OPINION
Paul L. Maloney, United States District Judge
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 271–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citing Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ).
As framed by the State, this case presents questions that ordinarily have easy answers in a Brady analysis.
Can evidence excluding a defendant from "Murder 1" be "exculpatory" in a trial for an unrelated "Murder 2"? Likewise, can "prejudice ensue" when the State suppresses exculpatory evidence from "Murder 1" in a trial for "Murder 2"?
The answer to both questions is ordinarily "no," as evidence from one crime is rarely relevant to another crime.
But the facts in this case are far from ordinary.
In this case, an FBI profile report linked "Murder 1" with "Murder 2" early on; and the report concluded that one suspect was likely responsible for both murders because the "signatures" left at each crime scene (both in a rural West Michigan town) were eerily similar.
Nearly two decades after the profile report was prepared, Petitioner Mark David Bailey was charged for "Murder 2." Mr. Bailey sought to introduce the profile report, along with the fact that he was ten-years-old at the time of "Murder 1," as evidence which would, in his view, cast a reasonable doubt as to his own responsibility for "Murder 2."
The trial court excluded the report and all references to the earlier murder—without any legal analysis or explanation—and the issue was preserved for appeal.
On appeal, the State argued that the profile report actually supported a conclusion that Mr. Bailey, despite his age, committed "Murder 1."
The Michigan Court of Appeals, while acknowledging Mr. Bailey's right to introduce evidence of third-party guilt and conceding the issue on appeal was "arguable," ultimately concluded that the profile report amounted to "mere suspicion" or a "conjectural inference," and the trial court did not abuse its discretion by excluding the evidence.
Troublingly, unbeknownst to Mr. Bailey, his lawyer, and all state judges who grappled with the evidentiary issues to that point, the State, while investigating Mr. Bailey for "Murder 2," had requested and received a fingerprint analysis of latent prints found at the scene of "Murder 1" that excluded Mr. Bailey as a suspect in "Murder 1"—even though the State knew he was only ten at the time of that crime. (And again, the State nonetheless argued on appeal that the profile report supportedMr. Bailey's responsibility for "Murder 1," despite his age.)
As framed by the facts, the Brady questions in this case, therefore, are much more precise than those the State contends are presented.
Was the evidence that excluded Mr. Bailey as a suspect in "Murder 1" "exculpatory" for Mr. Bailey's trial for "Murder 2"—when the State's own evidence (partially disclosed and partially suppressed) together suggested that a suspect other than Mr. Bailey likely committed "Murder 2"? Likewise, did "prejudice ensue" when the State suppressed the exculpatory evidence from "Murder 1" prior to Bailey's trial for "Murder 2"—when the effect of the suppression was to partially blind the state judges' analysis of important evidentiary questions and ultimately violate Bailey's right to present a complete defense by introducing probative evidence of third-party guilt?
The answer to both questions is "yes"; Mr. Bailey, therefore, is entitled to a new trial.
I. STATEMENT OF FACTS & PROCEDURAL HISTORY Plaintiff Mark David Bailey, a prisoner under the control of the Michigan Department of Corrections, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge Philip J. Green issued a report and recommendation recommending that Petitioner's claims in Grounds I to IV be denied on the merits and claim under Ground V be dismissed as procedurally defaulted.
The facts themselves are beyond genuine dispute, as reported by the Magistrate Judge. Accordingly, the Court ADOPTS the Magistrate Judge's summary facts contained in his report, with the exception of a few omitted facts and his characterization of certain facts that lead to erroneous legal conclusions. (See ECF No. 83 at PageID.946–60.) The Court will highlight and add relevant facts as it sees fit throughout this opinion.
To begin, however, establishing a timeline of this case is helpful.
A. April 1980: 89-year-old Stella Lintemuth is murdered in Big Rapids. The murder would go unsolved for decades.
B. February 1989: 79-year-old Mary Pine is murdered in Big Rapids. There are marked similarities between this murder and the earlier, unsolved murder in 1980. Mark David Bailey is a suspect early on.
