NEWARK (LN) — The three-judge panel held Wednesday that the suppressed report was material because the witness — Tanner's cousin and co-defendant, identified only as W.J. — provided the only direct evidence tying Tanner to a string of Middlesex County gas station and convenience store robberies in 2003. The opinion is designated non-precedential.
Tanner had been sentenced to an aggregate 45-year prison term, subject to New Jersey's No Early Release Act, after a jury in February 2006 credited W.J.'s testimony that he drove Tanner to commit four armed robberies across South Brunswick, Edison, and North Brunswick.
The suppressed report came from Peter Krakoff, PhD, who examined W.J. before trial of W.J.'s own defense counsel. Notes from an October 4, 2004 status conference by the initially assigned assistant prosecutor recorded the substance of Krakoff's findings: W.J. was so slow he probably did not understand his Miranda rights and would be overborne by police. The initial prosecutor never received a written report and retired roughly seven months before trial. The trial prosecutor, who took over six months before trial, said she never reviewed the voluminous file and was unaware of the notes or the oral report.
The panel found that gap in disclosure fatal. The trial prosecutor's constructive possession of her predecessor's notes — and the oral report those notes described — triggered Brady obligations regardless of whether a formal written report ever materialized, the court held, citing State v. Carter for the proposition that oral reports are not exempt from disclosure. The panel also rejected the PCR court's finding that Tanner's own counsel could have discovered the information with reasonable diligence, noting that diligence is a factor in newly-discovered-evidence motions, not a defense to a Brady claim.
The panel held the suppressed report was material because W.J.'s testimony was the only direct evidence against Tanner. Surveillance video recorded the robberies but did not clearly identify the assailant. Tanner's statements to police — including an inculpatory remark that if police knew what he had done they would run — and to his girlfriend that he had hurt someone were, the court noted, vague and subject to interpretation. Without W.J., the State's case was wholly circumstantial.
The defense's psychiatric expert, Kenneth J. Weiss, M.D., testified at the post-conviction evidentiary hearings that W.J. was psychotic of his arrest and police interrogation, making him susceptible to suggestion through a process of internalization in which leading questions "cue the individual as to what they're expected to say" and the person then recites it "as if it were the person's own narrative." Had Krakoff's findings been disclosed, the panel concluded, Tanner could have independently obtained the psychiatric report, subpoenaed Krakoff to testify, and mounted a far more effective cross-examination of the witness whose credibility the jury's verdict turned on.
The panel rejected Tanner's remaining Brady arguments. It found no proof of a secret plea agreement beyond what the jury heard — that W.J. faced roughly 40 charges and something like 50 years without a deal, and received a three-year sentence in exchange for truthful testimony. It also declined to find a Brady violation in the State's conceded suppression of W.J.'s pretrial statement that he never saw a North Face logo on Tanner's hat, concluding that statement was not material given DNA evidence placing Tanner's genetic material on the recovered North Face ski mask. And it upheld the PCR court's finding that the trial prosecutor's practice of preparing witnesses with scripted questions and anticipated answers, while raising some concern, did not produce testimony that was substantially misleading in a constitutionally cognizable way.
The court reversed and remanded for a new trial without retaining jurisdiction.
W.J. recanted his trial testimony at an initial 2018 PCR hearing, then recanted the recantation at a subsequent hearing in December 2019 — a pattern the panel noted without resolving, since the Brady ruling made the newly-discovered-evidence claim moot.