No. 28165-a
IN THE 23 DISTRICT COURT OF BRAZORIA COUNTY, TEXAS
(IN CHANGE OF VENUE FROM THE 21ST JUDICIAL DISTRICT OF BURLESON
&
WASHINGTON COUNTIES)
AND IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
EX PARTE
ANTHONY CHARLES GRAVES
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
TO PRESIDING JUDGE TOWSLEE:
THE PETITIONER, ANTHONY CHARLES GRAVES, submits his proposed Findings of Fact and Conclusions of Law in the above-styled and numbered cause, pursuant to the provisions of Article 11.071 of the Texas Code of Criminal Procedure.
ON THIS DAY, THE______ OF______ , 1999, THE COURT, HAVING
reviewed the post-conviction application for writ of habeas corpus
by the applicant, ANTHONY CHARLES GRAVES, hereby makes the following findings
of fact and conclusions of law.
FINDINGS OF FACT
I. BACKGROUND OF CASE:
A. On August 18, 1992, six persons were beaten, shot, and or stabbed to death at a residence in Somerville, Texas and eventually three persons were indicted for the offense, Robert Carter, his wife Teresa Carter, and the applicant, Anthony Charles Graves.
B. In April of 1994, Co-defendant Caner was tried and convicted in
this matter. The jury
assessed the death penalty for him, placing his case on automatic
appeal.
C. In November, 1994, after a change of venue to Brazoria County, the Petitioner was tried and convicted of capital murder. The jury assessed the death penalty and his case was placed on automatic review to the Court of Criminal Appeals.
D. The Petitioner's case was affirmed in 1997 by the Court of Criminal Appeals in Cause# 72,042. The co-defendant's case [Mr. Carter] was also affirmed.
E. Mr. Patrick F. McCann was appointed to represent the Petitioner on his initial 11.071 application, and the Court finds that said application was filed timely, after an extension request for 90 days was properly granted. [See Exhibit "C" of Petitioner's Original Application]
F. After reviewing the Petitioner's Original Application, this Court set the matter for an evidentiary hearing in Brazoria County on November 12, 1998, and a second date of December 1, 1998. During this hearing testimony was presented~including that of the two trial attorneys, an appellate expert, an alibi witness, and a scientific expert, and the District Attorney for the 21st Judicial district of Washington and Caidwell Counties, Mr. Charles Sebesta.
0. After the hearing, the Applicant submitted a request for leave to file a supplemental writ, and said request was denied. Both parties submitted proposed findings of fact and conclusions of law, and the Court herein makes the following findings regarding the substance of the Petitioner's claim. Said Findings are dealt with out of order as the Court believes that may best present the facts in a coherent manner. The Conclusions of Law are dealt with in their respective order in the Application.
II. In re the Ineffective Assistance of Counsel Claim
A. The trial attorneys had intended to call one Yolanda Mathis to the stand during the trial as an alibi witness. This witness had previously testified at a grand jury proceeding and had claimed that the Petitioner had been with her from the night before the killings to the following dawn. [See Transcripts of Grand Jury Testimony by Yolanda Mathis, attached as exhibit to Petitioner's Application] Mr. Sebesta was present at the Grand Jury, questioned Ms. Mathis, and knew the substance of what she would testify to at trial. She further testified that Applicant never left her side, and that she never saw him with the co-defendant, nor did they leave the Applicant's mother's apartment from the night before to the morning after the killings. [See Transcripts, see also Hearing Record (H.R.) at Volume II. Pagel 10-115]
B. Two years elapsed between the time that Ms. Mathis appeared before the Grand Jury after the Applicant's arrest and the time of trial. During that time Ms. Mathis was never charged with any crime nor did the District Attorney or his office communicate in any way, written or orally, to the defense counsel that Ms. Mathis suspect in the killings. [H.R. at II, 110-12]
C. On the day of her testimony, Mr. Sebesta stood up before this
Court and, prior to her
taking the stand, advised the Court that he believed the witness
Mathis should be advised of her rights and the possibility that she might
be a suspect in the capital murder case before she testified. [H.R. -II,
110-115] (Anthony's note:
"This is where the DA threatens the only person who could verify my whereabouts
the night of this crime.")
