No. __________
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In The Supreme Court Of The United States
October Term, 2001
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John Tague,
Petitioner,
V.
Commonwealth of Massachusetts
Respondent,
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Petition For Writ Of Certiorari
To The Massachusetts Appeals Court
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Question Presented For Review
Whether, by requiring that a criminal defendant make a prima facie showing that his conviction should be overturned before he is entitled to receive material exculpatory evidence in the government's possession, the Supreme Judicial Court of Massachusetts imposed a more rigorous standard than permitted by this Court.
Introduction
The petitioner was convicted of murder in the first degree in a Massachusetts Superior Court. The Superior Court subsequently denied the petitioner's motion for a new trial and motions for post-trial discovery of certain potentially exculpatory reports in the possession of the Commonwealth. The Supreme Judicial Court of Massachusetts subsequently affirmed his conviction and the denial of the postconviction motions. The petitioner respectfully prays that a writ of certiorari issue to review the judgment of the Supreme Judicial Court, entered on July 10, 2001.
The opinion and judgment of the Supreme Judicial Court of Massachusetts in Commonwealth v. Tague, 434 Mass. 510, 751 N.E.2d 388 (2001) is reproduced in the Appendix.
The order of the Massachusetts Supreme Judicial Court, affirming the petitioner's conviction and the denial of his post trial motions, was entered on July 10, 2001. The petitioner seeks review of a judgment by the highest State court in which a decision could be had and invokes this Court's jurisdiction under 28 U.S.C. 1257(a).
Constitutional Provisions Involved
The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fourteenth Amendment to the United States Constitution provides: “All person born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..”
A. Procedural History
On December 4, 1996, a grand jury in Norfolk County, Massachusetts returned indictments charging the petitioner with murder in the first degree and various other offenses. The petitioner entered pleas of not guilty. Trial commenced before Massachusetts Superior Court Judge Elizabeth Butler and a jury on November 25, 1997. The jury returned verdicts of guilty the murder count and all but one of the remaining counts.
On December 8, 1997, Judge Butler imposed a mandatory life sentence on the murder indictment. She imposed a consecutive nineteen to twenty year term on a charge of armed assault with intent to murder. On several additional charges, she imposed shorter sentences concurrent with the nineteen to twenty year term.
The petitioner filed a timely notice of appeal on that same day. After the case had been docketed in the Supreme Judicial Court of Massachusetts, that court stayed the appellate proceedings to permit the petitioner to file a motion for a new trial.
On August 23, 1999, the petitioner filed a motion requesting funds for testing of codefendant Lawrence Sullivan's clothing or that the Commonwealth conduct tests. On November 26, 1999, the petitioner filed a motion for post-trial discovery seeking disclosure of the results of laboratory tests performed on Sullivan's clothing. Judge Butler denied that motion on December 22, 1999.
On March 20, 2000, the petitioner filed a motion for a new trial and supporting materials, as well as a motion to reconsider his motion for post-trial discovery. Judge Butler denied the motion to reconsider the motion for post-trial discovery on March 24, 2000. She denied the new trial motion on August 21, 2000. The petitioner filed a timely notice of appeal on September 20, 2000 from the order denying his motion for post conviction relief and all subsidiary orders and rulings. That appeal was consolidated with the petitioner's direct appeal.
On July 10, 2001, the Supreme Judicial Court affirmed the judgment in the petitioner's case, as well as the denial of his new trial motion and of his motions for post trial discovery. Commonwealth v. Tague, 434 Mass. 510, 751 N.E.2d 388 (2001).
B. Facts Presented At Trial
For purposes of this petition, the petitioner will adopt the recitation of the Commonwealth's evidence as set forth in the opinion of the Supreme Judicial Court of Massachusetts:
During the evening of October 26, 1996, while the defendant and several friends were at the apartment of Larry Sullivan in Franklin, seven more friends arrived. They explained that they had just been thrown out of a Halloween party[FN2] at the McLaughlin home in Norfolk, and that someone dressed in a red devil costume had spit in the face of Amy Tougas.[FN3] The defendant and his friends decided to return to the party to "kick ass." The defendant put on his green flight jacket and looked for some knives. The group armed themselves with pipes, sticks, wrenches, and anything else that could be used as a weapon. They discussed targeting "the red devil."
