IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, MISSISSIPPI
Mississippi Supreme Court Case No. 2015-DR-00591-SCT
Circuit Court of Montgomery ouutv, Mississippi, Cause No. 2003-00 71 -CR

CURTIS GIOVANNI FLOWERS CURTIS Petitioner
FLOWERS CURTIS G. FLOWERS

 

   

v.
STA TE 0F MISSISSIPPI DEL I 2U Respondent
LAN G. ARTIN, ERK 
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AND FOR LEAVE TO OBTATN DISCOVERY

Comes now Petitioner, Curtis Giovanni Flowers, through his counsel, and respectfully
moves pursuant to Mississippi Rule of Appellate Procedure 22(c)(4)(ii) to compel mandatory
discovery from the State and related law enforcement agencies, and to seek leave to obtain
discovery from other third parties.

Time and again, the State has told this Court that it has turned over everything it has
relating to the investigation of the Tardy murders. New evidence uncovered by Mr. Flowers
and independent investigative journalists, however, shows that there is far more to the story
than what the State has disclosed. And these missing pieces are directly relevant to Mr.
Flowers?s claims for post-conviction relief, including his Brady, Batson, and ineffective
assistance of counsel claims. To ensure that Mr. Flowers has a complete record from which to
develop his post?conviction petition, this Court should order the following discovery.

Mr. Flowers first requests documents relating to alternative suspects (Section A). Recent
discoveries show that the State actively investigated suspects from Alabama who committed a
string of markedly similar robbery-murders around the time of the Tardy murders, as well as a

local man with a long criminal history who wore the same type of shoes that allegedly left prints

at the crime scene. Yet there is hardly a mention of these suspects in the ?les that the State
produced, and the State has repeatedly claimed that there were no alternative suspects. To allow
Mr. Flowers to develop his Brady and Napue claims relating to this suppressed evidence, the
Court should now require full disclosure from the State and permit relevant third-party
discovery.

Mr. Flowers also requests discovery relating to Odell Hallmon (Section B), the State?s
?jailhouse snitch? who testified that Mr. Flowers confessed to committing the Tardy murders.
We now know that Mr. Hallmon?s testimony was false; he recently recanted his story in a
recorded interview. We have also learned that Mr. Hallmon gave this testimony as part of a
longstanding quid pro quo relationship with the State, in which he would testify falsely in
exchange for leniency in his own cases. The requested discovery would further undermine the
State?s theory of the case and establish that the State?s failure to disclose its deals with Mr.
Hallmon violated Brady.

Next, Mr. Flowers requests discovery about a .380 caliber gun?the same caliber
allegedly used to commit the Tardy murders?found under a house just a few hundred yards
from Tardy Furniture, in the opposite direction from the route that the State argued Mr.
Flowers took on the day ofthe murders (Section C). New evidence, including interviews with
Winona law enforcement, indicates that law enforcement took possession of the gun and then
turned it over to the District Attorney?s office. Once again, however, there was no mention of
this evidence in the ?les disclosed by the State. The requested discovery would not only
severely undermine the State?s theory of the case, but also establish that the State?s failure to

disclose any evidence relating to the gun violated Brady.

Mr. Flowers also requests discovery that would support his Batson claim (Section D).
New statistical evidence shows that in trials prosecuted by District Attorney Doug Evans and
his colleagues, black jurors were more than four times more likely to be struck than white
jurors. This clear pattern of racial discrimination reinforces that racial bias infected the
jury-selection process in Mr. Flowers?s trial. Particularly in light of the Supreme Court?s
recent decision in Foster v. Chatman emphasizing the importance of the prosecution?s jury-
related documents for establishing a Batson claim, the Court should grant Mr. Flowers?s
requests for those documents, as well as other discovery relating to Mr. Evans?s pattern of
misconduct.

Additional discovery is also relevant to Mr. lowers?s claims of prosecutorial misconduct.
Mr. Flowers requests discovery relating to new evidence showing that the State fabricated witness
statements and testimony implicating Mr. Flowers (Section E). Mr. Flowers also requests
discovery regarding Patricia Sullivan-Odom (Section F) to inform claims that, consistent with
other new evidence of misconduct, the State biased her testimony and then failed to disclose that
bias to the defense. Other requests relating to law enforcement records and investigations
(Section G) are not only material to Mr. Flowers?s Brady claims, but also could lead to new
evidence of actual innocence.

Finally, Mr. Flowers?s requests for his custodial record over the l3 years he was held
prior to his sixth trial (Section H) would establish his passivity and good behavior, and are
relevant to his claim that trial counsel rendered de?cient performance by failing to request

those records previously.

Many of these discovery requests have never been addressed by this Court.l Some of
them, however, were previously denied by the Court during a January 2016 hearing on prior
discovery motions. The Court should reconsider those requests now for two reasons. First, the
Mississippi Supreme Court has ordered Mr. Flowers to begin the post-conviction process
anew, including pre-petition discovery, based on the high court?s new mandate on direct
appeal. In these new proceedings, the Court is free to reconsider prior rulings. Second, the
Court should reconsider those rulings in light of the new evidence discussed above, which
dramatically changes the discovery analysis.

Mr. Flowers makes this motion pursuant to the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, Article 3, Sections I4, 23, 24, 25, 26 and 28,
Miss. Code Ann. ?99-39-l0l et seq., M.R.A.P. 22, including Rule and other
applicable state and federal law. In support of the motion, Mr. Flowers apprises the Court of
the following:

Background and Procedural History

Curtis Flowers has been tried six times by the same prosecutor for a quadruple homicide
that occurred on July I6, 1996 at Tardy Furniture Store in Winona, Mississippi. Each of the ?rst
three trials resulted in a conviction and death sentence, but was subsequently reversed by the
Supreme Court of Mississippi due to prosecutorial misconduct. ln reversing the third conviction,
the Mississippi Supreme Court expressed its concern that the State would ?persist in violating the
principles of Batson by racially pro?ling jurors.? Flowers v. State, 947 So. 2d 9l0, 939 (Miss.

2007) (hereinafter ?Flowers 111?). The fourth and ?fth trials ended in mistrials because jurors

 

Attached as Appendix A is a table indicating the procedural history of each discovery request

discussed herein, including whether it was previously raised and addressed by this Court on prior motions.

'were unable to agree on a verdict. The sixth trial, in which the State struck all but one of the
African-American jurors tendered, resulted in Mr. Flowers?s conviction on June 19, 2010.

The Mississippi Supreme Court af?rmed Mr. lowers?s conviction and sentence ondirect
appeal on November 13, 2014, and denied rehearing on March 26, 2015. The mandate issued on
April 2, 2015, and Mr. Flowers began post-conviction proceedings in this Court.

Post-Conviction Discovery After The Mississippi Supreme Court?s Initial Mandate

During the summer of 2015, Mr. Flowers attempted to begin discovery by requesting
mandatory discovery pursuant to Rule 22 from the District Attorney, including ?the complete
?les of all law enforcement and prosecutorial agencies involved in the investigation of the
murders . . . and the prosecution of the [Mr. lowers].? See Ex. 1 at 4, 6 (Disc. Requests).2 Also
under Rule 22, Mr. Flowers requested records directly from several law enforcement agencies,
including the Montgomery County Sherriff, the Winona Police Department, the Mississippi
Highway Safety Patrol, the Mississippi Bureau of 1nvestigation, and the Montgomery County
Medical Examiner. See generally id. The law enforcement agencies claimed that they had no
responsive records at all, produced minimal records, or referred requests to the District Attorney.
The District Attorney?s of?ce, in turn, omitted many key documents in its response, including
jury selection documents central to Mr. Flowers?s Batson claim.

On September 18, 2015, Mr. Flowers ?led a Motion for Leave to Seek Discovery related
to his post-conviction claims. See Ex. 2 at l-12 (Mot. for Leave to Seek Disc. (Sept. 18, 2015)).3
On October 19, 2015, Mr. Flowers also moved to compel the State to complete its production
obligations. Speci?cally, in these motions Mr. Flowers sought: (1) documents related to jury

selection; (2) communications between investigators and other law enforcement entities related

 

Copies of the discovery requests referred to herein are attached as Exhibit 1 hereto.
Copies of prior discovery motions referred to herein are attached as Exhibit 2 hereto.

to alternative suspects; (3)documents related to ?rearms and ballistics; (4) communications
between the District Attorney?s of?ce and a former member of Flowers prosecution team, Mark
Horan, who abruptly began representing key witness Patricia Sullivan-Odom4 in federal criminal
proceedings; (5) leave to Depose Patricia Sullivan-Odom; and (6) leave to depose the relevant
law enforcement records custodians who claimed to not have records. See Ex. 2 at 14-32 (Mot.
to Compel Produc. of Mandatory Post-Conviction Disc. (Oct. 19, 2015)).

At a hearing on the motions on January 29, 2016, the State repeatedly claimed that the
District Attorney did not have many of the documents that Mr. Flowers had requested. See Ex. 3
at 57 (Disc. H?rg Tr. (Jan. 29, 2016)) (?Everything that is there is in the court ?le. There is
nothing else that we can give them?). The State also asserted that the same was true of any
agency or employee of Mississippi:

BY THE COURT: Okay. I will just ask: Does the State possess any information on any

other suspects or any communication with anybody that has not been provided?

BY MR. SMITH: 1 am unaware ofthat.

BY MR. EVANS: No, sir.

1d. at 48-49.

BY THE COURT: Does this extend to all law enforcement agencies?

BY MR. EVANS: Everything I?ve got. Everything that is in the ?le.

BY THE COURT: And 1 believe all others have said they turned over everything they

had to you. So we?ve got the assurance from the State of Mississippi that there was no

records of anything dealing with other perpetrators or anything of that nature; is that
correct?

BY MR. EVANS: Yes, sir.

BY MR. SMITH: Yes, sir.

Id. at 49.

Based in part on these claims, the Court denied Mr. Flowers?s motion for subpoenas and

to compel the State to produce further documents. The Court also agreed to review the requested

 

4 Ms. Sullivan-Odom has been referred to by different last names: "Patricia Sullivan Odom? in Flowers

VI, ?Patricia Hallmon Sullivan? in Flowers 111 and in prior discovery motions.

jury-selection documents in camera. On February 10, 2016, the Court issued an order ?nding
that those documents evinced no racial bias and therefore needed not be produced.

Mr. Flowers ?led a Motion for Mandatory Discovery and for Leave to Seek Discovery on
March 16, 2016, seeking additional mandatory disclosures by the State and issuance of
subpoenas. See Ex. 2 at 34-44 (Mot. for Mandatory Disc. and for Leave to Seek Disc. (Mar. 16,
2016)). On March 17, 2016, Mr. Flowers ?led with the Mississippi Supreme Court a Motion for
Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief. On Mr. Flowers?s
unopposed motion, the Mississippi Supreme Court then stayed post-conviction proceedings to
allow Mr. Flowers to pursue discovery. On July 29, 2016, in light of the United States Supreme
Court?s intervening decision in Foster v. Chatman, Mr. Flowers ?led a renewed motion in this
Court to compel production of Batson materials. See Ex. 2 at 46-60 (Renewed Mot. to Compel
Produc. of Mandatory Post-Conviction Disc. in Light of New Decision from the United States
Supreme Court (July 29, 2016)). On December 12, 2016, following the Supreme Court?s grant
of Mr. Flowers?s petition for certiorari and remand, the Mississippi Supreme Court extended its
stay on post-conviction proceedings. Accordingly, this Court took no action on the two pending
discovery motions.

