas ongoing, Conley argues, could have been used to impeachBrown's credibility when he testified at trial that he had notcommitted any drug offenses in the months following his grandjury testimony.17 Conley argues that this information mayhave blunted the government's argument that Brown was the victimof police retaliation because the fact that the federalgovernment was also investigating him would tend to show that thecharges were not trumped up. Even assuming that it would havebeen appropriate to permit defense counsel to cross-examine Brownon the subject, see Conley II, 103 F. Supp. 2d at 54 (statingthat "it is questionable whether it would have been appropriatein applying [Federal Rules of Evidence] 404, 404(b) and 608(b) topermit defense counsel to cross-examine Brown on the federal druginvestigation against him"), the government's "theme" that Conleyseeks to attack is not central here. Indeed, the government neverarticulated this argument of retaliation; it merely argued that,given Brown's subjective belief that his role as a governmentwitness hurt, rather than helped, him with the Boston PoliceDepartment, he had no motive falsely to incriminate Conley. Moreover, Brown was cross-examined by way of hisextensive criminal record, including prior drug convictions. Theevidence does not serve to contribute to a subsidence of theverdict.

c. Walker's Form 26 Report

The dispute about Walker's Form 26 Report is essentiallysimple. Conley contends that because Walker was asked by IAD "tocomplete a report completely detailing [his] knowledge of theallegations," see J.A. at 418 (emphasis added), and becauseWalker did not include any of the details he later imparted toIAD, the report could have been used by Conley to impeach Conleyby omission. The government responds (and Judge Torruella agreedin his dissent in Conley V, 323 F.3d at 31) that the report wasmerely "skeletal" and was not intended to constitute a thoroughdescription of events. The fact that Walker met with IAD justdays later and gave a highly detailed accounting of what he knew— including the details that conflicted with Conley's testimonyand helped form the basis of the perjury conviction — shows thatthe report was immaterial. Indeed, argues the government, he wasordered to appear before IAD in the same memo in which Walker wasinstructed to write the report.

Conley, however, also argues that timely disclosure of thereport could have assisted defense counsel in rebutting theprosecutor's arguments regarding Conley's failure to file a report in an attempt to bolster the "blue wall of silence"because Walker's report was itself insubstantial. Moreover,because Conley's Form 26 Report was three pages and considerablymore detailed, he argues, Walker's Form 26 Report was, incomparison, even more important to the defense. The governmentsuggests in its Reply Memorandum that Walker — unlike Conley —voluntarily submitted a report after the incident in which hedocumented his presence on the scene, but it is unclear to whatthe government is referring. Resp't Reply Mem. at 30. Thegovernment also responds that it could still have made theargument that Conley initially failed to file a report,notwithstanding the detailed Form 26 Report he later filed.

Notably, Conley does not spend much time fleshing out howimportant this report would have been to impeach Walker, whichindicates that Walker and the government have successfullycharacterized it as a mere precursor to Walker's full statementdays later. The Form 26 Report is thus a non-starter.

d. The Foley Memo

Conley argues that the Foley Memo could further undercutWalker's recollection of the timing of events because OfficerFoley indicated that Officers Ryan and Teahan came upon Cox asthey were returning to their vehicle and Walker had told IAD thathe understood that Ryan was at the bottom of the hill withTeahan. The government argues that the Foley Memo is immaterial because Foley did not state that he had actually spoken to thesetwo officers. This is among the weaker evidence Conley presses,and the Court takes no further notice of it.

e. Walker's Unit Incident History Logs

Conley argues that Walker's Unit Incident History could havebeen used to suggest that Walker's recollection of events mayhave been faulty and could have helped refute the government'sargument that Conley arrested Brown. Walker's activity log (whichhe prepared himself) contains several inconsistencies whencompared to the Unit Incident History prepared by the dispatcher.These activities are wholly independent from the events inquestion, but Conley argues that they tend to indicate Walker'sinability to perceive or recall events on that fateful night. Thegovernment responds that the alleged "inconsistencies" aretrivial and would clearly not have impacted the substantive case.

With respect to the issue of Brown's "arrest," Conley maintainsthat, because both Walker and Conley were involved in theapprehension of Brown, if Conley was required to file an "arrest"report, so too was Walker; yet the only "arrest" reported onWalker's Unit Incident History was an earlier arrest subsequentto a motor vehicle stop. In other words, Conley argues that thisevidence would have bolstered his claim at trial that he wasmerely "assisting," that he did not make a formal "arrest," and,therefore, no report was required. The government responds that Walker, unlike Conley, did not stop Brown atgunpoint and handcuff him. Generally, the government argues thatthe exculpatory value of the Unit History Reports is quiteattenuated. The government is correct.

f. Other Form 26 Reports

Finally, Conley states that review of the other Form 26 Reportsdemonstrates that Conley's "was among the most detailed of thosesubmitted." Pet'r App. of Exs., Ex. 6. Ostensibly, Conley impliesthat this evidence generally would have bolstered Conley'sposition at trial that he was truthful, forthcoming, and not apart of the alleged "blue wall of silence."

