Pitchford v. Hall et al

Filing 191

ORDER granting 168 Motion to Declare Compliance with Discovery Orders and for Enforcement of Revised Scheduling Order; finding as moot 189 Motion to Strike. Signed by Senior Judge Michael P. Mills on 8/3/22. (jla)

Case: 4:18-cv-00002-MPM Doc #: 191 Filed: 08/03/22 1 of 8 PageID #: 11431

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TERRY PITCHFORD
V.

PETITIONER
NO. 4:18-CV-00002-MPM

BURL CAIN, MDOC Commissioner; and
LYNN FITCH, Attorney General for the state of Mississippi

RESPONDENTS

ORDER ON RESPONDENTS’ MOTION TO DECLARE COMPLIANCE WITH
DISCOVERY ORDER AND FOR ENFORCEMENT OF REVISED SCHEDULING
ORDER
Before the Court is Respondents’ Motion to Declare Compliance with Discovery Order
and for Enforcement of Revised Scheduling Order, which is opposed by Petitioner. See Docs.
#168, 180, 181, 182, 186. On January 2, 2019, the Court granted Petitioner’s motion for leave to
conduct discovery and ordered Respondents to produce the following thirteen categories of
materials to Petitioner within thirty days:
1. Any statements given by Eric Bullins regarding the Britt investigation and Eric’s criminal
cases that were not included in the prosecution’s file of the Britt case;
2. Any recorded or transcribed interview or statement given by Lewis Brooks and/or Gerald
Gatlin in connection with the Britt investigation;
3. Any recorded or transcribed interview or statement given by Shawn Bullins related to the
Britt investigation;
4. The recorded or transcribed statement of James S. Hathcock regarding the Britt
investigation that was given in November 2004 in the Grenada County Jail, along with
any records or evidence related to his release and the disposition of his case;

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5. Any materials related to the testimony of Demarquis Westmoreland and/or Quincy
Bullins in Petitioner’s trial, including materials related to plea negotiations and/or
agreements made to either in exchange for their testimony in Petitioner’s case;
6. Datron Mitchell’s November 2004 jail-house statements or interviews related to
Petitioner, Eric Bullins, and/or the Britt investigation, along with any information and
materials relating to the subsequent release and disposition of his criminal case;
7. Any arrest and subsequent proceeding records for any offense involving Stephanie Gray
that occurred prior to Gray’s testimony at Petitioner’s trial;
8. The results of any DNA and serological tests done on the specimens designated for DNA
testing in this case by Reliagene or any other lab;
9. Any information concerning the brown-handled .38 caliber revolver pictured in Exhibit
45 of the evidence marked at trial, including any physical examination of it, and/or its
whereabouts after it was photographed at the crime scene;
10. Any information related to the .38 serial number 7808, including a trace against law
enforcement databases of its prior ownership and testing for fingerprints;
11. Notes, ammunition boxes, or any other source material relied on by Steve Byrd not
contained in the evidence in the possession of the Circuit Clerk;
12. Identification of any remaining crime scene evidence from the Crossroads Grocery Store
and surrounding area collected by any entity or individual and not disclosed to Petitioner
prior to or during his trial, including documentation records, notes, or any other evidence
concerning the destruction of (or observation of the destruction of) evidence prior to the
Mississippi Crime Lab’s assumption of control of the scene; and
13. Any other favorable evidence to Petitioner not previously disclosed.

