SC. Supreme Court No. 16-151-C.A.
Plaintiff: J. Patrick Youngs, III, Esq., John M. Moreira,
Esq. Lauren S. Zurier, Esq.
Defendant: Michelle M. Alves, Esq.
December 8, 2015 a jury convicted Willie Washington of
shooting a food delivery driver in a fit of road rage in the
middle of the Providence College campus on November 15, 2014
at about 1:00 a.m. The evidence at trial included an
anonymous 911 caller who offered the license plate of the
shooter's vehicle. Two visiting nursing students from
Connecticut identified the defendant as the shooter at
separate show-ups after the police had arrested him during a
foot chase not far from the campus and within about ninety
minutes of the shooting. This Court denied the
defendant's motion for a new trial on December 18, 2015,
and he appealed his conviction to the Supreme Court.
March of this year, the defendant's private investigators
learned that the 911 caller was Stephen Rasch, then a
nineteen-year-old Providence College freshman from Dallas,
Texas. After Washington's appellate attorneys from the
Public Defender's Office spoke with Rasch on April 18 and
May 1, 2017, the defendant interrupted his appeal,
complaining to the Supreme Court that the state's trial
attorneys had actually known about Rasch prior to trial. He
has also alleged that the prosecutors were aware that Rasch
was accompanied by another person who was a percipient
witness to the incident. Invoking Brady v. Maryland,
373 U.S. 83 (1963) and state decisional law, the defendant
accused the state of intentionally concealing this
information and contended that those nondisclosures have
earned him a new trial.
pleadings before the Supreme Court, accompanied by affidavits
of the appellate attorneys who had spoken with Rasch, the
defendant avowed that the state "deliberately
suppressed and misstated the facts" (his emphasis)
and "intentionally withheld and misrepresented"
facts to support the admissibility of Rasch's 911 call.
(Def.'s May 2, 2017 Supreme Ct. Suppl. Mem. at 1-2;
Def.'s May 4, 2017 Supreme Ct. Reply at 1.) The defendant
specified that "the state withheld the following
critical information from the defense concerning that 911
1. "The identity of the 'anonymous' 911 caller -
now known to the defense as Chase Rasch, a student at
Providence College - who reported the purported license plate
of the shooter's vehicle;
2. "That Chase Rasch spoke to police at the scene
immediately after the shooting and provided police with his
name and contact information;
3. "That one of the trial prosecutors spoke with Chase
Rasch before trial, in the summer of 2015, by calling him on
the same cell phone number that placed the 911 call; and
4. "That after speaking with Chase Rasch, the state
decided not to call Mr. Rasch as a witness, list him in
discovery, or disclose his identity to the defense."
(Def.'s Apr. 28, 2017 Supreme Ct. Mem. in Supp. of Mot.
to Remand at 2; Def.'s May 2, 2017 Supplement at 1).
15, 2017, over the state's objection, the defendant
secured from the Supreme Court an order remanding the case
and directing the Superior Court to conduct a hearing within
ninety days to "decide the defendant's
Brady-related motion for new trial" (hereafter
referred to as the "Remand Order" and the
"Remand Hearing"). On Monday, June 19, 2017, this
Court commenced and concluded the hearing. Witnesses included
the three lawyers who conducted the trial: Special Assistant
Attorneys General Joseph McBurney and his co-counsel Peter
Roklan; the defendant's trial counsel, Assistant Public
Defender Sarah Potter; and Stephen Rasch, the 911 caller whom
the defendant learned of in March of this year.
which were submitted to the Court by agreement included all
of the 2015 Superior Court pretrial and trial transcripts, as
well as transcripts of Rasch's 911 call, the March 24,
2017 interview of Rasch by the defendant's private
investigator Edward Pelletier, the May 1 and May 2, 2017
interviews of Rasch by Providence Police Det. Angelo
A'Vant (accompanied by Det. Jonathan Primiano on May 1),
copies of November 24, 2014 text messages between Rasch and
his "Uber driver" friend, Alberto Bautista, and an
ATT telephone record of the Attorney General. Audio
c.d.'s of the 911 call and of the interviews were also
submitted. After the hearing, the Court took the matter under
advisement, pending a written ruling.