D. Mr. Calvin Garvey, defense counsel for the Applicant at trial, upon hearing this went out into the hallway and advised Ms. Mathis of what the District Attorney had stated. Ms. Mathis then panicked, became very upset, and fled the courthouse. [H.R. -II, 92]
E. Mr. Garvey was the person who had prepared the witness for trial, and was responsible for her, and intended to handle her testimony on direct. He failed to prepare a subpoena, request a writ of attachment, make an offer of proof as to her testimony, prepare a bill, or request a continuance when she fled. Nor did he offer her prior Grand Jury testimony [H.R.-II, 70-75, 79] (Anthony's note: "This is where my trial attorney 'failed' to properly handle our 'key' alibi witness.")
F. Mr. Garvey was responsible for preparing and filing the Motion for New Trial in this case, and for presenting witnesses. He filed the Motion for New Trial, then filed an untimely amended motion as well. [H.R.-II,65, 71,741 (Anthony's note: "Is where my trial attorney showed his inexperience by not following the procedures that would have allowed my alibi grand jury testimony to be read into the transcripts.")
G. Mr. Carvey testified that this was his first death-penalty case. [H.R. -II, 52] He also stated that he had a lirnited number of contested Motions for New Trial. [H.R.-1I, 65] He stated at the hearing that when Ms. Mathis left it devastated the defense case. [H.R. -II, 60] He agreed that the Motion for New Trial was crucial to the Applicant. [11.R. -H, 79] He brought Ms. Mathis back to this Court, and she was put on the stand at the Motion for New Trial hearing. However, Mr. Garvey failed to ask her a single question regarding the alibi, so that this Court never heard her version of events until the evidentiary hearing on December 1, 1998. [H.R.-II,75] Instead he limited his questions to the circumstances regarding her earlier refusal to testifli. Mr. Garvey appeared confused regarding whether his Motion for New Trial was timely, and he appeared flustered after the District Attorney questioned this. He never made an offer of proof or a bill of exceptions regarding her testimony at the Motion for New Trial. At the hearing, a noted appellate lawyer who helped to draft the current habeas statute testified that in his opinion, the failure to provide this basic type of representation and appellate preservation was ineffective assistance, all the more egregious in a capital case.
H. Ms. Mathis was a crucial witness whose testimony would have exonerated
applicant.
Her testimony was never presented in any form, at trial or the Motion
for New Trial, thus depriving the fact-finder of highly relevant, vital
information which, if believed, would have resulted in a different verdict.
The failure to present this witness to the fact-finder or to preserve her
testimony in any way in the record for direct appeal fell below any objective
standard of reasonableness, and resulted in clear harm to the Applicant.
The Applicant was deprived of the only person whose testimony could have
saved him from a death sentence. He was deprived of this at trial and at
a crucial stage of the proceeding at the Motion for New Trial. The Applicant
was entitled to effective representation at this critical stage of the
proceedings and he failed to receive it. At the hearing, Mr. Garvey offered
no explanation of his conduct other than inexperience, confusion, and befuddlement.
The Applicant failed to receive effective representation of counsel, and
as such is entitled to relief.
III. In re the claim of Prosecutorial Misconduct
At the outset, this Court adopts all the previous findings made in the prior claim that are needed to support its findings regarding this claim. The Court further finds that:
A. Mr. Sebata, the District Attorney, had ample opportunity (two years) prior to Ms. Mathis' testimony to discuss or convey his suspicians and concerns regarding Ms Mathis. He also had prior knowledge of the substance of her testimony since he was present at her Grand Jury appearance and conducted her examination there [See Transcripts of Grand Jury testimony of Mathis.)
B. Mr. Sebesta conducted a polygraph examination and interrogation of the co-defendant, Mr. Robert Carter, who had agreed to testily against the Applicant in return for his spouse, Theresa Carter, being left out of any future trials, and in return for an agreement not to seek the death penalty if Mr. Carter's appeal was successful. At this interrogation, Mr. Carter failed a polygraph regarding his story that he and the co-defendant were at the house alone, then purportedly told Mr. Sebesta that he, the Applicant, and Theresa were at the scene of the killings. Mr. Sebesta believed this version, which was one of at least five Mr. Carter told. Mr. Carter never mentioned any involvement by Yolanda Mathis. [HR. -II, 1241.