The group went out seeking reinforcements, finding one. Eventually numbering thirteen, they drove to the party in two cars. They formed a semicircle around the guests sitting outdoors by the fire. A melee broke out. Four guests were stabbed and others were kicked, punched, and beaten. Linsky, the guest who was dressed as a red devil, died. He suffered nine stab wounds, five to the front of his chest, one to the right side of his chest, one to his lower back, one to his left thigh, and one to his right thigh. Two of the chest wounds were potentially fatal: one penetrated six inches, severing the right internal mammary artery and puncturing the right lung; the other, four and one-half inches deep, punctured the right lung, diaphragm, and liver. While Linsky was lying on the ground, a white male with a shaved head, about six feet tall, wearing stonewashed blue jeans and a green flight jacket, crouched over him and delivered several violent downward blows for approximately twenty seconds. It was the Commonwealth's theory that this was the defendant. At the same time another white male wearing a cranberry-colored flight jacket kicked Linsky twice, and a third person stood close by.
The attack ended abruptly when the defendant yelled, "Rally." As the group fled, some were pursued by Brian McLaughlin. The defendant jumped McLaughlin from behind and stabbed him several times, puncturing both lungs and nicking a kidney.[Footnote Omitted].
The defendant left in Tougas's car with one-half of the original group. The other half never left, as the police arrived and stopped them. Back at Sullivan's apartment, the defendant washed his hands and said he had stabbed someone. As the group was discussing alibis, the defendant said, "Well, nobody saw me there the first time, nobody would recognize me." He boasted that he could "get away with it." At one point he went to a convenience store across from Sullivan's apartment and said to the store clerk, "I just fucked up some dude real bad. He's on his way to the hospital, if he makes it that far." Shortly after he returned to Sullivan's apartment, he asked Tougas to give him a ride home. Along the way he said he "had stabbed the fool, the red devil," adding "I know I hit his heart."
The defendant gave several statements to the police. He denied stabbing anyone, but he admitted striking three people with a baseball bat. He admitted that three or four kitchen knives were passed around in the car in which he rode. He said he did not take any, but he touched at least one. Police recovered three knives at the scene, but could not identify any fingerprints on them.
Commonwealth v. Tague, 434 Mass. at 511-515, 751 N.E.2d at 391-392.
C. Evidence Supporting The Petitioner's Motion For A New Trial
As noted above, the petitioner filed a motion for a new trial based on the discovery of new evidence. See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). According to a news article that appeared in the Boston Sunday Globe newspaper, after the petitioner's conviction, Larry Sullivan claimed that he, not the petitioner, had killed Linsky. Sullivan, who was serving a nine to twelve year sentence for involuntary manslaughter in connection with the victim's death, gave a detailed account of how he had stabbed the victim. “The article also reported that, according to Sullivan, other members of the gang who participated in the attack formed a plan to let the [petitioner] take the blame.” Commonwealth v. Tague, 434 Mass. at 519, 751 N.E.2d at 396-397. His contentions, as set forth in the article, are described in detail below.
On October 26, 1996, Sullivan left work at about 6:30 p.m. and stopped to buy some beer on the way home. When he arrived at his apartment in Franklin, he showered and then fell asleep. John Tague, Steve Landry, and Michele Juarez came over to drink the beer with Sullivan, and when it ran out, they bought another 30-pack of Budweiser. Sullivan passed out at around midnight, but soon after, a group of friends, “burst in. Everybody's chaotic.” [Appendix 13]. They had been at a Halloween party in Norfolk but had been asked to leave. One of the girls in the group said she had been spit on, and another, Kim Connell, was crying. Sullivan had “never seen her (Connell) cry. She said she was sexually assaulted. She was hysterical. [They] all decided to go back.” [Appendix 13].
The group, which now included Sullivan, Tague, Landry, and Juarez, all piled into two cars, one driven by Amy Tougas, and the other by Ed Eastep. The group stopped to buy $4 worth of gas and to call more friends from a pay phone, “because [they] needed help. [They] were outnumbered.” While one car drove to another friend's house on a lake in Wrentham to look for reinforcements, the others waited at a Dunkin' Donuts parking lot nearby. [Appendix 13].
Everyone became “real rambunctious,” not wanting to sit down, and yelling. Sullivan, became “furious thinking about what those guys had done to Kim. [He] just let [his] anger build.” [Appendix 13]. When they arrived at the Halloween party in Norfolk at the home of Bonnie and Brian McLauglin, Sullivan grabbed a metal pole and smashed some car windows as he walked up the driveway. As they went into the back yard, Sullivan “started to stab” Jayson Linsky, “the first guy [he] saw.” He stabbed Linsky until someone yelled that the cops were coming. The tan pants Sullivan wore were soaked with blood by the end of the night, especially that of Linsky. [Appendix 13].
By the time the police arrived, most of Sullivan's friends had left. Sullivan, however, was caught and handcuffed. While he was kneeling behind the police cruiser, Marlene Eich, whom Sullivan had worked with at the Sylvan Street Grill in Franklin, shouted, “'Larry Sullivan, Larry Sullivan, you (expletive), you killed my boyfriend.' [Sullivan] yelled back, 'Yes, I did.'” [Appendix 13].
A few days later, when Sullivan walked into a friend's house in Millis, “everyone got really quiet.” Ron Angeli, who had participated in the melee, told Sullivan that his (Sullivan's) girlfriend Amy Tougas, had talked to the police. Angeli told Sullivan “not to worry, because she didn't blame [Sullivan], she blamed John Tague.” Sullivan and the others agreed that everyone should stick to the story Tougas gave the police. [Appendix 13].
The petitioner submitted an affidavit of counsel indicating that the newspaper reporter and Sullivan had both confirmed the accuracy of the account described in the article. [Appendix 18-20]. The petitioner sought to subpoena the newspaper reporter, but the trial judge denied the request. He further sought to have Sullivan brought into court for a hearing and permitted to speak with an attorney. Sullivan submitted an affidavit claiming that he had information that he wished to provide to the court which would exonerate the petitioner and requesting that he be permitted to consult with an attorney prior to providing an affidavit and/or testifying. [Appendix 16-17]. The trial judge denied all of the requests.
Reasons For Granting The Writ
I. In Refusing To Order Post-Trial Discovery Of Exculpatory Test Results Upon The Petitioner's Request, The Supreme Judicial Court Of Massachusetts Has Decided An Important Federal Question In A Way That Conflicts With Relevant Decisions Of This Court
In this case, the Supreme Judicial Court of Massachusetts has decided an important federal question in a way that conflicts with relevant decisions of this Court. Specifically, the court summarily rejected the petitioner's motions for postconviction discovery of the results of tests performed on the clothing worn by his codefendant for the presence of the victim's blood. In so ruling, the Supreme Judicial Court held that “[b]efore postconviction discovery may be ordered, a defendant must establish 'a prima facie case for relief.'” Commonwealth v. Tague, 434 Mass. at 519, 751 N.E.2d at 396. This requirement-that a criminal defendant make a prima facie showing that his conviction should be overturned before he is entitled to receive material exculpatory evidence in the government's possession-directly contravenes principles established by decisions of this Court. By imposing more rigorous standards than permitted by this Court, the Massachusetts courts effectively denied the petitioner, and will deny all similarly situated criminal defendants, the right to due process guaranteed by the United States Constitution. His petition for a writ of certiorari should be granted.
Under Brady v. Maryland, 373 U.S. 83, 87 (1963) and its progeny, the government has an affirmative duty in a criminal case to disclose evidence that is both favorable to the defense and material to the defendant's guilt or punishment. Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles v. Whitley, 514 U.S. 419, 432-434 (1995); United States v. Bagley, 473 U.S. 667, 674-675 (1985). “Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'” Strickler v. Greene, 527 U.S. at 280, quoting Kyles v. Whitley, 514 U.S. at 682. “A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. at 682. The withholding by the prosecution of material “evidence favorable to the accused upon request violates due process . . . irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87.
By requiring a “prima facie” showing rather than a showing of a “reasonable probability” before ordering disclosure, the Massachusetts Supreme Judicial Court has adopted a more onerous standard than authorized by this court. See Illinois v. Gates, 462 U.S. 213, 235 (1983) (prima facie standard is more rigorous than probability standard); Spinelli v. United States, 393 U.S. 410, 419 (1969) (same); Beck v. Ohio, 379 U.S. 89, 96 (1964) (same). See also Burns v. Commonwealth, 430 Mass. 444, 450-451, 720 N.E.2d 798, 804 (1999); Ford Motor Co. v. Barrett, 403 Mass. 240, 243, 526 N.E.2d 1284, 1286-1287 (1988).