Motion to Recuse
outset, this Court is obliged to address the defendant's
recusal motion, which he filed four days after the Remand
Hearing had already been completed. The defendant proposes
disqualification because Mr. McBurney was once teamed with
Allison Krause (this Court's daughter who, like Mr.
McBurney, is also a Special Assistant Attorney General) to
assist in the prosecution of an unrelated case in another
courtroom. In essence, the defendant suggests that a rational
observer would conclude that this Court would accord extra
weight to Mr. McBurney's credibility versus that
of Ms. Potter purely because Mr. McBurney and Allison Krause
were simply doing their assigned jobs: jointly pursuing an
entirely unrelated matter, with completely different facts
and allegations, before a different judge, regarding an
unconnected case which was informed long before the Supreme
Court ever saw Willie Washington's remand motion.
Conspicuously, that joint prosecution which the defendant
tenders as key support for his recusal motion was, in the
end, never even contested. It was resolved by a nolo
contendere plea in another courtroom before Washington
ever launched his argument at the recusal hearing. Indeed,
Mr. McBurney was not even present in that courtroom for that
defendant, through present counsel, Michelle Alves, a senior
Assistant Public Defender, has admitted that the motion is
not one which would support a claim of actual prejudice or
favoritism. At the June 26, 2017 hearing on the motion, Ms.
Alves, and perforce her client, admitted that the recusal
claim is "not one of actual bias or actual failure to be
impartial." (Recusal Hearing Tr. 5.) Instead, the
defendant asserts that circumstances exist which would cause
"reasonable  members of the public or a litigant or
counsel to question the trial justice's
impartiality." State v. Clark, 423 A.2d 1151,
1158 (R.I. 1980). He is mistaken.
importantly, and entirely dispositive of his motion, is the
defendant's considerable misjudgment as to whose
credibility is really in the balance. It is not at all a
credibility contest between Mr. McBurney and Ms. Potter.
Rather, it is a question of whether Stephen Rasch's
testimony can withstand scrutiny. The success or failure of
the defendant's new trial motion is essentially riding on
Rasch, not McBurney or Potter. Rasch is the central witness
of the Remand Hearing, and it is his credibility which is at
stake. After all, if the Court finds that Rasch never offered
any Brady information to Roklan, the defendant's
motion is valueless ab initio.
discussed, infra, it is entirely unnecessary for
this Court to weigh what the three attorneys said to each
other. To the extent that there need be a paired credibility
appraisal at all, it is between Roklan and Rasch. From its
front row observation post, this Court easily finds that
Rasch fares very badly on his own scale and is acutely
deficient on a scale with Roklan.
axiomatic that trial judges should recuse themselves if they
are unable to render a fair or impartial decision,
Mattatall v. State, 947 A.2d 896, 902 (R.I. 2008).
It is "an equally well-recognized principle that a trial
justice has as great an obligation not to disqualify himself
or herself when there is no sound reason to do so."
Kelly v. RIPTA, 740 A.2d 1243, 1246 (R.I. 1999)
(citing State v. Clark, 423 A.2d at 1158). The
proponent of a recusal motion shoulders a "substantial
burden" to prove the existence of judicial bias. In
re Jermaine H., 9 A.3d 1227, 1230 (R.I. 2010). The
defendant has failed to carry his burden by the widest of
* * *
the record is not incomplete, other fatal shortcomings of the
defendant's partiality motion invite exposure.
fails to recognize that the test for recusal extends far
beyond Clark's three-part evaluation. The Rhode
Island Supreme Court has erected an additional barrier to a
partiality motion. "The party seeking recusal bears the
burden of establishing that the judicial officer possesses a
personal bias or prejudice by reason of a preconceived or
settled opinion of a character calculated to impair his or
her impartiality seriously and to sway his or her
judgment." State v. Howard, 23 A.3d 1133, 1136
(R.I. 2011) (internal quotations and brackets omitted).
