for a writ of habeas corpus for his failure to exhaust state remedies. The Illinois Appellate Court then affirmed the dismissal of Miller's petition for post-conviction relief on March 31, 1988, a decision which the Illinois Supreme Court denied Miller leave to appeal.
Miller thus has returned to this court, petitioning once again under 28 U.S.C. § 2254 (1982) for a writ of habeas corpus. He restates his arguments that the state denied him due process under the Fourteenth Amendment by withholding and destroying potentially exculpatory evidence. The state insists that Miller should not get relief, essentially because Miller has not shown how the withheld or destroyed evidence would have helped him. This argument, were the court to accept it, would place prisoners like Miller in a paradoxical position: in order to obtain a new trial, the prisoner would have to show that the evidence would have made a difference, but since the state has allegedly destroyed the evidence, such a showing could be impossible.
In order to resolve this paradox, the court will look more closely at the right which Miller claims. The Due Process Clause of the Fourteenth Amendment requires states to disclose material information to a criminal defendant that would tend to exculpate the defendant, especially when the defendant requests production of the information. See Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); United States v. Bagley, 473 U.S. 667, 674-76, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) (Blackmun) (applying Due Process Clause of Fifth Amendment). Evidence is "material" for purposes of the Due Process Clauses "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682. See also U.S. v. Herrera-Medina, 853 F.2d 564, 567 (7th Cir. 1988).
The problem with applying the due process requirements of Brady and Bagley to this case is that the record does not indicate what the withheld or destroyed evidence is. Were the court to construe the record most favorably to the state, the missing evidence was a simple stop order, one stating that officers should contact Area 4 were Miller apprehended and listing McHugh as the issuing officer. But were the court to take Miller's allegations as true, the state withheld or destroyed exculpatory files that accompanied the stop order, in accordance with a practice akin to the Chicago Police Department's practice of maintaining "street files." See Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988) (describing practice). Without knowing what the evidence was, no court can determine if the evidence was "material."
The Supreme Court recently addressed the difficulty of guaranteeing due process in cases like this one in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). There the state obtained evidence relating to a sexual assault on a minor. Rather than analyzing the evidence close to the time of the assault, the police waited ten days. A police criminologist then tested the evidence in accordance with standard procedures, and prepared written notes of his findings.
Police later arrested and charged Youngblood with the crime. After receiving a Brady-style request for exculpatory information, the state produced all relevant police reports, including the criminologist's findings, as well as allowed Youngblood's expert to examine the forensic evidence. Youngblood contended at trial, however, that had the state tested the samples closer to the time of the crime, or had stored the evidence better, the evidence could have exculpated him. The jury convicted Youngblood, but the Arizona courts reversed the conviction, holding that when identity is an issue and the state is responsible for the destruction of possibly exculpatory evidence, such destruction amounts to a denial of due process. Id. at 336, 335.
The Supreme Court reversed the Arizona court and remanded for further proceedings. The court noted first that the state had complied with Brady by producing all of its reports. The question for the court thus became whether the Due Process Clauses imposed some other duty "over and above that imposed by cases such as Brady. . . ." The Court reviewed its precedents regarding the loss of possibly exculpatory evidence, noting that when such evidence is lost, "courts face the treacherous task of deciding the import of materials whose contents are unknown and, very often, disputed." The court hesitated, however, to impose upon police "an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Instead, the court held that the loss of evidence could constitute a denial of due process only when the criminal defendant demonstrates that state officials acted in bad faith. Id. at 336, 337, quoting California v. Trombetta, 467 U.S. 479, 486, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984).
Youngblood directs this court to inquire whether Chicago police lost or destroyed evidence in bad faith. This is a factual question, one not answered in prior proceedings. If this court eventually finds that the state destroyed evidence in bad faith, this may not end the inquiry: Trombetta holds that Miller must produce facts indicating at least a better than slim chance that the evidence that was allegedly destroyed could have exculpated him, and that he had no alternative means of producing this evidence. See Trombetta, 467 U.S. at 488-90.
Accordingly, the court gives Miller thirty days to submit to the court (1) what he believes the missing filed contained, (2) why these materials could have exculpated him, and (3) why he had no alternative means of obtaining this evidence. The state will have fifteen days from the time of Miller's filing to respond. Once the parties have submitted these materials, the court will decide how to proceed further.
DATE: August 14, 1989
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