Moreover, in determining whether a defendant is entitled to discovery, the focus of this Court's analysis is the evidence itself. That is, a court reviewing a claimed Brady violation must examine the requested evidence to determine whether it is material. See Strickler v. Greene, 527 U.S. at 282.
By contrast, the Supreme Judicial Court of Massachusetts requires criminal defendants to establish a “prima facie case for relief” on a motion for a new trial before a court will even look at the evidence. Commonwealth v. Tague, 434 Mass. at 519, 751 N.E.2d at 396. Indeed, in this case, neither the trial court nor the Supreme Judicial Court has ever examined the requested report. Moreover, the Commonwealth has not disclosed or made any representations as to the contents of the report. In effect, the rule adopted by the Massachusetts courts gives prosecutors unfettered discretion to determine materiality and in most instances denies defendants any meaningful judicial review of the prosecutor's determination. Further, the Massachusetts courts have placed the petitioner in the untenable position of having to show a likelihood of success on a new trial motion before giving him access to the evidence necessary to make the required showing.
The Supreme Judicial Court did attempt to address the presumed contents of the report, speculating that “[t]he presence of Linsky's blood on Sullivan's clothing would not exculpate the defendant.” Commonwealth v. Tague, 434 Mass. at 519, 751 N.E.2d at 396. The court explained that “[i]t would not demonstrate that Sullivan alone stabbed Linsky or that he stabbed him at all. There was evidence from which the jury could have concluded that, if blood were transferred to Sullivan's clothes, it happened as he kicked Linsky.” Id.
The difficulty with the Supreme Judicial Court's analysis is that it assumes that the report would show that only a small amount of blood may have been spattered on Sullivan's pants. As noted above, however, the Commonwealth refused to disclose the report or even describe its contents, and the Massachusetts courts never examined it. Thus, the court's assumption is nothing more than speculation. Moreover, in his out-of-court confession, Sullivan stated that the pants he wore on the night of the killing were soaked with Jayson Linsky's blood, which if true, would be consistent with the petitioner's theory that he did not stab the victim and inconsistent with the theory that blood spattered on Sullivan's pants when he kicked the victim.
Had the Massachusetts courts applied the principles articulated by this Court, the Commonwealth clearly would have been required to disclose the requested report. No witness at trial identified the petitioner as the person who stabbed Linsky. No blood from Linsky was found on the petitioner's clothing even though he was alleged to have straddled him and stabbed him multiple times. Even at trial, there was a strong suggestion that Sullivan, rather than the petitioner stabbed the victim. After Sullivan was arrested but before he was removed from the scene, the victim's girlfriend accused him of stabbing Linsky. Sullivan “turned around and smiled at her and nodded.” Commonwealth v. Tague, 434 Mass. at 515, 751 N.E.2d at 394. In this context, Sullivan's detailed confession to stabbing the victim, which included references to the blood on his pants, raised a substantial likelihood that the lab report would be material and exculpatory. Kyles v. Whitley, 514 U.S. at 434-435.
While the trial court instructed the jurors that they could convict the petitioner on a joint criminal venture theory even if he did not stab the victim, the fact that there was an alternate theory of guilt does not excuse the Commonwealth's refusal to turn over the report. Id. (rejecting sufficiency of evidence standard for determining materiality). The Commonwealth did not rely on the joint venture theory at trial but presented its case and argued that the petitioner physically stabbed the victim. To the extent that the jury may have found the petitioner guilty under a principle liability theory-which is highly likely, given the Commonwealth's exclusive reliance on this theory-evidence showing that someone else stabbed the victim clearly would have been material and exculpatory. Id.
The state court's rejection of the standards articulated by this Court affected the outcome of the petitioner's case and will no doubt affect cases of other similarly situated defendants. For those reasons, allowance of the writ would be appropriate.
II. Conclusion
For the reasons stated above, the writ should be granted and the case set down for argument.
Respectfully submitted,
John Tague,
By his attorney,
Dana Alan Curhan
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Counsel of Record for the Petitioner
Assisting on the petition:
Sarah Smegal, Legal Intern
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