C. In the more than four years since the trial, Ms. Mathis has never been charged, indicted, arrested, or publicly discussed outside this Court as a suspect in the killings. No evidence, forensic, physical, testimony, or otherwise, ever materialized to remotely connect Ms. Mathis with these events, other than her alibi of Mr. Graves, the Applicant. [fl.R.-II, 122-123] (Anthony's note: "The D.A never had anything to substantiate his claim that my key alibi witness was a suspect.")
D. Mr. Sebesta was an experienced felony trial attorney with several capital cases behind him when he brought charges against Mr. Graves. He knew the substance of Mathis' testimony, and that the defense planned to call her to the stand. He knew the effect the loss of such a witness. (Anthony's note: "The D.A's actions toward my alibi witness clearly was to intimidate her and keep her from testifying."
E. Mr. Sebesta voiced his concerns immediately before Ms. Mathis
was to take the stand.
There was no evidence at that time that connected Ms. Mathis to
this crime, nor has there ever been any produced.
F. Whatever Mr. Sebesta's motives may have been, his actions resulted in the loss of a critical, material, exculpatory witness to the defense. This ripped the heart from the defense effort. At the hearing, a legal expert testified that in his review of case law regarding prosecutorial misconduct it was clear that such actions would result in a denial of due process.
IV. The Claims regarding mitigation review, clemency, and the difficulties with Article 11.071
The Court adopts the following findings with regard to the mitigation claim presented arguing for the overturn of Art. 37.071(2)e, V.A.C.C.P.:
A. The applicant was a young man at the time of this incident. He had no significant criminal history, other than a drug possession. He had no history of violence, other than a reported fistfight at his work some time before this incident. He had a close family and significant evidence of stable employment, no erratic mental illness or bizarre behavior, and no discipline problems in jail. The State's theory regarding the Applicant's motive for killing six people was pique over his mother's being turned down for a position at the state institute where she and one of the deceased worked, This was despite correspondence provided by the Applicant is his petition which indicated they were actually good friends.
B. The application of these fitets to the statute in question is
better addressed in the Conclusions of Law section.
The Court adopts the following findings in regards to the Applicant's claims on the difficulties with the 11.071 statute;
A. The statute appears to have constitutional problems on its face, but this Court will address those difficulties in the Conclusions of Law section. Further, there appears to be no other way to address the inadequacies of the statute except on habeas review, as direct appeal could not address, as a matter of logic and procedure, a matter which was not yet pending.
As to the issues regarding clemency, the Court adopts the following findings:
A. This Court is not alone in expressing concern regarding the apparent lack of procedures and protections in the clemency process. Recent federal district courts have addressed some of the same concerns in Austin. However, this Court can only go forward on the issues presented and the facts it has to hand. Accordingly, it is the finding of this Court that the clemency process as currently constituted does indeed violate minimum due process under the Texas and United States Constitutions. It is further the finding of this Court that, as applied, the clemency procedures appear to have violated the equal protection standards of the Constitution
V. The Actual Innocence Claim
Again, the Court adopts al the prior findings as they relate to this issue. In addition the Court finds that:
A. The key State witness, Mr. Carter, the co-defendant, exonerated
the defendant at his
Grand Jury appearance, and over the course of his speaking to law
enforcement authorities gave several different versions of events. At trial
he testified that the Applicant committed the killings by himself,
that he was merely present but did not participate. He later recanted his
trial testimony in an affidavit (Evidentiary Hearing, Def Exhibit
#3) and in a video taped statement. [Submitted as Def __
Exhibit # 5] He also provided a sworn statement to Applicant's attorney
that completely retracted his trial testimony, and wherein he took full
responsibility for the deaths of the family in Somerville. [Def. 4 41 He
was initially bench warranted to appear before this Court to resolve this
conflict, however upon presentation of a letter from Mr. Carter's attorney
making it clear he intended to invoke his Fifth Amendment privilege and
reftise to testify before this Court [Def. # 2], the Court
agreed to excuse Mr. Carter with concurrence of the parties. (Anthony's
note: "This is where Carter told the Grand Jury of my innocence, but after
talking with law enforcement he began to change his story several times.")
B. Ms Yolanda Mathis, the alibi witness who did not appear at trial, finally did appear before this Court and testified credibly that the Applicant was with her from the evening before the killings until the following morning after at his mother's apartment in Brenham. This would have made it impossible for the Applicant to have been in Somerville to carry out the killings. [HR-TV, 51-55]] (Anthony's note: "My alibi witness testifies at my evidentiary hearing for the "first" time to my whereabouts on the night of this crime.")
