Wholaver v. Wetzel et al

Filing 74

ORDER (memorandum filed previously as separate docket entry) - SEE ORDER FOR COMPLETE DETAILS. Signed by Honorable Christopher C. Conner on 9/28/2021. (mw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERNEST WHOLAVER, JR.,
Petitioner
v.
JOHN E. WETZEL, et al.,
Respondents

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CIVIL ACTION NO. 1:11-CV-164
(Judge Conner)

THIS IS A CAPITAL CASE

ORDER
AND NOW, this 28th day of September, 2021, upon consideration of the
motion (Doc. 64) for leave to conduct civil discovery by petitioner Ernest Wholaver,
Jr., and the parties’ respective briefs in support of and in opposition thereto, and for
the reasons set forth in the accompanying memorandum of today’s date, it is hereby
ORDERED that:
1.

Wholaver’s motion (Doc. 64) is GRANTED to the extent respondents
shall, within 30 days of today’s date, produce to Wholaver all of the
following that are in respondents’ possession:
a.

The March 30, 2004 proposal that the Dauphin County Court of
Common Pleas ordered court-appointed psychologist Lawrence
McCloskey to follow in completing his assessment.

b.

All documents reflecting interactions, discussions, or
negotiations between James Meddings and investigating
detectives on this case, prosecutors handling this case, or their
agents, regarding Meddings’ status as a cooperating witness in
the investigation or prosecution of Wholaver, or regarding
Meddings’ status as a cooperating witness in any other law
enforcement investigation at the time of or prior to Wholaver’s
trial.

c.

All documents reflecting interactions, discussions, or
negotiations between James Meddings and federal investigators,
federal prosecutors, or their agents in relation to United States
v. Meddings, No. 1:03-CR-03 (M.D. Pa.), regarding Meddings’
status as a cooperating witness in the investigation or
prosecution of Ernest Wholaver, or regarding Meddings’ status
as a cooperating witness in any other law enforcement
investigation at the time of or prior to Wholaver’s trial.

d.

All documents pertaining to visits investigating detectives or
prosecutors involved in the prosecution of Wholaver had with
James Meddings while he was housed in Dauphin County
Prison, including the date of the visit, the length of the visit, and
the purpose of the visit.

e.

All documents provided by respondents or their agents to the
Investigation Discovery Channel and/or affiliated groups or
individuals involved in the making of the television program
entitled “Murders Under the Mistletoe,” that would constitute
Brady evidence as to Commonwealth witness George Wagner,
including any documents that speak to the Commonwealth’s
identification of Wagner as an alternative suspect in the
murders and the basis therefor and any evidence provided to
the Investigation Discovery Channel implicating Wagner in the
murders.

f.

All documents relating to Commonwealth witness Robert
Marley’s cooperation with the narcotics unit of the Attorney
General’s Office or any other law enforcement agency in 1992,
2003, or any other time prior to or during the prosecution of
Wholaver.

g.

A copy of Robert Marley’s informant file maintained by the
Attorney General’s Office or any other law enforcement agency
that interacted with Marley in his capacity as an informant,
cooperator, or prosecution witness at any time prior to or during
the prosecution of Wholaver.

h.

A copy of all documents related to Robert Marley’s informant
activities at any time prior to or during the prosecution of
Wholaver contained on the flash drives or CDs that former
Commonwealth narcotics agent Ronald Diller testified that he
provided, upon his retirement, to his supervisor at the Attorney
General’s Office, Henry Troutner.
2

2.

Wholaver’s motion (Doc. 64) is DENIED to the extent it seeks leave to
depose juror Craig Stein. Wholaver may, within 30 days of the date of
this order, submit proposed written interrogatories of Stein for the
court’s consideration. See 28 U.S.C. § 2254, Rule 6(b).

3.

Wholaver’s motion (Doc. 64) is otherwise DENIED.

4.

The parties shall promptly meet and confer concerning the limited
grant of discovery and determine what, if anything, has already been
disclosed, what materials the Commonwealth intends to turn over to
Wholaver’s counsel, and what, if any, materials must be reviewed by
the court in camera prior to disclosure. If a determination is made that
certain materials must be reviewed in camera prior to disclosure, those
materials shall be provided to the court forthwith.

5.

The parties shall file a joint report with the court within 30 days of the
date of this order, and every 30 days thereafter as necessary, regarding
the status of the discovery requests.

6.

Wholaver’s petition for writ of habeas corpus (Doc. 34) is STAYED
pending the outcome of discovery, or until further order of the court.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania