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Pike County Circuit Judge Jeffery Kelley stated in his order that two statements made by victims contained evidence that could have cleared the defendant of any guilt and that the state never provided copies of that evidence to the defense and is therefore material for a Brady violation.
While the full order is too graphic to post, the court found these discrepancies and listed them in the public document:
1. The evidence including the statements of M.B., J.H., K.H., that victim, M.B. identified another person in a photo lineup, that the time line log shows that M.B. was texting at 4:45 p.m. that she was about to get in the tub and her statement that she had not gotten in the tub prior to the rape was suppressed by the State and the evidence is exculpatory and impeachable.
2. The court further finds that since there was no forensic evidence or physical evidence tying the Defendant to the rapes and burglary other than witness testimony, that the creditability, truthfulness and reliability of the testimony of such witnesses may well have been a determining factor of guilt. The court finds the suppressed evidence is material and if the evidence had not been suppressed that there is a "reasonable probability" that the results of the proceeding would have been different and a reasonable probability is sufficient to undermine the confidence in the outcome.
3. Much of the suppressed/non-disclosed evidence would have provided the defense with an opportunity to impeach the creditability of the witnesses and the credibility investigation. Portions of the suppressed evidence would have tended to exculpate the Defendant. Such evidence would include the fact that M.B. had identified another person in a photo lineup; J.H.'s testimony about calls to M.B. which could attack the time line and the text messages and call log of M.B. showing text at 4:45 p.m.
4. That exculpatory and impeachable evidence was suppressed, that the suppressed evidence was favorable to the defense and that suppressed evidence was material and there is a reasonable probability that nondisclosure of the favorable evidence could have undermined the confidence of the verdicts.
5. That the suppressed evidence along with the fact that the mother of M.B. cleaned up the blood from the scene, that M.B. and J.H. deliberately deleted text messages while M.B. was headed to the hospital and the fact that M.B. initially told the doctor she fell on something (instead of being raped); the fact that M.B. was not truthful and candid on direct about her actions prior the alleged rape all that cumulatively would have lead the court to find that the Defendant is entitled to a new trial based on the suppression of evidence in violation of Brady and the Standing Discovery Order of this court.
Due to the Brady violation, Judge Kelley granted the defense's motion for a new trial on both the rape and burglary charges against Ellis.
Kelley added that this non-disclosure was not intentional or malicious on the part of the State however he believes there may be additional evidence that has yet to be turned over despite a court order to do so.
"Society not only wins when the guilty are convicted but when criminal trials are fair;" wrote Judge Kelley. "Our system of administration of justice suffers when any accused is treated unfairly."
The State issued a statement saying that while it was respectful of the court's decision, it disagrees and is disappointed with the findings of the court as well as the outcome.
The statement went on to say the Office of the District Attorney is currently reviewing all available options it has with the Court of Criminal Appeals and intends to seek any and all appropriate relief available.
A scheduling conference for a new trial has been set for August 1, 2013.