|
|
http://laws.findlaw.com/4th/026548.html |
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
BEVERLY ANNE MONROE,
Petitioner-Appellee,
v.
RONALD J. ANGELONE, Director,No. 02-6548
Virginia Department of Corrections,
Respondent-Appellant.
VIRGINIA TRIAL LAWYERS
ASSOCIATION,
Amicus Curiae.
------------------------------------------------*
------------------------------------------------*
BEVERLY ANNE MONROE,
Petitioner-Appellant,
v.
RONALD J. ANGELONE, Director,No. 02-6625
Virginia Department of Corrections,
Respondent-Appellee.
VIRGINIA TRIAL LAWYERS
ASSOCIATION,
Amicus Curiae.
------------------------------------------------*
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-98-254-3)
Argued: December 3, 2002
Decided: March 26, 2003
Before WILKINSON and KING, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
____________________________________________________________
Affirmed in part and dismissed in part by published opinion. Judge
King wrote the opinion, in which Judge Wilkinson and Judge Good-
win joined.
____________________________________________________________
COUNSEL
ARGUED: John H. McLees, Jr., Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Stephen Atherton Northup, TROUTMAN SANDERS,
L.L.P., Richmond, Virginia, for Appellee. ON BRIEF: Jerry W. Kil-
gore, Attorney General of Virginia, Stephen R. McCullough, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellant. George A. Somerville, TROUT-
MAN SANDERS, L.L.P., Richmond, Virginia; Frederick R. Gerson,
ROBINSON, CARL & GERSON, Richmond, Virginia, for Appellee.
David B. Hargett, HARGETT & WATSON, P.L.C., Richmond, Vir-
ginia; James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Nor-
folk, Virginia, for Amicus Curiae.
____________________________________________________________
OPINION
KING, Circuit Judge:
In March of 1992, wealthy art collector and notorious philanderer
Roger de la Burde died from a single gunshot wound to the head. Fol-
lowing a high-profile trial in Powhatan County, Virginia, his longtime
girlfriend Beverly Monroe was convicted of his murder. Monroe later
discovered a wealth of exculpatory evidence that the prosecution had
suppressed, including impeachment material, leads implicating other
suspects, official documents labeling Burde's death a suicide, and
statements suggesting that Burde may have been suicidal. On the
2
basis of this new information, Monroe claimed that the prosecution
had violated her due process rights, pursuant to the principles estab-
lished by Brady v. Maryland, 373 U.S. 83 (1963).
After unsuccessful state court proceedings, Monroe petitioned for
a writ of habeas corpus in the Eastern District of Virginia. Following
discovery in the federal proceedings, the district court granted the
writ, concluding that the prosecution had suppressed material, excul-
patory evidence. Monroe v. Angelone, No. 3:98CV254, Memorandum
Opinion (E.D. Va. Mar. 28, 2002) (the "Habeas Opinion"). The Com-
monwealth1 has appealed the court's award of habeas corpus relief,
and Monroe has cross-appealed, challenging the court's conclusion
that she procedurally defaulted certain aspects of her Brady claim.2
Because the Brady evidence3 on which the court relied is sufficient
to warrant its award of habeas corpus relief, we affirm without decid-
ing the procedural default issue.
____________________________________________________________
1 For ease of reference, we use the term "Commonwealth" to refer to
the Director of the Virginia Department of Corrections (the nominal
defendant in this appeal) and the Commonwealth's Attorney for Powha-
tan County (whose office prosecuted Monroe).
2 In her cross-appeal, Monroe also contends that the prosecution did not
present sufficient evidence to support her first-degree murder conviction.
The Virginia courts rejected Monroe's sufficiency of evidence claim, and
the district court decided that this adjudication was neither "contrary to"
nor "an unreasonable application of, clearly established Federal law." 28
U.S.C. § 2254(d)(1); Habeas Opinion at 66. Because the district court's
resolution of this claim is not "debatable amongst jurists of reason," we
decline to issue a certificate of appealability on this aspect of the cross-
appeal. Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003).
3 For ease of reference, we at times refer to undisclosed, exculpatory
material as "Brady evidence." We do so with the understanding that a
prosecutor is obliged to disclose any material favorable to an accused
even if it could not have been introduced as independent evidence of
innocence. Further, by referring to material as "Brady evidence," we are
not implying that the prosecution committed a Brady violation in failing
to disclose it; a Brady violation requires the suppression of exculpatory
material to have affected the outcome of the trial. Strickler v. Greene,
527 U.S. 263, 281 (1999). Finally, we do not suggest, by speaking of the
"suppression" of exculpatory evidence, that the Commonwealth acted in
bad faith.
3
This murder prosecution was closely contested, and the Common-
wealth's evidence of premeditation and malice, essential elements of
first-degree murder in Virginia, was particularly sparse. In attempting
to portray Monroe as a cold-blooded, calculating killer, the Common-
wealth relied primarily on the testimony of Zelma Smith, who told the
jury that Monroe sought to obtain an untraceable handgun about a
year before Burde's death. Significantly, the Commonwealth sup-
pressed several evidentiary items that would have severely damaged
the credibility of this crucial witness. The suppression of this Brady
evidence undermines our confidence in the verdict, and there is a rea-
sonable probability that, had the prosecution properly disclosed excul-
patory material, the jury would not have convicted Monroe of first-
degree murder.
I.
A.
In the early morning hours of March 5, 1992, Monroe and Joe
Hairfield, Burde's groundskeeper, discovered Burde's body lying on
a couch in the main house of his Powhatan County estate. Burde had
died from a single gunshot wound to his forehead, the shot having
been fired from his own handgun. The Powhatan County Sheriff's
Office and Medical Examiner originally treated Burde's death as a
suicide, and very little evidence was collected from the scene. The
State Police, however, soon began to suspect foul play, and the ensu-
ing investigation focused exclusively on Monroe.
During his lifetime, Burde held himself out as descended from Pol-
ish royalty, and he had gained notoriety for his rumored wealth, his
art collection, and his promiscuity. He was reputed to be a ruthless
businessman who had amassed a substantial fortune through unortho-
dox business deals. He had worked for a number of years as a chemist
at Philip Morris Incorporated ("Philip Morris"), but after the company
forced him into retirement, he concentrated on his real estate invest-
ments and his collection of African art. As part of his livelihood,
Burde ran a horse farm on his sprawling estate, which was known to
local residents as "Windsor."
Monroe had been involved in a romantic relationship with Burde
for approximately thirteen years before his death, and she had been
4
with him on the evening of March 4, 1992. Although Burde had
affairs with other women, Monroe had been his primary girlfriend in
the years prior to his death. In 1992, Monroe was fifty-four years old.
She held a masters degree in organic chemistry, and she had been
employed for more than ten years in the patent department of Philip
Morris. Monroe had close relationships with her three children, whom
she had raised after her 1981 separation (and subsequent divorce)
from Stuart Monroe. In 1992, Beverly Monroe lived with her adult
son, Gavin, approximately thirteen miles from Windsor, and her
daughters, Shannon and Katie, visited frequently.
B.
1.
At Monroe's trial in the Circuit Court of Powhatan County, the
Commonwealth introduced evidence that Burde had affairs with other
women, that Monroe stood to gain financially from Burde's death,
and that Monroe had made inconsistent statements about whether she
was present when Burde committed suicide. Further, the Common-
wealth offered the testimony of Smith, a multiple felon, who stated
that ten months prior to Burde's death, Monroe, identifying herself as
"Ms. Nelson," had offered her $800 for an untraceable handgun. The
Commonwealth also sought to establish that Burde was upbeat and
happy prior to his death and would not have committed suicide.
Finally, the Commonwealth presented forensic evidence suggesting
that it was unlikely that Burde had shot himself.
In her defense, Monroe presented two alternate explanations of
Burde's death, both of which supported her acquittal. First, she sought
to show that Burde had committed suicide. Along these lines, wit-
nesses testified to his precarious mental state, describing him as nar-
cissistic and controlling, cruel and abusive to those around him, prone
to obsessive and paranoid behavior, and depressed in the weeks and
months prior to his death. The evidence showed that Burde's mother
had attempted suicide and that Burde himself had discussed suicide
in the past. Furthermore, Monroe contended that Burde had reason to
be suicidal. For example, he was in danger of being exposed as a
fraud in his art dealings, and he was worried about his health. Second,
Monroe attempted to show that Burde had many enemies, any one of
5
whom could have killed him. The list of potential suspects included
his jilted girlfriends, their husbands, and Burde's children.
In addition to offering alternate explanations for Burde's death,
Monroe sought to convince the jury that she was incapable of com-
mitting the murder. She testified in her own defense, maintaining that
she had not been present when Burde died and that any of her state-
ments to the contrary had been coerced. According to Monroe, she
loved Burde, accepted his imperfections, and would never have killed
him. Indeed, Monroe was, by all accounts, a calm, gentle, and kind
person, and she had an impeccable reputation as an honest and law-
abiding citizen. According to numerous witnesses, she had been dis-
traught in the weeks and months following Burde's death. Monroe
also presented the jury with alibi evidence, in the form of a receipt
and a neutral eyewitness, placing her in a grocery store miles from
Windsor around the time of Burde's death.
On November 2, 1992, after a seven-day trial, the jury convicted
Monroe of first-degree murder and use of a firearm in the commission
of a felony. On December 22, 1992, she was sentenced to twenty
years in prison for the murder conviction and an additional two years
for the firearm conviction.4
2.
On direct appeal to the Court of Appeals of Virginia, Monroe pri-
marily contended that her statements to authorities were admitted at
trial in violation of her Fifth and Sixth Amendment rights. Among
other claims, she maintained that the trial court erred in admitting the
testimony of Zelma Smith because the prosecution had violated its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), when it
failed to disclose material that would have undermined Smith's credibil-
ity.5 On this point, Monroe asserted that the prosecution had withheld
____________________________________________________________
4 Unless otherwise noted, we refer only to Monroe's conviction for
first-degree murder, with the understanding that her firearm conviction
is tied to the murder conviction.
5 Pursuant to the Supreme Court's decision in Brady, due process
requires that a prosecutor disclose material in the Government's posses-
6
evidence that it had agreed not to prosecute Smith on a firearms
offense in exchange for her testimony against Monroe (the "Smith
gun deal").
On May 2, 1995, the Court of Appeals affirmed Monroe's convic-
tion, concluding, inter alia, that the prosecution's suppression of the
Smith gun deal was immaterial. Monroe v. Virginia, No. 2604-92-2,
Memorandum Opinion (Va. Ct. App. May 2, 1995) (" Monroe I"). Six
months later, in a summary opinion issued on November 1, 1995, the
Supreme Court of Virginia refused to grant Monroe's petition for
appeal. Monroe v. Virginia, No. 951346 (Va. Nov. 1, 1995).
