In Anthony Graves’s first trial, prosecutor Charles Sebesta had to cheat to win, hiding exculpatory evidence and eliciting perjured testimony (Graves v. Dretke, Fifth Circuit opinion, PDF on Scribd).

Now, not only has the evidence that Sebesta suppressed in violation of Brady v. Maryland been revealed so that the next prosecutor trying the case can’t continue hiding it, but also the State has killed Robert Carter, its star witness—but not before he could say one last time that Anthony Graves is innocent.

Interesting evidentiary question number 1: Can the State, at the next trial, offer Carter’s testimony from the first trial into evidence?

Texas Rule of Evidence 804(b)(1) says that former testimony of an unavailable witness is admissible if the opposing party had an opportunity and similar motive to develop the testimony by cross-examination.

Militating against admissibility of the testimony are a) the fact that the defense didn’t have an opportunity to cross-examine Carter on the suppressed exculpatory statements; and b) that Carter is only unavailable because the party that wants to offer his testimony killed him. There’s a good argument, analogous to Confrontation Clause forfeiture-by-wrongdoing law, that the State shouldn’t be able to take advantage of Carter’s unavailability to offer his testimony at trial when the State caused that inadmissibility.

The State, after depriving the defense of the right to cross-examine Carter on his inconsistent statements at the first trial by suppressing those statements, has deprived the defense of the right to cross-examine Carter on those statements at the second trial by killing Carter. According to the Fifth Circuit, Carter’s exculpatory statement “‘was extremely favorable to Graves and would have provided powerful ammunition for counsel to use in cross-examining Carter.’’ The only fair resolution, where the State deprives the defense of the ammunition necessary to fully cross-examine a witness, is to strike that witness’s testimony from evidence.

The judge, Reva Towslee-Corbett, however, already ruled before the current lawyers were on the case that the prior testimony will be admissible. I don’t see the Fifth Circuit standing for that if this case goes through another federal writ.

Interesting evidentiary question number 2: Can the defense, at the next trial, offer Carter’s dying words exculpating Graves?

Rule of Evidence 804(b)(2) says that dying words are admissible if they “concern[] the cause or circumstances of what the declarant believed to be impending death.” The cause of Carter’s impending death was his murder of six people in 1994; “Anthony Graves had nothing to do with it. I lied on him in court. . . . Anthony Graves don’t even know anything about it” was a statement concerning those murders.

If Carter’s prior testimony weren’t admitted, the State would have a tough row to hoe. According to the Fifth Circuit:

. . . Graves’ conviction rests almost entirely on Carter’s testimony and there is no direct evidence linking him with Carter or with the murder scene other than Carter’s testimony.

There was testimony that the wounds were consistent (Gamso) with the blade of a knife similar to one that Graves at one time owned; Graves has maintained his innocence:

The only potentially incriminating statements allegedly made by Graves were heard over the jailhouse intercom system.  The persons reporting these statements were effectively cross-examined on the reliability of the intercom system, their ability to recognize Graves’ voice since his cell could not be seen from their listening post, and their failure to make contemporaneous reports of the comments.

And that—it appears from the Fifth Circuit opinion—is it.

Even with Carter’s testimony in evidence, if his other statements come in, along with his motivation for helping the State (the State had agreed not to ask questions about his wife, and there was a tentative deal for the State not to seek death if the case were reversed on appeal)—the State still has a tough row to hoe.

This is not a whale like that cop-shooting that case Kelly Siegler tried in Wharton County. (To those FoKs who maintain that that case was a challenge, I ask: when has a Wharton County jury given anything other than death to someone convicted of killing a cop?)

Why mention Kelly? Because, when the Attorney General’s Office pulled out from prosecuting Graves, District Attorney Bill Parham hired Kelly to take over the job. She’ll be facing off against Katherine Scardino in what is shaping up to be a hell of an interesting battle. (Kelly, I’m still hoping you’ll see the light and bring your talents over to the humans’ side of the bar, whether for injured plaintiffs or for accused defendants.)