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Deference Dooms Dubious Murder for Hire Conviction: Brady or Lazy?

By William Peacock, Esq. on December 13, 2013 | Last updated on March 21, 2019

Here's what we know: Forrest "Jerry" Harris, Jr. was murdered. John Barfield hired either the defendant, Ernest Downs, or his former friend, Larry Johnson, to do the killing.

Johnson took a deal for immunity and fingered Downs. Barfield told his cellmate that Johnson did it, but the snitching cellmate's claims seem to have been ignored until after trial. Downs's attorney, Richard Brown, took an unethical contingency fee for the case, and presented no defense because he thought his client, and two alibi witnesses, were going to commit perjury (or because he was motivated by that contingency fee).

Everything about this conviction stinks. And yet Downs remains on death row.

State Court Proceedings

Downs was tried in December of 1977. After various denied appeals, a Florida Supreme Court-mandated resentencing due to a U.S. Supreme Court challenge to the state's sentencing procedures, and a much-delayed but equitably-tolled federal habeas petition, he finds himself in the Eleventh Circuit (again), thirty-six years later.

Obviously, with more than three decades of legal wrangling, the procedural history of the case is a bit complicated, but the short version is this: his state court post-conviction challenges to his conviction, based on withheld Brady materials (the jailhouse snitch), there was a conflict of interest (the contingency fee), and the classic long shot: ineffective assistance (not presenting a defense), were all denied, and the Florida Supreme Court affirmed the decision.

Review Standards

As always, thanks to the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal court will defer to the state court's findings unless the findings are "contrary to, or involved an unreasonable application of" clearly established federal law.

And the Strickland v. Washington standard for ineffective assistance is even more burdensome, as deference is due to the trial attorney's decisions under Strickland and to the state court's findings regarding the attorney's performance under AEDPA. Call it double-deference, a standard nearly impossible to meet.

Jailhouse Snitch: Lazy Cop is a Brady Violation?

This was quite the interesting holding, by both the state courts and the Eleventh Circuit. Because the snitch only had information that Downs already allegedly knew (that Johnson was the killer), failure to turn over the evidence was not a Brady violation, because you can't withhold something that the defendant already knows.

Quite frankly, that holding is crap. It's exculpatory evidence that would've helped Downs's case. Period.

The other point made by the courts was that there is no proof that the prosecution knew about the snitch's claims until after the trial, as the snitch didn't wear a wire until January. It's not Brady if it happens after conviction. But the snitch definitely contacted the detective in October, and he claims (against the word of the detective) that he told him about the specifics of his cellmate's statements before December.

Basically, Downs was deprived of exculpatory evidence because either (a) the cop was too lazy to investigate or (b) there was a willful Brady violation.

As For the Attorney

The issues of Brown's contingency fee, last-minute switcharoo in trial strategy, and Strickland-AEDPA double-deference are worthy of their own treatment. Check back in early next week.

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