3.
On April 7, 1997, after an unsuccessful direct appeals process,
Monroe filed a habeas corpus petition in the Supreme Court of Vir-
ginia, raising numerous challenges to her conviction. First, she con-
tended that she had received ineffective assistance of counsel.
Second, she asserted, once again, that her statements to the authorities
had been introduced in violation of Miranda and her Sixth Amend-
ment right to counsel. Finally, she maintained that her conviction had
been obtained in violation of her due process rights, because of a
tainted investigation, prosecutorial misconduct, and the Common-
wealth's violation of Brady by its suppression of exculpatory evi-
dence.
In support of her Brady claim, Monroe pointed to nine separate
items of suppressed, exculpatory material: (1) the Smith gun deal; (2)
the Commonwealth's agreement to help Smith obtain a reduction of
an unrelated sentence (the "Smith sentence deal"); (3) Smith's history
as an informant ("Smith's informant history"); (4) the identity of wit-
nesses who had seen a dark Bronco/Blazer vehicle speeding from
Windsor around the time of Burde's death (the "Bronco witnesses");
____________________________________________________________
sion that is favorable to an accused. The remedy for a Brady violation
does not (contrary to what Monroe asserted on direct appeal) normally
require the exclusion of a witness's testimony. Instead, a Brady violation
usually entitles a defendant to a new trial. See Spicer v. Roxbury Corr.
Inst., 194 F.3d 547, 562 (4th Cir. 1999).
7
(5) the full results of gunshot residue tests (the "residue tests"); (6) the
medical records of Krystyna Drewnowska ("Krystyna"), one of
Burde's girlfriends, who was pregnant with his child when he died
("Krystyna's medical records");6 (7) a statement by Windsor grounds-
keeper Joe Hairfield that he had moved the gun when he found
Burde's body ("Hairfield's statement"); (8) a medical examiner's
report (the "missing examiner's report"); and (9) the source of a letter
written by Monroe and used to pressure her in a pre-trial police inter-
view (the "inculpatory letter source").
On October 29, 1997, Monroe moved in the Supreme Court of Vir-
ginia for discovery to search for other exculpatory material that the
prosecution may have suppressed. Further, on November 20, 1997,
Monroe sought to amend her state habeas corpus petition to include
claims based on evidence she had discovered through an independent
investigation. In particular, Monroe had obtained evidence that the
Commonwealth had suppressed three other items of exculpatory
material:
(1) a March 5, 1992, report made by Dr. Brown of the
Medical Examiner's office, which indicated that, based on
his examination of Burde's body at Windsor, he concluded
that Burde's death was a suicide ("Dr. Brown's first
report");
(2) a laboratory request made by Dr. Jefferson, the phy-
sician in the Medical Examiner's office who conducted
Burde's autopsy, labeling Burde's death a suicide ("Dr. Jef-
ferson's notes"); and
(3) evidence that Burde's ex-wife, Dr. Brigitte Burde,
had advised the Medical Examiner's office that Burde had
been experiencing personal problems and taking Librium, an
anti-depressant medication (the "anti-depressant disclo-
sure").
____________________________________________________________
6 Krystyna's medical records show that she had scheduled an abortion
for March 11, 1992, just days after Burde's death. She cancelled this
appointment once Burde was dead.
8
These items came to light through a Freedom of Information Act
request to the Powhatan County Medical Examiner after the conclu-
sion of Monroe's trial (the "FOIA request").
In its order of January 29, 1998, the Supreme Court of Virginia dis-
missed Monroe's habeas corpus petition and refused, without expla-
nation, to authorize either additional discovery or Monroe's proposed
amendment. Monroe v. Dir. of the Dep't of Corr., No. 970666 (Va.
Jan. 29, 1998) ("Monroe II"). In dismissing the petition, the court
ruled that most of Monroe's claims had been defaulted, pursuant to
Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974), because they had not
been raised at the earliest opportunity. As for the claims Monroe had
preserved, the court ruled that Monroe was not entitled to any relief.
4.
On April 27, 1998, following her unsuccessful state proceedings,
Monroe sought habeas corpus relief in the Eastern District of Vir-
ginia. Her federal petition largely reiterated the claims she had
asserted in her petition to the Supreme Court of Virginia, although she
no longer relied, at least for the purposes of her Brady claim, either
on the Commonwealth's failure to disclose Krystyna's medical records7
or on the inculpatory letter source. She also replaced the missing
examiner's report with Dr. Brown's first report. Furthermore, her fed-
eral petition included other material obtained through the FOIA
request, specifically Dr. Jefferson's notes and the anti-depressant dis-
closure. In response, the Commonwealth moved to dismiss her peti-
tion, asserting that, under the principles of Slayton, Monroe had
procedurally defaulted most of her claims.
On April 26, 1999, the district court dismissed certain aspects of
Monroe's Brady claim, agreeing with the Commonwealth that they
had been defaulted. Monroe v. Angelone, No. 3:98CV254, Memoran-
dum (E.D. Va. Apr. 26, 1999) (the "Default Opinion"). In particular,
the court concluded that Monroe had defaulted her right to rely on the
____________________________________________________________
7 In her federal petition, Monroe used Krystyna's medical records to
support an ineffective assistance of counsel claim, asserting that,
although the records had been disclosed, Monroe's trial counsel never
took advantage of them.
9
following exculpatory material: (1) Dr. Brown's first report; (2) Dr.
Jefferson's notes; (3) the anti-depressant disclosure; (4) the residue
tests; and (5) Hairfield's statement. Id. at 9-20.8 The court also ruled,
however, that Monroe was entitled to rely on other Brady evidence,
including: (1) the Smith gun deal; (2) the Smith sentence deal; (3)
Smith's informant history; and (4) the Bronco witnesses.9 Id. at 20.
In its Default Opinion, the court also granted Monroe's motion for
discovery with respect to her remaining claims. Id. at 21-26.
Over the next year, from April of 1999 until July of 2000, Monroe
conducted discovery in search of additional Brady material. As part
of this effort, she deposed Smith; Deputy Sheriff Gregory Neal of the
Powhatan County Sheriff's Office; Special Agent David Riley of the
Virginia State Police; Corinna de la Burde Pugh ("Corinna"), Burde's
youngest daughter; Deborah Pollock, a secretary in the Sheriff's
Office who had observed some part of Riley's interview of Monroe
on March 26, 1992; and Patricia Dilettoso Fisher, another secretary
who had observed the same interview. These discovery efforts
revealed three other categories of suppressed, exculpatory evidence.
First, the prosecution had failed to provide Monroe's defense with
some of Riley's notes on Smith ("Riley's notes"). Riley's notes estab-
lished that the Commonwealth knew of, but withheld, evidence of
____________________________________________________________
8 In addressing the exculpatory material obtained through the FOIA
request - Dr. Brown's first report, Dr. Jefferson's notes, and the anti-
depressant disclosure - the district court concluded that these materials
were available to Monroe's defense at trial, reasoning that Monroe could
have made an earlier FOIA request. Default Opinion at 13. Further, the
court questioned whether the Commonwealth was responsible, under
Brady, for records of the Powhatan County Medical Examiner. Id. For
these reasons, the court concluded that the documents obtained through
the FOIA request had either been defaulted or did not provide a basis for
relief. Id. at 14. We do not reach these issues, and we draw no conclu-
sions about the court's procedural default ruling.
9 The district court concluded that these four items had not been
defaulted because a state court addressed, on its merits, Monroe's Brady
claim based on each of these items of exculpatory evidence. See Monroe
I at 11 (denying Brady claim, on its merits, based on Smith gun deal);
Monroe II at 1 (same for claim based on Smith sentence deal, Smith's
informant history, and the Bronco witnesses).
10
Smith's history as an informant. The notes also revealed that Smith
had made statements inconsistent with her trial testimony ("Smith's
inconsistent statements"),10 and that Smith had advised Riley that her
former employer, Eric Lundy, had provided her with the handgun she
offered to sell to Monroe (the "Lundy information"). Strikingly, Riley
did not contact or interview Lundy because, according to Riley, he
assumed that Lundy would deny Smith's allegations and contradict
her testimony. Lundy's denial, however, would have supported Mon-
roe's defense by impeaching Smith's credibility.11
Second, Monroe found that the prosecution had failed to disclose
Deputy Neal's notes regarding certain statements made by prosecu-
tion witnesses. These included:
(1) a statement by Barbara Samuels, Burde's secretary,
that "the recent past had been hard for Burde due to personal
problems" ("Samuels's personal problems statement");
(2) Samuels's statement that Burde's usual napping
position was "on his back with his hands on his head" and
that he always napped on the sofa opposite from the one on
____________________________________________________________
10 According to Riley's notes, Smith advised him that she recognized
Monroe from a picture appearing in a newspaper in June of 1992. At
trial, however, Smith denied learning of Monroe's case from a newspa-
per, testifying that she read something about it in People magazine.
Riley's notes also suggest that Smith had altered her story on who had
answered the phone when she called for Ms. Nelson: at trial, she said that
a man answered the phone, but according to Riley's notes, she stated that
a woman answered the phone. Somewhat independently, Riley's notes
indicate that he used a circumspect investigative procedure, namely, he
asked Smith to confirm her identification of Monroe out of a lineup of
photographs that included the newspaper photo from which Smith origi-
nally recognized Monroe.
11 Sure enough, Lundy, in April of 2000 (after Monroe's defense
learned of the Lundy information), confirmed by affidavit that "I never
during 1991 or at any other time supplied Zelma Sanderlin Mann Smith
with a firearm of any type. I know nothing about Ms. Smith trying to
obtain or obtaining a .357 Magnum or any other type of firearm at any
time during 1991."
11
which he was found ("Samuels's napping habits statement");12
and
(3) Corinna's statement that Krystyna was afraid to take
a test to determine the sex of her baby because Burde would
not want a baby girl ("Corinna's male heir statement").
Deputy Neal had taken each of these statements in the days following
Burde's death, and they support the proposition that Burde was killed
either by his own hand or by someone other than Monroe.
Finally, Monroe discovered that the Commonwealth had failed to
disclose notes taken by two secretaries who watched Riley interview
Monroe on March 26, 1992 (the "secretaries' notes"). During the
interview, Riley questioned Monroe about the evening of Burde's
death, eventually leading her to acknowledge a vague recollection of
being present when Burde committed suicide. Riley did not record
this interview, but he had two secretaries, Ms. Pollock and Ms. Dilet-
toso, take notes from an observation room behind a one-way mirror.13
The secretaries' notes corroborate Monroe's testimony that Riley had
manipulated her, and they would have been helpful to Monroe's
defense in cross-examining prosecution witnesses who testified about
the interview.