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See Doc. #60.
Respondents subsequently provided Petitioner three disclosures responding to the Court’s
order, the first of those on February 1, 2019, then on February 11, 2019, and later on November
13, 2019. Further, on July 17, 2019, counsel for the parties met in Grenada, Mississippi, to
conduct an in-person review of physical evidence in the custody of the Office the District
Attorney for the Fifth Circuit Court (“DA’s Office”) and the Grenada County Sheriff’s Office
(“GCSO”).
Then, on January 21, 2020, Petitioner filed a motion in which he renewed his initial
request for discovery and further additionally requested supplemental discovery. Doc. # 83. In
that motion, Petitioner argued that, while Respondents had produced a large number of materials,
their disclosures remained inadequate and did not sufficiently comport with the Court’s order.
See id. In opposition, Respondents primarily responded that they had provided Petitioner all
materials currently in the possession of the DA’s office and GCSO, and anything else not
provided simply does not exist anymore, i.e. has been lost over time, or never existed. Doc. #
90.
The Court ultimately granted in part and denied in part Petitioner’s motion. Doc. # 93.
In its Order, the Court directed Respondents to produce any remaining materials related to the
thirteen categories, as set forth in the first order granting discovery, within thirty days, and
further ordered the following supplemental discovery:
1. The depositions of Greg Conley of the GCSO and Robert Jennings of the DA’s Office
regarding the substance of any statements given by Eric Bullins related to the Britt
investigation;

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2. The depositions of Greg Conley and Carver Conley of the GCSO regarding the substance
of any interviews or statements given by Lewis Brooks and/or Gerald Gatlin in
connection with the Britt investigation;
3. The deposition of Greg Conley regarding the substance of any interview or statement
given by Shawn Bullins and/or Eddie Johnson related to the Britt investigation;
4. Within thirty days, the production of any notes or records of any statements made by
Eddie Johnson related to the Britt investigation;
5. The depositions of former Grenada County Sheriff Alton Strider and District Attorney
Doug Evans about the substance of any statements made by James S. Hathcock regarding
the Britt investigation and any additional information related to his release and the
disposition of his case;
6. The deposition of the appropriate District Attorney or Assistant District Attorney
concerning the testimony, and any plea negotiations or agreements made in exchange for
the testimony, of Demarquis Westmoreland and/or Quincy Bullins in Petitioner’s case;
7. The depositions of Greg Conley and Robert Jennings regarding any statements or
interviews given by Dantron Mitchell related to Petitioner, Eric Bullins, and/or the Britt
investigation;
8. The deposition of District Attorney Doug Evans regarding Stephanie Gray’s testimony at
Petitioner’s trial and any favorable treatment she received in exchange for said testimony;
9. The depositions of Greg Conley, Carver Conley, and former Sheriff Alton Strider
regarding the brown-handled .38 caliber revolver pictured in Exhibit 45 of the evidence
marked at trial, including information related to its handling, processing, and
whereabouts;

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10. The depositions of Greg Conley and Carver Conley as to any information related to the
.38 serial number 7808;
11. The depositions of Steve Byrd and Greg Conley regarding notes, ammunition boxes, and
any other source material relied on by Mr. Byrd in his analysis of the Britt case, and is
further permitted to depose Chris Wise regarding the Mississippi Crime Lab’s (“MCL”)
possession, and eventual release, of any physical evidence from the Britt case; and
12. The depositions of Greg Conley, Carver Conley, Medical Examiner Richard Crenshaw,
and MCL investigators Zeliff and Nethery concerning the Britt crime scene, including
information related to the destruction of (or observance of the destruction of) evidence
prior to the Mississippi Crime Lab’s assumption of control of the scene.
Id. The Court denied Petitioner’s motion in all other respects, particularly finding Petitioner’s
request to depose numerous other individuals as unreasonable at the time. Id. The Court further
found that, “[i]f depositions of the named individuals prove to be inadequate, Petitioner may
move to depose others, but must demonstrate “good cause” for any such request.” Id.
On March 4, 2020, Petitioner moved for discovery related to potential claims for jury
discrimination. Doc. # 89. Said motion was precipitated primarily by Respondents’ disclosure
of annotated venire lists used by District Attorney (“DA”) Doug Evans and Assistant District
Attorney (“ADA”) Clyde Hill at Petitioner’s trial. See id. The annotated lists included notes as
to each prospective juror’s race and gender, among other remarks. Id. Petitioner requested
extensive discovery related to these lists, most of which the Court found to be unwarranted given
Petitioner’s failure to establish the requisite “good cause”. See Rule 6 of the Rules Governing §
2254 Cases; Doc. # 95. Consequently, the Court entered an order granting in part and denying in
part Petitioner’s motion, granting the motion in the following respects:

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1. Within sixty days of the date of the Order, if possible, Petitioner was permitted to depose
DA Doug Evans and ADA Clyde Hill regarding the aforementioned previously disclosed
annotated venire lists; and
2. Within thirty days of the date of the Order, if possible, Respondents must produce any
and all completed juror questionnaires returned to the trial court in February 2006, to the
extent that they have not already been produced.
Id.
This case then proceeded with Petitioner conducting discovery for almost two years.
Then, on December 30, 2021, Petitioner moved again for supplemental discovery, in particular
requesting permission to extend the deposition of a witness (Mr. Carver Conley) and to depose
an additional witness—Mr. Adam Eubanks—an individual not included within the parameters
of the Court’s previous order allowing depositions. Doc. # 136. The Court granted Petitioner’s
motion, both permitting more time to depose Mr. Carver Conley and also allowing the
deposition of Mr. Adam Eubanks. Doc. # 143. Mr. Eubanks’ deposition was limited to the
following topics:
1. the substance of any statements given by Eric Bullins related to the Britt
investigation;
2. the Britt crime scene, including information related to the destruction of (or
observance of the destruction of) evidence prior to the MCL’s assumption of
control of the case;
3. the brown-handled .38 caliber revolver pictured in Exhibit 45 of the evidence
marked at trial, including information relate to its handling, processing, and
whereabouts; and

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4. any information related to the .38 serial number 7808.
Id. In that Order, the Court noted that Petitioner represented that he foresaw no further request to
depose any more individuals and made clear that it expected that representation to be accurate.
See id.
Following the conclusion of the aforementioned court-ordered depositions, Respondents
filed the instant Motion to Declare Compliance with Discovery Orders and for Enforcement of
Revised Scheduling Order. Doc. # 168. In their motion, Respondents contend that they have
complied with their discovery obligations as set forth in the Court’s orders. Id. In opposition,
Petitioner focuses heavily on the alleged deficiencies with the local law enforcement
investigation of the Britt case and related shortcomings as well as the potential habeas claims
associated with these alleged deficiencies. Doc. # 181. Beyond these repeated arguments,
Petitioner opines that various areas of discovery have still not been disclosed, renews his request
for such discovery, and requests a hearing. Id.
While the Court appreciates Petitioner’s dissatisfaction with the production of discovery
in this case, i.e., physical documents and records, it is that very reason that the Court granted
Petitioner’s request to depose a number of individuals. To be sure, the Court has been quite
generous in the discovery permitted. After careful review of the parties’ submissions, the Court
concludes that Respondents have complied with their discovery obligations as best as they
possibly can under the circumstances and further believes that permitting any further discovery
would simply be futile. Respondents cannot will something, i.e. certain discovery, into existence
just because Petitioner believes it should exist. It bears repeating that the Court allowed
extensive depositions because of these circumstances about which Petitioner continues to
complain.

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As the Court has noted before, the instant capital case has now been ongoing for more
than four years, and the first order granting discovery was entered over three years ago. While
the Court is mindful of the various obstacles which hindered the discovery process, the COVID19 pandemic in particular, this case must proceed in an efficient manner towards an ultimate
resolution.
Upon due consideration, the Court finds that the instant motion [168] to declare
compliance with discovery orders and for enforcement of revised scheduling order should be
GRANTED.1 Accordingly, the parties are directed to look to Revised Scheduling Order [57] for
the deadlines which must be followed. As set forth in the Scheduling Order, any party seeking
an extension of any deadline must file a written motion requesting such extension before the
expiration of the deadline and must state in detail the reasons why that party, despite the exercise
of due diligence, will be unable to comply with the deadline. Respondents’ motion [189] to
strike is hereby denied as moot.
SO ORDERED, this the 3rd day of August 2022.

/s/Michael P. Mills
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

1

 The Court finds that a hearing is unnecessary to address the merits of the instant motion.

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