C. Ms. Mathis' testimony was consistent with her prior Grand Jury testimony regarding the Applicant's factual innocence. [See Mathis Grand Jury Transcripts, attached to Aplicant's Original Petition.] Had the jury believed her, it would have required them to render a "Not Guilty" verdict.
D. Ms. Mathis also made it clear that the reason she did not testify at trial was the fear she felt on learning that the District Attorney was considering prosecuting her, without any evidence, for a crime. [H.R.-IV, 56] She fled the courthouse directly as a result of his voiced intentions. (Anthony's note: "This is the reason why my alibi witness didn't testify."
E. At the trial, evidence was introduced regarding a missing knife which the State claimed was the likely murder weapon. No actual murder weapon was ever found. The State presented evidence that a former employer of Mr. Graves had presented him with one of two matched switchblade knives from Mexico. Though no such blade was ever found on or about the Applicant, the State claimed that the Applicant used his part of the pair, along with a gun and a blunt object of some sort, to kill the family in Somerville. The State used the employer's knife and the actual skull caps of some of the victims to try to demonstrate, with the help of the medical examiner and a Texas Ranger named Coffman, how the "mirror knife" was the murder weapon used.
F. Dr. Bayardo, the medical examiner who conducted the autopsies, said that the "mirror knife" was of a class of weapons that could have caused the fatal wounds. However, he stopped short of claiming it was the weapon. On rebuttal, the Defense presented Dr. Bux, a medical expert who was more critical of the State's attempts to claim one blade as "the" weapon. For a variety of reasons, including the lack of testing done on the deceased, the lack of distinct tool markings on a blade wound, and the similarity of the blade of the "mirror knife" to many others of the same configuration and size, the Defense expert cast doubt on the reliability of any conclusions regarding the actual weapon used, particularly when using a substitute.
G. The State then placed Ranger Cofihan on the stand. It is unclear why. Ranger Coffman, to this Court's knowledge, had no qualifications as a chemist, metallurgist, crime scene examiner, firearm and tool examiner, medical specialist, nor in forensic science, knifemaking, or even as a hand to hand combat instructor. Other than the fact that he was indeed a Ranger, it is uncertain what exactly qualified Ranger Coffman to offer any opinion at all. Also, Ranger Coffman was one of the investigating officers on this case, and as such was hardly a disinterested party.
H. Ranger Coffman then testified that he had taken the "mirror blade" and placed it into the wound holes in the skull cap. He repeated this demonstration for the jury and they were given the "mirror" and the skull caps to take back with them in deliberations. He testified that in his opinion the "mirror knife" was a duplicate of the actual murder weapon.
I. At the evidentiary hearing noted forensic anthropologist Dr. H. Gill-King, Ph.D. member of the American Board of Forensic Anthropologists and head of the University of North Texas' Laboratory of Forensic Anthropology and Human Identification, testified that the "science" relied on by thejury and the State was highly questionable. Dr. Gill-King pointed out that, as any school boy with a pocket knife knows, when one sticks a knife in something and pulls it back out, one invariably alters the wound track! Repeated attempts to do this alter the original wound track even further. More, he pointed out that the methods used to "prove" the "mirror knife" was the weapon used on the deceased were completely against the normal practice used in his field. [H.R. -V, 20-25] He stated that the proper practice was to make castings of the wounds for comparison, do metal trace testing on the wounds for evidence that could match up to the knife or blade used, and to use a dual microscope to compare any tracks. [H.R.V, 20-25] He further pointed out that characterizations of blade size were often suspect due to the fact that blades varied tremendously in length and design, and while a portion of any an blade might cause a fatal wound, making conjectures regarding the blade shape was risky. As an example, a sword with a blade length of twenty inches might only be placed into a wound to a depth of three to four inches, in which case one might erroneously assume that the blade length was the depth of the wound track.
3. Dr. Gill-King stated that in his opinion the tests the State offered were unreliable at best and at worst may have actually damaged the evidence. He stated that any jury conclusions based on such evidence would be highly unreliable.
K. The State never offered any eyewitness other than Mr. Carter to place Mr. Graves at the scene. The State did offer jailhouse snitch testimony that purportedly implicated the Applicant and the co-defendant in statements at jail, but none of those statements, together or cumulatively, ever amounted to an admission of guilt. That is assuming that one would find any of those statements to be credible. Mr. Carter expressly denied such incidents happened in his statement to the Applicant's attorney. [Def# 4] (Anthony's note: "The state convicted me solely on Carter's testimony.")
