Convicted Killers Fight High Court Over Suppressed Evidence

WASHINGTON (CN) –  The U.S. Supreme Court wrestled Wednesday with whether prosecutors stacked the deck in a D.C. murder trial by withholding evidence.

Catherine Fuller, a 48-year-old mother of six, was kidnapped, robbed, sodomized and murdered on Oct. 1, 1984. Of the 13 people ultimately charged with Fuller’s murder, three pleaded guilty, two were acquitted, and eight were convicted.

One of the eight had already died in jail when the men learned via an article in the Washington Post that the government had withheld evidence at their trial. 

Led by Russell Overton and Christopher Turner, the group have been unsuccessful so far in their bid for a new trial.
Though suppression of evidence is barred by the case Brady v. Maryland, the men have struggled to prove that there is a reasonable probability that they would have been acquitted had evidence suppression not occurred.

The evidence at issue involves information on two alternate perpetrators, James McMillan and James Blue; witness statements suggesting that Fuller was not attacked by a large group, as was believed at trial; and recanted testimony by other witnesses. 

“But we don’t know how the trial would have shaped up and how the jury would have reacted if the defendants had put on this alternative theory,” Justice Ruth Bader Ginsburg said this morning. “You can say well, it probably would have failed, but the test is only, could a jury believe this scenario? Not would they. But could they?”

Justice Department attorney Michael Dreeben leaned into the podium for his response, calling it unlikely that the evidence would have led any of the men’s trial attorneys to pursue the theory that McMillan was the real killer.

“Had they offered that, you can speculate that perhaps some juror might have had reasonable doubt,” Dreeben said, “but that is the not the same thing as having your confidence undermined that the jury still would have concluded that a group attack occurred.”

Justice Elena Kagan noted that the Fuller trial had been messy from the start.

“One of the things that you get, when you read these briefs and when you read the transcripts is,” she said. “This was kind of guaranteed to be bad for the defendants in the sense that, without any alternative theory, it was a circular firing squad. And it was, you know, ‘you should believe the guy who doesn’t incriminate me, but of course you should believe him as [opposed to] everyone else. And all 10 of these people saying this, it created the worst of all possible words for the defendants. And I think what they are saying now compared to that, is of course we would have run with alternative theory and it would have been a completely different trial.”

Other details around the case nagged at Justice Anthony Kennedy. Why McMillan stuck around the neighborhood if he was supposed to have killed Fuller, for one.

McMillan is said to have been spotted near the crime scene only 30 minutes to 60 minutes after Fuller had been killed.

“If you commit a murder, you don’t hang around for an hour,” Kennedy said.

John Williams, an attorney at Williams & Connolly for the petitioning inmates, quickly offered a theory as to why McMillan returned to the crime scene

“The object used to commit the sodomy was never found,” Williams said. ”Defense counsel would have argued to the jury that what he was trying to do was to come back to alley and deposit the object used to commit the sodomy back in the garage.

“The other reason he might have returned is he mistakenly believed he had left some identifying information about himself inside that garage and he would have wanted to remove it,” Williams added.

Williams called his last point “critically important.”

“If you ask any criminal defense lawyer … if he’s happy with a defense that depends on his client being clever, they will tell you they are not,” Williams said amid hushed laughter in the court. “Criminals are not clever.”

Dreeben countered later that McMillan lived nearby and that he could have been in the neighborhood and near the alley where Fuller was killed because there was a shortcut to his home in the area.

McMillan is currently in prison for the murder of another woman.

The Supreme Court is expected to issue a decision on the consolidated Turner-Overton caser by June.

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