Prosecutor’s Non-Disclosure Leads to High Court Reversal of Death-Row Prisoner’s Conviction

Prosecutor’s Non-Disclosure Leads to High Court Reversal of Death-Row Prisoner’s Conviction

The U.S. Supreme Court has handed down a per curiam (“by the court”) order reversing the murder conviction 14 years earlier of a Louisiana death-row inmate. In the fairly unusual per curiam procedure, the Justices decided the case based only on briefs filed by both sides on whether the case should be heard and the record of state trial and appellate courts. The Supreme Court held no public argument in the long-delayed March 7 Wearry v. Cain case (which the Justices were originally scheduled to deliberate last November), and its summary decision was unsigned.

The case dealt with the 1998 robbery murder of Eric Walber, a high school student in Hammond, Louisiana, who worked evenings delivering pizza. The investigation went nowhere for two years, until Sam Scott, an inmate serving time on drug charges, said he had witnessed the murder and implicated Wearry and others.

Though not disclosed, Scott’s initial statement had significant inaccuracies, misidentifying the murder method (saying Walber had been shot, when he had in fact died from a broken skull and blunt trauma), and giving the wrong location for the crime scene. When Wearry went to trial in 2012, Scott appeared as the star prosecution witness, identifying Wearry as the instigator of a gang that attacked and robbed Walber, and ultimately ran over the victim with his own car. Eric Brown, another inmate, testified he had seen Wearry driving Walber’s car around town.

Wearry had an alibi, claiming he had been attending a wedding party 40 miles away in Baton Rouge at the time of the murder. Prosecutors countered that Wearry might have left early, and returned in time to commit the crime. After the jury deliberated for two hours, Wearry was unanimously found guilty and was soon sentenced to death.

Claiming new evidence, Wearry filed post-conviction appeals, which Louisiana courts rejected. But reviewing the record, the Supreme Court majority declared the state had “egregiously misapplied” the disclosure required by the Supreme Court’s landmark 1963 Brady v. Maryland decision, which makes it an unconstitutional due-process violation for prosecutors or police to suppress material evidence casting doubt on a defendant’s guilt or affecting potential punishment.

In this case, the state had failed to disclose to Wearry’s public defender the earlier, inconsistent accounts of the crime given by the two inmate witnesses, as well as statements by other inmates suggesting Scott was seeking revenge against Wearry. Also undisclosed were Brown’s negotiations for a reduced sentence, and medical records making it physically impossible for another accused participant in the murder to have performed as described by prosecutors and their witnesses.

Given the state’s failure to disclose these key pieces of evidence, the Supreme Court found the new evidence so undermined confidence in Wearry’s conviction that it must be overturned, and ordered a new trial. The decision drew a dissent from Justice Samuel Alito, which Justice Clarence Thomas joined. It agreed the disclosures ought to have been made, but argued the conviction should not have been overturned without giving Louisiana a chance to dispute how significant the non-disclosures actually were.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at,, and