On June 27, 2000, the district court referred Monroe's petition to
a magistrate judge, pursuant to 28 U.S.C. § 636(b), "for all purposes,
including the handling of all pretrial motions, and for an evidentiary
hearing if necessary." Monroe v. Angelone, No. 3:98CV254, Order
____________________________________________________________
12 Samuels's napping habits statement would have assisted Monroe's
defense because it contradicts the prosecution's theory that Burde was
shot while he was napping. Burde was found on his right side on a couch
in his library. Samuels suggested that Burde napped on his back with his
hands behind his head and on a different couch, opposite from the one
on which his body was found.
13 At the very end of the interview, Riley activated a recording device
and recorded the last few minutes. The recording reflects Monroe's
repeated statements that she could not remember the night of Burde's
death, and it indicates that Riley sought to induce Monroe to accept his
version of Burde's death.
12
(E.D. Va. June 27, 2000). Soon thereafter, Monroe successfully
moved to amend her petition to include the new information obtained
during discovery. In response, the Commonwealth moved for sum-
mary judgment, and Monroe filed a cross-motion for summary judg-
ment and an opposition to the Commonwealth's motion. In December
of 2000, the magistrate judge conducted a two-day hearing on Mon-
roe's petition.14 On April 18, 2001, he issued his Report and Recom-
mendation to the district court, recommending that Monroe's petition
be denied. Monroe v. Angelone, No. 3:98CV254, Magistrate's Report
and Recommendation (E.D. Va. April 18, 2001) (the "Report").
Monroe filed timely objections to the Report, urging the court to
reject the magistrate judge's recommendation and to issue a writ. On
September 17, 2001, the court conducted a hearing on Monroe's
objections to the Report, and it issued its Habeas Opinion on March
28, 2002. In the Habeas Opinion, the court awarded Monroe a writ of
habeas corpus because of the prosecution's failure to disclose excul-
patory evidence, including: (1) the Smith gun deal; (2) the Smith sen-
tence deal; (3) Smith's informant history; (4) Smith's inconsistent
statements; (5) the Lundy information; (6) Samuels's personal prob-
lems statement; (7) Samuels's napping habits statement; (8) Corinna's
male heir statement; (9) the secretaries' notes; and (10) the Bronco
witnesses. Habeas Opinion at 48-62. In assessing the collective effect
of the prosecution's suppression of this evidence, as it was required
to do by the Supreme Court's decision in Kyles v. Whitley, 514 U.S.
419 (1995), the court concluded that the Commonwealth had violated
established Brady principles. Habeas Opinion at 60-62.
After granting Monroe a writ of habeas corpus, the court stayed its
order pending appeal and released Monroe on bond. The Common-
wealth has filed a timely notice of appeal from the Habeas Opinion,
and Monroe has cross-appealed. We possess jurisdiction over the
court's decision to award habeas corpus relief pursuant to 28 U.S.C.
§ 1291.
____________________________________________________________
14 At the evidentiary hearing, the magistrate judge heard evidence on
two issues: the voluntariness of Monroe's inculpatory statements and the
Commonwealth's suppression of exculpatory evidence.
13
II.
A.
In its appeal, the Commonwealth maintains that the district court
failed to give proper deference to the state court adjudications of
Monroe's Brady claim, as required by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA").15 Under AEDPA, a federal
court must defer to a state court's resolution of a claim that has been
"adjudicated on the merits." 28 U.S.C. § 2254(d). Conversely, where
a state court has not considered a properly preserved claim on its mer-
its, a federal court must assess the claim de novo.16 Daniels v. Lee,
316 F.3d 477, 487 (4th Cir. 2003); see also Cargle v. Mullin, 317
F.3d 1196, 1206 (10th Cir. 2003) ("[AEDPA] applies only when there
is an antecedent state court decision on the same matter.").
Pursuant to this doctrine, AEDPA's deference requirement does
not apply when a claim made on federal habeas review is premised
on Brady material that has surfaced for the first time during federal
proceedings. Rojem v. Gibson, 245 F.3d 1130, 1140 (10th Cir. 2001)
(reviewing Brady claim de novo when exculpatory material surfaced
for first time in federal habeas proceedings); Williams v. Coyle, 260
F.3d 684, 706 (6th Cir. 2001), cert. denied, 122 S. Ct. 2635 (2002)
(same); see also Cargle, 317 F.3d at 1206-07 (holding that AEDPA's
standard of review does not apply when new issues are considered on
____________________________________________________________
15 Under AEDPA, a state court judgment may be overturned on federal
habeas review only if it: "(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceed-
ing." 28 U.S.C. § 2254(d).
16 If, however, the state court declined to adjudicate a claim on its mer-
its because "a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner" can either (1)
satisfy the cause and prejudice standard, or (2) demonstrate that failure
to consider the claim will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
14
federal habeas review); Daniels, 316 F.3d at 487 (suggesting that
when "evidence on which [a federal claim] is premised was only dis-
covered [after the conclusion of state court proceedings,] it does not
trigger the deference mandate of AEDPA"); Killian v. Poole, 282
F.3d 1204, 1208 (9th Cir. 2002) ("AEDPA deference does not apply
to [a] claim [when] [e]vidence of the [claim] was adduced only at the
hearing before the [federal] magistrate judge.").
Here, certain items of suppressed, exculpatory material first came
to light during Monroe's federal habeas proceedings. In particular,
Monroe first obtained the following through discovery in federal
court: (1) some evidentiary material on the Smith sentence deal (par-
ticularly Riley's deposition); (2) some evidentiary material on Smith's
informant history (particularly information in Riley's notes); (3)
Smith's inconsistent statements; (4) the Lundy information; (5) Samu-
els's personal problems statement; (6) Samuels's napping habits state-
ment; (7) Corinna's male heir statement; and (8) the secretaries' notes.17
By contrast, the state courts have previously considered: (1) the Smith
gun deal; (2) some evidentiary material on the Smith sentence deal;
(3) some evidentiary material on Smith's informant history; and (4)
the Bronco witnesses. In these circumstances, we are obliged to give
deference to decisions of the state courts that the Commonwealth's
failure to disclose these last four items of Brady evidence did not con-
stitute a Brady violation.
The prosecution's late disclosure of the other eight items of excul-
patory material listed above, however, precluded the state courts from
considering those items when they ruled on Monroe's Brady claim.
Because no state court was ever presented with these eight items of
exculpatory material, we are obliged to make an independent determi-
nation of whether they are favorable to Monroe, and whether they
were suppressed. Daniels, 316 F.3d at 487; see also Boyette v.
Lefevre, 246 F.3d 76, 89 (2d Cir. 2001) ("[B]ecause no state court
determined whether some documents were Brady materials, we must
____________________________________________________________
17 Because Monroe was entitled "to rely on . . . the presumption that the
prosecutor would fully perform his duty to disclose all exculpatory mate-
rials," she did not default her right to rely on the material first obtained
in federal habeas discovery by failing to bring it to the attention of the
state courts. Strickler, 527 U.S. at 284.
15
exercise de novo review of this issue."). In addition, we must deter-
mine whether all of the non-defaulted materials - those presented in
state court and those presented for the first time in federal court -
considered and weighed collectively, made a material difference to
the outcome of Monroe's trial. Kyles, 514 U.S. at 436-37; Cargle, 317
F.3d at 1206-07.
In making this "materiality" determination, the third step in any
Brady analysis, we are unable to accord AEDPA deference on an
item-by-item basis to the four items of exculpatory material consid-
ered in state court, because we are obliged to assess the materiality
of exculpatory evidence "collectively, not item by item."18 Kyles, 514
U.S. at 436; see also Cargle, 317 F.3d at 1206-07 (holding that
AEDPA does not apply to cumulative error analysis when no state
court has considered all the material considered by federal courts). In
these circumstances, we have no way of deferring to an earlier state
court adjudication on materiality because no state court considered all
of the Brady material presented here. As a result, we must make an
independent assessment of whether the suppression of exculpatory
evidence - including the evidence previously presented to the state
courts - materially affected Monroe's first-degree murder conviction.19
____________________________________________________________
18 By contrast, we would accord item-by-item deference to a state court
determination that material was not exculpatory or had not been sup-
pressed. See Rojem, 245 F.3d at 1139-40 (according deference item by
item to state court decision that evidence was not exculpatory); see also
Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (holding that state
finding on suppression was entitled to presumption of correctness). The
state courts, however, to the extent they explained their reasoning,
rejected Monroe's Brady claim based on materiality. Monroe I at 11.
19 The fact that we are weighing all of the suppressed evidence in
assessing materiality may raise the concern that a federal habeas peti-
tioner will be afforded de novo review of a Brady claim (already consid-
ered by a state court) whenever a scintilla of new exculpatory material
comes to light in federal proceedings. To the contrary, we continue to
defer to state court decisions that relief would not be warranted on the
basis of the Brady evidence that those courts considered. Thus, if a peti-
tioner's discovery in federal court is minor, it will be unlikely to tip the
analysis in favor of relief; the newly discovered evidence would have to
be the proverbial straw that broke the camel's back.
16
B.
In our consideration of the district court's judgment, we review
legal conclusions de novo and findings of fact for clear error. See
Quesinberry v. Taylor, 162 F.3d 273, 276 (4th Cir. 1998). Although
the magistrate judge, rather than the district court, conducted the evi-
dentiary hearing on Monroe's petition, we review the district court's
findings, rather than the magistrate judge's recommendations.
LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988); see also
Wimmer v. Cook, 774 F.2d 68, 73 (4th Cir. 1985) ("[W]hile . . . the
magistrate may conduct the evidentiary hearing in the case, he lacks
judicial authority to make on his own a final determination."); cf.
United States v. Raddatz, 447 U.S. 667, 683 (1980) (holding that dis-
trict court is ultimate decisionmaker).
III.
The prosecution's failure to disclose evidence favorable to an
accused "violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution." Brady, 373 U.S. at 87. Moreover, the prosecutor's
duty encompasses both impeachment material and exculpatory evi-
dence, and it includes material that is "known only to police investi-
gators and not to the prosecutor." Kyles, 514 U.S. at 438. Along these
lines, "the individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government's behalf." Id.
at 437. Significantly, a Brady violation has three essential elements:
(1) the evidence must be favorable to the accused; (2) it must have
been suppressed by the government, either willfully or inadvertently;
and (3) the suppression must have been material, i.e., it must have
____________________________________________________________
Further, it may be suggested that we are encouraging defendants to
make a less-than-vigorous effort to uncover Brady material during state
proceedings. However, AEDPA guards against any strategic decision to
wait to search for Brady material: a federal habeas petitioner may only
secure an evidentiary hearing if he has been fully diligent in state court.