Investigative Reporting Bv American Public Media

Meanwhile, in addition to the investigation we are conducting as Mr. lowers?s counsel,
a team of reporters for APM spent a year in Winona, Mississippi investigating this case.5 Ex. 4-
A at 1-2 (Af?davit of Rehman Tungekar (Nov. 30, 2018)) (In the Dark Episode 1 The
reporters published the results of their investigation between May 1, 2018 and July 3, 2018 in an

audio series called ?In the Dark,? which included several shocking revelations that no prior

 

5 APM has won some of the most prestigious awards in journalism. Indeed, the organization won the

Peabody Award for its ?1n the Dark? series, the second season of which covers this case. See In the Dark
(APM Reports), Peabody (2016), 

counsel could have reasonably uncovered. See generally In the Dark Season Two, APM Reports
(20l 8), 

Odell Hallmon. This investigative series from APM revealed for the ?rst time that Odell
Hallmon recanted the testimony he gave in four trials that Mr. Flowers confessed to committing
the Tardy murders. See Ex. at 6 (1n the Dark Episode 6 Mr. Hallmon explained, in a
recorded interview, that he had given this testimony at Mr. Flowers?s trial in exchange for
leniency from the District Attorney. Id. at 4-5. The journalists also released previously
undisclosed law enforcement records showing a pattern of backroom deals between Mr. Hallmon
and the District Attorney, both before and after Mr. lowers?s sixth trial. Ex. 4-C at 5-18 (In the
Dark Episode 5 

Willie James Hemphill. In addition, the APM reporters undertook a multi-month, multi-
state search for a man named Willie James Hemphill, and their report revealed that prosecutors
and prosecution witnesses ?atly lied when they claimed Mr. Hemphill was not a suspect in the
Tardy murders. See Ex. 4-F at 7-8, 10-1 1, l5-23 (In the Dark Episode 10 Indeed, at trial
the District Attorney told the Court that Mr. Hemphill was so irrelevant to the investigation that
he could not remember him by name. Id. at 8. The District Attorney?s investigator, John
Johnson, similarly claimed that the State ruled him out as a suspect in about five minutes. Id.
And the only document relating to Hemphill disclosed to the defense was a one-page Miranda
waiver form indicating that he was interviewed on July 1996. See Ex. 5 (Criminal
Investigation Bureau Interrogation; Advice of Rights Waiver of Rights: Willie James Hemphill
(July 21, 1996)).

Based on the APM investigation, we now know that the State actually considered Mr.

Hemphill to be a serious suspect. We now know that at the time of the Tardy murders,

Mr. Hemphill had been staying in a house a few blocks from Tardy Furniture, had a long
criminal history, and wore the same type of shoes that allegedly left prints at the crime scene.
See Ex. 4-F at 10-1 1, 15-23 (Ep. 10 We now know that just a few days after the murders,
law enforcement launched a large-scale manhunt for Mr. Hemphill. Id. at 18-23. Six police
of?cers reported to Mr. Hemphill?s parent?s home to ask his parents about his whereabouts. Id.
at 19. Similarly, a ?yard full? of investigators questioned Mr. Hemphill?s cousin?a man who
shares Mr. Hemphill?s name and who lives only a half hour from Winona. Id. at ll-l2.
Hemphill was then interrogated not forjust ?ve minutes but for several hours, during which law
enforcement took notes, made recordings, took Mr. Hemphill?s shoes for testing, ?ngerprinted
him, and tested his hands for residue or blood spatter. Id. at 20-22. They then jailed Mr.
Hemphill for eleven days. 1d. at 22. This investigation would have produced a mound of
documentation, including interview notes, a recording of the interrogation, and reports of
collecting evidence from Mr. Hemphill?s shoes and person. See id. at 20-23. Yet the only
disclosure to the defense was the single-page Miranda waiver form. Id. at 17.

The Undisclosed .380. The APM reporters also interviewed Jeffrey who
recounted the same events that Mr. Flowers brought to this Court?s attention in his January 29,
20l6 discovery hearing: Mr. found a .380 caliber gun in the crawl space under his
mother?s house near Tardy Furniture in 2001. Ex. 4-G at 1 (In the Dark Episode 11 He
turned it over to law enforcement, noting that it matched the pro?le of the murder weapon. Id. at
2. Although law enforcement has never produced any records about this event or the gun, the
APM report included a statement from Winona Police Captain Dan Herod, who con?rmed that

Mr. found the gun he said he found and turned it over to law enforcement authorities.

Id. at 3-5. According to Captain Herod,.the gun was most likely turned over to the District
Attorney?s of?ce. 1d. at 5.

The Alleged ?Timeline.? Further, the APM reporters interviewed several witnesses
crucial to the prosecution?s alleged ?timeline,? people who claimed at trial that they saw Mr.
Flowers on the day of the Tardy murders. Many told APM that their testimony was false and
that the District Attorney?s investigator, John Johnson, implied that they would receive a reward,
assured them that someone else had already identi?ed Mr. Flowers at the relevant date and time,
and successfully pressured them to repeatedly give that false testimony. See(In the Dark Episode 2 

Batson Violation. Finally, APM gathered 26 years? worth of data on juries in the Fifth
Circuit Court District, where Mr. Evans is the District Attorney, to examine his office?s history
of strikingjurors. APM described the process for collecting this information as ?arduous??for
example, it involved scouring records at each of the eight courthouses in the district, the
Mississippi Department of History and Archives, and the Mississippi Supreme Court Archives,
and scanning more than 1 15,000 pages of court records and jury selection transcripts. Will Craft,
Mississippi D.A. has long history of striking many blacks from juries, APM Reports: In the Dark
(June 12, 2018), 
blacks-from-juries/. The investigators found that prosecutors were more than four times more
likely to exclude blackjurors than white jurors. Id. They also discovered that race was one of
the most powerful indicators of which jurors would be struck, even after controlling for other
race-neutral variables. Id. This evidence con?rms Mr. Flowers?s own investigation, which
showed that in his capital cases, Mr. Evans was more than eight times more likely to strike

qualifiedjurors if they were black than if they were white, and in his six trials of Curtis Flowers,

10

he was 20 times more likely to strike ajuror who was black than one who was white. See in?a,
Section D.

Post-Conviction Discovery After The Mississippi Supreme Court?s New Mandate

Because the United States Supreme Court vacated the Mississippi Supreme Court?s ?rst
judgment, the Mississippi Supreme Court was compelled to reconsider the case and issue a new
opinion. On November 2, 2017, the Mississippi Supreme Court af?rmed Mr. Fldwers?s
conviction and sentence on the trial record. See Flowers v. State, 240 So. 3d 1082 (Miss. 2017).
The mandate issued on March 1, 2018. Mr. Flowers again sought certiorari on direct appeal in
the United States Supreme Court, which was granted on November 2, 2018.

On October 18, 2018, after receiving brie?ng from the parties, the Mississippi Supreme
Court con?rmed that its new mandate required a new post-conviction petition, and that the
deadline for seeking leave to ?le a post-conviction petition on the new mandate was February 28,
2019. See Order at 3, Flowers v. State, No. 2015-DR-00591-SCT (Miss. Oct. 18, 2018)
[hereinafter ?Order?]. The Mississippi Supreme Court also noted that Flowers] is entitled
to proceed under M.R.A.P. 22? until ?ling an application for leave to petition for post-conviction
review in this Court. Id. at 2.

Thus, pursuant to Mississippi Code Annotated Section 99-39-1 et seq., and Rule 22 of the
Mississippi Rules of Appellate Procedure, Mr. Flowers ?les the present motion seeking post-
conviction discovery from the State. The motion encompasses discovery requests that this Court
addressed in prior proceedings, those that were raised but not decided in prior proceedings, and

new requests based on recent revelations.

11

Legal Principles
Mr. Flowers is entitled to discovery. Brown v. State, 88 So. 3d 726, 730 (Miss. 2012)

(holding that Rule 22 discovery is necessary to ?allow a petitioner to gather information to
support an application to the Supreme Court for leave to ?le a motion for post-conviction relief
in the trial court). Mississippi Rule of Appellate Procedure 22(c)(4)(ii) automatically entitles a
petitioner to be provided with ?the complete ?les of all law enforcement and prosecutorial
agencies involved in the investigation of the crimes committed and the prosecution of the
petitioner.? Rule 22(c)(4)(ii) also entitles a petitioner to discovery or compulsory process where
?such discovery is not frivolous and is likely to be helpful in the investigation, preparation or
presentation of specific issues which the petitioner in good faith believes to be in question and
proper for post-conviction relief.? See also Russell v. State, 819 So. 2d 1177, 1178-79 (Miss.
2001). Those criteria are met here.
Argument and Discovery Sought

The following speci?c discovery requests are mandatory under Rule 22(c)(4)(ii) or are
likely to be helpful in adjudicating the post-conviction issues described. Discovery is
particularly important in this case for two reasons not often present in cases like this. First, the
State has made outright misrepresentations to Mr. Flowers and this Court about the scope of
materials that are?or should be?in its possession. The Court therefore should not take the
State at its word about whether additional relevant information exists. Second, based on Mr.
lowers?s investigation and that of the APM reporters, the State?s case against Mr. Flowers has
come apart. story about Mr. Flowers?s whereabouts on the morning of the Tardy murders
has been shown to be a fantasy that the prosecution concocted and brought to life by

manipulating ?witnesses? and their statements. claim that there were no alternative

12

suspects with connections to the crime has likewise proved to be false. purported ballistics
evidence based on bullets from a never-recovered gun has been severely undermined by the
discovery and apparent suppression of a likely murder weapon. And its coup de grace, a claim
that Mr. Flowers confessed to the crime, has been emphatically denied by the State?s star
witness, who has explained that he only gave the testimony as part of a deal with the State to
save his own skin. The requested discovery is therefore warranted to allow Mr. Flowers an
opportunity to ?esh out his compelling claims for post-conviction relief.

The Court?s order compelling or permitting discovery should extend not only to
discovery requests that it has not yet addressed, but also to those that were denied during Mr.
Flowers?s initial post-conviction proceedings. Procedurally, the Mississippi Supreme Court?s
new March 1, 2018 mandate begins Mr. Flowers?s post-conviction review anew, as the
Mississippi Supreme Court recognized by setting a new post-conviction petition deadline and
permitting Mr. Flowers to proceed under Rule 22, which includes an opportunity for discovery.
See Order at 2-3. These new proceedings will replace the prior post-conviction proceedings that
were premised on the ?rst direct-appeal mandate, which has been vacated. See Puckett v. State,
834 So. 2d 676, 677 1] 6 (Miss. 2002) (recognizing that a death penalty conviction is only ?nal
and subject to post-conviction review after the state appellate review is complete); cf Magwood
v. Patterson, 561 US. 320, 323, 342 (2010) (?nding federal habeas petition following new
sentencing in state court should be considered an initial petition, not a second or ?successive?
petition). This Court is therefore free to reconsider its discovery rulings made in the now-
defunct prior proceedings.

And there is good reason to do 50. Signi?cant new information that Mr. Flowers

recounts in the present motion, along with subsequent United States Supreme Court decisions,

13

provide even stronger grounds for Mr. Flowers?s discovery requests than existed nearly three
years ago. In several instances, it is now clear that the State has, or should have, evidence that it
told this Court did not exist. These circumstances demand a fresh look at Mr. Flowers?s prior
requests. lndeed, even absent a new procedural posture, courts regularly reconsider discovery
rulings in light of new evidence and intervening changes in the law. See, Norman v. Elkin,
860 F.3d 11 1, 127 n.21 (3d Cir. 2017) (?The District Court was therefore entitled to reconsider
its decision in light of the new evidence . . . and in order to correct an erroneous ruling?); Hill v.
Int?l Paper Co., 121 F.3d 168, 177 (5th Cir. 1997) (vacating lower courtjudgment clue to a mid-
course change in Mississippi law and remanding for new proceedings consistent with the law);
Millipore Corp. v. Travelers Indem. Ca, 1 15 F.3d 34 (lst Cir. 1997) (remanding decision for
new submissions in light of an ?intervening clarification of the law?); Napoli v. Sears, Roebuck
C0., 858 F. Supp. 101, 102 (ND. 111. 1994) (providing that renewed motions are appropriate
after an intervening court decision or new evidence comes to light).

