The Sixth Circuit affirmed conditional grants of habeas in the Ohio cases of Gumm v. Mitchell and Bies v. Sheldon yesterday, finding in both cases that the government withheld exculpatory evidence from the defendants in violation of Brady v. Maryland.  Gumm and Bies were convicted of the 1992 murder of ten-year old Aaron Raines of Cincinnati, and sentenced to death, with Bies’s death sentence eventually replaced by consecutive life sentences due to his intellectual disability.

The court described the Brady violations as “egregious,” noting that evidence withheld included “a substantial collection of tips, leads, and witness statements relating to other individuals who had been investigated for the murder––two of whom had apparently confessed to the crime, and neither of whom was ever ruled out as the perpetrator,” and that “[t]he State also withheld witness statements that undermine the State’s theory of the case and information that could have been used to further impeach two of the State’s witnesses.”

The petitioners’ Brady claims had not been adjudicated on the merits by Ohio courts, and therefore the Sixth Circuit was able to review the Brady claims de novo.  In Gumm, the Court also affirmed the grant of habeas on the ground of prosecutorial misconduct, also under de novo review. Petitioners only had to demonstrate that they were constitutionally entitled to a new trial, and did not have to meet the high threshold of “AEDPA deference,” which applies only to claims adjudicated by state courts on the merits and permits grants of habeas only where the state court “unreasonably applied clearly established federal law.”  In Gumm, where the Ohio Court of Appeals had briefly discussed the merits of the Brady claim in dictum,  the Sixth Circuit declared that, even under AEDPA deference, the Ohio court’s “measly statement regarding the merits of Petitioner’s Brady claim constituted an unreasonable application of clearly established federal law.”  Judge Moore, who otherwise joined in the majority opinion in Gumm, wrote separately to say that it was not necessary to reach the question of whether Gumm’s Brady claim would have survived AEDPA deference.

Unless the State of Ohio can get the Supreme Court to take its side, it will have to choose between retrying Gumm and Bies and releasing them. We have previously reported on how Sixth Circuit grants of habeas fared at the Supreme Court and will continue to follow this case if a petition for cert is filed.