28 U.S.C. § 2254(e)(2). Thus, in considering this Brady material collec-
tively, we neither free defendants from the effects of state adjudication,
nor encourage them to be lax in their state court efforts.
17
prejudiced the defense at trial. Strickler v. Greene, 527 U.S. 263, 281-
82 (1999).
As explained below, the suppressed evidence on which the district
court relied in awarding habeas corpus relief establishes a Brady vio-
lation, which renders it unnecessary for us to reach the issue of proce-
dural default raised by Monroe in her cross-appeal. To be clear, we
are considering only the following evidence (the "Habeas Evidence")
in our assessment of Monroe's Brady claim:
(1) the Smith gun deal;
(2) the Smith sentence deal;
(3) Smith's informant history;
(4) Smith's inconsistent statements;
(5) the Lundy information;
(6) Samuels's personal problems statement;
(7) Samuels's napping habits statements;
(8) Corinna's male heir statement;
(9) the secretaries' notes; and
(10) the Bronco witnesses.
In light of the foregoing, we turn to whether the Habeas Evidence
establishes the three essential elements of a Brady violation, as articu-
lated by the Supreme Court in Strickler v. Greene.
A.
First, we agree with the district court that each item of Habeas Evi-
dence was favorable to Monroe. Most, if not all, of the Habeas Evi-
dence could have been used to impeach prosecution witnesses. In
18
particular, the prosecution failed to disclose five separate items of
impeachment material on its key witness, Zelma Smith, including: (1)
the Smith gun deal; (2) the Smith sentence deal; (3) Smith's infor-
mant history; (4) Smith's inconsistent statements; and (5) the Lundy
information.20 Similarly, the statements given to Deputy Neal -
including Samuels's personal problems statement, Samuels's napping
habits statement, and Corinna's male heir statement - could have
been used to impeach other prosecution witnesses.21 Along similar
lines, the secretaries' notes would have been helpful in cross-
examining prosecution witnesses who testified about the March 26,
1992, interview. Finally, the Bronco witnesses - had their identities
been disclosed - could have been called to testify that they had
observed a suspicious vehicle speeding away from Windsor about the
time of Burde's death.22 Thus, each item of Habeas Evidence was
favorable to Monroe's defense.
B.
The second element of a Brady violation requires us to determine
whether the prosecution suppressed the Habeas Evidence. As the
Supreme Court has pointed out, suppressed evidence is "information
which had been known to the prosecution but unknown to the
defense." United States v. Agurs, 427 U.S. 97, 103 (1976). Initially,
____________________________________________________________
20 The prosecution contends that the Lundy information was merely an
investigative lead. To the contrary, Riley admitted that he assumed
Lundy would contradict Smith's trial testimony. Thus, the Common-
wealth had an obligation to disclose the Lundy information, regardless
of whether a prosecutor has an independent duty to seek out exculpatory
evidence to assist an accused. See East v. Scott, 55 F.3d 996, 1003-04
(5th Cir. 1995).
21 Samuels's statements contradicted Corinna's trial testimony. Simi-
larly, Corinna's male heir statement could have been used to challenge
Krystyna's testimony that Burde was indifferent to the sex of the baby.
22 Even though the information provided in the Bronco tip was some-
what vague, the Bronco witnesses would have testified that a Bronco-like
vehicle was speeding away from Windsor at about the time of Burde's
death, making it more than a "remote possibility that [disclosure] would
have helped the defense." United States v. Polowichak, 783 F.2d 410,
414 (4th Cir. 1986).
19
the Commonwealth insisted that the identity of the Bronco witnesses
was disclosed to Monroe's defense before trial, but it has now
dropped this contention, admitting that "[t]he fact of this report was
disclosed to the defense in discovery, but the Johnson's [sic] identity
apparently was not." Appellant's Br. at 27. In any event, the district
court found that the identity of the Bronco witnesses was not dis-
closed, Habeas Opinion at 49, and its finding on this point is not
clearly erroneous.
The Commonwealth provides two explanations for its failure to
disclose the remaining nine items of Habeas Evidence. First, it con-
tends that the prosecutors did not believe the material had indepen-
dent exculpatory value. In other words, for most of the Habeas
Evidence, the Commonwealth asserts that "the substantive equivalent
was put before the jury by the Commonwealth's witnesses." Appel-
lant's Br. at 45; see also id. at 56. However, the disclosure obligation
attaches irrespective of the good faith of the prosecutors. Brady, 373
U.S. at 87. Further, the prosecution has a duty to disclose material
even if it may seem redundant. Redundancy may be factored into the
materiality analysis, but it does not excuse disclosure obligations.
Second, the Commonwealth vigorously contests whether some of
the Habeas Evidence existed. In particular, the Commonwealth asserts
that it did not agree to help Smith secure a sentence reduction. It also
contends that Smith did not have a history of providing information
to police prior to testifying against Monroe, and that even if she did,
the prosecutors were not aware of this history. Contrary to the Com-
monwealth's contentions, the district court found that the prosecutors
had agreed to assist Smith obtain a sentence reduction and that they
were aware that Smith had provided information in prior investiga-
tions. Habeas Opinion at 63. Because these findings are not clearly erro-
neous,23 we must adhere to the district court's decision that the Smith
____________________________________________________________
23 The court was entitled to conclude that Riley's notes and Riley's
deposition establish that the Commonwealth knew of Smith's informant
history. Habeas Opinion at 54. Similarly, the record amply supports the
court's finding of the Smith sentence deal. First, Riley indicated in his
deposition that "[i]t was clear that she was looking for some kind of con-
sideration, and we made it clear" to her that her assistance "would not
hurt her." Id. at 53. Second, Monroe's prosecutors testified on Smith's
20
sentence deal and Smith's informant history were suppressed by the
prosecution.
C.
With the first two requirements of a Brady violation satisfied, we
turn to the third - and most difficult - of the Brady elements, that
is, whether the suppression of exculpatory evidence was material to
Monroe's first-degree murder conviction. Under Brady, "[t]he touch-
stone of materiality is a `concern that the suppressed evidence might
have affected the outcome of the trial.'" Spicer v. Roxbury Corr. Inst.,
194 F.3d 547, 559 (4th Cir. 1999) (quoting Agurs, 427 U.S. at 104).
Put differently, suppressed evidence is material "if there is a reason-
able probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Kyles, 514
U.S. at 433 (internal quotations omitted). A reasonable probability, in
turn, is shown "when the government's evidentiary suppression
undermines confidence in the outcome of the trial." Id. at 434 (inter-
nal quotations omitted). An important consideration here is that,
under Kyles, the question of materiality must be considered "collec-
tively, not item by item." Id. at 436.
In assessing the issue of materiality, we must evaluate the impor-
tance of the Commonwealth's suppression of the Habeas Evidence.
To do so, we first assess the Commonwealth's evidence that Monroe
committed first-degree murder. We then weigh against this evidence
the strength of Monroe's defense. Finally, we consider whether the
Habeas Evidence, had it been disclosed and used effectively, is likely
to have affected the verdict of first-degree murder. United States v.
Bagley, 473 U.S. 667, 676 (1985). In other words, we examine
whether the Commonwealth's suppression of the Habeas Evidence
was material to the fairness of Monroe's trial.
____________________________________________________________
behalf in a sentence reduction hearing in Chesterfield County Circuit
Court on February 5, 1993, that Smith deserved a sentence reduction
because "a portion of [Monroe's] sentence is due to Zelma Smith's testi-
mony" and that "she's entitled to what we refer to as the cost of doing
business." Id. at 54.
21
1.
It is clear that the Commonwealth's murder case against Monroe
was somewhat thin and entirely circumstantial. Monroe's admissions
during police questioning that she was present when Burde killed
himself provided the strongest evidence against her. In addition, the
Commonwealth presented evidence that it was unlikely that Burde
had committed suicide. Third, the Commonwealth suggested that
Monroe was jealous of Krystyna. Fourth, the Commonwealth empha-
sized that Monroe had a financial interest in Burde's death. Finally,
and importantly, the Commonwealth introduced the testimony of
Zelma Smith to support its allegations of premeditation and malice,
both of which are essential elements of a first-degree murder prosecu-
tion in Virginia. We discuss these aspects of the prosecution's case
in turn.
a.
First, the prosecution introduced Monroe's admissions that she had
been present when Burde committed suicide. On March 26, 1992,
Agent Riley interviewed Monroe two times - first in the morning at
Windsor, and again in the afternoon at the Virginia State Police head-
quarters. During the afternoon interview, Monroe recalled being pres-
ent when Burde shot himself. At the start of this interview, Riley
suggested to Monroe that she had been present when Burde commit-
ted suicide and that she must be blocking out that memory. Despite
Riley's repeated and emphatic insistence that she must have been
there, Monroe maintained, for about an hour, that she could not
remember being present at Windsor when Burde died. It was only
after Riley told Monroe that he had witnessed his own father's suicide
that Monroe appeared to recall Burde's death.24
____________________________________________________________
24 According to Monroe's witnesses, she was highly suggestible in the
weeks and months following Burde's death. She had developed a trusting
relationship with Riley and deferred to his position of authority as a
police investigator, believing that he had expertise in dealing with trau-
matic events. Finally, her father had committed suicide when she was a
child, and she had been devastated by the event. These factors, according
to Monroe, led her to accept Riley's suggestions; according to her, she
had been virtually hypnotized by his repeated suggestions, and she sim-
ply adopted his version of the event.
22
Burde's youngest daughter, Corinna, also testified that Monroe had
admitted, over lunch on April 1, 1992, that she (Monroe) had been
present at Burde's suicide. Corinna's testimony was that Monroe had
told her, "I was there when your father committed suicide." Accord-
ing to Corinna, she asked Monroe if she could have imagined this,
and Monroe responded, "No, I was there." Monroe allegedly said that
she had wanted to tell Corinna at Burde's funeral, but had not known
what to say.
Similarly, Monroe signed a statement on June 3, 1992, admitting
that she had been present when Burde committed suicide. Riley called
Monroe on the morning of June 3, 1992, arranging to meet her at
Drewery's Bluff, a Civil War park in the Richmond area. At this
meeting, he presented Monroe with a list of incriminating evidence,
and he informed her that the Commonwealth's Attorney planned to
charge her with murder. In response, Monroe steadfastly maintained
her innocence and began to backtrack on whether she had been pres-
ent at Burde's suicide. She ultimately signed a statement, however,
admitting to being present when Burde shot himself.25
b.