L. The applicant has put forward evidence of re£antation by the State's key witness, and said evidence is preserved in the record for review. He further provided a credible alibi witness iMs. Mathis] who was intimidated by the District Attorney into not testifying, then came forward a(~ain at the Motion for New Trial, but was asked no questions about the most crucial issue in the case by the defense counsel. The applicant has also brought forward a credible expert who has cast serious doubt on the weight of the State's scientific evidence.
Any of these items might alone have undermined confidence in the correctness of the verdict in this case. Taken together, the weight of these witnesses and this evidence is such that this Court no longer has confidence in the underlying verdict at trial. Had the jury heard the recantations, or the alibi, or the testimony of the forensic anthropologist, it's verdict would more likely than not have been different. There may well be an innocent man on death row in this case. Accordingly, it is the conclusion of this Court that the requested relief should be granted, and that writ should issue in this matter.
Due to a series of factors beyond this Court's knowledge or control at trial, no fact-finder, either the jury or this Court ever heard the evidence put forward by the Applicant until the evidentiary hearing. Having had these matters brought before, this Court can no longer support the verdict at trial.
For these reasons, the Court respectfully recommends that relief
in this matter be granted, and that writ issue in this case.
CONCLUSIONS OF LAW
This court, acting in its capacity under the provisions of Article
11.071 of the Texas Code of Criminal Procedure, hereby makes the following
conclusions of law in regards to the issues raised by the Applicant. In
support of these conclusions, the Court adopts all necessary findings of
fact from the previous section, and where needed cites to persuasive authority.
1. In re the claim of actual innocence
A. Actual innocence is a claim that may be reviewed on collateral attack. State ex rel holmes v. Third Court Of Appeals, 885 S.W.2d 389, 397 (Tex. Crim. App. 1994).
B. It is a violation of the Fourteenth Amendment to execute or imprison an innocent man Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).
C. In order to sustain a collateral attack based on factual innocence, the Petitioner must establish he is not guily by clear and convincing evidence that seriously undermines confidence in the verdict. Elizondo, at 209; Schiup n belo, 513 U.S. 298 (1995).
D. The Petitioner must show that the error probably resulted in the conviction of one who was actually innocent. Schiup V. Delo, 513 U.S. 298 (1995).
E. The Petitioner has presented an alibi witness at the evidentiary hearing who testified that the Petitioner was with her the entire evening and could not have committed the murders for which he was convicted. [ See testimony of Mathis, Grand jury Transcripts, and H.R.Iv,50-551
F. This witness for the Petitioner had testified in the same way before a Grand Jury, so her testimony has not changed nor in any way altered from her story of nearly seven years ago. [See Grand Jury Transcriptsj She was prepared to testify at the Petitioner's trial, but did not do so due to unfounded threats of prosecution by the District Attorney.t
The witness rallied her courage to testify at the Motion for New Trial, but again was never asked questions regarding her alibi by trial counsel. There was no viable reason for trial counsel to have brought her twice to testify and then to fail to develop that testimony other than a failure to provide reasonably effective assistance of counsel that harmed the Applicant. Until the evidentiary hearing, neither the Court nor the jury had ever heard this version of events from a person who could account for the Applicant's whereabouts for the entire evening. This Court must conclude that her testimony, if found credible by the jury, would have resulted in a different verdict.
G. The Petitioner has also presented credible expert testimony from Dr. H. Gill-King, a noted forensic anthropologist, that conflicts with and criticizes the methods used to link the Applicant with a never-located murder weapon. [See H.R.V,20-25, and the opinion letter from Dr. Gill-King attached to the original petition.] No murder weapon was ever recovered, nor was any forensic evidence provided at trial to link the Applicant to the scene.
H. The Applicant has provided as an attachment and an exhibit a purported sworn statement from the Co-defendant, Mr. Robert Earl Carter, in which Mr. Carter retracts his trial testimony and accepts all blame for the killings. The Applicant also provided an affidavit from Mr. Carter to that effect, and a video-tape for which the same claim is made. [See Defense Exhibits] Mr. Carter did not appear at the hearing due to his invoking his Fifth Amendment rights. The Court did not accept these items into evidence, but has provided them to the reviewing court as part of the record. Since the retraction was attached to the Petitioner's Original Application, however, this Court feels it must at least address the claims made, if only for the benefit of the reviewing court.