Indeed, the United States Supreme Court has decreed that the
moving party must demonstrate that the court's purported
impartiality is "so extreme as to display clear
inability to render fair judgment." Liteky v. United
States, 510 U.S. 540, 551 (1994); see United States
v. Howard, 218 F.3d 556, 566 (6th Cir. 2000). The
defendant has not only completely failed to make any such
showing, he has openly admitted that his recusal motion does
not even include such reproaches.
ill-timed recusal motions, such as this one, "result in
increased instances of wasted judicial time . . . and a
heightened risk that litigants would use recusal motions for
strategic purposes . . ." Preston v. United
States, 923 F.2d 731, 733 (9th Cir. 1991) (citation
omitted); In re Medrano Diaz, 182 B.R. 654, 658
(D.P.R. 1995) ("Such delay in taking action surely
results in a waste of judicial resources and can only be seen
as [an] attempt to take a second bite of the proverbial
apple, that is, to manipulate the judiciary in order to avoid
the consequences of an adverse judgment.").
defendant's stated excuse for filing this post-hearing
recusal motion includes his professed surprise by Mr.
McBurney's testimony. (Recusal Hearing Tr. 2-3.) That Mr.
McBurney (or, for that matter, Mr. Roklan) would flatly deny
withholding any Brady information could scarcely
have been a revelation to the defendant. He knew full well,
from the state's denial of his accusations and from its
objection to his remand request in the Supreme Court, that
the prosecutors would most assuredly challenge and contradict
his claims of nondisclosure.
* * *
Remand Hearing has been concluded, but the defendant is
demanding a full reprise of all the witnesses and is shopping
for a different judge, not because of any actual bias or
predisposition on the part of this Court (which he and his
attorney have acknowledged do not support the partiality
motion), but because of purely mistaken conjecture. Like Mr.
Justice Breyer's unicorn, the defendant's recusal
motion finds its home in the imagination, not in the
courtroom. Henderson v. United States, 133 S.Ct.
1121, 1129 (2013).
defendant's recusal motion is denied.
Motion for a New Trial
apart from its discovery obligations pursuant to Rule 16 of
the Rhode Island Superior Court Rules of Criminal Procedure,
the state's pretrial disclosure responsibilities also
have constitutional dimensions which have been addressed in
Brady and countless other decisions by the United
States and Rhode Island Supreme Courts. Cases such as
Tempest v. State, 141 A.3d 677 (R.I. 2016),
State v. Wyche, 518 A.2d 907 (R.I. 1986), Turner
v. United States, ___ U.S. ___ (No. 15-1503, June 22,
2017), and myriad others address a prosecutor's
obligation to disclose exculpatory information, and they
prescribe tests to determine whether or not a failure to do
so was intentional and the consequences to be assessed for
deliberate nondisclosure. The rules themselves are not
particularly complex; it is the Brady examination
itself which is "fact intensive." Turner,
slip op. at 2. What is gleaned from Brady and its
progeny, in nutshell fashion, are the following principles:
• The Brady decision holds that if the
prosecution has suppressed evidence that would be favorable
to the accused, and that evidence is material to guilt or
punishment, the defendant is entitled to a new trial.
Tempest 141 A.3d at 682.
• Rhode Island law extends Brady: When the
failure to disclose is "deliberate, " the degree of
harm to the defendant is not considered, and a new trial will
automatically be granted. Tempest 141 A.3d at 682.
• The prosecution acts "deliberately" (1) when
it makes a considered decision to suppress for the purpose of
obstructing, or (2) where it fails to disclose evidence whose
high value to the defense could not have escaped its
attention. Tempest 141 A.3d at 683.
• Impeachment evidence (even if it appears facially
inculpatory), as well as exculpatory evidence, falls within
the disclosure rules. United States v. Bagley, 473
U.S. 667, 676 (1985).
• If the nondisclosure is not deliberate, the defendant
is not entitled to a new trial unless he demonstrates that
the undisclosed evidence is "material."
Bagley, 473 U.S. at 682; see DeCiantis v.
State, 24 A.3d 557, 571 (R.I. 2011).
• Material evidence, either in the nature of exculpatory
or impeachment evidence (unless the latter is merely
cumulative), must be sufficiently central to the criminal
case. State v. Briggs, 886 A.2d 735, 755 n.8 (R.I.
• Evidence is "material" if there is "a
reasonable probability" that, had it been disclosed,
"the result of the proceeding would have been
different." Lerner v. Moran, 542 A.2d 1089,
1091 (R.I. 1988); Bagley, 473 U.S. at 682; State