Second, the prosecution attempted to show that Burde did not com-
mit suicide. Ann Jones, the Commonwealth's ballistics expert, testi-
fied that she found gunshot residue patterns on Burde's hands, on the
couch on which his body was found, and around the wound itself.
According to Jones, these patterns indicated that he had been shot
between the third and fourth fingers on his right hand and that the gun
had been close to (but not against) his head when it was fired. Further,
she suggested that Burde's right hand had been covering his forehead
when the weapon was discharged. Based on this information, Jones
concluded that it was unlikely that Burde had killed himself. Dr. Mar-
____________________________________________________________
25 According to Monroe, Riley tricked her into signing the statement by
telling her that the Commonwealth's Attorney might change his mind
about prosecuting her for murder if she admitted she was present at
Burde's suicide. Monroe testified that Riley had threatened to arrest her
if she did not sign it, asserting that he had never lost a murder case, that
he could twist her words so that no one would believe her, and that he
could make her "out to be the biggest black widow spider of all time."
23
cella Fierro, the Medical Examiner, also testified for the Common-
wealth. According to Dr. Fierro, the type of wound that killed Burde
was uncommon in suicide wounds, in that the gun was not directly
against his head when it was fired. According to these two witnesses,
it was unlikely that Burde had committed suicide, although neither
witness could rule out suicide as a possibility.26
The prosecution also produced evidence that Burde was upbeat and
happy prior to his death and that he would not have committed sui-
cide. According to Corinna, she never noticed that her father showed
signs of depression. Further, several witnesses testified that Burde had
seemed exuberant in the weeks before his death. For example, a real
estate broker told the jury that Burde had been ecstatic about the pos-
sibility of acquiring a piece of property. Further, the prosecution
brought out that Burde had scheduled plans for the days and weeks
following his death. For example, the day before he died, he had
asked Samuels, his secretary, about purchasing an exercise bike, and
on the day of his death, he had made plans to have lunch with his pub-
lisher the next afternoon. On the basis of this evidence, the Common-
wealth argued that Burde did not commit suicide.
c.
Third, the prosecution sought to show that Monroe was jealous that
Krystyna was replacing her in Burde's life.27 Burde's relationship
____________________________________________________________
26 Monroe produced her own expert witnesses who suggested that
Burde had fired the gun himself, holding it with his right hand and pull-
ing the trigger with his left thumb. According to Monroe, the residue
tests, which were not disclosed to her defense before trial, confirm that
Burde fired the gun himself. The district court held that Monroe had
defaulted her right to rely on the residue tests. Because we do not need
to reach the procedural default issues, we do not consider the residue
tests in ruling on Monroe's Brady claim.
27 In support of its theory that Monroe's relationship with Burde was
having problems, the Commonwealth introduced a letter Monroe wrote
to Burde in the fall of 1990, in which she expressed her frustration with
him. According to the letter, Burde had placed innumerable conditions
on her and on their relationship. Monroe wrote that Burde had never seri-
ously proposed to her and that he did not understand the meaning of a
marital commitment. She also dismissed the idea of a prenuptial agree-
ment and concluded by saying that she was giving up on Burde.
24
with Krystyna began in 1989, when Burde and Monroe took a ski trip
to Snowshoe Mountain in West Virginia. While waiting for the ski
lift, Monroe overheard a couple speaking Polish. Knowing Burde was
Polish and would be interested in meeting the couple, Monroe pointed
them out. Burde introduced himself to Krystyna and her husband,
Wojtek Drewnowska, and a friendship quickly developed between the
two couples. After a few months, Burde and Krystyna became
involved romantically. Monroe apparently knew of this relationship,
and for the most part, she accepted it.28 Krystyna was not Burde's first
fling during his relationship with Monroe, nor was she the only other
woman with whom he was involved immediately before his death.29
As his affair with Krystyna developed, Burde became obsessed
with the idea of having another child. He was unhappy with his three
children,30 and he wanted a son to mold in his image. He sought assis-
tance from a number of persons, including several of his girlfriends
as well as other acquaintances, about finding a surrogate mother. In
order to dissuade Burde from using an anonymous surrogate, one of
Monroe's daughters, Katie, even offered (albeit with reservations) to
donate an egg to allow her mother to carry Burde's baby. Despite
these discussions about reproductive options, most of Burde's friends
and family did not, at least initially, take the surrogacy discussions
____________________________________________________________
28 The prosecution produced some evidence that Monroe was jealous of
Krystyna. Specifically, Krystyna testified that she had complained to the
police in January of 1992 that Monroe was following her.
29 In addition to his affair with Krystyna, Burde had an ongoing affair
with Leonora Musselwhite, whom he had met while taking a computer
class, and he had recently ended an affair with Pamela Moore. Evidence
at trial indicated that he also had several short-lived affairs with women
seen coming and going from Windsor. Furthermore, Burde had numer-
ous affairs while he was married to Brigette. During his marriage, Burde
maintained a long-term relationship with Myra Campbell, a secretary at
Philip Morris, and he had another affair with a woman named Roache.
Monroe testified that she understood and accepted Burde's need for sex-
ual relationships with other women, and she described Krystyna as
merely a "distraction."
30 Prior to Krystyna's pregnancy, Burde had three daughters: Colette
and Corinna from his marriage to Brigette, and Sylvia Meys from an
affair in Europe during his marriage. By age, Sylvia was the middle
child.
25
seriously, and they characterized the idea of Burde rearing another
child as absurd. Young children irritated him, and he had a poor rela-
tionship with his existing children.
By 1991, however, it was clear that Burde was serious about hav-
ing another child. When he could not find an anonymous surrogate,
he discussed the idea with Krystyna, and she agreed to carry his baby.
In 1990, Wojtek had confronted Krystyna about her affair, and they
separated in the spring of that year. Initially, Wojtek and Krystyna
merely lived in separate parts of their house, but Krystyna moved out
in June of 1991. By February of 1991, Burde and Krystyna were
actively trying to conceive a child, but Krystyna was having trouble
becoming pregnant. As a result, she and Burde consulted a fertility
expert in the Richmond area. This expert, Dr. Edelstein, conducted
tests, found nothing physically wrong, and suggested that Burde and
Krystyna should try to conceive more frequently. Burde asked Dr.
Edelstein about the possibility of sex preselection, but Krystyna
rejected the idea as unethical and immoral.
In planning for their new baby, Burde and Krysytna prepared sev-
eral versions of a "baby agreement." In various drafts of this agree-
ment, Burde agreed to provide support for a child that Krystyna
would carry. The drafts also provided that Krystyna and Burde might
hold themselves out as a married couple and might agree to live
together. In early 1991, Monroe discovered an early draft of the baby
agreement, and she testified that she then accepted the fact that Burde
was serious about having a child. The baby agreement was never exe-
cuted, but a later draft provided that Burde could not allow Monroe
to accompany him in the presence of the child. Monroe had discov-
ered the later draft three days before Burde died.31 Through this draft
____________________________________________________________
31 Monroe acknowledged being upset when she discovered the draft
baby agreement. She testified, however, that Burde had insisted that it
was all Krystyna's idea, that he was being pressured by Krystyna to form
a relationship he did not want, and that he wanted to remain with Mon-
roe. Monroe insisted that Burde begged her not to leave him. Monroe
said that she ultimately accepted the fact that Krystyna was having a
baby, and she felt they had worked things out. Monroe's version of these
events was confirmed by several witnesses, including witnesses called by
the Commonwealth, who testified that Krystyna was not to be trusted and
26
agreement and Krystyna's testimony about her relationship with
Burde, the Commonwealth contended that Krystyna was replacing
Monroe in Burde's life.
d.
Fourth, the Commonwealth sought to show that Monroe had a
financial interest in Burde's death. Burde was in the process of draft-
ing a will that, if executed, might have reduced Monroe's share of his
estate to a $20,000 annuity for six years, a Jaguar automobile, and
some pieces of artwork from his collection.32 Under his 1989 will,
which was probated, Monroe stood to inherit between $500,000 and
$900,000.33 Monroe was also a joint beneficiary of Burde's life insur-
ance policy, under which she stood to receive $50,000.
The Commonwealth also presented evidence that Burde had given
Monroe $155,000 to purchase property on Kanawha Street in Henrico
County (the "Kanawha property"). Monroe contributed $40,000 of her
own money to purchase the Kanawha property, and she was the only
____________________________________________________________
was a "gold digger in the truest sense of the word." Every witness who
knew Burde preferred Monroe to Krystyna, and several witnesses testi-
fied that Burde's relationship with Monroe was as strong as ever at the
time of his death. According to one of Burde's closest friends, Burde had
hoped that Krystyna would surrender the baby to him once she gave
birth, but he had come to realize that this would not occur.
32 It is possible that Monroe actually would have received a larger share
of Burde's estate under the draft will. The draft will contemplated that
Burde might have a wife when he died, who stood to gain a large share
of his estate. By some accounts, Burde was, at the time of his death, con-
templating the possibility of marrying Monroe, and he had described
himself as Monroe's fiancee as recently as January of 1992.
33 According to Monroe, Burde was always in the process of revising
his will. He was preoccupied with death, with his estate, and with con-
trolling the lives of those around him. Thus, he continuously made notes
about what should be done in the event of his death, how to dispose of
his property, and how his survivors should conduct their affairs. In a let-
ter accompanying his 1989 will, for example, he provided a long expla-
nation of how he felt about his beneficiaries as well as about those whom
he had disinherited.
27
owner listed on the recorded deed. The real estate lawyer who han-
dled the transaction testified that Burde contacted him in January of
1992, requesting that he "correct" the deed to list Burde as co-owner.
Monroe needed to consent for Burde to have an ownership interest in
the property, but as of the time of his death, she had not completed
the necessary paperwork.34 The Commonwealth also produced evi-
dence that Burde intended the $155,000 to be a loan and that, in the
months before his death, he had wanted to formalize Monroe's obli-
gation to repay him. While his secretary, Barbara Samuels, had pre-
pared documents to this effect, Monroe never signed them. Through
evidence of the draft will, the life insurance policy, the deed correc-
tion, and the loan documents, the Commonwealth maintained that
Monroe had a financial motive to kill Burde.
e.
Finally, and importantly, Zelma Smith provided the Common-
wealth's primary evidence of premeditation.35 Smith, an informant
with multiple felony convictions (for larceny, forgery, and check
fraud), testified that Monroe had contacted her about a year before
Burde's death in an effort to purchase an untraceable handgun.
