In Buffey v. Ballard, 782 S.E.2d 204 (W. Va. 2015), the defendant had been imprisoned as a result of 2002 guilty plea to two counts of sexual assault and one count of robbery. The matter was before the Supreme Court of Appeals of West Virginia on appeal from the lower court’s denial of a petition for writ of habeas corpus. The case generated substantial national attention, including editorials from the New York Times and also resulted in the filing of a brief by amici curiae, consisting of former federal and state prosecutors. Justice Workman wrote the majority’s opinion.
The circumstances arose from the invasion of the home of an eighty-three year old widow and mother of a local police officer that netted the robber nine dollars and ended in the sexual assault of the widow. Subsequently, the victim described the assailant as a “while male ‘in the 25 [-year-old] area.’”
Subsequently, Buffey, a nineteen year old, was arrested for “three non-violent, breaking and entering offenses at businesses” in the downtown area. During the resulting interrogation, questions were asked and answered about the robbery and sexual assault. Buffey admitted breaking into an old lady’s house, but the details he provided were entirely inconsistent with the victim’s recounting of the crime. Buffey further denied any assault. And Buffey recanted his story as the interrogation progressed. Indeed, Buffey later informed his counsel that he had an alibi.
The timeline becomes significant. On January 22, 2002, the State Police Lab begins testing the DNA material from the rape kit. On January 29, 2002, Buffey’s counsel compels the production of information related to the sexual assault. On January 30, 2002, a plea agreement was presented to Buffey which had a time limit. On February 6, 2002, Buffey signed the plea agreement. By February 8, 2002, the Lab analyst determines the DNA material does not match Buffey’s DNA. On February 11, 2002, Buffey gave an allocution in which he admitted to the charges. On April 5, 2002, the Lab concludes from the retesting that Buffey “is excluded as the donor of the seminal fluid….” On April 29, 2002, the pre-sentence investigation was completed and a notation is made that Buffey admitted to the burglaries but denied the sexual assault. On May 21, 2002, the plea hearing is resumed and Buffey is sentenced. On July 12, 2002, the lab report is mailed to the police department at which the victim’s son was employed
At no time were the results of the lab testing divulged to Buffey or his counsel. Indeed, Buffey did not yet know the results when he filed, pro se, his first petition for a writ of habeas corpus proclaiming his innocence. The subsequently appointed counsel’s investigation resulted in the discovery that the DNA testing report had been issued in April, 2002, and the petition was amended to include this fact.
The resulting omnibus hearing resulted in testimony that Buffey could not be “100%” excluded as a “potential, minor contributor” to the seminal fluids without the identification and genetic material of the primary contributor. The petition was denied and the Supreme Court denied the petition for an appeal.
Seven years later, Buffey’s most recent counsel obtained additional testing under the provisions of W. Va. Code §15-2B-14, enacted in 2014, and obtained new details in the reporting “by employing newly-developed testing methods.” This testing concluded that Buffey was neither a primary or secondary source of the seminal fluid. Moreover, submission of the results into the national database identified the source as a current inmate in a West Virginia prison who at the time of the commission of the crime was “sixteen years old …, lived a few blocks from …[the victim], had a history of sexual violence, and had been …[the victim’s] paper boy.”
Nonetheless, the second petition for a writ of habeas corpus was denied. Testimony existed that Buffey and the actual source of the DNA knew each other both socially and engaged in joint criminal ventures. The circuit court reasoned that the DNA evidence did not “unequivocally determine whether or not [Buffey] was actually present [at the crime scene] and a participant in the various activities giving rise to the … criminal charges.” The lower court also disregarded the claim that the prosecution knew about the initial reports as early as February, 2002, during the initial testing, yet never disclosed the results.
Notably, Buffey pled guilty and his allocution admitted the commission of the crimes, and, in return, charges of burglaries of various businesses were dismissed even though Buffey had effectively admitted the charges. The editor presumes the fact that Buffey could have been convicted of these charges and sentenced to a similar period as the current sentence might have influenced the lower court’s consideration of the matter.
The Supreme Court of Appeals opined, however, that the failure of the state to disclose the potentially exculpatory evidence mandated relief for Buffey. Accordingly, the other grounds for relief founded on ineffective assistance of counsel and an actual claim of innocence were not determined.
Essentially, the Supreme Court found a violation of Brady v. Maryland, 373 U.S. 83 (1963). The compelling issue to be decided is whether Brady, directed toward trial behavior, also imposed a “duty to disclose exculpatory evidence at the plea bargaining stage.”
In a footnote, the Supreme Court remarked, “a substantial majority of criminal cases are resolved by guilty pleas; thus, plea bargaining is ‘not some adjunct to the criminal justice system; it is the criminal justice system.’” (Quoting Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012) and adding the emphasis.) The Supreme Court further noted that “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” (quoting Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) which held that a Sixth Amendment right to counsel extends to the plea bargaining process).
The Supreme Court noted that the United States Supreme Court had not imposed an obligation to disclose “impeachment evidence” before entering into a binding plea agreement. The Supreme Court also took note that the United States Supreme Court expressly distinguished such evidence from “exculpatory evidence” as not “critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant.” Based upon this indication of the federal court’s predilection and based upon its review of available precedent, the Supreme Court of Appeals of West Virginia found that “a defendant is constitutionally entitled to exculpatory evidence during the plea negotiation stage.” And a review of the evidence led to the conclusion that a Brady violation occurred, especially when the knowledge of the state police lab was imputed to the prosecutor’s office.
Res judicata did not bar relief, based upon the denial of the original petition. The new DNA testing and the fact that the prosecuting attorney’s office had knowledge of the prior DNA testing constituted newly discovered evidence, which is an exception to the res judicata bar.
Accordingly, Buffey is now entitled to withdraw his guilty plea and stand trial on the charges.
Justice Loughry concurred in a manner which indicates that the decision to grant relief should not be based on perceptions of innocence or guilt, as seemingly argued by the state in its briefing, but upon the necessary role of the prosecutor in such matters and the need to preserve integrity in the process. Accordingly, if a Brady violation occurred, it is irrelevant whether guilt would be established otherwise and relief must be granted.