Accordingly, Mr. Flowers respectfully requests that the following discovery requests
should be granted.
A. Discovery Related to Alternative Suspects

New evidence indicates that, having told this Court and the jury that there were no other
suspects in the Tardy murders, the State has failed to produce documents relating to not one but
two separate investigations of alternate suspects. The first investigation centered on three men
from Alabama?Marcus Presley, LaSamuel Gamble, and Steven McKenzie?who in July and
August of 1996 were wanted for murders markedly similar to the Tardy murders. The second
investigation focused on a local man?Willie James Hemphill?who stayed three blocks from

Tardy Furniture, had a long criminal history, and wore the same type of shoes that left a print at

14

the crime scene. The State should have produced documentation relating to both investigations
at trial, pursuant to its Brady obligations, and in post-conviction proceedings, in response to Mr.
Flowers?s discovery requests. It did neither.

Here?s what we know about the State?s investigation of the Alabama suspects. In July
and August of 1996, Presley, Gamble, and McKenzie were wanted for a string of murder-
robberies in Alabama. As in the Tardy murders, the Alabama suspects were known to use a .380
handgun thatjammed, robbed stores in broad daylight, and murdered the store clerks execution-
style. See Ex. 6 at 148, 1 198-99, 1201, 1386, 1883-84 (Tr. of State v. Gamble, Case Nos. CC-
96-813, CC-96-814 (Ala. Cir. Ct. Nov. 17, 1997)); see also Ex. 7 at 1140-41 (Tr. of State v.
Presley, Nos. CC-96-815, 816 (Ala. Cir. Ct. 1997)). One of them was also known to wear ila
shoes. Ex. 6 at 1955 (Tr. of State v. Gamble). Picking up this lead, Mississippi investigators
contacted officials in Boston, Massachusetts, and Norfolk, Virginia, about Presley and Gamble,
who were on the run and ultimately apprehended in those jurisdictions. See Ex. 8 (MS Crime
Lab., Microanalysis Section, Case Activity) (showing transfer of information from Mississippi
Crime Lab to Boston authorities); Ex. 9 at 1] 6 (Aff. of David Mark Goldberg (Jan. 20, 2016)).
Mississippi investigators sent a copy of the Fila shoeprint recovered from Tardy Furniture to the
lead investigator on Presley and Gamble?s case at the Boston Police Department. See Ex. 8
(Microanalysis Section). Further, Lieutenant Wayne Miller of the Mississippi Highway Patrol
requested and received a photograph of Marcus Presley from Detective David Goldberg in
Norfolk, Virginia(Goldberg Aff.), and used this photo in the Tardy Furniture
investigation by including it in the photo array shown to Porky Collins on August 24, 1996, see
Ex. 10 (State?s Color Photo Lineup and Side-by-Side Comparison). See also Ex. 1 at 1] 22 (Aff.

of Marcus Presley (Nov. 16, 2015)); Ex. 12 at 1  5 (Aff. of Dr. Guodong Guo (Jan. 26, 2016)).

15

Later, in August 1996, investigators showed the daughter of victim Bertha Tardy photographs of
jewelry recovered from investigations of Presley, Gamble, and McKenzie and asked if she
recognized it(Aff. of Peter G. Skidmore (Mar. l, 20l6)).

But the State has disclosed none of these facts, or any other documentation that must
have accompanied the State?s investigation of the Alabama murders. The discovery ?le
disclosed by the State does not contain even a single reference to Marcus Presley, LaSamuel
Gamble, or Steven McKenzie. And in response to repeated discovery requests for documents
relating to alternative suspects, the State produced nothing?and even represented to the Court
that ha[s] never had any evidence that showed anything other than [Mr. Flowers?s] guilt.?
Ex. 14 at 442 (Trial Tr., State v. Flowers, N0. (Miss. Cir. Ct. 20l0) (?Flowers
see also id at 359 (?There is no more discovery?); id. at 383 (John Johnson testifying
under oath: ?I?m not familiar with another suspect?). Most recently, at the January 2016 hearing
on Mr. Flowers?s discovery motion, this Court asked the State whether it ?possess[es] any
information on any other suspects or any communication with anybody that has not been
provided.? Ex. 3 at 48 (Disc. Hr? The District Attorney responded, ?No, Sir.? Id. at 49.
We now know that was false, and Mr. Flowers is entitled to all documents related to the State?s
investigation of the Alabama suspects.

We also now know that the State interrogated at least one other suspect. Investigators
from APM discovered that several days after the Tardy murders, Mississippi law enforcement
considered Willie James Hemphill such a serious suspect that they launched a manhunt to find
him, arrested him, interrogated him for hours while taking notes and making recordings, and
tested his shoes and hands. See Ex. 4-F at 10, 18-23 (Ep. 10 Ex. 15 (Arrest Report for

Willie James Hemphill (July 1996)). They then held him for eleven days under the pretext of

16

unpaid ?nes for other criminal charges. Ex. 4-F at 22 (Ep. 10 Yet, in spite of this ?urry of
activity, the State has repeatedly claimed that Hemphill was not considered a suspect, and that
even though investigators recorded their interrogation of Hemphill and took notes, there are no
documents relating to their investigation of him except a one-page Miranda form indicating he
was interviewed on July 1996. See id. at 7-8; Ex. 5 (Hemphill Waiver of Rights).

In light of the evidence indicating that the State failed to disclose substantial
investigations of several alternative suspects, Mr. Flowers respectfully requests the following
discovery to develop his Brady and Napue claims.

Request Documents and Communications Relating to Coordination with Other
Law Enforcement Of?cers or Agencies

Given existing evidence that the State coordinated with law enforcement of?cers and
agencies in their investigation of the Alabama suspects, Mr. Flowers respectfully requests that
this Court order the State to produce: all communications between the State and any individual
law enforcement officer or agency outside Winona, Mississippi, relating in any way to the
investigation of the Tardy murders, and any documents relating to the same.

Request Documents and Communications Relating to the Photographic Arrays

In the investigation of the Tardy murders, police used several photographic arrays that
included an image of Mr. Flowers alongside images of other individuals. Such arrays were
shown to witnesses, including Porky Collins and Katherine Snow, to determine whether they
could identify Mr. Flowers. We now know that at least one array, shown to Porky Collins,
included an alternative suspect, Marcus Presley, who was previously undisclosed to the defense.

Mr. Flowers respectfully requests that this Court order the State to produce all documents
and communications relating to the arrays shown to each and every witness or potential witness,

including but not limited to all documents and communications concerning: how the arrays

17

were composed and by whom; (ii) the names, ages, height, and weight of each and every
individual included in any of the arrays; and the speci?c source of each photograph used in
the arrays.
Request Hemphill Investigation Records
Mr. Flowers respectfully requests that the Court order the State to produce all documents
and communications relating to the investigation of Willie James Hemphill, born September 10,
197], from July 16, I996 to present, including but not limited to:
Recordings and notes from interviews of Willie James Hemphill;
0 Documents relating to forensic examination of Willie James Hemphill?s clothing, shoes,
?ngerprints, and any other source of forensic evidence;
0 Documents relating to efforts to locate Willie James Hemphill a?er the Tardy murders;
0 Documents and communications relating to the incarceration of Willie James Hemphill
beginning on July 21, 1996; and
The complete investigative file for Willie James Hemphill.
Request Subpoena Testimony from Mississippi Highway Patrol Lieutenants
Mr. Flowers respectfully requests that the Court authorize him to subpoena testimony from
Mississippi Highway Patrol Lieutenants Jack Matthews and Wayne Miller, who interviewed or
were present for the interview of Mr. Hemphill on July 21, 1996, with respect to the investigation
of Mr. Hemphill.
Request Subpoena Testimony from Winona Police Of?cers
Mr. Flowers respectfully requests that the Court authorize him to subpoena testimony from
current or former Winona Police Officers Liz Van Horn and Kenney Townsend, who arrested Mr.

Hemphill on July 21, 1996, with respect to the investigation of Mr. Hemphill.

l8

Request Subpoena Testimony from Willie James Hemphill

Mr. Flowers respectfully requests that the Court authorize him to subpoena testimony from
Willie James Hemphill, who was investigated in connection with the Tardy murders.

Request Shelby County Murder Evidence

Mr. Flowers respectfully requests that the Court grant leave for him to subpoena the
relevant Alabama authorities? physical evidence recovered from murders that LaSamuel Gamble
and Marcus Presley committed on July 25, 1996 at a pawn shop in Shelby County, Alabama,
under comparable circumstances and with the same type of weapon.

B. Discovery Related to Odell Hallmon

Mr. Flowers respectfully seeks an order compelling the State to disclose documents
illuminating the State?s quid pro quo relationship with its key witness, Odell Hallmon, including
(1) Mr. Hallmon?s complete criminal history and (2)a list of all cases where Mr. Hallmon
testi?ed as a witness for the State.

Mr. Hallmon was a serial offender who was incarcerated at the time of Mr. lowers?s sixth
trial. Mr. Hallmon had testi?ed for the defense in the second trial. See Ex. 16 at 257I-72 (Trial
Tr., State v. Flowers, No. CR-97-372 (Miss. Cir. Ct. I999) (?Flowers He stated that his
sister, Patricia Sullivan-Odom, lied under oath about seeing Mr. Flowers on the day of the murders
in hopes of getting reward money. Id. But before the third trial, he both reversed his testimony
and claimed for the first time that Mr. Flowers confessed to committing the Tardy murders while
the two were incarcerated. See Ex. 17 at 1659-60 (Trial Tr., State v. Flowers, No. 
(Miss. Cir. Ct. 2004) (?Flowers 111??. He gave the same testimony in Mr. Iowers?s sixth trial.

Ex. l4 at 2416 (Trial Tr., Flowers V1).

19

We now know why. Investigative journalists for APM recently discovered that Mr.
Hallmon had an undisclosed quid pro quo relationship with the District Attorney, Doug Evans. See
Ex. 4-D at 4-6 (Ep. 6 see also Ex. 4-C at 5-18 (Ep. 5 In a recorded interview with APM
in 2018, Mr. Hallmon recanted his testimony that Mr. Flowers confessed and explained that
throughout the last four trials he testi?ed falsely in exchange for repeated leniency from the
District Attorney. Ex. 4-D at 4-6 (Ep. 6 In his words, helped them, they helped me.
That?s what it all boiled down to.? Id. at 5. Mr. Hallmon further explained: ?As far as [Mr.
Flowers] telling me he killed some people, hell naw, he ain?t ever told me that. That was a lie. I
don?t know nothing about this . . . . It was all make-believe. Everything was all make-believe on
my part.? Id. at 6.

