Upcoming Argument in Bradshaw v. Stumpf

The first case to be argued Tuesday, April 19th is No. 04-637, Bradshaw v. Stumpf. The case (arguably poorly) presents two questions. First, whether a representation on the record from defendant’s counsel and/or the defendant that defense counsel has explained the elements of the charge to the defendant is sufficient to show the voluntariness of the guilty plea under Henderson v. Morgan. Second, and somewhat juicier, is the question whether the Due Process Clause requires that a defendant’s guilty plea be vacated when the State prosecutes someone else using evidence that is allegedly inconsistent with the first defendant’s guilt. However, both these issues are to some degree overshadowed by controversies over Ohio law and the Sixth Circuit’s interpretation of it, and over whether it matters that Stumpf could have been convicted of aggravated murder under Ohio law. (More on this below.)

Stumpf, the capital defendant in this case, admits that he was involved in the murder of Mary Jane Stout, and that he shot her husband, Norman Stout. However, he maintains that he did not shoot Mary Jane Stout; he claims that Clyde Daniel Wesley, with whom he robbed the Stouts, shot her. However, although Norman Stout survived, Stumpf pleaded guilty to aggravated murder and was sentenced to death. While the State argued in Stumpf’s case that he shot Ms. Stout, it later charged Wesley in the crime and argued, inter alia, at Wesley’s trial that Wesley shot her.

The Ohio Supreme Court affirmed Stumpf’s death sentence, and the U.S. District Court for the Southern District of Ohio denied his federal habeas petition. The Sixth Circuit, however, found that there was a reasonable probability that Stumpf’s guilty plea was not knowing and voluntary because he maintained throughout that he did not shoot Ms. Stout, while the only basis for specific intent at the plea hearing and review was his having shot Ms. Stout. It also held that the prosecutor’s use of two inconsistent theories rendered Stumpf’s plea and sentence unreliable, violating due process. As to this holding, the Sixth Circuit joined the Eighth and Ninth Circuits.

The State (as petitioner) argues that the Sixth Circuit was in error in a wide variety of ways. Its first argument is that, in reviewing whether a plea is voluntary under Henderson, a state meets its burden as long as it can point to a basis in the record supporting the voluntary nature of the plea. Here, Stumpf’s lawyer informed the court that Stumpf was aware of the elements of the charge to which he pleaded guilty; Stumpf confirmed that he had been told the elements of the crime to which he pleaded guilty. The State argues that this suffices to show voluntariness. At that point, the State contends, the burden then shifts to the defendant to show either compelling evidence outside the record of involuntariness or a showing on the record that no reasonable defendant advised by counsel would have pleaded guilty. Finally, the State argues that Stumpf’s choice to plead guilty to a charge of aggravated murder was a logical one; he was less likely to be sentenced to death if he pleaded guilty. Stumpf’s phenomenally bad luck does not make his choice irrational. Further, the State argues, the Sixth Circuit simply got Ohio law wrong: Stumpf could have been found guilty at trial of aggravated murder, whether or not he was the primary shooter, such that his insistence that he did not kill Ms. Stout is therefore consistent with pleading guilty to aggravated murder.

Stumpf contends that, even if the defendant acknowledges that the charge against him, and its elements, have been explained, where the entire record in the case casts doubt on the voluntariness of the plea, the state must – but here, did not – “offer something more” to prove voluntariness. In particular, and also in response to the argument that the charge and plea were consistent, Stumpf argues that the specific intent element of aggravated murder was met only with assertions that Stumpf was the primary shooter. In other words, even if Stumpf could have been convicted of aggravated murder as an accomplice, that was not the argument the State made; Stumpf’s assertion that he did not kill Ms. Stout was not consistent with this argument, and the confession was therefore not voluntary.

The second argument in the case also hinges, to some degree, on whether it is enough that Stumpf could have been convicted of aggravated murder even if he did not actually shoot Ms. Stout. The State, in this case, doesn’t strenuously defend the position that it is free to prosecute people on inconsistent theories. Instead, it first argues that Stumpf’s guilty plea was not inconsistent with any evidence that was presented that Wesley was the shooter; the charge did not require that Stumpf was the shooter. Second, it argues that, at trial, the prosecutor presented, as an alternative argument, the possibility that Stumpf was the shooter. Therefore, the State’s theory was that Wesley was either the shooter or criminally complicit – this is not “necessarily inconsistent” with Stumpf’s plea.

The State further contends that because Stumpf’s guilty plea was voluntary, his due process claim is effectively an impermissible collateral attack on a guilty plea. It also argues, among other things, that in any event Stumpf has no due process claim because the evidence that Wesley was the primary shooter was not available at the time of Stumpf’s trial. Stumpf, it argues, had (and exercised) a right to present this evidence to a court, in the context of a motion to withdraw his plea based on new evidence; this satisfies procedural due process. As to substantive due process, the State argues that a prosecutor may rely more or less exclusively on a voluntary and intelligent guilty plea in determining the reliability of determination of actual guilt. For good measure, the State recasts Stumpf’s claim as one of actual innocence, and argues that he would lose on that claim as well.

Stumpf claims that the evidence presented in Wesley’s case was materially inconsistent with the evidence and theory presented to secure a death sentence for Stumpf. He again argues that it is not relevant whether he could have been convicted as an abettor; the issue is what the prosecutor in fact argued in each case. He further argues that there is a reasonable probability that he would not have been sentenced to death if the prosecution had employed the same theory in both cases. He argues that the Court has recognized that prosecutors have a responsibility to pursue the truth, and that the use inconsistent theories does not reflect a dedication to pursuit of the truth. More specifically, the Court has recognized that subversion of the truth-seeking function can violate the defendant’s due process rights – as in cases where the prosecutor knowingly false testimony, or tries to exclude evidence on reliability grounds that it has used in another trial.

You can find Bradshaw’s brief here and Stumpf’s here.