A Compelling New Series on Wrongful Convictions by Kristine Guerra of the Indy Star

Kristine Guerra, the primary courts reporter for the Indianapolis Star, has started “Stolen Freedom,” “an occasional Star series that examines the issue of wrongful imprisonment and shares the stories of people who have suffered this injustice.” Her first entry dealt with the case of Keith Cooper, who is still waiting for a pardon eleven years after “DNA evidence implicated another man” of the armed robbery that led to Cooper’s conviction. He’s not alone. According to the article, “[s]ixteen pardon petitions, including Cooper’s, are awaiting [Governor] Pence’s decision.”

Yesterday, Guerra posted her second entry in this series, and it contains some distressing allegations about falsifying evidence.

These allegations are disturbing on both an emotional and a legal level. In 1995, a fire that started in Kristine Bunch’s mobile home took the life of her three year-old son Anthony. After being convicted of felony murder, Bunch gave birth to a second son, Trenton, in prison. Sixteen years after going to prison, Bunch was released based on a significant Brady violation. This violation is spelled out in Guerra‘s piece:

According to Bunch’s complaint, [Indiana State Fire Marshal investigators Bryan] Frank and [James] Skaggs concluded that the fire had been deliberately set by pouring liquid accelerants in the Greensburg mobile home, and that the fire had started in two places: in the living room and in the bedroom where Anthony had been sleeping.

But an initial report prepared by William Kinard, a forensic chemist for the Bureau of Alcohol, Tobacco, Firearms and Explosives, said that no flammable or combustible liquid was found in wood samples taken from the bedroom and the living room, particularly the area where investigators claimed to have found “pour patterns,” the complaint says.

Because Kinard’s findings contradicted their arson theory, Frank and Skaggs conspired with the chemist to alter the report, the lawsuit alleges.

[Jan] Susler, of the Chicago law firm People’s Law Office, said Kinard prepared two other versions of the report: a typed one with some handwriting that alters the findings of the first one, and a third, typed version that says accelerants were found in the samples.

The third version was the official one provided to prosecutors, who then used it as evidence against Bunch. The original one was concealed from attorneys, the lawsuit alleges, and was not discovered until years after Bunch was convicted and sentenced.

Based on the nature of this violation, you might have expected the State to concede that there was wrongdoing, allowing Bunch to be released. Instead, they fought it. In Bunch v. State, 964 N.E.2d 274 (Ind.App. 2012), the Court of Appeals of Indiana noted that the State successfully argued to the postconviction court that “the complete ATF documents were work product exempt from Brady, citing several out-of-jurisdiction cases determining that because Brady is of constitutional dimension, it trumps rules prohibiting discovery of work product.”

The Court of Appeals disagreed, concluding that

The report at issue herein is not akin to a police report or other investigative notes which are protected as work product, and the State never alleged that they were….Even if they were, however, the “defendant’s right to fundamental due process outweighs the State’s interest in nondisclosure.”…Thus, the Brady rule can require disclosure of evidence not otherwise discoverable if the evidence is shown to be exculpatory. 

The State had also successfully argued to the postconviction court that it did not know of the contents of the ATF file.” Listeners of Undisclosed will know why this argument was turned aside by the Court of Appeals: Under Kyles v. Whitley, “prosecutors have a duty ‘to learn of any favorable evidence known to the others acting on the government’s behalf in the case….'”

In her story, Guerra notes that Bunch’s civil lawsuit based on State misconduct is currently on hold pending an interesting legal issue that I will address in a post tomorrow. But possible compensation can only partially heal some wounds. According to the story,

Bunch and her teenage son live in different states, more than 200 miles apart.

They talk on the phone once or twice a week, Bunch said. In many ways, it is a distant relationship.

“Well, umm, we know each other,” Bunch said. “That’s about it.”

I think that both pieces in Guerra‘s “Stolen Freedom” series are compelling works of legal journalism, look forward to future entries, and strongly encourage readers to check them out. 

-CM