According to Smith's testimony, she received a call in the spring of
1991 from someone identifying herself as "Ms. Nelson." When Smith
returned this call, she reached a man who advised her that there was
____________________________________________________________
34 Monroe suggested that Burde only wanted to be listed as an owner
because of a dispute with a neighbor. In order to litigate this dispute,
Burde needed an ownership interest in the Kanawha property. Ulti-
mately, Burde solved the ownership problem by convincing a local court
to allow him to assert the claim as Monroe's fiancee.
35 Although Smith's testimony was the primary evidence of premedita-
tion, the prosecution also argued that Monroe had discovered the baby
agreement a few days before Burde's death and that she might have
known about the draft will. While the baby agreement and the draft will
provide some evidence of motive, they fail to show premeditation. The
only evidence arguably supporting premeditation, other than Smith's tes-
timony, was Corinna's testimony that she received phone calls from
Monroe in the months before Burde's death in which Monroe expressed
concern about Burde's mental state. According to the prosecution, these
calls demonstrated that Monroe had planted the idea of Burde's depres-
sion.
28
no Ms. Nelson at that number. Smith claimed that she then heard a
brief conversation in the background, after which a woman came on
the line. The woman said that she was Ms. Nelson, that it was a bad
time to talk, and that she would call Smith back. When Ms. Nelson
called back, she asked Smith to meet with her at a Burger King in
Richmond.
At the Burger King meeting, the woman offered Smith $800 to
obtain a small handgun, indicating that she was aware of Smith's
prior criminal history. According to Smith, she received $100 for her
expenses. After she obtained a .357 caliber handgun, Smith arranged
a follow-up meeting at a local cemetery. At this meeting, however,
Ms. Nelson rejected the firearm as too large, although she provided
Smith with an additional $480 for her expenses. Smith never heard
from Ms. Nelson again. At trial, Smith identified Beverly Monroe as
Ms. Nelson. Smith testified that she had read about Monroe's case in
a news publication, perhaps People magazine, and that she contacted
the Commonwealth's Attorney when she made the connection
between Monroe and Ms. Nelson. On the basis of Smith's testimony,
the Commonwealth contended that Monroe had killed Burde with
premeditation and malice aforethought, elevating the offense to mur-
der in the first degree.36
2.
In her defense, Monroe presented two alternate explanations for
Burde's death, both of which supported acquittal. First, she sought to
prove that Burde had committed suicide. Second, she suggested that
Burde could have been murdered by someone else. In addition to
these alternate explanations for Burde's death, Monroe presented an
alibi, showing that she had been at a grocery store miles from Wind-
sor around the time of Burde's death. Finally, she highlighted the
flaws in the police investigation. We briefly review these aspects of
her defense.
____________________________________________________________
36 Seeking to bolster Smith's credibility, the prosecution improperly
vouched for her veracity in closing argument, representing that "the
absolute truth is that she did not ask for any consideration for her testi-
mony from the Commonwealth in this case. And it's absolutely true that
the Commonwealth has not promised her anything."
29
a.
First, Monroe presented evidence supporting her contention that
Burde had committed suicide. Numerous witnesses testified to
Burde's precarious mental state, portraying him as mentally unstable,
overbearing and controlling, cruel and abusive to those around him,
and prone to obsessive and paranoid behavior. Monroe also presented
evidence indicating that Burde had reason to be suicidal. His desire
to produce a male heir was not going as planned; he was strapped for
cash; he was concerned about his health; he was preoccupied with
death; and he was in danger of being exposed as a fraud. Finally,
numerous witnesses, including Commonwealth witnesses, confirmed
that Burde was depressed in the weeks and months preceding his
death.
By all accounts, Burde displayed classic signs of manic depression
and narcissism. According to several witnesses, he was constantly
embarking on ambitious projects, and he experienced extreme and
erratic mood swings, going through periods of elation followed by
periods of lethargy and despair. As for the indications of narcissism,
numerous witnesses testified that Burde had an inflated sense of self-
importance. He was consumed by social status, looking down on oth-
ers and refusing to associate with those who were not part of the "so-
cial elite." He also had unreasonable expectations that others should
conform to his expectations,37 and he tended to exploit those around
him for his own ends. He thought that the women in his life should
be treated as his property,38 and he offered certain of his relatives and
____________________________________________________________
37 For example, Burde conditioned gifts to Ditta and Sig Huber, his
niece and nephew, on the following criteria: "They must maintain sup-
portive contact with Colette, Corinna de la Burde and Sylvia Meys. In
this spirit, they must see the other members of the family as [sic] least
once every five years and must keep in touch by telephone every three
months."
38 By way of example, his search for a surrogate mother was based on
the idea that people could be bought and sold. Along these lines, the draft
baby agreement conditioned Burde's obligation to pay child support on
Krystyna remaining close to Richmond. If she moved more than fifty
miles from the Virginia capitol, she would lose half of the child support
payments, and if she moved out of Virginia, she would lose them all
together.
30
friends monetary incentives to adopt the "de la Burde" name.39
Burde was also portrayed as irritable and overbearing. He was con-
stantly critical of his daughters, calling them insulting names and
berating them for the company they kept, the clothes they wore, and
the amount of makeup they used. He described them as "losers" and
unworthy of the de la Burde name. In a letter to his youngest daughter
Corinna, he wrote, "you have carried with you all garbage of low
class associations" and "you have to empty your home from the bag-
gage of the past in which you can take neither pride nor happiness."40
He warned Corinna that she would "imprison [her] children in the
mediocrity for the generations to come" because of her associations
with people who were "not from the same class." In a letter accompa-
nying his 1989 will, he admonished Colette, his oldest daughter, to
"[u]se your energy toward higher goals instead of low class pursuits
. . . [d]ress up, loose [sic] weight, look up and better yourself."41 Simi-
larly, in the will itself, he implored Colette to associate "with people
of her own upbringing and class."
In order to establish that Burde was the type to contemplate sui-
cide, Monroe introduced evidence that he felt himself to be above
common strictures of law and morality. For example, he held uncon-
ventional views of personal relationships and sex. He propositioned
many of the people who worked for him, men and woman alike. For
instance, he made advances toward Charles Moore, a friend who did
construction work at Windsor, and he asked Sheldon Gosline - a
graduate student who had lived at Windsor while cataloguing Burde's
art collection - to participate in a menage a trois. His close friends
also testified about sex parties hosted by Burde. Burde even sought
to persuade Monroe and Frank Vegas, one of Burde's closest friends,
____________________________________________________________
39 Burde, for instance, conditioned gifts to Ditta and Sig Huber on the
requirement that "They must have obtained legal use and must have used
the name `de la Burde' in all of their daily conduct for not less than five
years prior to the death of Roger de la Burde."
40 The letter was titled "In a Dust of Crumbled Prayers and Dreams
Lies Your Future and Your Happiness, Corinna."
41 In this same letter, he criticized Brigette, claiming that her "passive
and negative attitude was unbearable. There was no competence, no car-
ing and no desire to help or share. Ever!!"
31
to marry wealthy individuals in order to inherit their money. For
example, Vegas testified that Burde introduced him to an older
woman and suggested, in apparent sincerity, that Vegas should marry
her and then hasten her death by hiding her heart medication.
Along similar lines, Burde was involved in unorthodox and illicit
business affairs.42 Most significantly, his prized collection of African
sculptures was filled with fakes.43 Vegas testified that he had sculpted
many of the pieces in Burde's collection and that Burde passed these
works off as the works of famous sculptors. At one point, Burde
asked Vegas to take up residence in the cottage at Windsor and
receive a salary to churn out phony sculptures that could be sold in
Europe. Pamela Moore, one of Burde's ex-girlfriends, testified that
she saw Burde "aging" some of his sculptures on his roof so that he
could pass them off as older works. Similarly, Charles Moore testified
that Burde had him prepare duplicate canvasses of famous paintings.
Along these lines, Sig Huber (Burde's nephew) and Krystyna were
caught in New York trying to trade a sculpture under false pretenses.44
____________________________________________________________
42 Even in his legitimate business deals, Burde was bombastic and liti-
gious. Most notably, he was involved in a Bleak House-type suit against
Philip Morris. After the company forced Burde into retirement, he
brought suit, claiming that it had refused to pay him royalties on a patent.
In response, the company filed a $50 million counterclaim. The suit
dragged on for years, and Burde was frustrated that Philip Morris would
not settle. In time, Burde purchased a handgun, fearing that the company
would send someone after him. He also became embroiled in the dispute
with the neighbors of the Kanawha property. Although Monroe wanted
to settle amicably, Burde insisted on dragging the neighbors to court.
43 Burde's real estate transactions were similarly suspect. He ordered
brokers to make an unusual number of offers on property, and he consis-
tently overextended his cash position. He also evaded the federal tax
laws, claiming deductions for rent he paid on Krystyna's apartment by
reporting it as a business expense, and telling others to report artificially
low values on gifts in order to deceive the IRS.
44 In his draft will, Burde provided evidence of the art forgeries in his
peculiar instructions for the disposition of his art collection: "[t]hat col-
lection should not be sold unless in dire emergency . . . . In the case of
emergency you should never permit any dealer to show the collection to
his clients because it will destroy the value. You should never forward
photos to the dealers."
32
Finally, Monroe presented evidence that Burde's behavior began to
change in January of 1992. For example, he developed a sudden inter-
est in religion, taking up Catholicism in the months before his death
(which occurred on Ash Wednesday). He started corresponding with
a Polish nun, who chastised him for his sins and admonished him to
repent. It came out at trial that Burde was a "follower" of the Nigerian
god E'shu, who - legend had it - had committed suicide. Burde had
also become concerned about growing older. He talked about death
and his fear of dying alone. He was experiencing health problems,
including chest pain, prostate problems, blood in his urine, and impo-
tence.45 He was also worried about gaining weight and losing his hair.
He was caught between Krystyna and Monroe, and his dream of a
male heir was seemingly never going to materialize. Finally, he was
in danger of being exposed as a fraud.46 In general, several witnesses
suggested that Burde had lost his zeal for life.47 He had spoken of sui-
cide in the past, going so far as to say "I'll kill myself," and his
mother had attempted to kill herself.48 On this basis, Monroe argued
that Burde had committed suicide.
____________________________________________________________
45 In the months before his death, Burde began to take medications to
treat hypertension, including Kerlone, Maxzide, and Hytrin. On appeal,
Monroe brought out that the adverse effects of Kerlone are, among oth-
ers, depression, emotional instability, decreased libido, disorientation,
and impotence. The other medications had side effects that include leth-
argy, drowsiness, fatigue, and depression.