Speci?cally, ?it all got started? in the third trial when the District Attorney dropped two
drug charges and a robbery charge against Mr. Hallmon. Id. at 4. Law enforcement records
unearthed by the APM reporters corroborate his story. See In the Dark: Episode 5, Privilege,
APM Reports (May 22, 2018), 
The backroom deals continued in the lead-up to the fourth trial, when the District Attorney
dropped felony charges for a drive-by shooting that had been pending during Flowers 11]. Id.
Then the District Attorney dropped all but one of a new set of drug charges against Mr. Hallmon,
and declined to indict him as a habitual offender?which would have prevented any chance of
early release. 1d. The pattern continued after Mr. Hallmon?s early release in 20l4, when it
appeared that the sixth trial might be overturned. Later that year, after attempting to run over a
police of?cer during another drug bust, he was charged with Aggravated Assault on a Law

Enforcement Of?cer, only to be released on a $25,000 bond and to have his trial delayed for two

20

years. 1d.6 All of this, according to Mr. Hallmon, was in exchange for his testimony against
Curtis Flowers. Ex. 4-D at 4-6 (Ep. 6 Tr.).7

This repeated leniency for Mr. Hallmon was never disclosed to Mr. Flowers?s trial team.
In response to defense counsel?s repeated pre-trial requests for an assurance that the prosecution
had made complete Brady disclosures and provided complete up?to-date criminal histories,8
District Attorney Doug Evans insisted that ?Anything that we have was furnished.? Ex. 14 at
436-437 (Trial Tr. Flowers VI). Further, at trial, at the prompting of the District Attorney, Odell
Hallmon insisted that he was not testifying in exchange for bene?ts. See Ex. 27 at 423 (Trial Tr.
of State v. Flowers, No. (Miss. Cir. Ct. 2007) (?Flowers Ex. 28 at 436-437
(Trial Tr. of State v. Flowers, N0. 2003-0071-CR (Miss. Cir. Ct. 2008) (?Flowers Ex. 14 at
2472-73 (Trial Tr. Flowers VI). It now appears that both of these claims were false.

Bran); demands that a prosecutor proactively disclose any explicit or implicit deals. ?[T]he
law is clear . . . ?the immunity ?deal? must be disclosed to the defense.? Barnes v. State, 460 So.

2d 126, 131 (Miss. 1984) (citing Giglio v. United States, 405 us. 150 (1972)). ?[W]here a key

witness has received consideration or potential favors in exchange for testimony and lies about

 

6 That trial never happened. While out on bond, Mr. Hallmon committed and confessed to a triple-

homicide and was ?nally sentenced to life without the possibility of parole. Id.

7 The District Attomey?s reliance on jailhouse ?snitches? is nothing new. Two others have similarly
recanted their testimony against Mr. Flowers?admitting that they were coerced by promises and threats from
the State. See Ex. 18 (Aff. of Maurice Hawkins (Nov. 24, 2015)); Ex. 19 (Aff. of Frederick Veal (March 26,
2016)).
8 See, e. Ex. 20 (Request for 9.04 Disc. and for Suppl. of Disc. Furnished to Date, Flowers VI (Mar.
23, 2010); Ex. 21 (Notice of Renewal and Adoption of Motions from the Previous Five Trials, Flowers VI
(Apr. 8, 2010) (renewing, inter alia: Ex. 22 (Mot. for Order to Produce Kyles Information, Flowers 111
(Sept. 29, 2003)); Ex. 23 (Mot. to Preclude Unreliable and Untrustworthy Snitch Testimony, Flowers 111
(Sept. 30, 2003)); (0) Ex. 24 (Mot. for Complete and Up to Date Criminal Histories of any Potential State?s
Witness, Flowers IV (Oct. 1, 2007)); Ex. 25 (Mot. for Disclosure of Evidence Regarding ?Snitch? [Odell
Hallmon], Flowers IV (Oct. 1, See also Ex. 26 (Report of Pretrial Discovery Conferences?
Supplemental Discovery and Copies of Documentation Previously Disclosed, Flowers IV (May 19, 2010)
(reporting pre-trial conferences of May 10 and 14, 2010, and noting that verbal disclosures were made about
the witness Wanda Meeks but not Odell Hallmon?.

21

those favors, the trial is not fair.? Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008).9 The
prosecutor has a duty to proactively disclose even implicit deals. See Tassin, 517 F.3d at 776-
777 (no ??rm promise? is necessary where the witness expected to receive bene?cial treatment
in return for testifying consistent with their prior inculpatory statements).

The following discovery requests echo the unful?lled pre-trial criminal history disclosures
that this Court deemed ?standard operating procedure.? Ex. 14 at 465-466, 468 (Trial Tr. Flowers
V1). And they are, in any event, mandatory law enforcement disclosures under Rule 

Request Hallmon?s Complete Law Enforcement History

Mr. Flowers respectfully requests that the Court grant leave for him to request from the
State the production of all records related to Odell Hallmon?s arrests, (ii) indictments,
criminal trials. Mr. Flowers also respectfully requests lists of (iv) all arrest charges that
were ?charged down? at indictment, all charges that were eligible for habitual offender
enhancement that were not indicted as such, (vi) all indictments that were not brought to trial,
(vi) all trials that were dismissed, all trials that were delayed, and (ix) all instances of
early release from prison (along with all supporting documentation). Finally, Mr. Flowers
requests any letters or other communication in support of his early or ?earned? release.

Request Odell Hallmon?s Witness History

Mr. Flowers respectfully requests that the Court grant leave for him to request from the
State the production of a list of all cases where Mr. Hallmon testi?ed as a witness for the State.

Request #10. Subpoena Testimony from Odell Hallmon

Mr. Flowers respectfully requests that the Court grant leave to issue a subpoena to depose

Mr. Hallmon regarding his testimony in this case and related communications with the State.

 

9 The Mississippi Supreme Court and the Fifth Circuit are not alone in holding that tacit deals must

be disclosed. See, Douglas v. Workman, 560 F.3d 1156, 1182-87 (10th Cir. 2009) (collecting cases
from other circuits).

22

Request #11. Subpoena Testimony from Doug Evans

Mr. Flowers respectfully requests that the Court grant leave to issue a subpoena to depose
Doug Evans regarding his interactions with Odell Hallmon.

C. Discovery Related to the .380 Caliber Gun Turned Over to Law Enforcement

Mr. Flowers also requests discovery relating to a .380 caliber gun, the same caliber
allegedly used to commit the Tardy murders, that law enforcement retrieved in 2001 from a house
near Tardy Furniture.

In 2006, Jeffrey gave a statement to Mr. Flowers?s trial attorney that he found
the gun under the house where he lived with his mother, Annie. Mr. said that after he
and his mother found the gun, he put it in his shed. Shortly thereafter, he was pulled over for
speeding by the Winona Police, at which point he explained that he may have found the Tardy
murder weapon. He said that the police came to his mother?s house and took the gun but never
followed up. The of?cer promised to turn over the gun to the Chief of Police. The Winona Police
Chief at the time was Johnny Hargrove. When Mr. ran into Chief Hargrove at Wal-
Mart and asked whether they had gotten results from the crime lab, he said that they didn?t need it
because they already ?had the right person.? See Ex 29 (Statement of Jeffrey (Aug. 18,
2006)); see also Ex. 4-0 at 1-2 (Ep. 1 

When counsel first raised this issue in its September 9, 20l5 discovery motion, the Court
was skeptical. See Ex. 3 at 50-55 (Disc. Hr? The State, for its part, said that Mr.
statement was irrelevant because it was not sworn, and asserted that Mr. 
?had mental problems.? Id. at 54-55. The Court nevertheless invited further investigation, stating
that ?if there is some showing that there is a weapon that for some good faith reason [Petitioner]

believes that the Sheriff has in his possession, then I will certainly revisit the issue.? 1d. at 54. Mr.

23

Flowers took the Court?s invitation, obtained an af?davit from Mr. mother
corroborating the story, and ?led a discovery motion containing more detail. See Ex. 30 (Aff. of
Annie (Mar. 9, 20l6)); Mot. for Mandatory Disc. and for Leave to Seek Disc.,
Flowers v. State, Case No. (Miss. Cir. Ct. Mar. I6, 2016).

We now know that Mr. was telling the truth, based on new revelations by the
investigative reporters at APM. See In the Dark: Episode 11, The End, APM Reports (July 3,
20l8), [hereinafter Episode
II Web Page?]. First, the APM reporters interviewed Mr. and he con?rmed that he
found the .380 and that it was provided to law enforcement. Ex. at 1-2 (Ep. 1 Further,
on video, Mr. showed the reporters a direct path from Tardy Furniture to his mother?s
old house. See Episode ll Web Page. The path passed through a drainage tunnel that
started about a block away from Tardy Furniture, which would have provided cover to a
perpetrator ?eeing the area. Id. But the reporters did more than that. They interviewed the
police of?cer himself, Winona Police Of?cer Dan Herod, who remembered pulling over Mr.
that Mr. told him that he had found a gun at his mother?s house, and that
another of?cer went to the house to pick it up. Ex. 4-G at 3-5 (Ep. 11 He said that he
thought that the District Attorney?s investigator, John Johnson, had picked up the gun from the
police station. Id. He suggested that Mr. Johnson would know where it was because, ?the
of?ce is the one that sent that gun to the crime lab.? Id. at 4. The current Winona Police
Chief, Tommy Bibbs, said the same thing. Id. at 5.

This is crucial evidence. First, the house was not on the route that the State
insisted that Mr. Flowers took on the day of the murders. It was in the opposite direction. See ITD

Episode 11 Web Page. Given that a murder weapon was never recovered, the fact that a .380 gun

24

was found several years a?er the murders a few hundred yards from Tardy Furniture, and that the
gun was rusty, suggesting it had been le? for some time, would have been be highly probative at
trial. The prosecution?s contention thatCurtis Flowers had used Doyle Simpson?s gun to commit
the murders was also central to their theory of the case. If the gun found by the in
2001 had been tested and it was proven either to be the murder weapon, but not Doyle
Simpson?s gun; or (ii) Doyle Simpson?s gun, but not the murder weapon, it could have dealt a fatal
blow to one of the State?s most important pieces of evidence. Yet law enforcement never
disclosed the gun.'0 The existence of a likely murder weapon that would undermine con?dence in
the verdict must be disclosed under Brady. See, Wear-2y v. Cain, 136 S. Ct. 1002, 1006 (2016)
(finding that evidence that is favorable to the accused must be disclosed regardless of whether the
prosecution acted in bad faith). Where a murder weapon is found in a location inconsistent with
the State?s theory of the case, that fact is material. See, Guerra v. Johnson, 90 F.3d 1075,
1076-80 (5th Cir. 1996) (reversing conviction where murder weapon?s location could not be
reconciled with the State?s theory in light of suppressed evidence). And because this failure to
disclose would add to the cumulative weight of other Brady violations that Mr. Flowers will seek
in his petition for post-conviction review, the State has a duty under Kyles to disclose it now.

Mr. Flowers believes in good faith that the Winona Police Department took possession of
the gun that Mr. described and turned it over to the District Attorney?s office.
Accordingly, Mr. Flowers requests the following discovery.

Request #12. Documents and Communications Concerning Firearms Relating, or
Potentially Relating, to the Murders

Mr. Flowers respectfully requests that the Court order the production of all documents

and communications from the State and the Winona Police Department relating to any

 

'0 The gun?s existence, along with Mr. now-confirmed 2006 statement to the defense

investigators, also supports ineffective assistance of counsel claims that Mr. Flowers plans to make.

25

?rearm tested in connection with the investigation of the murders; (ii) all documents and
communications relating to any ballistics evidence concerning the investigation of the
murders; and any ?rearm provided to, or otherwise obtained by, the State or the Winona
Police Department which was thought at any time to have a potential connection to the
murders.

Request #13. Jeffrey Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Mr. regarding the .380 caliber gun that he discovered.

Request #14. Of?cer Dan Herod?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Winona Police Of?cer Dan Herod regarding the .380 caliber gun discovered by Mr.


