The dangerous precedent of Crosley Green’s loss

Crosley Green was convicted of murder in 1990 by an all-white jury in Brevard County and sentenced to death. Now, a badly reasoned decision by a panel of the 11th Circuit Court of Appeals has placed his freedom at risk and seriously undermined the ability of the wrongfully convicted to challenge their convictions on appeal. That decision undermines not only Green’s constitutional rights, but those of everyone in the country who might someday find themselves under arrest for a crime they did not commit.

The case hinges on an unlikely development that came to light years after Green’s conviction. Before his trial, two deputies from the Brevard Sheriff ’s Office met with prosecutor Christopher White to discuss the case. Deputies Diane Clark and Mark Rixey were first on the scene of the crime Green was charged with: the murder of 22-year-old Charles “Chip” Flynn, Jr. In a startling twist, the officers told White that they suspected that Kim Hallock, the victim’s girlfriend and Green’s chief accuser, committed the crime. White’s notes reflect some reasons for their conclusion. He wrote: “Mark and Diane suspect girl did it. She changed her story a couple of times … She 1st said she tied his hands behind his back … She never asked how the victim was … she wouldn’t go down there to the scene.”

Because the prosecution never turned those notes over to Green’s trial attorney, a federal district court ruled that Green’s conviction could not stand. The district court based its ruling on an established Supreme Court precedent, Brady v. Maryland, which holds that information must be disclosed by the prosecution when it’s favorable, and material, to the defense. After 32 years, Green was released from prison on house arrest in April 2021 as the state appealed his victory.

But in a decision that sent shockwaves through the legal world, a panel of the 11th Circuit Court of Appeals reversed Green’s win in March and undermined the ability of the wrongfully convicted to challenge their convictions in federal court. Although there are prosecutors who engage in “open discovery” and allow defense attorneys access to everything in their files, most do not. Under Brady, prosecutors are only required to disclose evidence favorable to the defense when it is material to guilt or punishment. The 11th Circuit panel came up with a definition of material that is cramped and unreasonable.

According to the 11th Circuit, White’s notes were not material to Green’s case because, even without them, Green’s attorney argued that Hallock probably committed the crime. What the appellate panel misses is that the point is not whether the defense argued someone else committed the crime, but whether the jury was aware that the first law enforcement officers on the scene thought Hallock did it and were concerned enough to share their concerns with the lead prosecutor.

Evidence challenging the integrity of the investigation has always been deemed “material.” The Supreme Court said so in 1995 in Kyles v. Whitley. In that case, failure to turn over evidence pointing to the prosecution’s key witness was material under Brady because “the defense could have attacked the reliability of the investigation” and “laid the foundation for a vigorous argument that the police had been guilty of negligence.”

As in Kyles, Green’s attorney could have used White’s notes to devastating effect. Rather than appearing as if the claim that Hallock committed the crime was some wild-eyed defense theory, Green’s attorney could have shown that two credible investigators believed Hallock was guilty as well. Moreover, he could have pointed out that in light of their sharing this information, the failure of the prosecution to seriously consider Hallock as a suspect and investigate her was negligent, if not reckless.

The importance of the officers’ views is magnified, given the facts of Green’s case. Hallock’s claim that Green, a Black man, tried to rob her and Flynn, and that Flynn died trying to protect her from “the Black man’s” sexual advances, has all the trappings of a racial hoax. The testimony of two white police officers that they found that story unbelievable may have been invaluable to Green’s case.

Many things give one pause about the verdict in Green’s case.

First, Green does not match Hallock’s initial description of the perpetrator.

Second, Green was identified after a faulty photo ID that would not be legal today. Third, four witnesses who testified that Green had confessed to them have since recanted their testimony, alleging that they were pressured to lie by the prosecution. Fourth, the prosecution was allowed to use questionable dog sniff evidence. Fifth, the prosecutor’s office in Green’s case had a string of wrongful convictions in the 1980s.

Yet, Green’s chances rise and fall on the courts’ resolution of his Brady issue.

The current structure of the appeals process makes it impossible for a court to consider the entire context in which Green’s trial and conviction took place. It forces courts to narrow their focus to one or two issues, rather than considering the collective impact of all the issues on the ultimate verdict obtained. This makes it harder for innocent people to challenge their unjust convictions in court. The decision of the 11th Circuit panel in Crosley Green’s case, should it stand, will make it harder still.