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Prosecutorial Misconduct Claims Win Second Shot at Appeal

By Robyn Hagan Cain | Last updated on

Two men convicted on drug-related charges are getting a second chance to appeal their convictions after alleging that they were the victims of prosecutorial misconduct.

The Tenth Circuit Court of Appeals remanded their case this week, instructing the district court to look into whether a prosecutor’s false statement improperly prevented them from obtaining relevant discovery.

Defendants William L. Pickard and Clyde Apperson were convicted of drug-related crimes in a Kansas federal court. One of the prosecution's most important witnesses was informant Gordon Todd Skinner, the defendants' criminal associate.

After the convictions were affirmed on appeal, the defendants filed motions for relief claiming, among other things, that the prosecution had violated their rights under Brady v. Maryland and Giglio v. United States by suppressing evidence of Skinner's criminal and informant background. The district court rejected the claims. They applied for certificates of appealability (COAs) to appeal the district court's decision, but the Tenth Circuit denied their applications.

Pickard and Apperson couldn't catch a break.

Their luck changed with a Rule 60(b) motion.

Pickard and Apperson moved to set aside the courts judgments under Rule 60(b), claiming that the prosecution violated its Brady/Giglio duties at trial, and that the prosecution made a false statement in prior proceedings that forestalled the discovery from which they could have established that there had been a Brady/Giglio violation at trial.

The district court ruled that the claims of prosecutorial misconduct amounted to second-or-successive claims under 28 USC §2255, which it could not consider without authorization from the Tenth Circuit Court of Appeals.

The Tenth Circuit agreed that the defendants' claims of Brady/Giglio violations at trial were second-or-successive claims; because the defendants had not established the requisites for authorizing a second-or-successive claim, the Tenth Circuit denied authorization.

The defendants' prosecutorial misconduct claims, on the other hand, were remanded as proper claims under Rule 60(b). The Tenth Circuit Court of Appeals noted that prosecutorial misconduct in the §2255 proceedings could have affected the integrity of those proceedings, and remanded those claims to the district court for resolution.

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