The government effectively responds that Conley had the Form 26Reports of some of the officers, including Officers Williams,Burgio, Daley, Horton, Caisey, Stratton, and Ryan, and could havemade the same argument he posits here.

4. The Cumulative Effect of the Undisclosed Evidence

a. The Parties' Arguments

Withheld evidence, under Brady, is "considered collectively,not item by item." Kyles, 514 U.S. at 436. In other words, theCourt's duty is not to consider whether any one particular pieceof withheld evidence would undermine confidence in the jury'sverdict; rather, it must determine whether the cumulative effectof all the undisclosed evidence causes such a subsidence. The two principal arguments the government advances in positingthat the cumulative effect of the undisclosed evidence isnegligible are 1) that the evidence is either tangential ormerely cumulative of other impeachment evidence already inConley's possession before trial; and 2) notwithstanding itsweight, Conley would not have used the withheld evidence at trialbecause the defense theory of the case was to embrace Walker as acredible witness.

With respect to the first argument, Conley responds that theevidence is not merely cumulative. Principally, with respect tothe FBI Memo, Conley presses the distinction between Walker'sability to recall — potentially called into question by the FBIMemo — and whether he had fabricated an earlier version of eventsout of sympathy for his friend, Officer Cox. Conley would arguesimilarly with respect to Walker's previous IAD testimony andWalker's Form 26 Report.

Furthermore, the government argues that the evidence was onlyuseful for impeachment of Walker on tangential matters. Forexample, the government says that the FBI Memo was immaterialbecause Walker's inconsistent statement merely "would havesupported the theory that Walker may have seen a figure, namelyConley, closely behind Cox." Resp't Mem. at 31. Additionally, itasserts that Walker's IAD interview was immaterial because "ithas virtually no impeachment value for Walker's testimony about his observations of seeing Cox chase a suspect, or, for thatmatter, for his testimony in general." Id. at 17. Also, thegovernment argues that the Foley memo is immaterial because itdoes not undermine Walker's testimony regarding the chase to thefence. Id. at 25.

Conley dismisses these arguments as the government's posthoc attempt to parse the complete trial testimony describing anundisputably rapid and chaotic series of events. Conley arguesthat, because the government's case sought to place the entireepisode into an "integrated whole," the withheld evidence "couldhave been used to further elucidate the confusion and `commotion'that the defense attempted to explore." Pet'r Reply Mem. [Doc.No. 150] at 10. The government cites United States v.Natanel, 938 F.2d 302 (1st Cir. 1991) for the proposition thatimpeachment evidence relating to an issue not essential to theconviction is immaterial. As Conley points out, however,Natanel involved Rule 33, whose materiality standard is moreonerous than Brady's, and, unlike in Natanel, Walker was notalready subject to "a series" of impeachments at trial relativeto his ability to perceive or recall. Id. at 314.

More importantly, Conley takes issue with the government'scontention that defense counsel would not have sought to impeachWalker with any of the withheld evidence — had it been available— because the defense embraced Walker as a credible witness. The government primarily rests on the fact that the defense attrial sought to bolster Walker's credibility because Walker'stestimony placed Conley at the bottom of the hill, away from thescene of the beating.

Conley vehemently responds to this argument. In his OpeningBrief, Conley states that in the heat of a jury trial, use of the withheld Walker evidence to test the reliability of Walker's perceptions on certain issues would not necessarily have been inconsistent with adopting Walker as a credible witness as to others. . . . As a general matter, a jury may accept all, some, or none of a witness's testimony, and this range of choices certainly could have been presented in this case.Pet'r Opening Br. at 110 n. 72. Conley correctly rejects thegovernment's "static" view of the defense strategy. That is,Conley asserts that, had defense counsel gained possession of theevidence prior to trial, it may well have attempted a challengeto Walker's ability to perceive or recall the events. Conleysubmits that defense counsel concomitantly could have challengedWalker's ability to perceive or recall and portrayed him as acredible witness on certain issues. In summary, Conley statesthat "[c]ertainly the jury could have concluded that Walker didnot see certain events, as he claimed, while still concludingrationally that his lack of certainty concerning the things hethought he saw raised a reasonable doubt." Pet'r Reply Mem. at12. b. Holes in the Trial Testimony

The highly circumstantial nature of the case is troubling.Indeed, having reviewed the record, it appears that the testimonyof Cox, Walker, and Brown was not so "interlocking" as thegovernment contends. For example, Cox, Walker, and Brown alltestified that Cox was right behind Brown at the fence.Furthermore, they all testified that Brown reached and scaled thefence very quickly, as Cox was unsuccessful in reaching forBrown. Walker says that as soon as Brown tumbled over the otherside of the fence, he dashed through an opening in the fence,and, therefore, that is presumably why he did not see Cox beingbeaten.