Request #15. Chief Tommy Bibbs?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Winona Police Chief Bibbs regarding the .380 caliber gun discovered by Mr.


Request #16. Johnny Hargrove?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Winona Police Of?cer Johnny Hargrove regarding the .380 caliber gun discovered by

Mr. 

26

Request #17. John Johnson?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose the District Attorney?s investigator John Johnson regarding the .380 caliber gun
discovered by Mr. 
D. Discovery Related to Mr. lowers?s Batson Claims

In his new Petition for Post-Conviction Relief, Mr. Flowers will be raising a Batson claim.
He maintains that his right to a fair trial was violated by a jury selection process infected with
racial bias.ll The discovery Mr. Flowers seeks here is directly relevant to the question of whether
Mr. Evans?s stated race-neutral reasons for striking jurors were pretexts for discrimination. As
explained below, Mr. Flowers has uncovered powerful new evidence that makes clear that the
State?s exercise of peremptory strikes was motivated by race, and the Court should grant Mr.
Flowers access to the documents that may help directly prove his claim.

District Attorney Doug Evans has prosecuted Mr. Flowers in all six of his trials. In each of
those trials, Mr. Evans racially discriminated duringjury selection. Consider the following:

In Flowers 1, District Attorney Evans peremptorily struck all ?ve African-
American venire members tendered for service. The jury that convicted Mr.
Flowers and sentenced him to death was all white. Mr. Flowers?s conviction was
overturned on appeal due to misconduct by Mr. Evans.

0 ln Flowers 11, District Attorney Evans peremptorily struck all ?ve African-
American venire members tendered for service. But for the fact that the trial
court disallowed one of those strikes on Batson grounds, the jury that convicted
Mr. Flowers and, sentenced him to death would again have been all white.
instead, thejury was made up of eleven whites and the lone African-American the

State was prevented from removing. Mr. Flowers?s conviction was again
overturned on appeal due to misconduct by Mr. Evans.

 

Over a spirited dissent, the Mississippi Supreme Court found on direct appeal in Flowers VI that the

trial court did not err in denying Mr. Flower?s Batson challenge. That decision is once again before the United
States Supreme Court for review of whether it complies with Batson. Regardless, Mr. Flowers?s post-
conviction Batson claim is wholly distinct from his claim on direct appeal. The direct appeal Batson claim is
based entirely on the trial record. The post-conviction Batson claim, by contrast, will be based on a mountain
of newly discovered evidence?including evidence sought in this motion.

27

 In Flowers 111, District Attorney Evans exercised all ?fteen available peremptory
strikes (twelve strikes plus three alternate strikes) against African-American
venire members. Although two African-Americans sat on the jury, they did so
only because the State ran out of peremptory strikes. On direct appeal, the
Mississippi Supreme Court reversed Mr. Flowers?s conviction on the basis of two
clear Batson violations and three more highly suspicious strikes. Flowers v. State,
947 So. 2d 910, 936 (Miss. 2007). The Mississippi Supreme Court deemed Mr.
Evans?s conduct during jury selection ?as strong a prima facie case of racial
discrimination as we have ever seen in the context of a Batson challenge.? Id. at
935.

In Flowers IV, District Attorney Evans exercised all eleven available peremptory
strikes against African-American venire members. Although ?ve African-
Americans sat on the jury, again, that was only because the State ran out of
peremptory strikes. Flowers 1 resulted in a mistrial.
0 In Flowers V, District Attorney Evans used four of the ?ve peremptory strikes he
exercised to strike African-American venire members. Three African-Americans
served on thejury. Flowers resulted in a mistrial.
0 ln Flowers V1, District Attorney Evans accepted the ?rst African-American venire
person tendered for service, and then peremptorily struck the remaining ?ve
African-American panel members. Put another way, Mr. Evans struck 83% of the
African-American jurors tendered. The jury that convicted Mr. Flowers was
made up of eleven whites and one African-American out of an original venire that
was 42% African-American.
Thus, across the six prosecutions of Curtis Flowers, the State accepted a grand total of
four African-Americans for jury service. Every other African-American who made it onto a
Flowers jury did so either because the State ran out of peremptory strikes after using 100% of
them to strike African-Americans, or because the trial court reversed a strike after ?nding it was
racially motivated.
New evidence con?rms the racial motivation behind the State?s use of peremptory strikes

at Mr. Flowers?s trial. Two newly conducted statistical analyses of Mr. Evans?s exercise of

peremptory strikes since he assumed the role of District Attorney for Mississippi?s Fifth District

28

in 1992 reveal that he is far more likely to strike a black quali?ed venire member than a white
quali?ed venire member.

The ?rst statistical analysis was organized by Mr. lowers?s post-conviction team. That
analysis revealed that, across every capital case that Mr. Evans tried for which jury strike data
were available, Mr. Evans is eight times more likely to strike quali?ed venire members who are
African-American than quali?ed white venire members. See Pet. for Post-Conviction Relief at
90, 98, Flowers v. State, Case No. 2003-CR-0071-CR (Miss. Cir. Ct. Mar. 17, 2016) [hereinafter
?2016 PCR There is less than a one in one thousand chance that a disparity of this
magnitude would occur if Mr. Evans?sjury selection decisions were race neutral. Id. at 98. Mr.
Evans?s discriminatory strikes were even more aggressive in the Flowers trials. In those cases,
Mr. Evans struck quali?ed African-American venire members at a rate more than 20 times the
rate with which he struck white quali?ed venire members. 1d. This pattern across the Flowers
trials is consistent with the pattern evidenced in Mr. Flowers?s most recent trial where Mr. Evans
struck black quali?ed venire members at 17.9 times the rate of quali?ed white venire members.
Id.

The second statistical analysis was conducted recently by investigative reporters with
APM, independent of the efforts of Mr. lowers?s post-conviction team. APM analyzed notjust
Mr..Evans?s capital trials, but all trials prosecuted by Mr. Evans or his of?ce, and found that
during a 26-year period in which Mr. Evans was District Attorney, from 1992 to 2017,
prosecutors in Mississippi?s Fifth District were almost 4.5 times more likely to strike black
quali?ed venire members than white quali?ed venire members. Will Craft, Mississippi D.A. has
long history of striking many blacks from juries, APM Reports (June 12, 2018),



29

juries/.12 Further, after reviewing complete voir dire transcripts for 89 trials and tracking juror
responses using more than 60 variables, APM found that race was one of the most powerful
indicators in predicting whether a juror would be struck. Id. The other factors ?did not come
close to explaining away? ?the vast racial disparity in the prosecution?s jury strikes.? Id. ?It
persisted regardless of how the jurors answered.? Id. For example, prosecutors struck 96% of
black potential jurors accused of a crime, but only 60% of white potential jurors accused of a
crime. Id. APM also found that ?a blackjuror?s odds of being struck were 6'/2 times greater than
the odds of an otherwise similar white juror?s despite answering questions during jury selection
the same way.? Id.

This new evidence supplies powerful con?rmation that race was the reason only one
African-American sat on the jury that convicted Mr. Flowers and sentenced him to death in his
most recent trial. Such massive disparities would not exist without intent to keep African-
Americans off Mr. lowers?sjury.l3 While Mr. Flowers submits that this would be sufficient to
warrant relief on his Batson claim, the following discovery likely contains additional relevant
information.

Request #18. Jury-Related Documents from Mr. lowers?s Sixth Trial

Mr. Flowers respectfully seeks an order compelling the State to disclose the prosecution?s
jury?related documents from Mr. Flowers?s sixth trial. This includes, but is not limited to, the
prosecution?s jury ?strike notes, communications, and other documents pertaining to or

referencing jury selection and thejury. In light of the new statistical evidence and Supreme Court

 

I7

The full methodology for the study can be found online. See Will Craft, Peremptory Strikes in
Mississippi ?s Fifth Circuit Court District, APM Reports,
(last visited Nov. 11, 2018). The raw
data sets are also available online. See APM Reports Jury Data, GitHub, 
Reports/jury-data (last visited Nov. I l, 20 8).

In addition to this powerful statistical evidence, ample further evidence of racial discrimination is
apparent from the record. For example, Mr. Evans engaged in disparate questioning of potential African-
American and potential white jurors during voir dire in Flowers VI. See 2016 PCR Pet. at 102-103.

30

case law clarifying the importance of these documents, the Court should order the State to produce
them, notwithstanding the State?s work-product objections.

a. New Evidence and Supreme Court Precedent Warrant Reconsideration of
Whether ury-Related Documents Must Be Produced

This Court previously reviewed some of the prosecution?s jury-related documents in
camera and determined that they need not be produced. But it did so without the bene?t of
powerful new statistical evidence that provides essential context for assessing the documents;
namely, that District Attorney Doug Evans has a long-standing practice of purging African
Americans from juries. There is no reason to believe that Mr. Evans changed course in Mr.
lowers?s case. To the contrary, the Mississippi Supreme Court found that Mr. Evans struckjurors
on the basis of race in Mr. Flowers?s earlier trials, and in Flowers VI, he struck 83% of the African-
American jurors tendered, resulting in only one African-American juror serving on the jury. In
light of these strong indicators of racial bias, the Court should order the State to produce
documentation of its jury-selection process, which would provide direct evidence of the
prosecution?s intent in Mr. Flowers?s case.

These documents are particularly important in light of the US. Supreme Court?s recent
decision in Foster v. Chat/nan, 136 S. Ct. 1737 (2016), which was decided after this Court?s initial
ruling on Mr. lowers?s Batson-related discovery requests. Foster established that a prosecutor?s
jury-related documents can be vital to proving Batson violations. During his post-conviction
proceedings, Mr. Foster gained access to the prosecution?s jury selection file, which revealed a
?focus on race? that ?plainly demonstrate[d] a concerted effort to keep black prospective jurors

off thejury.? Foster, 136 S. Ct. at 1743, 1755. After considering the evidence contained in the

31

?le,l4 along with the prosecution?s ?shifting explanations? for striking blackjurors and the actual
circumstances surrounding the strikes, the Court held that the State had violated Batson and ruled
in Mr. Foster?s favor. Id. at 1754-55.

Prior to obtaining access to the prosecution?s jury selection documents, Mr. Foster had
repeatedly challenged his conviction on Batson grounds, and lost every time. Id. at 1742-43. It
was not until he gained access to the prosecutor?s jury selection ?le that he was able to marshal
suf?cient and incontrovertible proof that the prosecution had struck jurors on the basis of race.
Indeed, before he could point to those documents, courts had found that the prosecution?s
explanations for each of their jury strikes were ?neutral and legitimate,? and suf?cient to
overcome the primafacie case of discrimination that Mr. Foster had made out. See, Foster
v. State, 258 Ga. 736, 739 (1988). This, in a case where, after the documents came to light,
Justice Kagan remarked at oral argument: ?Isn?t this as clear a Batson violation as a court is ever
going to see?? Foster v. Chatman, No. 14-8349, 2015 WL 6694912, at *39 (Nov. 2, 2015).

Foster thus illuminates the importance of jury-related documents for establishing a
Batson violation. This is precisely the type of development in the law that warrants
reconsideration of prior decisions, especially given that Mr. Flowers has re-started the post-
conviction process after the Mississippi Supreme Court?s new mandate on direct appeal. Cf.
Hill, 121 F.3d at 177 (vacating lower courtjudgment due to a mid-course change in Mississippi
law and remanding for new proceedings consistent with the law); Millipore, 115 F.3d at 34
(remanding decision for new submissions in light of an ?intervening clari?cation of the law?).

