Conley v. U.S., CIV.A.01-10853-WGY.

Citation332 F.Supp.2d 302
Decision Date18 August 2004
Docket NumberNo. CIV.A.01-10853-WGY.,CIV.A.01-10853-WGY.
PartiesKenneth M. CONLEY, Petitioner, v. UNITED STATES, Respondent.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Robert S. Bennett, Thomas J. Dougherty, Saul M. Pilchen, Jonice Gray Tucker, Skadden, Arps, Slate, Meagher & Flom, LLP, for Petitioner.

S. Theodore Merritt, United States Attorney's Office, Boston, MA, for Respondent.


YOUNG, Chief Judge.


This case presents for decision but a single, straight-forward question. It is this: Recognizing that "it is enough to show that [withheld] evidence undermines confidence in the verdict," Conley v. United States, 323 F.3d 7, 10 (1st Cir.2003), did the government's withholding of evidence in this case deprive Kenneth Conley of "a fair trial, understood as a trial resulting in a verdict worthy of confidence[?]", Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

I am not the first judge to address this question. The trial judge answered the question "yes," United States v. Conley, 103 F.Supp.2d 45, 58 (D.Mass.2000) and 164 F.Supp.2d 216, 223-24 (D.Mass.2001),1 and was removed by the Court of Appeals from any further consideration of the case.

One judge of the Court of Appeals (a distinguished trial judge in his own right) answered the question with an unequivocal "no." Conley v. United States, 323 F.3d at 31 (2003) (Torruella, J., dissenting). The matter having been remanded to the district court for a "fresh look," id. at 15, and having been randomly drawn to this session, it is my duty independently to answer the central question posed above.


In the early morning hours of January 25, 1995, Michael Cox ("Cox"), a Boston police officer, was savagely beaten by fellow officers who apparently mistook him for a suspect the officers were pursuing. Criminal charges were never filed against the attackers, although two officers were later held civilly liable to the victim [Doc. No. 420 in Cox v. City of Boston, No. 95-12729 (D. Mass. filed Dec. 18, 1995)].

In August 1997, a grand jury indicted Kenneth M. Conley ("Conley") for perjury and obstructing justice. In June 1998, Conley was convicted of one count of perjury (in testifying that he had seen no one else pursuing the suspect in question) and one count of obstructing justice. He was acquitted of the other perjury count (with respect to having testified that he did not witness the beating in question). Conley was sentenced to just under three years in prison, but that sentence was stayed, and — to date — Conley has not served any of this sentence.2

On direct appeal, the First Circuit affirmed the conviction. United States v. Conley, 186 F.3d 7 (1st Cir.1999) ("Conley I"). Conley subsequently moved for a new trial in early 2000, identifying a number of pieces of new evidence he claimed were either newly discovered or wrongfully withheld. The trial judge discussed the new evidence at some length and, without determining whether there had been a violation under Brady v. Maryland, 373 U.S. 83, 89, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), ordered a new trial in "the interests of justice." United States v. Conley, 103 F.Supp.2d 45, 58 (D.Mass.2000) ("Conley II").

On appeal, the First Circuit held that because the motion for a new trial was made more than seven days after the verdict, the district court could not use the general "interests of justice" standard in Rule 33 of the Federal Rules of Criminal Procedure. United States v. Conley, 249 F.3d 38, 46 (1st Cir.2001) ("Conley III").

Conley then filed the instant habeas petition pursuant to 28 U.S.C. § 2255 and the district court granted the motion, setting aside the conviction and ordering a new trial. Conley v. United States, 164 F.Supp.2d 216, 223-24 (D.Mass.2001) ("Conley IV"). The district court found that the new evidence was so powerful that it would probably cause an acquittal on retrial under United States v. Wright, 625 F.2d 1017 (1st Cir.1980), but it never reached the Brady claim. Conley IV, 164 F.Supp.2d at 223. On appeal, a divided panel of the First Circuit again reversed the lower court, holding that in Conley II, the district court had decided that the Wright and Brady standards could not be satisfied and that the First Circuit, in Conley III, declined to remand, ruling that the sentence should now be executed. The panel majority held that the lower court's ruling in Conley IV was therefore inconsistent with the law of the case, and it refused to address the merits of the Wright and Brady claims.