Cox and Brown's testimony, however, does not necessarily squarewith Walker's testimony. First, Cox testified that he was struckfrom behind immediately following his failed attempt to grabBrown, that is, the beating started only a moment after Brownscaled the fence. Brown testified that he witnessed part of thebeating because, upon reaching the other side of the fence, heran into a tree, which knocked him down and split his tooth.Momentarily dazed, he was able to see Cox being beaten and atall, white officer staring at him through the fence. This begsthe question: what happened to Walker?

Walker said that he went through the fence immediately afterBrown jumped over and had his "tunnel vision" trained on Brown. If Brown was stopped on the other side of the fence because ofhis confrontation with the tree, why didn't Walker immediatelynab Brown or at least see Brown "momentarily dazed" if Walkerindeed had such tunnel vision? Why didn't Brown see Walker?Moreover, if Cox was hit just after Brown jumped the fence, whydidn't Walker see the perpetrator? All of the witnesses testifiedthat everything happened very quickly. If Cox was in Walker'sline of vision at least until the point at which Brown jumped thefence, would not Walker at least have seen the officer who beatCox in the immediate area, if not more?

What the government calls "interlocking" testimony may havebeen sufficient to convict Conley, but obvious temporal lacunaeexist among the three witnesses. This alone gives the Court pauseas to the strength of this verdict, notwithstanding the Bradyevidence.

Nevertheless, were it not for the FBI memorandum, this Courtwould have denied the writ, even considering the variety ofundisclosed items taken together.


For all the reasons set forth above, this Court grants theGreat Writ of habeas corpus. Unless the government, within sixtydays of the date of this Order, moves for a re-trial, the nowpending charges shall be dismissed. Because the government has withheld crucial information, Kenneth B. Conley did not receive afair trial. Insofar as it is in my power, he shall have one.


1. While the trial judge made plain his views concerning thefairness of Conley's trial, he never squarely framed the questionas set forth above. I have the advantage of the opinions of theCourt of Appeals for the First Circuit.

2. Although there may be interesting questions regardingwhether Conley is in "custody" for purposes of 28 U.S.C. § 2255,the government has not raised them, nor have any of the courtsthat have considered Conley's Section 2255 motion mentioned them.Therefore, this Court need not address them.

3. Although both the habeas and criminal cases were drawn tothis Court, presumably for reasons of administrative convenience,the criminal case is in effect closed, and the Court's opiniononly addresses Conley's habeas petition. Conley's direct appealshave been exhausted, and after a complicated procedural odyssey,the denial of his Motion for a New Trial under Federal Rule ofCriminal Procedure 33 is now final. See Conley V,323 F.3d at 10-14. Conley never sought review of Conley V in the UnitedStates Supreme Court, and the deadline has long since expired.

4. The report was later determined to be erroneous in that thevictim was not a police officer.

5. Conley maintains that he was prepared to testify withoutimmunity but that he took it on advice of counsel, and he takesissue with the government's characterization of his being"compelled" to testify. The fact that he was given immunity,however, is undisputed.

6. Conley points out that one of the pieces of Brady materialnot turned over was Brown's booking report that contains nomention of any injury.

7. In closing argument, the government argued that thisofficer was Conley, but the jury acquitted Conley of lying aboutnot witnessing the beating.

8. This is an appropriate concession insomuch as, in thisDistrict, the government has a sorry record stretching back atleast a decade of failing to make the disclosures required bylaw. See, e.g., United States v. Coppola, No. 03-10289 (D.Mass. filed Aug. 27, 2003); United States v. Rodriguez, No.01-10206 (D. Mass. filed June 20, 2001) (Wolf, J.); UnitedStates v. Diabate, 90 F. Supp. 2d 140, 150-51 (D. Mass. 2000)(Wolf, J.); Barone v. United States, No. 98-11104 (D. Mass.filed June 5, 1998) (Wolf, J.); United States v. Mannarino,850 F. Supp. 57, 72 (D. Mass. 1994) (Woodlock, J.). Theseinstitutional lapses have caused no end of trouble in the fairadjudication of criminal cases. The Court must make plain,however, that its disapproval of the government's conceded andextensive lapses in this case has in no way influenced itsevaluation of the materiality of the data improperly withheld.

