Opinion
C-1-98-287
July 17, 2002
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has filed a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon petitioner's motion to expand the record, (doc. no. 53), respondent's memorandum in response, and petitioner's reply in support.
Petitioner seeks to supplement the record before the Court with materials that he discovered or developed during discovery. Exhibit A is an affidavit by Janet Dickens, a social worker who monitored Dorothy Jackson's stay with a foster family following the murders of her family members. Exhibit B is correspondence from Barbara Boatwright, also relating to Dorothy Jackson's foster care and related records. Exhibits C and D are psychological evaluations of Dorothy Jackson that were prepared in connection with her foster care. Petitioner explains that he obtained or learned about these materials as a result of the depositions conducted with prosecutors Noah Powers and Daniel Eichel, and that both prosecutors admitted during the depositions that Janet Dickens' report, containing an admission by Dorothy Jackson that she killed her mother, should have been disclosed to defense counsel pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Petitioner argues that expansion of the record is authorized under Rule 7 of the Rules Governing Section 2254 Cases, and that this Court has routinely granted expansion of the record in death penalty cases under Rule 7. (Petitioner's motion to expand, doc. no. 53, at 5-6). Petitioner reasons that allowing expansion of the record would further the interests underlying Rule 7 by preserving resources and alleviating the need for additional formal discovery.
Transcripts of those depositions were filed on September 27, 2001, (doc. no. 47).
Respondent opposes petitioner's motion as to Exhibits A and B, arguing that the portion of the Janet Dickens' report containing Dorothy's alleged admission constitutes triple hearsay and is inherently unreliable. Respondent further argues that Janet Dickens' report does not, by virtue of post-dating petitioner's trial by five months, constitute Brady material. Respondent does not oppose petitioner's motion to expand the record with Exhibits C and D, i.e., psychological evaluations of Dorothy Jackson, but does not concede the relevance of those evaluations and reserves the right to challenge that issue later.
Rule 7 of the Rules Governing Section 2254 Cases permits federal habeas corpus courts to direct the parties to supplement the state court record with materials relevant to the court's resolution of the petition. The decision of whether to order Rule 7 expansion is within the sound discretion of the district judge. See Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.) (holding that record expansion is left to discretion of the district court), cert. denied, 488 U.S. 928 (1988). It would appear, therefore, that expansion pursuant to Rule 7, under the language of that rule, has only a relevancy limitation. That is, the materials need only be relevant to the determination of the merits of the constitutional claims in order to be added.
According to petitioner, Exhibits A and B are offered not for the purpose of establishing a new Brady violation, but rather, to provide a "context" in which to consider several existing constitutional claims and the issue of whether an evidentiary hearing is warranted. Petitioner reasons that Janet Dickens' report, and the admissions by Mr. Powers and Mr. Eichel during recent depositions that the report should have been disclosed to defense counsel, are relevant to petitioner's claim that his double jeopardy rights were violated when he was retried following a mistrial. Petitioner further argues that Exhibits A and B would provide insight into the ongoing failure on the part of the Butler County Prosecutor's Office to comply with Brady, in addition to assisting the Court in determining whether an evidentiary hearing is warranted. As an issue of fairness, petitioner also points out that, during state postconviction proceedings, in opposing petitioner's request for discovery and the postconviction action itself, the prosecution averred that it neither possessed nor was aware of any new evidence, even though one of petitioner's claims challenged Dorothy Jackson's credibility.
The exhibits that petitioner seeks to add — both exhibits A and B, the addition of which respondent opposes, and exhibits C and D, the addition of which respondent does not oppose — satisfy the requirements set forth in Rule 7 because they are relevant and might be helpful to the Court in deciding not only whether any of petitioner's claims are meritorious, but also whether an evidentiary hearing might be necessary. The exhibits might provide a helpful context in which to examine such issues as the veracity of petitioner's confession, (claim two), the sufficiency of the evidence when Dorothy Jackson's testimony is considered in light of the new exhibits, (claim six), and the state's presentation of materially false evidence, in the form of Dorothy Jackson's testimony, (claim twenty-four). Whether, or to what extent, the Court ultimately relies on the exhibits — especially in light of the fact that Janet Dickens' report and the psychological evaluations of Dorothy Jackson were prepared some time after the conclusion of petitioner's trial — will be determined when the Court addresses the merits of petitioner's claims. Ultimately, this Court, in dealing with death penalty cases, would rather err on the side of gathering too much information than gathering too little. Petitioner's motion to expand the record is well taken and will be granted.
For the foregoing reasons, petitioner's motion to expand the record with Exhibits A, B, C, and D is GRANTED.