I. This Court is now aware that Mr. Carter's statements on this matter
have changed with
the frequency of the wind. He has, by the admission of the
District Attorney alone, changed his story numerous times, giving different
accounts to the police, to the Grand Jury, to the trial jury, and apparently
now to others. The Court had the opportunity to view Mr. Caner at trial,
and did not find him to be terribly credible. However, this Courts job
is not to substitute its judgement for that of the jury. Given his recent
recantations, however, this Court would be disingenuous if it did not express
deep concern with the reliability of Mr. Carter's testimony on anything.
Thus this Court is place in a dilemma which it believes must be resolved in the Applicant's favor. If the current recantations offered by Mr. Carter are the truth, then Mr. Graves is innocent of any crime. Even if they are not, however, the mere fact that they exist, coupled with the testimony of Mr. Sebesta at the evidentiary hearing regarding the additional statements of Mr. Carter, the pressure he believed he felt regarding his wife Theresa's involvement [Ms. Carter was never brought to trial in this matter, as an aside] and his failure of a polygraph test regarding his own trial testimony, [14.R.-ll, 124] produces such doubt in this Court's trust in Carter's trial testimony that it can no longer say it has confidence in the underlying verdict. In short, Mr. Caner either lied then, or he lies so frequently that no one could ever place trust in anything he ever said. In neither case should a man be executed on the word of one who is as "veracity-challenged" as Mr. Carter.
The Petitioner has presented clear and convincing evidence that he is an innocent man. He is entkled to a new trial, and it is the respectful suggestion of this Court that writ should issue in this case.
II. In re the claim of Prosecutorial Misconduct
A. As mentioned previously, the Applicant has shown that the witness Mathis did not testify at trial due to her concerns that she would be prosecuted. [H.R. -IV, 56]
B. An accused is entitled to call witnesses in his behalf U.S. Const., Amendment VI. Such protections are applicable to the States via the Fourteenth Amendment. Washington V. Texas, 388 U.S. 14(1967).
C. Under certain circumstances a judge or a prosecutor's threats against a potential witness may infringe a defendant's due process rights. Webb V. Texas, 409 U.S. 95 (1972).
D. Warnings regarding the penalty for perjury may not be emphasized to the point where they threaten or intimidate a witness into refusing to testify. Exparte Davis, 831 S.W.2d 426 (Tex. App. -Austin 199-), quoting State n Melvin, 326 N.C. 173, 388 S.E.2d 72, 79-80 (1990).
E. Where a government agent deliberately engages in what appears to be intimidation of defense witness, such action constitutes a due process violation requiring reversal. United States n Hamnzond, 598 F.2d 1008 (5th Cir. 1979); see also United States V. Henricksen, 564 F.2d 197 (5th Cir. 1977); United States v. Dupre, 117 F.3d 810(5~ Cir. 1997).
F. At the applicant's trial, at Vol.40, p. 4033, the District Attorney, Mr. Sebesta, spoke up before this Court prior to the testimony of Ms. Mathis, the defense alibi witness, and stated that he believed she should be warned about her testimony because he was considering her a possible suspect in this crime. There was no mention of a potential charge of perjury. This concern came about on the day of her testimony despite the fact that two years and one co-defendant's trial had passed between the incident and the Applicant's trial, and despite the fact that Mr. Sebesta conducted an examination of Ms. Mathis before the Grand Jury. Ms. Mathis had never been arrested in connection with the crime, nor has she to this date.
G. As noted earlier in the Findings of Fact, Mr. Sebesta was an experienced tnal attorney with many years of felony trials behind him at the time of trial of the Applicant. Although it is always difficult to know the heart of another, it is equally difficult for this Court to believe that Mr. Sebesta would not have known the effect on a potential witness of declaring her a suspect in a capital murder case on the day of her testimony.
H. The effect of Mr. Sebesta's actions deprived the defense of its key witness. Upon learning from Mr. Calvin Garvey that she might be a suspect in this case, she fled the courthouse in terror. The loss of such a witness was devastating to the defense case. It did not recover, and as a result the Applicant was deprived of full and fair due process under the Sixth, Eighth, and Fourteenth Amendments. The failure of defense counsel to somehow preserve or re-offer such testimony. will be addressed in the following section.