9. See, e.g., Camacho v. Puerto Rico Ports Auth.,369 F.3d 570, 572 (1st Cir. 2004); United States v. Santos,357 F.3d 136, 143 (1st Cir. 2004); United States v.Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir. 1995); UnitedStates v. Meyer, 808 F.2d 912, 917 (1st Cir. 1987).

10. Perhaps it is appropriate to point out here that I havecontinuously taught trial practice or advanced trial practice for36 years at one or more of the following schools: Boston College,Boston University, and Harvard Law School. I have been a trialjudge in state and federal courts for over a quarter century.

11. See also United States v. Adewale, No. 02-10007(D. Mass. filed Jan. 11, 2002); United States v. Harris, No.98-10234 (D. Mass. filed July 30, 1998); Duarte v. DiPaolo,No. 98-10745 (D. Mass. filed April 30, 1998); Cox v. Conley,98-10129 (D. Mass. filed Jan. 23, 1998); Cox v. City ofBoston, No. 95-12729 (D. Mass. filed Dec. 18, 1995); Barronsv. Pepe, No. 94-10061 (D. Mass. filed Jan. 13, 1994); UnitedStates v. McGee, No. 92-10202 (D. Mass. filed July 15, 1992);United States v. Keliher, No. 90-10269 (D. Mass. filed Dec.17, 1990).

12. For the propriety of such personal reflections, seeUnited States v. Amaya-Manzanares, No. 03-1307, 2004 WL1665379, at *5-6 (1st Cir. July 27, 2004), and id. at *9(Torruella, J., dissenting) ("The experienced trial judge thatdecided to exclude [the evidence] in this case, himself a formerfederal prosecutor, was surely fully cognizant of the unfairprejudice to defendant lurking in this evidence, and properlyexercised his discretion in excluding it as irrelevant andunnecessary.").

13. See, e.g., Contreras v. State, 767 P.2d 1169 (AlaskaCt. App. 1989); State ex rel. Collins v. Superior Court ofMaricopa County, 644 P.2d 1266 (Ariz. 1982); People v.Shirley, 723 P.2d 1354 (Cal. 1982) (partially abrogated by Cal.Evid. Code § 795 (West 1995 & Supp. 2003); State v. Atwood,479 A.2d 258 (Conn. 1984) (overruled in part by Rock v.Arkansas); State v. Davis, 490 A.2d 601 (Del.Super.Ct.1985); Stokes v. State, 548 So.2d 188 (Fla. 1989); Walravenv. State, 336 S.E.2d 798 (Ga. 1985); State v. Moreno,709 P.2d 103 (Haw. 1985); People v. Zayas, 546 N.E.2d 513 (Ill.1989); Odem v. State, 483 N.W.2d 17 (Iowa Ct. App. 1992);Peterson v. State, 448 N.E.2d 673 (Ind. 1983); State v.Haislip, 701 P.2d 909 (Kan. 1985); State v. Collins,464 A.2d 1028 (Md.Ct.App. 1983); Commonwealth v. Kater,567 N.E.2d 885 (Mass. 1991); People v. Lee, 450 N.W.2d 883 (Mich.1990); State v. Mack, 292 N.W.2d 764 (Minn. 1980); State v.Blackman, 826 S.W.2d 76 (Mo.Ct.App. 1992); State v.Palmer, 313 N.W.2d 648 (Neb. 1981); People v. Hughes,453 N.E.2d 484 (N.Y. 1983); State v. Peoples, 319 S.E.2d 177(N.C. 1984); Harmon v. State, 700 P.2d 212 (Okla.Crim.App.1985); Commonwealth v. Nazarovitch, 436 A.2d 170 (Pa. 1981);Commonwealth v. Taylor, 439 A.2d 805 (Pa.Super.Ct. 1982);State v. Tuttle, 780 P.2d 1203 (Utah 1989); Hall v.Commonwealth, 403 S.E.2d 362 (Va. 1991) 1 State v. Martin,684 P.2d 651 (Wash. 1984); State v. Beard, 461 S.E.2d 486 (W.Va. 1995). Some courts have adopted a case-by case approach to theadmissibility of hypnotically-enhanced testimony, either adoptingprocedural safeguards, see, e.g., House v. State,445 So. 2d 815, 826 (Miss. 1984); State v. Hurd, 432 A.2d 86, 96-97(N.J. 1981); State v. Adams, 418 N.W.2d 618, 624 (S.D. 1988),or applying a "totality of the circumstances" test that balancesthe testimony's reliability and probative value against itsprejudicial effect, see, e.g., Mersch v. City of Dallas,207 F.3d 732, 735-36 (5th Cir. 2000); Borawick v. Shay,68 F.3d 597, 607 (2d Cir. 1995); Bundy v. Dugger, 850 F.2d 1402,1414-20 (11th Cir. 1988); United States v. Kimberlin,805 F.2d 210, 219 (7th Cir. 1986); Harker v. Maryland,800 F.2d 437, 442-43 (4th Cir. 1986); Sprynczynatyk v. Gen. MotorsCorp., 771 F.2d 1112, 1123 (8th Cir. 1985); People v.Romero, 745 P.2d 1003, 1017 (Colo. 1987); State v. Iwakiri,682 P.2d 571, 578 (Idaho 1984); State v. Commeau,438 A.2d 454 (Me. 1981); State v. Hungerford, 697 A.2d 916, 925-27(N.H. 1997); State v. Johnson, 529 N.E.2d 898, 906 (Ohio1988). Only a handful state courts presume that hypnotically-enhancedtestimony is admissible, treating it as an issue of credibilityrather than competence. See, e.g., Roark v. Commonwealth,90 S.W.3d 24, 36 (Ky. 2002); State v. Brown, 337 N.W.2d 138,151 (N.D. 1983); State v. Jorgensen, 492 P.2d 312, 315(Or.Ct.App. 1971); State v. Glebock, 616 S.W.2d 897, 903 (Tenn.Ct. Crim. App. 1981); Prime v. State, 767 P.2d 149, 153 (Wyo.1989).