While Mr. Flowers has unearthed strong evidence of Batson violations even withoutjury-related

 

. For instance, a draft af?davit stated that if prosecutors had to "pick one of the blackjurors, [this one]

might be okay,? notes identi?ed three black prospectivejurors as and the jury venire list
highlighted each blackjuror in green with a legend noting that highlighting ?represents Blacks,? and the list of
prospective jurors remaining after voir dire included a letter next to every black juror, indicating that the
State had a strike for that juror. 1d. at 1744.

32

documents, those materials may contain information that de?nitively proves Mr. Flowers?s
claim.

b. The Work Product Doctrine Does Not Preclude Production of the Jury-
Related Documents

The documents Mr. Flowers seeks should not be shielded from disclosure under the work
product doctrine because any mental impressions they contain are the reason for their discovery
not for shielding them; and in any case, no harm would ?ow from requiring the State to disclose
the documents. But even if this Court were to adhere to its prior ?nding that the jury selection
documents are work product, the Court should still order its disclosure because Mr. Flowers has
demonstrated that he has a compelling need for the information and that he cannot access the
information by any other means.

i. The prosecution?s jury-related documents are not work product

The work-product doctrine ?does not extend to every written document generated by an
attorney; it does not shield from disclosure everything that a lawyer does.? Coastal States Gas
Corp. v. Dep?t of Energy, 617 F.2d 854, 864 (DC. Cir. I980) (internal citation omitted). ?Its
purpose is more narrow, its reach more modest.? Id. The work-product doctrine should only be
applied as necessary to ?encourage effective legal representation within the framework of the
adversary system,? id., and to facilitate both parties? ?search for the truth,? Pac. Gas Elec. Co.
v. United States, 69 Fed. Cl. 784, 808 (2006) (internal citation omitted).

This goal of promoting effective representation as a means to identify the truth is
hampered when parties can use the work product doctrine to shield mental impressions that
disclose or embody a constitutional violation. Allowing the State to hide its constitutional
violations by invoking the work product doctrine hinders this objective, particularly because the

goal of a prosecutor in a prosecution is not to ?win a case,? but ensure that ?justice shall be

33

done.? Berger v. United States, 295 US. 78, 88 see also ABA Standards for Criminal
Justice (4th ed. 2015) (?The primary duty of the prosecutor is to seekjustice within the
bounds of the law, not merely to convict?). The prosecution violated Mr. Flowers?s
constitutional rights by striking African-American prospectivejurors during voir dire, putting the
mental impressions of the prosecution directly at issue in this case. Under these circumstances,
?blanket application of the work product rule would be inappropriate.? Lisle v. McDaniel,
No. 2006 WL 3253488, at *4 (D. Nev. Nov. 8, 2006).

The State previously relied heavily on Thorson v. State, 72] So. 2d 590 (Miss. 1998) to
argue that the documents Mr. Flowers seeks were work product. That reliance is misplaced, for
several reasons. First, Thorson does not address a defendant?s need for prosecution notes in the
post-conviction context?a material distinction, given that the work product doctrine is focused
on the adversarial trial process. Second, in reaching the conclusion that prosecution notes are
protectable work product, the Thorson Court relied on the Georgia Supreme Court?s decision on
direct appeal in Foster. Id. at 596 n.7. The Supreme Court?s recent decision reversing the lower
courts? denial of relief in Foster undermines Thorson?s reasoning that the documents Mr.
Flowers seeks are work product. Specifically, the evidence in Foster and the Supreme Court?s
recent decision in that case destroys the Thorson Court?s public policy rationale for
characterizing this sort of documents as work product. We now know that behind the
prosecutor?s claim of ?work product? in Foster was simply a desire to shield his malfeasance
from public scrutiny. Indeed, the ?mental impression? of a prosecutor exercising a peremptory
strike is the whole point of a Batson challenge: if his ?mental? reason for striking a person was

based on race, then it was a constitutional violation. In view of the Supreme Court?s Foster

34

decision, this Court should no longer credit a public policy rationale to support an argument that
prosecution notes are work product.

That conclusion is underscored by the fact that no damage would ?ow to the State from
the disclosure of these documents. Mr. Flowers?s sixth trial ended nearly eight years ago; there
is therefore no risk of divulging trial strategy through disclosure of the jury selection notes. See
Harris v. United States, No. 1998 WL 26187, at *1 (S.D.N.Y. Jan. 26, 1998)
(turning over prosecution documents will not harm the government because if the petitioner
failed to carry his burden of proof, he would not receive a remedy, but if documents
?demonstrate prosecutorial wrongdoing of sufficient severity to require a new trial for [the
petitioner], then the government has no one to thank but itself for whatever difficulties the
disclosed documents may cause during a retrial that justice itself demands?); cf Thorson, 721
So. 2d at 596 (addressing disclosure of the prosecution?s jury notes only at a trial-stage Batson
hearing). Rather, Mr. Flowers seeks the documents to assess the propriety of the State?s prior
litigation conduct. There is strong evidence of the impropriety of that conduct, as discussed
above.

ii. Even if the documents at issue were work product, the Court still
should order disclosure because Mr. Flowers has demonstrated a
compelling need for the documents and has no other means of
accessing them

The work product doctrine does not create an absolute bar to discovery, and ?does not

shield all documents from discovery.? Flechas v. Pitts, 138 So. 3d 907, 91 1-912 (Miss. 

Instead, a party may obtain discovery of an attorney?s work product so long as the moving party

 

'5 Though Flechas involved discovery under the Mississippi Rules of Civil Procedure, there is no reason

to believe that a post-conviction petitioner has less right to discovery of work product than normal civil
litigants or that the principles discussed in that case are inapplicable here. To the contrary, this Court has
emphasized the need for heightened protections in capital cases like this one. See Chamberlin v. State, 989
So. 2d 320, 330 (Miss. 2008) (?The thoroughness and intensity of review are heightened in cases in which the
death penalty has been imposed?).

35

can show that ?it has a substantial need for the information and it would be an undue hardship to
obtain the information by other means.? Id. at 912. The doctrine ?places responsibility on the
trial court when making such determinations to protect against disclosure of mental impressions,
conclusions, opinions, or legal theories of an attorney or other representatives of a party
concerning the litigation.? Id. (quoting Hewes v. Langston, 853 So. 2d 1237, 1266 (Miss.
2003)).

?ln general, while a lawyer?s opinion work product should rarely be disclosed, a party may
discover work product that includes an attorney?s mental impressions when the lawyer?s mental
impressions are at issue in the case and there is a compelling need for disclosure. Holmgren v.
State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992) (?We agree with the several
courts and commentators that have concluded that opinion work product may be discovered and
admitted when mental impressions are at issue in a case and the need for the material is
compelling?) (emphasis in original); In re Sealed Case, 676 F.2d 793, 809-810 (DC. Cir. 1982)
the extent that work product reveals the opinions, judgments, and thought processes of
counsel, it receives some higher level of protection, and a party seeking discovery must show
extraordinary justi?cation?); see also S.E.C. v. Brady, 238 F.R.D. 429, 443 (ND. Tex. 2006)
the materials sought are opinion work product then a court may compel discovery only if
the party seeking the materials demonstrates a compelling need for the information?); Harris,
1998 WL 26187, at *2 (?Where the activities of counsel in the underlying proceeding form the
very basis of a present claim for relief, courts routinely ??nd the need for production of counsel?s
work product compelling.?? (quoting Panter v. Marshal Field C0., 80 F.R.D. 718, 726 (ND.
111. Here, Mr. Flowers has made the ?stronger showing? required to obtain discovery of

the ?mental impressions? that led Mr. Evans to strike African-American jurors from hisjury. Cf.

36

Hewes, 853 So. 2d at 1247 (documents that ?reveal the attorney?s mental impressions . . . may be
obtained through discovery only in rare situations, and upon a far stronger showing than for other
work product documents?) (citing Upjohn Co. v. United States, 449 US. 383, 400-402 (1981));
Flechas, 138 So. 3d at 912 (in order to obtain ?discovery of an attorney?s work product, the
moving party has the burden to show it has a substantial need for the information and it would be
an undue hardship to obtain the information by other means? (citing Roman Catholic Diocese of
Jackson v. Morrison, 905 So. 2d 1213, 1247 (Miss. 2005)).

And there is no question that Mr. Flowers has a compelling need for the discovery. The
information he seeks may support a claim that would require reversal of his convictions and
death sentence. The stakes could not be higher. This is not a ?shing expedition; as described
above, Mr. Flowers has marshaled substantial evidence that District Attorney Doug Evans is a
habitual Batson violator, and that he exercised his peremptory strikes on the basis of race during
Mr. lowers?s sixth trial, as well as more generally in capital and non-capital cases during his
tenure as District Attorney. Just as they did in Foster, the jury-related documents may help
directly prove Mr. Flowers?s Batson claim.

And Mr. Flowers has no other means of accessing this information.'6 The issue here is
this prosecutor?s reasons for striking black venire members; the person with the information is
the prosecutor, Doug Evans?and, like the prosecutor in Foster, he has a clear motive to hide the

truth.

 

'6 The Court?s prior in camera review of the State?s jury selection documents was insuf?cient to protect

Mr. Flowers?s rights. The review was conducted without the bene?t of brie?ng because the evidence was not
made available to counsel; the order issued provided no explanation for its conclusions, nor any explanation of
why the Court believed the materials would not support Mr. Flowers?s Batson petition. Further, this review
occurred prior to the Supreme Court?s opinion in Foster, and without the extensive record of Mr. Evans?s
Batson violations, highlighted above.

37

Request #19. Jury-related Documents from All Capital Cases and Non-Capital

Murder Cases Prosecuted by District Attorney Evans and/or the Fifth Judicial

District Attorney?s Office

Mr. Flowers respectfully seeks an order compelling the State to disclose the prosecution?s
jury-related documents from all capital cases and non-capital murder cases prosecuted by District
Attorney Evans, including but not limited to the prosecution?s jury ?strike notes, and
other documents pertaining to or referencing jury selection. These documents would provide
additional context for Mr. Evans?s long-standing habit of striking African-American jurors on the
basis of race. Like the statistical evidence of this practice, the documents would substantially
bolster Mr. Flowers?s claim for relief. See Miller-El v. Dretke, 545 US. 23], 263 (2005); Currie
v. McDowell, 825 F.3d 603, 610-61] (9th Cir. 2016) Supreme Court used the fact that
prosecutors belonged to a district attorney?s of?ce with a history of racial bias to bolster its
?nding of a prima facie case. In this instance, it is not only the same of?ce, but the same
prosecutor, who brings a history of Batson violations with As explained above, these
documents are not protected by the work-product doctrine. And even if they were, the Court

should still order their production.

Request #20. Capital-Eligible Cases Tried by District Attorney Evans and/or the
Fifth Judicial District Attorney?s Office

Mr. Flowers also respectfully requests that the Court grant leave for him to request from
the State the production of a list of all capital-eligible cases that District Attorney Evans and/or
the Fifth Judicial District Attorney?s Of?ce tried from 1992 to present, including details on
whether they were tried capitally or non?capitally.l7 This evidence would help further develop

Mr. lowers?s claim that Mr. Evans and his office have a pattern of racially discriminatory use of

 

'7 This request for demographic information for the venires in all capital cases is related to, but separate

from Request #2 forjury-related documents in all capital and non-capital murder cases prosecuted by District
Attorney Evans and/or the Fifth Judicial District Attorney?s Office.

38

peremptory strikes. As discussed, a history of Batson violations is relevant in assessing whether
discrimination occurred. See Miller-El, 545 US. at 263; Currie, 825 F.3d at 610-6] 1.