46 In support of the proposition that exposure was imminent, some wit-
nesses testified, without providing any detail, that Burde was being
blackmailed.
47 For example, Sylvia Beckner, a family friend, testified that Burde
became depressed around January of 1992, marked by his forgetfulness
and sloppy appearance. During this period, Burde would come to Beck-
ner's flower shop wearing a dress suit and bedroom slippers. Burde
talked to her about his fear of dying alone; he was depressed about grow-
ing old, being alone, and his poor relationships with his children.
48 Don Belville, the last known person to speak to Burde, said that
Burde had been acting strangely in the weeks before his death, wanting
to get things finished in a peculiar hurry. Belville said that Burde
sounded so strange during this phone call that Belville had taken notes
of the conversation. According to Belville, Burde claimed that he "was
going to make some changes in his life," and he felt like the "world was
off his shoulders."
33
b.
As an independent basis for acquittal, Monroe attempted to show
that Burde had many enemies, any one of whom could have killed
him. In particular, Monroe cast suspicion on Krystyna Drewnowska,
characterizing her as a jealous, temperamental mistress. Monroe also
suggested that Burde's family had personal and financial motives to
kill him. Corinna, for example, admitted that Burde was a controlling
father and that he ridiculed those closest to him. Finally, Monroe
identified a litany of other suspects, including Burde's ex-girlfriends,
their husbands, Philip Morris, and those involved in Burde's illicit
business affairs.
First, Monroe presented evidence suggesting Krystyna may have
murdered Burde. On March 4, 1992, the day Burde died, Krystyna
had received a report confirming that her baby was a girl. In the days
following Burde's death, Krystyna cancelled the abortion she had
scheduled for March 11, 1992, hired an estate attorney, got a blood
sample from Burde to "verify the heirship" of her daughter, gave
police a letter that Monroe had written to Burde in 1990, and left the
country until Monroe was indicted. Monroe also presented evidence
that Krystyna was extremely jealous and that she resented Monroe's
continued presence in Burde's life.49 Toward this end, she apparently
wanted Burde to agree that Monroe could not accompany him in the
presence of their child. Burde's draft will made no provision for Krys-
tyna or her child, but because of his death, the unborn child stood to
inherit under Virginia's pretermitted child statute.50
Second, Monroe suggested that Corinna was a logical suspect.
Corinna had access to her father's house; she knew where Burde kept
____________________________________________________________
49 For example, several witnesses testified that Burde had attended a
cultural event with Monroe and her family on the Saturday before his
death. At this event, Burde had been photographed by a local newspaper
while dancing with another woman. He was terrified that Krystyna
would see this picture in the paper.
50 Under Virginia law, a parent may disinherit a child by refusing to
provide for the child by will, but if a child is born after the parent's last
validly executed will, such a "pretermitted" child is entitled to share in
the parent's estate. Va. Code Ann. § 64.1-70.
34
the handgun that killed him; and she smoked the type of cigarettes
found in the library near his body.51 Corinna also had a motive to kill
her father. She did not get along well with him, describing him as a
hard man to please and reportedly fighting with him at family gather-
ings. According to witnesses, he hated her apartment, her job, her
friends, and her appearance, and she resented Burde's attempts to
control her life. Corinna knew that her father might disinherit her at
any time, and she was unhappy about Krystyna's pregnancy, knowing
that Burde was actively seeking a male heir to replace her as the pri-
mary beneficiary of her father's estate.52
Finally, Monroe identified a litany of other potential suspects,
including:
* Wojtek Drewnowska - He was married to Krystyna and
jealous of her relationship with Burde. After finding one
of Burde's love letters to Krystyna, he angrily confronted
Burde and told him to stay away from her. He had threat-
ened to expose Burde's fraudulent art activities.
* Pamela Moore - She had an affair with Burde, which
had ended badly in 1991 and led to a separation from her
husband. She had access to Windsor; she knew where
Burde kept his handgun and how to use it; she had a vio-
lent temper; and she smoked the brand of cigarettes
found at the scene.
* Charles Moore - Pamela's husband owed Burde
money, and Burde had been pressuring him for it in the
days before his death. Burde had broken up his marriage
____________________________________________________________
51 Deputy Neal observed two Marlboro Light cigarette butts in an
ashtray near where Burde's body was found. Burde did not smoke this
brand.
52 Burde had already disinherited his oldest daughter Colette. Colette
had moved to New Orleans many years before Burde's death, and she
rarely saw him. Further, Corinna stood to gain from Monroe's convic-
tion, since Monroe's share of the estate would then be distributed to the
other beneficiaries. Compared to Corinna, the other beneficiaries of
Burde's 1989 will took a relatively small share of Burde's estate.
35
and made sexual advances toward Charles himself.
Moore had also copied canvasses for the art forgeries,
giving him a motive to keep from being implicated in the
fraud.
* Sheldon Gosline - He might have participated in
Burde's fraudulent art activity. He had helped Burde
catalogue the collection, and he admitted that Burde had
given false statistics for some of the sculptures. There
was an implication that Gosline's academic reputation
might be tarnished by exposure of the fraud, which gave
him an incentive to keep the truth from surfacing.
* Philip Morris - Burde had stolen sensitive documents
from Philip Morris, and he had threatened to expose the
company for concealing scientific evidence that smoking
was addictive. Burde was fearful that the company
would seek to harm him.
Monroe's defense team maintained that, because of these other sus-
pects, the prosecution's case against her was riddled with reasonable
doubt.
c.
Monroe also produced evidence of an alibi. The Commonwealth's
forensic expert testified that Burde died around 10:30 p.m., on March
4, 1992, a time when Monroe could show that she was miles away
from Windsor. Her son, Gavin, testified that she had arrived home at
about 10:00 p.m. on the night of Burde's death. According to Gavin,
Monroe asked him if he needed anything from the grocery store. She
then departed for the store at about 10:20 p.m., returned home by
10:45 p.m., and remained home for the rest of the evening. Gavin's
testimony was confirmed by a grocery store receipt and a cancelled
check, establishing that Monroe was in the Safeway store near her
home (about thirteen miles from Windsor) at 10:40 p.m. on March 4,
1992. Further, Monroe produced a neutral witness who testified to
having met her in the Safeway store that evening. The witness was
sure he recognized Monroe, recalling that he had talked to her about
his contracting business and that he had given her his business card.
36
In light of this alibi evidence, it seemed unlikely that Monroe killed
Burde.53
d.
Finally, Monroe emphasized the poor investigative work of the
police. For example, Deputy Neal failed to secure Windsor as a crime
scene on the morning of March 5, 1992. He also failed to follow sev-
eral standard investigative procedures, including:
* collecting the cigarette butts found near Burde's body or
investigating remnants of materials which had recently
been burned in the fireplace;
* searching for a suicide note or securing other papers in
Burde's office, including legal documents, wills, letters,
or notes;
* preserving the clothes Burde was wearing or keeping the
sofa on which he died;
* testing a feather/hair fragment that was resting on
Burde's body when he was found; and
* dusting for fingerprints.
Even Agent Riley acknowledged that Deputy Neal had conducted a
poor investigation, and Monroe suggested that critical forensic evi-
dence - such as hair, fibers, blood, and gunshot residue - had been
lost as a result.
____________________________________________________________
53 The prosecutors had two explanations for Monroe's alibi. First, they
suggested that she was not in the grocery store that evening. Instead,
someone else with her check cashing card could have been there, and the
neutral witness could have been confused about when he had met Mon-
roe. Alternatively, the Commonwealth suggested that the time of death
was merely an estimate, and that Monroe could have killed Burde just
prior to or immediately following her trip to the Safeway store.
37
Monroe also sought to show that Riley had manipulated the investi-
gation of Burde's death. According to Monroe, Riley had prejudged
the investigation, deciding at its outset that she had killed Burde and
then setting out with the single goal of proving his theory. In order
to provide evidence that the investigation was biased, Monroe showed
that Riley pressured Commonwealth experts into accepting his ver-
sion of Burde's death. For example, Riley sought to influence the
opinions of the Commonwealth's ballistics and forensic experts. As
evidence of this, Monroe brought out that the Medical Examiner's
office delayed issuing a report on Burde's death and that it altered its
initial opinion on the cause of death (ultimately labeling the death a
homicide) because of pressure from Riley. In another example of a
biased investigation, Monroe sought to establish that Riley ignored
many leads, failing to interview suspects such as Krystyna until after
Monroe was indicted.
3.
The Commonwealth's first-degree murder case against Monroe can
fairly be characterized as tenuous: its evidence was entirely circum-
stantial, and Monroe presented a strong defense. The Habeas Evi-
dence, had it had been available at Monroe's trial, would have further
undermined an already marginal first-degree murder prosecution.
With the trial evidence viewed in this light, we must decide whether,
had the Habeas Evidence been properly disclosed, there is a reason-
able probability that the verdict of first-degree murder would have
been different.
The ten items of Habeas Evidence (five of which are impeachment
material on Zelma Smith) consisted of the following:
(1) the Smith gun deal - the Commonwealth's promise
not to prosecute Zelma Smith, a convicted felon, for her
possession of a firearm;
(2) the Smith sentence deal - the Commonwealth's
promise to assist Smith in obtaining a sentence reduction on
an unrelated charge in Chesterfield County;
38
(3) Smith's informant history - Smith's history of
offering information to the authorities before she testified at
Monroe's trial;54
(4) Smith's inconsistent statements - Smith's state-
ments, documented in Riley's notes, that were inconsistent
with Smith's trial testimony;
(5) the Lundy information - Smith's statement to
Riley that Eric Lundy provided her with the firearm she
offered to Monroe, an allegation that Lundy denied;
(6) Samuels's personal problems statement - Samu-
els's statement to Deputy Neal that Burde had been having
personal problems prior to his death;
(7) Samuels's napping habits statement - Samuels's
statement to Deputy Neal that Burde usually napped in a
position different from the one in which he was found, that
is, on a different couch, on his back, and with his hands
behind his head;
(8) Corrina's male heir statement - Corinna's state-
ment that Krystyna did not want to know the sex of her baby
because she knew that Burde did not want a girl;
(9) the secretaries' notes - the notes taken by two sec-
retaries, which corroborate Monroe's account of a March
26, 1992, interview; and
(10) the Bronco witnesses - the identity of two wit-
nesses who told the Powhatan County Sheriff's Office that
____________________________________________________________
54 In particular, Smith had worked with Riley on political corruption
cases that he was investigating in coordination with the FBI. She had
also offered information on an unrelated murder investigation in Chester-
field County. Habeas Opinion at 54.
