Eighth Circuit divides on convicted police officer's Brady claim

United States v. Robinson, No. 14-3503 (8th Cir. Jan. 5, 2016).

The federal government charged Little Rock police officer Randall Robinson with distributing marijuana. The government alleged that Robinson had personally sold $600 worth of marijuana to an informant. 

At trial, Robinson’s fellow officer Charles Weaver took the stand in support of the distribution charge, testifying that Robinson had sold $600 worth of marijuana to an informant. Robinson was convicted of distribution. What Robinson didn’t know was that Weaver had stolen $9,000 from the police department’s property room and then lied about it. 

Now, when Robinson’s trial was going on, the prosecutors didn’t know about Weaver’s wrongdoing, because the police department had not yet discovered it, and of course Weaver didn’t volunteer the information on his own. Brady case law, though, says that prosecutors still have a duty to disclose exculpatory or impeachment evidence known to police officers, even if the evidence isn’t known to the prosecutors themselves. Weaver, of course, knew of the evidence; he was a police officer; so wasn’t there a Brady violation? 

Even if there was a Brady violation, says the Eighth Circuit majority, it doesn’t call for reversal of Robinson’s conviction. Another police officer besides Weaver testified that he saw Robinson hand the informant a package of marijuana. So even if Weaver had been totally discredited in the eyes of the jury, Robinson would have been convicted. 

Judge Kelly disagrees. For starters, there was unquestionably a Brady violation. The question isn’t whether the prosecutors were culpable in failing to disclose evidence—the question is whether, in all fairness, the defendant should have known of evidence that was in the hands of the government. Weaver was part of the government, so the evidence should have been turned over. What’s more, the right question (contra the majority) isn’t whether Robinson probably would have been acquitted, or whether there was sufficient evidence to convict, if he’d been able to discredit Weaver’s testimony. The question is simply whether the undisclosed evidence of Weaver’s wrongdoing was material—whether it undermines confidence in the verdict. And here the evidence was material, particularly because the other police officer’s testimony about the drug buy—the very testimony on which the majority relies to uphold the verdict—was internally inconsistent.