C. March 15, 1989: After the investigators send Bailey's fingerprints for examination to determine whether they matched fingerprints left at the scene at the Lintemuth homicide, the Michigan State Police submits a laboratory report showing the latent prints from the Lintemuth homicide did not belong to Bailey. This information is suppressed from Bailey.
D. April 1989–May 1990: Two profiles are completed in response to a request by the Big Rapids Police Department and the Department of State Police.
E. April 4, 1989: State Police report remarks on the noticeable similarities of the two murders, and surmises that both were committed by the same suspect.
F. May 31, 1990: The FBI Academy at Quantico issues a detailed report in response to the Big Rapids Police Department. The expert report concludes "that one offender is most likely responsible for both crimes."
G. June 2005: Bailey is charged with murder for the Pine homicide, and the matter proceeds to trial.
H. June 9, 2005: In the context of addressing evidentiary disputes, Judge Matuzak concludes: "And, also, regarding another murder of an elderly person when the defendant would have been about 10 years old, that is not to be brought before the jury." No legal explanation is given for the exclusion.
I. June 23, 2005: Judge Hill-Kennedy memorializes the previous oral ruling: "IT IS HEREBY ORDERED the People's motion to exclude the defense from offering evidence of other homicides is GRANTED."
J. July 29, 2005: Bailey is convicted of first-degree premeditated murder, MCL 750.316(1)(a), and first-degree felony murder, MCL 750.316(1)(b), arising from the February 1989 killing of 79-year-old Big Rapids resident Mary Pine. The Trial Court sentenced Bailey to life imprisonment without parole for one count of first-degree murder. The trial court excluded evidence pertaining to the earlier 1980 murder of Stella Lintemuth, despite the fact that profile reports concluded that the same perpetrator was likely responsible for both crimes. Bailey would have been ten-years-old at the time of the 1980 murder.
K. June 2007: Mecosta County prosecutor initiates criminal charges against Scott Elwood Graham for the 1980 Lintemuth homicide.
L. July 26, 2007: After Bailey appeals his conviction to the Michigan Court of Appeals arguing, among other things, that the trial court erred when it excluded evidence concerning the then-unsolved 1980 murder of Stella Lintemuth and the related third-party-guilt theory, the Court of Appeals rejects Bailey's claim holding that, although police profiles provided by the FBI and the Michigan State Police noted "several similarities" between the two killings, there was not enough "direct" evidence that another person committed the murder to find the trial court abused its discretion. The Court of Appeals finds that "[u]nder the circumstances presented, and considering the similarities between the crimes as well as the differences, a reasonable and principled decision would include one that finds nothing more than the creation of mere suspicion, a conjectural inference, excessive remoteness, or an inadequate connection."
M. February 29, 2008: Bailey's application for leave to appeal to the Michigan Supreme Court is summarily denied.
N. 2008: Scott Elwood Graham is extradited to the State of Michigan to face charges for the 1980 murder of Stella Lintemuth.
O. 2009: Graham is convicted of the 1980 murder of Stella Lintemuth based largely upon fingerprints matched at the murder scene.
P. May 19, 2009: Bailey files a Petition for Habeas Corpus under 28 U.S.C. § 2254.
Q. April 8, 2010: Magistrate Judge Scoville grants Bailey's motion for discovery in part seeking production of the criminal file in the Graham prosecution. All evidence existing at the time of Bailey's trial in July 2005 is discoverable.
R. August 2010: Bailey's counsel receives a fingerprint report from 1989 that had excluded Bailey from the 1980 murder.
S. September 2010: Magistrate Judge Scoville granted Bailey's motion to amend his complaint and stay the case to add the Brady claim in response to the fingerprint report excluding Bailey from the earlier homicide. Judge Scoville stayed the case to allow Bailey to properly exhaust his Brady claim and bring the claim in state court as a 6.500 motion. Judge Scoville in his R&R concluded:
"Petitioner has met his burden of showing a plausible Brady violation at the pleading stage. Given the admitted similarities in the two murders, as found by the FBI, the fingerprint evidence in the Lintemuth case was arguably favorable to petitioner. The state does not deny that the evidence was not produced to the defense at the time of trial. And it is at least arguable that
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