178
Ginsburg, J., dissenting
the Commonwealth failed to provide fair notice that evidence concerning the Sorrell murders would be introduced at his penalty phase," App. 348; consequently, Gray became vulnerable to a death sentence on the basis of information he had scant opportunity to deny or explain, see id., at 349-351. Recalling the prosecutor's Monday morning affirmations that he would introduce only Gray's "statements," the District Court noted that Gray's lawyers were "clearly and justifiably . . . shocked" when the prosecutor reported, Thursday evening, his intention to introduce, the next day, further evidence on the Sorrell murders. Id., at 350. "The only Sorrell murder evidence which [Gray's lawyers] were prepared to challenge," the District Court recounted, "was the evidence [the prosecutor] indicated he would introduce at the outset of the trial: Melvin Tucker's statement that Gray allegedly had confessed to the murders." Id., at 346. The prosecutor's surprise move had disarmed Gray's counsel, the District Court recognized, leaving them without capacity to cross-examine Detective Slezak and Doctor Presswalla effectively, with the result that the Sorrell murders evidence "carrie[d] no assurance of reliability." Id., at 351.
"The consequences of this surprise," the District Court found, "could not have been more devastating." Id., at 350. Most critically, the prosecutor's "statements only" assurance led defense counsel to forgo investigation of the details of the Sorrell murders, including a review of the evidence collected by the Chesapeake police department during its investigation of the crimes. See ibid. Had Gray's lawyers conducted such a review, they could have shown that none of the forensic evidence collected by the Chesapeake police directly linked Gray to the Sorrell murders.4 Moreover, the evidence the Chesapeake police did obtain "strongly sug-4 The District Court noted, in this regard, that an investigator engaged by Gray's federal habeas counsel had run a driving test indicating that "Coleman Gray could not have performed the Sorrell murders on his wife's dinner hour, as the prosecutor speculated." Id., at 345, n. 5.
Page: Index Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 NextLast modified: October 4, 2007