DLR Online Special Features

Please visit here for a list of special feature editions of the DLR Online.


Events & Announcements

Mar. 10, 2019 - The Denver Law Review will soon be accepting submissions for the 2019 Emerging Scholar Award. For details on the award including eligibility, award information, and submission instructions, please review this document. We look forward to reviewing all submissions!


Jan. 9, 2019 - The Denver Law Review is pleased to open registration for our 2019 Symposium, Driven by Data: Empirical Studies in Civil Litigation and Health Law. We have a top-class list of speakers for this year's symposium and we look forward to seeing you there! Register by following this link.


Apr. 4, 2018 - The Denver Law Review is currently accepting submissions for its Recent Developments in the Tenth Circuit issue. For details on the issue and submission instructions, please review this document. We look forward to reviewing all submissions!


Subscriptions and Submissions

For information on how to subscribe to the Denver Law Review, please click here.

For the guidelines on how to submit an article to the Denver Law Review, please click here.

« What is Normal? | Main | Volume 86, O’Connor on Point in Upcoming Supreme Court Decision »
Monday
Jun012009

Tenth Circuit Bends the Rules for a Defendant Due to Prosecutorial Indiscretion

By Megan Marlatt

In Douglas v. Workman, two Oklahoma inmates on death row were granted new trials due to prosecutorial indiscretion.  Yancy Douglas and Paris Powell were both convicted of murdering a fourteen year old girl in 1993.  Nos. 01-6094, 06-6091, 06-6093, 06-6102 (10th Cir. Mar. 27 2009).  The district court granted Powell a new trial, but, after receiving the same evidence, denied Douglas a new trial.  The Tenth Circuit, however, granted defendant Douglas the relief of a new trial under Brady v. Maryland despite the fact that he failed to meet the requirement under 28 U.S.C. § 2244(b)(2)(B)

Under 28 U.S.C. § 2244(b)(2)(B), because Douglas filed a claim for relief under Brady while his first habeas petition was pending, his Brady claim should be considered a second or successive request.  Ordinarily, second or successive habeas petitions require the defendant to show that the facts underlying the claim could not have been discovered previously and that the evidence as a whole with the new facts would prove by clear and convincing evidence that no reasonable factfinder would find the defendant guilty.  However, the Tenth Circuit provided an exception for Douglas due to the unique circumstances of his case.

In 1999, after both Douglas and Powell were convicted, the prosecution’s key witness recanted his testimony implicating the two defendants.  Other evidence indicated that the witness had not only lied about the defendants’ involvement in the murder, but he also claimed the prosecutor Brad Miller had not secured a deal for him on unrelated pending charges.  In fact, throughout the period of time it took to convict both Douglas and Powell, the prosecutor had helped the witness get reduced sentences for five different offenses.  At trial, the prosecutor allowed the witness to testify that he had received no deal as well as that he clearly saw the defendants shoot at the murdered girl and himself, when he had previously told the prosecutor that he could not identify his assailants.  More importantly, Brad Miller argued in his closing statement that because the witness had not been given a deal, he should be viewed as credible.

The Tenth Circuit found that, though the facts underlying Douglas’ habeas claim clearly were only available after Douglas filed his initial habeas petition, it was not clear that no reasonable jury could convict him.  Because of the unique facts of this case, however, the Tenth Circuit decided to allow Douglas to supplement his initial habeas petition with his Brady claim.  “Because the prosecutor acted willfully, and not just negligently or inadvertently, his conduct warrants special condemnation and justifies permitting Mr. Douglas to supplement his initial habeas petition.”