39
they saw a vehicle speeding away from Windsor at about the
time of Burde's death.55
The Commonwealth insists that its suppression of the Habeas Evi-
dence was, in the final analysis, immaterial to Monroe's conviction,
because no single item thereof would have been significant to Mon-
roe's defense. Contrary to this assertion, we must examine the Habeas
Evidence collectively, not item by item. Kyles, 514 U.S. at 436. Con-
sidered in this manner, this suppressed, exculpatory material would
have undermined essential aspects of the Commonwealth's case, par-
ticularly its proof of premeditation and malice.
Importantly, the Commonwealth asked the trial jury to convict
Monroe of first-degree murder. In Virginia, such a crime has three
essential elements: "(1) a killing; (2) a reasoning process antecedent
to the act of killing, resulting in formation of a specific intent to kill;
and (3) the performance of that act with malicious intent." Rhodes v.
Commonwealth, 384 S.E.2d 95, 98 (Va. 1989). The specific intent
element of first-degree murder requires proof of willfulness, delibera-
tion, or premeditation. Va. Code Ann. § 18.2-32. Absent proof of the
requisite specific intent, a homicide may be second-degree murder,
which is any killing with malice, or it may be voluntary manslaughter,
if it was committed in the heat of passion. Willis v. Commonwealth,
556 S.E.2d 60, 63-64 (Va. Ct. App. 2001). A homicide that is unin-
tentional and without malice may be, at most, involuntary manslaugh-
ter. See Craig v. Commonwealth, 538 S.E.2d 355, 359 (Va. Ct. App.
2000). In other words, absent proof of premeditation and malice,
Monroe could not have been convicted of first-degree murder.
Faced with a dearth of evidence on premeditation and malice, the
____________________________________________________________
55 Before trial, the Commonwealth advised Monroe's defense that it
had received an "anonymous" tip that a "dark colored Bronco/Blazer type
vehicle was seen leaving" Windsor around the time of Burde's death.
However, the Bronco witnesses, a Mr. and Mrs. Johnson, Burde's next
door neighbors, had provided their names to the Powhatan County Sher-
iff's Office. In the summer of 1994, Monroe learned from Mr. Johnson
that the Bronco tip was not anonymous and that he and Mrs. Johnson had
provided some detail about the vehicle and its driver, most notably that
it was speeding away from Windsor and that the driver was a white male.
40
Commonwealth's Attorney needed to convince the jury to credit the
testimony of Zelma Smith. Smith was the only witness to offer evi-
dence that Monroe had planned her crime in advance of the event.
Accordingly, the prosecutor stressed in closing argument that "Zelma
Smith got on that stand and was . . . direct and straightforward, and
looked you right in the eye and told you exactly what had transpired."
The five items of Habeas Evidence relating to Smith, however, under-
mine these representations. On Smith's testimony alone, the prosecu-
tion had suppressed: (1) the Smith gun deal; (2) the Smith sentence
deal; (3) Smith's informant history; (4) Smith's inconsistent state-
ments; and (5) the Lundy information (collectively, the "Smith
Habeas Evidence"). Without the Smith Habeas Evidence, Monroe
was unable to effectively counter the Commonwealth's portrayal of
Smith as a trustworthy witness. If the prosecution had complied with
its disclosure obligations, however, Smith's testimony would have
been significantly undermined, and there is a reasonable probability
that the first-degree murder prosecution of Monroe would have col-
lapsed.
With respect to the two Smith deals - the Smith gun deal and the
Smith sentence deal - the Commonwealth now contends (seeking to
minimize the importance of the Smith Habeas Evidence) that it was
obvious to the jury that Smith expected consideration from the prose-
cution in exchange for her trial testimony.56 At trial, however, the
prosecutors insisted during closing argument (astoundingly, in light of
what is now known) that Smith had no incentive to lie, telling the jury
that:
[a]s hard as it might be for you to believe, the absolute truth
is that she did not ask for any consideration for her testi-
mony from the Commonwealth in this case. And it's abso-
lutely true that the Commonwealth has not promised her
anything.
Contrary to the prosecution's representation to the jury, the Common-
wealth had (as the district court found) provided substantial consider-
____________________________________________________________
56 The Commonwealth's current position is that "[i]t is extremely
doubtful whether the jurors believed her subjective claim not to have had
any thought of benefiting from her . . . testimony." Appellant's Br. at 38.
41
ation to Smith in exchange for her testimony against Monroe. Habeas
Opinion at 53-54. And the two deals between the Commonwealth and
Smith in exchange for her testimony seriously undermine Smith's
credibility.
Indeed, in the words of the Supreme Court, the prosecution's fail-
ure to disclose those agreements "is incompatible with `rudimentary
demands of justice.'" Giglio v. United States, 405 U.S. 150, 153
(1972); see United States v. Meinster, 619 F.2d 1041, 1044-45 (4th
Cir. 1980) ("When the terms of a `deal' between the government and
a witness create a motive for falsification, the jury's perception of the
witnesses' testimony is likely to be affected."); United States v. Sut-
ton, 542 F.2d 1239, 1243 (4th Cir. 1976) ("[T]he prosecution allowed
a false impression to be created at trial when the truth would have
directly impugned the veracity of its key witness."); Boone v. Pader-
ick, 541 F.2d 447, 448 (4th Cir. 1976) ("Had the jury known of the
prosecution witness' compelling motivation to establish . . . guilt,
there is a reasonable likelihood its verdict might have been differ-
ent."); see also Napue v. Illinois, 360 U.S. 264, 269 (1959) ("The
jury's estimate of the truthfulness and reliability of a given witness
may well be determinative of guilt or innocence, and it is upon such
subtle factors as the possible interest of the witness in testifying
falsely that a defendant's life or liberty may depend.").
In addition to the two Smith deals, the prosecution suppressed
other significant impeaching material on Smith, particularly Smith's
informant history and the Lundy information. First, as the district
court found, Riley was aware of the fact that Smith had a history of
providing information to the authorities before she testified against
Monroe. Specifically, Smith had offered to provide evidence in an
unrelated murder investigation in Chesterfield County, and she had
assisted Riley on political corruption investigations that he was work-
ing on with the FBI.57 According to Riley's notes, he knew that Smith
____________________________________________________________
57 The timing of Smith's assistance in these other matters is the subject
of dispute, but the district court found that the prosecution had construc-
tive knowledge of her informant history. Habeas Opinion at 54. This
finding is not clearly erroneous. In fact, it is clear from Riley's deposi-
tion that Riley knew that Smith had been in contact with the FBI in
August of 1992, and Riley's notes make clear that he knew of her assis-
tance in other matters. Id.
42
had provided information to the authorities in previous cases, writing
that Smith "gave info re: a murder case," that she had a "history of
trying to deal info," and that she was a "professional snitch." Notwith-
standing the information contained in Riley's notes, Smith's infor-
mant history was concealed from Monroe's defense.
Second, the Commonwealth failed to disclose Lundy's identity to
the defense. By Riley's own admission, he assumed that Lundy would
have contradicted Smith's trial testimony. Indeed, once the defense
learned of Lundy's identity, Lundy swore that he had never provided
Smith a firearm, in 1991 or otherwise. A live witness, directly contra-
dicting Smith's testimony about her connection to Monroe, would
have given the jury strong reason to doubt Smith's veracity. Signifi-
cantly, the jury, had it had been shown that a major prosecution wit-
ness was testifying falsely, is likely to have been more sympathetic
to Monroe's entire defense.58 We can never know whether the jury
would ultimately have decided to reject Smith's testimony. This pos-
sibility, however, cannot be disregarded, and it throws into serious
doubt the reliability of Monroe's first-degree murder conviction.
Assessing the Smith Habeas Evidence collectively, as we must do
under Kyles, we conclude that there is a reasonable probability that,
had the Commonwealth made the proper disclosures, the jury would
not have found that Monroe killed Burde with premeditation and mal-
ice aforethought. Taken as a whole, the Smith Habeas Evidence -
Smith's gun and sentence deals, her history as an informant, her
inconsistent statements, and Lundy's testimony - would have ren-
dered Smith's testimony far less credible.59 In fact, the Common-
wealth virtually concedes as much on appeal, asserting that Smith's
testimony was unnecessary to Monroe's conviction. To the contrary,
Smith's testimony was the Commonwealth's major evidence of pre-
meditation, and it effectively portrayed Monroe as a calculating killer.
Thus, contrary to the Commonwealth's current position, Smith's trial
testimony was not only relevant to Monroe's conviction, it was cru-
____________________________________________________________
58 The inconsistencies between Smith's statements to police and her
testimony would have provided Monroe a further basis for impeaching
Smith's testimony.
59 Indeed, after trial, Zelma Smith apparently admitted to a jailmate in
a Goochland correctional facility that she had lied at Monroe's trial.
43
cial. In sum, had the Smith Habeas Evidence been properly disclosed,
there is a reasonable probability that Monroe would not have been
convicted of first-degree murder.60
4.
We have recently observed - and we reiterate here - that "Brady
does not create a full-scale, constitutionally-mandated discovery right
for criminal defendants." Spicer, 194 F.3d at 555. As Judge Niemeyer
aptly put it, "[s]uch a rule would impose an oppressively heavy bur-
den on prosecutors and would drastically undermine the finality of
judgments." Id. At the same time, as Justice Sutherland emphasized
long ago, a prosecutor is:
the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88 (1935). The duty to disclose
exculpatory material in a timely manner "illustrate[s] the special role
played by the American prosecutor in the search for truth in criminal
trials." Strickler, 527 U.S. at 281.
In most situations, a prosecution's failure to disclose exculpatory
evidence turns out to be inadvertent,61 and we do not presume that
____________________________________________________________
60 The other five items of Habeas Evidence would have further under-
mined the Commonwealth's case. The secretaries' notes would have
been helpful in countering the prosecution's evidence on Monroe's state-
ments in the March 26, 1992, interview. The Bronco witnesses would
have told the jury that a Bronco-like vehicle, driven by a white male, was
seen speeding away from Windsor the night of Burde's death. In addi-
tion, the statements made to Deputy Neal - Samuels's personal prob-
lems statement, Samuels's napping habits statement, and Corinna's male
heir statement - would have impeached important prosecution wit-
nesses.
61 On this record, it is difficult to ascertain whether the suppression of
the Habeas Evidence resulted from bad faith, sharp practice, negligence,
or inadvertence. While we are necessarily troubled by the prosecution's
failure to satisfy its disclosure obligations, we need not decide whether
that failure was attributable to bad faith. Brady, 373 U.S. at 87.
44
such a failure has necessarily affected the outcome of a trial. Indeed,
the materiality requirement announced in Brady provides an impor-
tant limitation on the remedy available to a defendant when