Appellate counsel fail to raise on appeal ,that a Brady violation had been committed and that the police detective lied on her sworn deposition; additionally, trial counsel was ineffective for not cross examining the detective about her phone results. If the jurors knew of these results, there is a high probability that the outcome of the trial would have been different. Brady v. Maryland (U.S. 1963) held that a prosecutor under the Fifth and Fourteenth amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. The prosecutor did not disclose that the petitioner’s phone records had been subpoenaed with favorable results for the defense.
(TR page 18)
May 23rd, 2011 I wrote an Order to Produce Records for Charles Ajoloko’s cell phone and had it signed by Judge Robert M vans. These records will determine if Ajoloko was in the area during the Robbery.
June 14th, 2011 I received the results from the Order to Produce for Charles Ajoloko’s phone. I looked at the dates the Robberies occurred to see if Ajoloko was in the area. It appears Ajoloko’s cell phone was not used near the time of the Robberies.
Additionally, during the detective’s deposition of on 4/2/2012, the detective denied that she had the results. As you can see from the above dates, the detective had the results.
4 Q you also acquired the phone records of
5 Mr. Ajoloko.
6 – Can you walk us through how you did
7 that or the process?
8 A I believe I used a subpoena for that. And,
9 um –no, I got an order, a court order–
10 Q Okay.
11 A — to produce. And I’m just waiting for
12 the results to get here.
13 Q Did you turn over that order to — as a
14 part of your discovery?
15 A Should have.
16 Q Because I don’t see it. I don’t see it in
17 my package.
18 A Okay. I can get it to you guys.
19 MS. MANN; I don’t think I have one
The phone records showed that the petitioner phone was not in the area during the time of the robberies. United States v. Bagley (U.S. 1985): Refined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.
The Court said “favorable evidence” is “material” if there is a reasonable probability that disclosure of the evidence would have produced a different outcome. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.”
If the jurors had known that the petitioner’s phone was not in the area during the time of the robbery, it is highly probable that a different verdict may have been reached. Trial counsel cross examine the detective about the phone records. This cannot be considered trial strategy as the favorable records were beneficial to the defense.
Trial counsel is ineffective on the face, for failing to read readily available documents.