10-2435 McCarthy v. Pollard

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Habeas Corpus
Due process; exculpatory evidence

Where the vehicle did not have any apparent exculpatory value in a prosecution for causing injury while intoxicated, it was not a violation of due process for police to destroy it.

“After being ordered out of his car, McCarthy drove away at a high rate of speed, eventually crashing into a police call box and driving in reverse into an intersection.

Even if, as McCarthy contends, he ran into the police call box because his brakes failed, the brake failure would not have been apparent to the police before the vehicle was destroyed because (1) there was no evidence of brake failure near the police call box or anywhere else, such as brake fluid in the street; (2) total brake failure is uncommon—a proposition defense counsel conceded at oral argument; (3) after the police
loudly announced their presence and ordered McCarthy to get out of his car, they had every reason to think that McCarthy’s flight was motivated by a desire to evade arrest for solicitation of a prostitute, and that his subsequent crash into the call box was caused not by brake failure but by reckless driving; and (4) if McCarthy’s brakes had in fact failed prior to crashing into the call box, it seems unlikely (i.e., not apparent) that he would continue his flight while knowing that his brakes were faulty. Thus, quite contrary to being apparent, ‘no more can be said [about the vehicle] than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ See Youngblood,
488 U.S. at 57 n.*. We therefore cannot say that the Wisconsin Court of Appeals unreasonably concluded that the vehicle used in the offense did not possess an exculpatory value that was apparent before it was destroyed.”

“In addition to being unable to prove the apparently exculpatory nature of the vehicle, McCarthy cannot prove that the State destroyed the vehicle in bad faith.

A finding of bad faith in these circumstances turns on ‘the [government’s] knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’ Youngblood, 488 U.S. at 57 n.*. Instead of presenting evidence of the government’s knowledge, however, he argues only that the State acted in bad faith because (1) the crime was ‘vehicle-related’; (2) the prosecutor did not adequately explain his decision to release the vehicle while McCarthy lay in a coma; (3) the prosecution stated in closing argument that there was no evidence of brake failure; and (4) Wisconsin courts improperly focused on the State’s adherence to protocol when determining that the State did not act in bad faith. Taking each
assertion as true, we cannot find that these four concerns amount to a showing of bad faith and that the Wisconsin Court of Appeals acted unreasonably in concluding otherwise.”

Affirmed.

10-2435 McCarthy v. Pollard

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Bauer, J.

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