This Court respectfully recommends that the Court of Criminal Appeals grant relief on this ground, and that writ should issue.
III. In re the claim of Ineffective Assistance of Counsel
A. At the hearing on the Motion for New Trial, trial counsel, Mr. Calvin Garvey, brought Ms. Mathis to the court to again attempt to offer her testimony. However, after putting her on the stand, and knowing what the key elements of her testimony were, he utterly failed to introduce any of her alibi testimony to this Court.
B. A defendant has thirty days from the time of Sentencing to request
a new trial. T.R.A.P.
21. A Motion for New Trial is a critical stage of a proceeding at
which the accused is entitled to effective assistance of counsel. Trevino
V. Stale, 565 S.W.2d 938, 940 (Tex. Crim. App. 1978). Appointed counsel's
duties do not end at the teninination of trial. Exparte Galvan, 770 S.W.2d
822, 823 (Tex. Crim. App. 1989). An accused is entitled to effective assistance
of counsel under the Sixth Amendment to the United States Constitution.
C. The standard for reviewing a claim of ineffective assistance of counsel was laid out in Strickland V Washington, 466 U.S. 668 (1984). It essentially requires a two-step analysis. First, one must ask and answer the question of whether the representation fell below the normal level of attorney performance. Then one must show an actual prejudice to obtain relief.
D. Ineffective assistance of counsel at the Motion for New Trial is grounds for granting an out of time Motion for New Trial. Boyette V. State, 908 S.w.2d 56 (Tex. App.-Houston 1st Dist. 1995
E. At the outset, this Court feels compelled to recognize that the pressures and problems any lawyer faces in a capital case are dramatically different than any other type of case a lawyer will ever handle. Otherwise competent representation in all stages of a proceeding may fall short in a critical area and require reversal simply because of the stakes involved. Unless a lawyer or even a reviewing court has stood in the shoes of a trial counsel who literally holds their client's life in their hands, it should be hesitant to criticize the judgements made in the heat of battle. This Court is at pains to point out that a finding of ineffectiveness should not generally be viewed as an attack on an individual lawyer, but rather a vital check on a system that can deprive a citizen of his or her life.
That said, this Court must also recognize that its flinctions require it to decide such claims. Jn the instant case, this Court reluctantly concludes that the trial counsel failed to provide effective representation during the Motion for New Tria4 and for the following reasons reconimends that relief be granted.
F. There was absolutely no presentation of the key defense witness to this Court. fVol. 45 of the trial record, generally. Even if the Court could overlook the failure of the trial counsel to preserve Ms. Mathis testimony in some form at trial, via bill of exceptions, offer of proof, offer of the Grand Jury testimony, subpoena and writ of attachment, or a motion for continuance, it cannot overlook it at the Motion for New Trial when the defense had the witness present! This was the last opportunity for the trial counsel to have presented something, anything, for review, even on direct appeal. Nothing was presented regarding the most important defense witness. The record of the Motion for New Trial hearing does not reveal any coherent trial strategy reason for this failure, and the evidentiary hearing testimony of Mr. Garvey, who was responsible for Ms. Mathis and the MNT made it clear that there was no strategy, simply his own mistake and inexperience. In the face of such testimony, and the clear importance of Ms. Mathis to the defense, this Court must conclude that the trial counsel's efforts at the Motion for New Trial fell below the norm, and that this error was not rooted in any strategy. It further finds that the error materially harmed the Applicant, in that it deprived him of any hope of review on this issue on direct appeal, or any hope of prevailing at the Motion for New Trial.
Accordingly, this Court respectfully recommends that relief be granted in this matter, and that writ issue. In the alternative, because our Texas case law does provide for an out of time Motion for New Trial, this Court respectfully recommends that the Court of Criminal Appeals consider restoring jurisdiction to this Court for just such a motion.
IV. In re the claims on the on Article 37.071(2)e of the Texas Code of Criminal procedure
A. This Court finds that under the Supreme Court's jurisprudence in Locket n Ohio, 438 U.S. 586 (1978) and the subsequent cases in Ecklings n Oklahoma, 455 U.S. 104 (~982) the Texas mitigation question is unconstitutional as applied to the Applicant because it does not permit the Court to guide the jury's decision as to either what factors are mitigating or what weight they may be given, nor does it permit any meaningful appellate review.