Request #21. Capital Cases Tried by District Attorney Evans and/or the Fifth
Judicial District Attorney?s Of?ce

Mr. Flowers respectfully requests that the Court grant leave to request the production of a
list of all capital cases that District Attorney Evans and/or the Fifth Judicial District Attorney?s
Of?ce have tried from I992 to present, and for each trial, the following information: name
and race (and gender, if available) of all members of the venire; list of jurors excluded for
cause; name of jurors peremptorily struck by the State; name of jurors peremptorily struck
by defense; (6) name and race (and gender, if available) of all tendered and struck jurors; and
name and race (and gender, if available) of seatedjurors. Like the previous two requests, this
evidence would further establish the District Attorney?s history of race-based peremptory strikes.
E. Discovery Related To Other Fabricated Witness Statements

New evidence uncovered by reporters at APM indicates that the State coerced several
witnesses into giving false testimony against Mr. Flowers. To give just one example, the State
relied at trial on the testimony of Ed who claimed to have seen Mr. Flowers on the
morning of the murder along the route that the State theorized he took to commit the murders.
Ex. 14 at 2301-03 (Trial Tr. Flowers V1). Mr. recently told APM reporters,
however, that he was not actually sure that he saw Mr. Flowers, that investigator John Johnson
had supplied him with the details of his testimony, and that he felt pressured to cooperate with
the State. See, e. Ex. 4-3 at 12-14 (In the Dark Episode 2 Tr). Several other witnesses gave
similar accounts or stated that they would not testify if Mr. Flowers had another trial. Id. at l6-

19.

39

In addition, new evidence shows that investigator John Johnson misrepresented certain
witnesses? statements in the investigative notes that were disclosed to the defense, see, Ex.
4-E at l4-l9 (In the Dark Episode 9 and that John Johnson cited in his trial testimony, see,
e. Ex. 14 at 2994-96 (Trial Tr. Flowers V1). John Johnson?s notes stated, for example, that a
man named Jerry Ghoston had told Mr. Johnson that about four or five months prior to the Tardy
murders, Mr. Flowers told Mr. Ghoston that he had a pistol. Ex. 4-E at l5 (Ep. 9 Mr.
Ghoston recently clari?ed, however, that all he told Mr. Johnson was that Mr. Flowers had
stopped by his house on the day of the murders to ask for a cigarette. 1d. at 14-15. He said
nothing about a gun. Id. at 15-16.

These discovery requests are relevant to Mr. Flowers?s Brady and Napue claims because
the underlying information will likely show that the State both withheld critical witness
impeachment evidence and that the State fabricated and coerced witness statements. The
evidence could also irreparably undermine the State?s theory of the case, given how persistently
the State relied on these ?timeline? route witnesses at trial.

Request #22. Subpoena Testimony from Witnesses Whose Statements Were
Fabricated by the State.

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose witnesses who have indicated that their statements to law enforcement or testimony at
trial were false, including: Eloise Daniels, Antonio Earl Campbell, Mary Jeanette Fleming, Jerry
Ghoston, Roy Harris, Nat Latham, Vera Latham, Ed James ?Bojack? Edward

Kennedy, Danny Joe Lott, and Mary Sue Moore, Carol Lanney Moore.

40

Request #23. Subpoena Testimony from Witnesses Who no Longer Stand by Their
Statements.

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose witnesses who have indicated that they would no longer testify as to the veracity of
their statements or testimony, including Clemmie Flemming and Catherine Snow.

F. Discovery Related to Patricia Sullivan-Odom

New evidence uncovered since Mr. lowers?s trial shows that a key prosecution witness,
Patricia Sullivan-Odom?the only witness whose testimony purported to link Mr. Flowers to the
crime scene?was under a l3-count federal tax fraud indictment at the time she gave her
testimony. Members of the prosecution team knew or should have known of Ms. Sullivan-Odom?s
indictment prior to Mr. Flowers?s trial. The State never disclosed this impeachment evidence.
Defense counsel did not learn of it until several months a?er trial, despite explicitly renewing its
request for updated criminal histories and explicitly requesting all Brady materials that could be
relevant to witness impeachment.18 1f the State somehow remained unaware of the indictment, the
information was readily available through a routine National Crime Information Center check?the
very same check that the prosecution did before Mr. Flowers?s other trials, upon the very same
request of Mr. lowers.l9 As this Court observed during the sixth trial, these requests were, ?just
standard operating procedure for any, any court to follow.? Ex. 14 at 465-466, 468 (Trial Tr.
Flowers VI). The reason, of course, is that impeachment evidence like this is so obviously subject

to disclosure under Brady.

 

'8 See Ex. 20 at 2-3 (requesting all Brady materials); Ex. 2  (renewing, inter alia, Ex. 22 at (seeking

?disclosure of any and all information which is material under Kyles v. Writley, 514 US. 419 (l995)?) and Ex.
24 at (seeking "complete and up to date criminal histories for any person the State identi?es as a potential
witness it may call to testify at 

See Ex. 31 at 9 (NCIC Report (Sept. 17, 2008)). See Ex. 32 at 111] 14-17 (Aff. of Ray Charles Carter
(Mar. 15, 2016)). See also Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991) prosecution is
deemed to have knowledge of information readily available to it and the failure to provide that information
when requested is a violation of the Brady rule?).

41

Furthermore, the circumstances of Ms. Sullivan-Odom?s sentencing strongly suggest an
undisclosed deal between the District Attorney?s of?ce and Ms. Sullivan-Odom?s attorney. On
April 15, 2010, two months before Mr. Flowers?s sixth trial began, Mark K. Horan entered his
appearance as Sullivan-Odom?s defense counsel in connection with her federal charges.20 See Ex.
34 (Sullivan Entry of Appearance). As a former member of District Attorney Evans?s of?ce, Mr.
Horan prosecuted Mr. Flowers in his ?rst and second trials, and even examined Patricia Sullivan-
Odom as a witness during Flowers 1. See Ex. 35 at 563-574, 586-588 (Trial Tr. of State v.
Flowers, Cause No. CR97-369 (Miss. Cir. Ct. Oct. 1997) (?Flowers Thus, he was intimately
familiar both with Mr. lowers?s case and with the crucial importance of Ms. Sullivan-Odom?s
testimony to the State?s case against Mr. Flowers. At Ms. Sullivan-Odom?s sentencing hearing in
January 201 1, he described himself as part of the Flowers prosecution team and highlighted Ms.
Sullivan-Odom?s testimony in Mr. Flowers?s sixth trial as a reason why she should receive a
reduced sentence. See Ex. 36 at 55-56 (Hr? Tr., United States v. Patricia Sullivan, No. 3:10-cr?
00017 (8D. Miss. Jan. 5, 2011), ECF No. 76-1). Patricia Sullivan-Odom?s plea for a lesser
sentence was further supported by a personal letter from Doug Evans. 2'

Ms. Sullivan-Odom?s fraud indictment?and any explicit or implicit deals?are Brady

material that would have seriously undermined her credibility and reliability. See, United

 

20 Mr. Horan began representing Ms. Sullivan-Odom under questionable circumstances. Ms. Sullivan-

Odom was found to be indigent at her March 5, 2010 arraignment, and the Federal Public Defender was
appointed to represent her. See Ex. 33 (Order Appointing Counsel, United States v. Sullivan, No. 3:10-cr-
00017, (S.D. Miss. Mar. 5, 2010), ECF No. 7). Yet she somehow acquired the means to retain private counsel
immediately thereafter, see Ex. 34 (Entry of Appearance Upon Substitution, United States v. Sullivan, No.
3:10-cr-00017, (S.D. Miss. Apr. 5, 2010), ECF No. 13) and just happened to retain a former Flowers
plrosecutor and colleague of Mr. Evans.

District Attorney Evans?s letter was ?led under seal with Ms. Sullivan-Odom?s presentence
investigation report. Mr. Flowers moved the federal court for production of the letters submitted on Ms.
Sullivan-Odom?s behalf in connection with her sentencing. Although the Government did not oppose the
request, the district court entered an order denying it on April 11, 2012. See Ex. 37 (Op. and Order, United
States v. Patricia Sullivan, No. 3:10-cr-00017 (S.D. Miss. April 11, 2012)). To this day, Mr. Evans has not
produced the letter to Mr. Flowers or his counsel.

42

States v. Staples, 410 F.3d 484, 489 (8th Cir. 2005) (noting that, for a potential witness under
indictment in a fraud case, ?the conduct underlying that indictment almost certainly would have
been suitable material for impeachment,? and that such impeachment ?would have diminished
greatly the value of his testimony?); cf. Johnson v. State, 525 So. 2d 809, 812 (Miss. 1988)
(discussing the ??rule of thumb? that convictions which do not relate to credibility, deceit,
fraud, cheating, generally have little probative value for impeachment purposes?) (citing Gordon v.
United States, 383 F.2d 936, 940 (DC. Cir. 1967)).

District Attorney Evans has stated that he had no knowledge of Ms. Sullivan-Odom?s
indictment at the time of Mr. Flowers?s trial, and that he only learned about the indictment
?sometime after the June 18, 2010 conviction of Curtis Flowers.? Ex. 38 (Aff. of Doug Evans
(May 17, 2012) (Ex A to Resp. to Mot. for Remand and Leave to File Suppl. Mot for New Trial,
Flowers v. State, Case No. 2010-DP-01348-SCT (Miss. Cir. Ct. May 25, 2012)). But that does
not end the inquiry, since Mr. Evans?s duty to disclose is not limited ?by his knowledge,? Gibbs
v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998), but rather includes all information ?known or
available to the prosecutor,? United States v. Koetting, No. 95-10101, 1995 WL 786436, *3 (5th
Cir. Dec. 8, 1995) (emphasis added) (quoting United States v. Auten, 632 F.2d 478, 481 (5th Cir.
1980)). It was Mr. Evans who put Ms. Sullivan-Odom on the stand; he had a duty to disclose all
impeachment evidence before he did so.22

Mr. Flowers therefore respectfully requests the following discovery that is likely to
illuminate the State?s suppression of Ms. Sullivan-Odom?s indictments and the State?s explicit or

implicit promises of leniency in exchange for her testimony against Mr. Flowers.

 

22 Regardless, even in the unlikely event Mr. Evans himself was unaware of the indictment, he never

refutes that other members of the prosecution and investigation teams may have learned of it.

43

Request #24. Subpoena to Mark K. Horan for Pertinent Communications

Mr. Flowers respectfully requests that the Court grant him leave to issue a subpoena to
Mark K. Horan for all communications, including emails, between Mr. Horan and/or his of?ce and
the Of?ce of the District Attorney for Mississippi?s Fifth Circuit Court District, including but not
limited to Doug Evans, regarding Patricia Sullivan-Odom?s federal tax fraud indictment and trial
and/or Mr. Flowers?s sixth trial. Such communications include any letter(s) written by Mr.
Evans, or anyone in his of?ce, which relate in any way to Ms. Sullivan-Odom?s case, including
but not limited to the letter ?led under seal in Ms. Sullivan-Odom?s case, and/or all other
communications, either written or oral?or, if not memorialized, identifying information for the
individual(s) who have information about such communication(s).

At the January 29, 2016 hearing, this Court expressed concern that these discovery requests
could violate attorney-client privilege. Ex. 3 at 27-32 (Disc. Hr?g Mr. Flowers has not,
however, requested any communications between Mr. Horan and his client. The requests pertain
only to communications between Mr. Horan and the District Attorney or his of?ce. The District
Attorney is a third party who did not have an attorney-client relationship with Mr. Horan or Ms.
Sullivan-Odom. See M.R.E. Rule 502 (2018). And to the extent that Mr. Horan relayed privileged
information to Mr. Evans at the behest of Ms. Sullivan-Odom, the privilege was waived. See
Hayden v. State, 972 So. 2d 525, 533 (Miss. 2007). Furthermore, the requests are narrowly
tailored to communications about only one client: Ms. Sullivan-Odom.23 Communications related

to any of Mr. Horan?s other clients is not requested and should not be disclosed.