The en banc court then granted Conley's petition for rehearing and withdrew the panel decision. United States v. Conley, 323 F.3d 7, 11 (1st Cir.2003) ("Conley V"). The court held that "the law of the case doctrine has no application here and also that Brady but not Wright applies to [Conley's] new evidence claims made in [his] section 2255 motion." Id. The court vacated the lower court's decision and remanded to another district court judge for a "fresh look" "so that Conley can obtain a ruling on his Brady claim." Id. Judges Bownes and Torruella wrote dissenting opinions in which they argued that no remand was necessary because the appeals court could well decide the Brady issue at that point. Id. at 16-17 (Bownes, S.J., dissenting); id. at 23 (Torruella, J., dissenting). Indeed, Judge Torruella actually conducted the relevant Brady analysis, and he concluded that the evidence was immaterial under Brady. Id. at 30-32 (Torruella, J. dissenting).

Both the criminal and habeas cases were then remanded and randomly drawn to this session of the Court.3


Pursuant to the mandate of the First Circuit, this Court, in discharging its duties, has done all those things one might reasonably expect — and two that are less usual.

First, the Court familiarized itself with the record and the opinions of the Court of Appeals, solicited further briefs, and carefully reviewed them. It then held a thorough hearing in which both parties were given ample opportunity to argue their respective positions. That's standard.

In view of the Court of Appeals' having removed the trial judge from any further proceedings in this case, however, this Court has consulted the trial judge's opinions only in a cursory manner, sufficient to understand the procedural setting, and has eschewed any reflection on the factual findings made by the trial judge. The Court adopted this approach to ensure that its own conclusions would be derived totally from independent research and reflection.

Finally, because the Court is faced with deciding as a matter of trial practice how the withheld evidence could have been used before the jury (and what confidence one may have in a verdict where this is not possible), I have taken the time — twice — to read the entire trial transcript from start to finish, just as the jury saw and heard it. This is quite different from even a thorough review of the copious appellate record, replete with various data and memoranda that the jury never saw. I first made this review during the quiet of an August vacation in 2003 and repeated it over the holidays at the end of that year when the Court was not sitting daily on trials. The Court formed a tentative conclusion from its first transcript review. The second confirmed that conclusion.


Before presenting the reasoning that leads the Court to its conclusion, however, it is necessary to set out in some detail the data that leads the Court to its conclusion.

A. The Evidentiary Record
1. Evidence at Trial

In the early hours of January 25, 1995, after a homicide at a restaurant in Boston reportedly involving a police officer as a victim,4 several Boston Police cruisers responded. The marked and unmarked cruisers pursued four black male suspects who had fled the scene in a gold Lexus. Trial Tr. I at 67-70. The suspects turned into a cul de sac in Mattapan known as Woodruff Way, came to a stop, and fled the car. Id. at 72. One of the suspects, Robert Brown ("Brown"), who was wearing a brown leather jacket, ran toward a fence on the right-hand side. Id. at 76-77.

The first police cruiser, occupied by Officer Cox, his partner Craig Jones ("Jones"), and a security guard, Charles Bullard ("Bullard"), who had accompanied the officers from the scene of the shooting, stopped to the left of the Lexus. Id. at 69; Trial R. II at 27-29. Cox, who is black, was clad in plain clothes, including jeans, a black hooded sweatshirt, and a black down jacket. Trial Tr. I at 65-66. Cox, the first witness at the trial, saw Brown exit the Lexus, and Cox immediately chased after him, "right behind him," directly to the fence. Id. at 76-77; Trial Tr. II at 30-31. Brown scaled the fence and his jacket caught momentarily at the top. Trial Tr. I at 77; Trial Tr. II at 95. Cox testified that he grabbed Brown's jacket in an attempt to pull him back over the fence, but Brown made it to the top and dropped down to the other side. Trial Tr. I at 78; trial Tr. II at 3-4.

As Cox prepared to climb the fence and continue the pursuit, he was struck from behind with a blunt object by other police officers who apparently mistook him for the suspect. Trial Tr. I at 85-87. The officers beat and kicked Cox repeatedly in the head, back, face, and mouth. Id. at 87-89; Trial Tr. II at 98-102. Cox heard an officer shout, "stop, stop, he's a cop, he's a cop," and the officers fled. Trial Tr. I at 88-89. Cox was seriously and permanently injured and had to be taken to the hospital for treatment. Id. at 94-95.

2. Conley's Earlier Grand Jury Testimony

In April 1997, a federal grand jury began investigating the beating to determine which officers were involved and whether excessive force had been used. Trial Tr. III at 114. It subpoenaed Conley to testify, which Conley did under the protection of statutory immunity.5 As the First Circuit summarized in...

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