Former Prosecutor, Now on Arkansas Supreme Court, Cited for ​‘Bad Faith’ Destruction of Exculpatory Evidence in Death Penalty Case

The United States Court of Appeals for the Eighth Circuit has found that a for­mer pros­e­cu­tor now serv­ing as a jus­tice on the Arkansas Supreme Court delib­er­ate­ly destroyed excul­pa­to­ry evi­dence in a case in which he had sought the death penal­ty. On April 29, 2020, a unan­i­mous three-judge pan­el of the fed­er­al appeals court affirmed the rul­ings of a fed­er­al dis­trict court over­turn­ing the con­vic­tions of life-sen­tenced pris­on­ers Tina Jimerson and John Brown, Jr. because of the ​“bad faith” mis­con­duct of then-deputy pros­e­cu­tor Robin Wynne (pic­tured, left). Wynne has served on Arkansas’ high court since 2015.

Jimerson and Brown had raised claims of ram­pant pros­e­cu­to­r­i­al mis­con­duct in the case, but the appeals court deci­sion in their cas­es turned on Wynne’s sup­pres­sion and destruc­tion of a record­ed state­ment obtained by a prison infor­mant that would have under­mined the tes­ti­mo­ny of a crit­i­cal pros­e­cu­tion wit­ness. The appeals court wrote that Wynne and law enforce­ment had ​“worked togeth­er to inten­tion­al­ly con­ceal [the recording’s] exis­tence from the defense,” ​“effec­tive­ly con­cealed the fact that a record­ed con­ver­sa­tion took place,” and destroyed the record­ing. It also wrote that Wynne pro­vid­ed ​“untruth­ful answers” to the defen­dants’ requests seek­ing dis­clo­sure of all record­ings, active­ly pre­vent­ing the defen­dants from learn­ing about it. This ​“bad faith” destruc­tion of evi­dence, the court said, enti­tled the defen­dants to new trials.

Jimerson and Brown (pic­tured, below, right) were tried along with a third co-defen­dant, Reginald Early, for the 1988 mur­der of Myrtle Holmes. A fourth sus­pect, an intel­lec­tu­al­ly impaired man named Charlie Vaughn, con­fessed and plead­ed guilty to first-degree mur­der to avoid the threat of a death sen­tence. No phys­i­cal evi­dence linked Brown, Vaughn, or Jimerson to the crime. Vaughn impli­cat­ed Early and Brown as his accom­plices in rap­ing and mur­der­ing the vic­tim and impli­cat­ed Jimerson as the getaway driver.

The pros­e­cu­tion sought the death penal­ty, charg­ing the three men with rape as well as cap­i­tal mur­der. However, DNA test results con­tra­dict­ed Vaughn’s sto­ry, exclud­ing both him and Brown as sources of DNA evi­dence. Early, how­ev­er, could not be exclud­ed. That tri­al end­ed with a hung jury, with six jurors vot­ing to acquit. At their sec­ond tri­al, in 1992, pros­e­cu­tors dropped the rape charges and no evi­dence relat­ing to the DNA was pre­sent­ed. The jury con­vict­ed Brown, Jimerson, and Early of first-degree mur­der and sen­tenced them to life in prison.

The case broke open in 2014, when an inves­ti­ga­tor for Northwestern University Law School’s Center on Wrongful Convictions, which was rep­re­sent­ing Jimerson, inter­viewed Dallas County Sheriff Donny Ford. Ford said that in 1991, he had inten­tion­al­ly plant­ed an infor­mant in the same jail cell as Vaughn, and that the infor­mant had secret­ly record­ed state­ments from Vaughn. Investigators were able to iden­ti­fy and con­tact the infor­mant, Ronnie Prescott, who con­firmed that he had told Vaughn he would face a death sen­tence if he didn’t con­fess and name the oth­ers as accom­plices. Unrelated charges against Prescott were dropped in exchange for him obtain­ing the state­ments from Vaughn. Despite the exis­tence of a record­ing, Wynne, the pros­e­cu­tor at the time, respond­ed to a pre-tri­al request by stat­ing he had ​“no knowl­edge of any infor­mant who led to or assist­ed in mak­ing the arrest in this mat­ter.” He told defense attor­neys in 1991 that the state only had record­ings of con­ver­sa­tions with two wit­ness­es, and that no infor­mant had been offered lenien­cy or oth­er incen­tives. Police delib­er­ate­ly omit­ted any ref­er­ence to the record­ing in their report of infor­ma­tion they had received from Prescott.

The Eighth Circuit wrote that, because the record­ing was con­cealed and destroyed, ​“We do not know if Vaughn reluc­tant­ly and ner­vous­ly con­fessed and impli­cat­ed oth­ers, or if he will­ing­ly and con­fi­dent­ly” did so. ​“What we can con­clude on this record is the fail­ure to make any men­tion of the fact that Prescott record­ed con­ver­sa­tions with Vaughn in a hand­writ­ten state­ment … com­bined with the fail­ure to dis­close the record­ing is evi­dence of a con­scious effort to sup­press evi­dence. The delib­er­ate omis­sion is indica­tive of bad faith” on the part of police and pros­e­cu­tors. Establishing ​“bad faith” destruc­tion of evi­dence allowed Jimerson and Brown to pur­sue claims under the U.S. Supreme Court deci­sion Youngblood v. Arizona.

Further evi­dence of Brown’s and Jimerson’s inno­cence came to light in 2015. After learn­ing that new DNA test­ing meth­ods could deter­mine who had raped Holmes, Early came for­ward and admit­ted that he had com­mit­ted the rape and mur­der alone. He told the Innocence Project that he did not know Jimerson or Brown, and bare­ly knew Vaughn. 

In 2018, a fed­er­al dis­trict court ordered the release of Brown and Jimerson, pend­ing the out­come of the appeal. Arkansas pros­e­cu­tors must now decide whether to retry them.