14. The URL does in fact misspell "technical" as "techinical"and "research" as "reasearch."

15. Addressing discovery issues prior to trial has theadvantage of avoiding the sticky "what if" question: [The Supreme] Court has adopted no fewer than four assertedly different standards of probability relating to the assessment of whether the outcome of trial would have been different if error had not occurred, or if omitted evidence had been included. See Chapmen v. California, 386 U.S. 18, 24 (1967) (adopting "harmless beyond a reasonable doubt" standard for preserving, on direct review, conviction obtained in a trial where constitutional error occurred); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (rejecting Chapman in favor of the less defendant-friendly "`substantial and injurious effect or influence'" standard of Kotteakos v. United States, 328 U.S. 750 (1946), for overturning conviction on collateral review); United States v. Agurs, 427 U.S. 97, 111-113 (1976) (rejecting Kotteakos for overturning conviction on the basis of Brady violations, in favor of an even less defendant-friendly standard later described in Strickland v. Washington, 466 U.S. 668, 694 (1984), as a "reasonable probability"); id. at 693-694 (distinguishing the "reasonable probability" standard from the still yet less defendant-friendly "more likely than not" standard applicable to claims of newly discovered evidence). See generally Kyles v. Whitley, 514 U.S. 419, 434-436 (1995). Such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful to the consistency and rationality of judicial decisionmaking. That is especially so when they are applied to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.United States v. Dominguez Benitez, 124 S. Ct. 2333, 2342(2004) (Scalia, J., concurring).

16. The Court's holding is not based in any way on thesuggestion that a polygraph examination be administered toWalker. There is no rule that such evidence is per seinadmissible, see United States v. Tokars, 95 F.3d 1520,1536 n. 10 (11th Cir. 1996); Underwood v. Colonial Penn. Ins.Co., 888 F.2d 588, 590 (8th Cir. 1989), and the First Circuitcontinues to avoid the issue, deVries v. St. Paul Fire andMarine Ins. Co., 716 F.2d 939, 944-45 (1st Cir. 1983) (holdingthat where district court had acted within its discretion inexcluding polygraph results, there was no need to address theissue of whether there is a per se rule of exclusion ofpolygraph evidence in federal court). (The government improperlycites deVries and conflates the First Circuit's holding thatthe district judge did not abuse its discretion in excludingpolygraph evidence with a holding that such evidence isinadmissible — a question the First Circuit expressly reserved.)Still, this Court has no hesitancy in concluding that theamendments to Federal Rule of Evidence 702 make it highlyunlikely that polygraph results would ever have been received inevidence in this case.

17. In his original Motion for a New Trial, Conley claimedthat this new evidence showed that Brown committed perjury. Thetrial judge, however, found that this evidence did not establishthat Brown committed perjury, and this ruling was affirmed.Conley III, 249 F.3d at 46.

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