 

23 Indeed, even the fact that an attorney represents a particular client is not privileged information. See

Nester v. Jernigan, 908 So. 2d 145, 149 (Miss. 2005) (client identity is protected only if revealing their identity
would be tantamount to disclosing the underlying privileged communication).

44

Request #25. Subpoena to the District Attorney?s Office for Pertinent
Communications

Mr. Flowers likewise respectfully requests that the Court grant him leave to issue a
subpoena to the Of?ce of the District Attorney for Mississippi?s Fifth Circuit Court District for all
communications, including emails, between Mr. Horan and/or his of?ce and the Of?ce of the
District Attorney for Mississippi?s Fi?h Circuit Court District, including but not limited to Mr.
Evans, regarding Patricia Sullivan-Odom?s federal tax fraud indictment and trial and/or Mr.
Flowers?s sixth trial. Mr. Flowers also respectfully requests that the Court order the State to
produce a copy of any letter(s) written by Mr. Evans or anyone in his of?ce which relate in any
way to Ms. Sullivan-Odom?s case, including but not limited to the letter ?led under seal in Ms.
Sullivan-Odom?s case, and/or all other communications, either written or oral?or, if not
memorialized, identifying information for the individual(s) who have information about such
communication(s).

Request #26. Mark K. Horan?s Phone Records

Mr. Flowers respectfully requests that the Court grant him leave to issue subpoenas to
Mark K. Horan?s landline and cellular telephone service providers for certain of Mr. Horan?s
telephone records between November I, 2009 and April 1, 2011. This request includes any
communications between Mr. Horan and the Of?ce of the District Attorney for Mississippi?s
Fifth Circuit Court District, including but not limited to Doug Evans, before, during, or after
Ms. Sullivan-Odom?s indictment and sentencing, suggesting the prosecution team knew or
should have known of Ms. Sullivan-Odom?s indictment prior to Mr. Flowers?s trial, and/or

impermissibly suppressed favorable impeachment evidence.

45

Request #27. Mark K. Horan Deposition

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Mark K. Horan. Such a deposition would, inter alia, inquire into Mr. Horan?s
communications with the Of?ce of the District Attorney for Mississippi?s Fifth Circuit Court
District regarding Patricia Sullivan-Odom?s federal tax fraud indictment and trial and/or Mr.
Flowers?s sixth trial. Mr. Horan?s deposition will be narrowly tailored to assisting the
determination of whether the prosecution team knew or should have known of and/or
suppressed favorable impeachment evidence.

Request #28. Patricia Sullivan-Odom Deposition

Mr. Flowers respectfully requests that the Court grant him leave to issue a subpoena to
depose Patricia Sullivan-Odom to inquire into any bene?ts offered to Ms. Sullivan-Odom in
return for her testimony against Mr. Flowers, and any communications between Ms. Sullivan-
Odom and the Of?ce of the District Attorney for Mississippi?s Fifth Circuit Court District,
including but not limited to Mr. Evans, regarding her federal tax fraud indictment. Mr.
Flowers also seeks to inquire into Ms. Sullivan-Odom?s knowledge of any communications
between Mr. Horan and the Of?ce ofthe District Attorney for Mississippi?s Fifth Circuit Court
District.

Request #29. Doug Evans Deposition

Mr. Flowers respectfully requests that the Court grant him leave to issue a subpoena to
depose Mr. Evans to inquire into his knowledge of Ms. Sullivan-Odom?s indictment and any
bene?ts offered to Ms. Sullivan-Odom by the Of?ce of the District Attorney for Mississippi?s

Fifth Circuit Court District in return for her testimony against Mr. Flowers. Mr. Evans has

46

provided the Court with an af?davit and explained himself in the prior hearing, but Mr.
Flowers should be granted the opportunity to question him under oath regarding his assertions.
G. Discovery Related to Law Enforcement Investigations

Mr. Flowers also seeks the production of other documents and communications
relating to law enforcement investigations.

The State offered virtually no physical evidence tying Mr. Flowers to the Tardy
murders. To date, the State has produced no tangible items bearing DNA evidence recovered
from the crime scene, or documentation thereof. Such evidence would be directly relevant to
Brady claims and may also constitute new evidence of actual innocence.

Further, numerous witnesses, including Chief Hargrove, testi?ed that door-to-door
canvassing and neighborhood searches were conducted by law enforcement in the aftermath of the
Tardy murders. See, e. Ex. 14 at l848, 1868-69 (Trial Tr. Flowers V1). The State has failed to
produce all documents and communications relating to canvassing and searches. Mr. Flowers is
entitled to production of such documents and communications because they are likely to provide
exculpatory information.

Finally, Mississippi law enforcement agencies provided few, if any, documents in
response to requests for relevant materials. In an incident of this size and scope, it seems highly
unlikely that any of these agencies would have no responsive records at all. The Court should
therefore allow Mr. Flowers to depose custodians at these agencies regarding potentially relevant

documents.

47

Request #30. DNA Evidence

Mr. Flowers respectfully requests that the Court grant leave for him to request from the
State the production of tangible items bearing DNA evidence recovered from the crime scene
and any documentation thereof.

Request #31. Documents and Communications Relating to Canvassing and Search
Efforts in the Aftermath of the Murders

Mr. Flowers respectfully requests that the Court order the production of all documents
and communications concerning any canvassing and searches conducted in relation to the
murders, including but not limited to any physical searches of persons or property and/or any
interviews of persons, carried out by law enforcement after the murders.

Request #32. Depositions of Law Enforcement Agency Custodians

As numerous state agencies have represented that they have no documents responsive to
Mr. Flowers?s discovery requests, Mr. Flowers respectfully requests that he be entitled to depose
the records custodians of those agencies for the limited purpose of ascertaining each agency?s
document collection, creation, and retention policies and to verify that no responsive documents
are available. Mr. Flowers seeks to depose the records custodians of the following agencies:
The District Attorney?s Office, Fifth Circuit Court District; (ii) Montgomery County Sheriff;
Winona Police Department; (iv) Mississippi Highway Patrol; Mississippi Medical
Examiner; and (vi) Mississippi Bureau of Investigations.

H. Discovery Related to Mr. Flowers?s Good Behavior and Lack of Dangerousness

During the sentencing phase of a criminal trial, a defendant is permitted to present the
jury with mitigating evidence, i.e. evidence of his ?character, record, or circumstances of the
offense.? Holland v. State, 705 So. 2d 307, 326 (Miss. 1997); see also McDuffv. Johnson, No.

98-51022, 1998 WL 857876, *8 (5th Cir. Nov. 17, 1998)). Mitigating evidence includes Mr.

48

Flowers?s good behavior while incarcerated. Skipper v. South Carolina, 476 US. l, 6 (1986).
And when assessing future dangerousness for the purpose of sentencing, the jury is permitted to
?give meaningful consideration and effect to a petitioner?s good behavior in prison.? Pierce v.
Thaler, 604 F.3d 197, 207 (5th Cir. 2010) (citing Franklin v. Lynaugh, 487 US. I64, l77-l78,
185-186 (1988)).

While Mr. Flowers was being transported from a hearing before Judge Morgan in
Kosciusko, Mississippi to the Carroll County Correctional Facility in Vaiden, Mississippi, Mr.
Flowers was permitted to eat with his parents, unsupervised by guards, including Mr. Herman
Bailey, at the McDonald?s restaurant in Kosciusko. This is compelling evidence that Mr.
Flowers was regarded as not being dangerous in the professional opinion of the of?cers entrusted
with transporting Mr. Flowers. Additionally, Ms. Mary Cotton, as the Case Manager in Unit 29-
where Mr. Flowers is housed, has interacted with Mr. Flowers consistently throughout his
incarceration. Ms. Cotton has access to Mr. lowers?s disciplinary records as well as personal .
knowledge of his good conduct as an inmate. However, Ms. Cotton has stated that the State of
Mississippi has a Mississippi Department of Corrections policy that prevents her
from making a written statement regarding Mr. Flowers?s conduct in prison, despite the fact
that she regards him as a model prisoner. The State of Mississippi cannot prevent witnesses
from providing evidence in this way; in any other context, interfering with witnesses in this
way would be considered obstruction. In addition, MDOC has additional records in its
possession, custody, or control attesting to Mr. Flowers?s conduct while incarcerated. Mr.
Flowers?s good behavior?evidenced by the benefits he received while incarcerated and
exhibited in the dearth of disciplinary infractions in his record over a span of 13 years prior to

his sixth trial?is mitigating evidence that should have been presented in full to the jury when

49

he was sentenced. This evidence of Mr. Flowers?s good character and lack of future
dangerousness was never sought by counsel, nor disclosed by the State, prejudiced Mr. Flowers
in terms of the sentence he received, and is highly relevant to Mr. Flowers?s ineffective
assistance of counsel claims.

Request #33. MDOC Records

Mr. Flowers respectfully requests that the Court authorize him to issue a subpoena for
records in possession, custody, or control regarding Mr. Flowers?s freedom of
movement and disciplinary record throughout his incarceration.

Request #34. Herman Bailey?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Mr. Herman Bailey to inquire as to the Mr. lowers?s freedom of movement during his
15 years of incarceration prior to his operative conviction, as well as who was aware of these
movements.

Request #35. Mary Cotton?s Deposition Testimony

Mr. Flowers respectfully requests that the Court grant leave for him to issue a subpoena
to depose Ms. Cotton to inquire as to Mr. lowers?s disciplinary record and conduct throughout

his incarceration.

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CONCLUSION

WHEREFORE, for the foregoing reasons, Mr. Flowers respectfully requests that the

Court order the Requested Discovery.

Respectfully submitted this the 7th day Of December, 2018.

CURTIS GIOVANNI

By:

51

 
 
 

RS, Mr. Flowers

 

102761
Mississippi Innocence Project

PO. Box 1848

University, MS 38677-1848

Tel: 601-576-2314

E?Mail: 

David P. Voisin, MB 100210
P.O. Box 13984

Jackson, MS 39236-3984

Tel: 601-949-9486

Email: 

Jonathan L. Abram

M. Ali

Hogan Lovells US LLP

Columbia Square

555 Thirteenth Street, NW
Washington, DC 20004-1 109

Email: 
Email: 
Tel: 202-637-5681

Tel: 202-637-5771

Admitted pro hac vice

Benjamin 1.0. Lewis

4915 13th Street N.
Arlington, VA 22205

Email: bjolewis@gmail.eom
Tel.: 919-600-3708
Admitted pro hac vice

Counsel/or Petitioner

CERTIFICATE OF SERVICE
The undersigned attorney for Cmtis Giovanni Flowers hereby certi?es that he has caused
to be mailed by electronic mail and by U.S.P.S. maiL postage prepaid, a true and correct copy of

the above motion to:

Hon. Jim Hood Brad A. Smith

Attorney General Special Assistant Attorney General

Office ofthe Attorney General of" Mississippi Office ofthe Attorney General ofMississippi
P. O. Box 220 P. O. Box 220

Jackson, MS 39205?0220 Jackson, MS 39205?0220
jhood@ago.state.ms.us bsmit@ago.state.ms.us.

Jason L. Davis

Of?ce ofthe Attorney General of Mississippi
P. O. Box 220

Jackson, MS 39205?0220
jdavi@ago.state.ms.us

This the 7th day of December, 2018

   

W. Tucker rrington, [02761
("aware/far Petitioner

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