B. This Court finds that the case in Walton V. Arizona, 497 US. 639 (1990) is instructive because the reasoning in that case was applied to the trial judge, who under the Arizona system must make the final decision regarding life or death. In Maynard n Cartwrigh(, 486 U.S. 356 (1988) the Supreme Court also distinguished judge V. jury sentencing constitutionally. The court reversed a death sentence in Maynard because the jury was not given a constitutionally limiting definition of an aggravating factor and the state court did not provide any such definition in its review. Maynard, 486 U.S at 364. The parallel to our statute is clear. Since neither the statute nor our case law provide sufficient limitation on a jury's discretion or indeed apy guide at all, this Court cannot sustain the statute after subjecting it to Eighth Amendment analysis. The Applicant was a youthful offender with little criminal past, and no history of violence. Such factors should have been weighed in the jury's mind, and since there is no way to tell the jury what to consider, the sentence in this matter must be vacated and relief granted in the form of a new punishment trial.
V. In re the claim on the 11.071 statute as it violates equal protection
A. At the beginning of this analysis, this Court expresses its desire to do deference to the legislature and to constitutional analysis that can reconcile conflicting statutes. That said, a side by side comparison of the provisions of Article 11.071 with its predecessor and now sister statute, Article 11.07 provides no explanation or possible rationale that could justifify the disparate treatment of two class of offenders under Supreme Court case analysis. As a threshold issue, this Court concludes that a habeas petition is a proper vehicle for attacking the adequacy of state habeas procedures on constitutional grounds. Logic requires this, as any attack on such procedures on direct appeal would not yet be ripe.
The structural analysis undertaken by the Applicant need not be repeated here in its entirety. The nub of this issue, as the Court sees it, is that while death row applicants under Article 11.071 must comply with extraordinarily short time-lines in order to raise claims before the Court of Criminal Appeals, no such time-line applies Applicants under Article 11.07. This deadline under Article 11.071 actually requires the initial habeas application to be filed prior to disposition of the direct appeal! Article 11.071, Sec. 4(a), V.A.C.C.P.
B. It is well-settled law that habeas is not a substitute for direct appeal. ExParte Powell 558 S.W.2d 480 (Tex. Crim. App. 1977). Further, the Court of Criminal Appeals has determined that any such claims presented in a late fashion to the Court are procedurally barred. See Ex parte Smith, No. 36512-01, April 22, 1998, slip op.. This has closed the only reasonable way open to reconcile those statutes, effectively permitting a procedural removal of substantive rights.
C. If one compares two similar cases, both capital cases, one where a death sentence is given, and the other where it is either not sought or not awarded, one sees both the injustice this new statute creates and the problem with its application. In the non-death capital, other than complying with the requirements to preserve federal review of ones claims under the Anti-Terrorism and Effective Death Penalty Act of 1996, [AEDPAI the accused is permitted to wait out the result of his direct appeal, and to review the performance of the appellate lawyer completely, before he needs bring any action under Article 11.07. More, even if he defaults under AEDPA guidelines for federal review, his claim is still reviewable by the Court of Criminal Appeals as there is no time deadline in the state system for filing such an application for relief.
Contrast this with the requirements for the death-sentenced applicant under Article 11.071. Here he must file within 45 days of the Appellee's filing the brief. Thus if there is a question that the Court wishes resolved on direct appeal by either findings of fact at the trial court level, such as on a confession, they are removed from collateral review. Further, the performance of the appellate lawyer is not truly reviewable under this scheme, as the submission date requires the 11.071 applicant waive review of the appellate lawyer's performance in regards to oral argument, an out of time motion for new trial if such is awarded, submission of a reply brief or supplemental letter of authority. Any such claims, including new evidence, are under the current case law absolutely barred from consideration by the Court of Criminal Appeals.
D. With due respect to the reviewing court, and to the legislature, this Court can find no justification for treating two similarly situated applicants so differently. There is no rational basis for depriving one applicant who may lose his or her life of a right of review that remains open to another applicant who arguably committed an equally dangerous act against society. Under Beck V. Alabama, 447 U.S. 625(1980) and Furman V. Georgia, 408 U.S. 238 (1972), heightened reliability is required in death sentencing. Depriving death sentenced capital litigants of review while maintaining it for those sentenced to life imprisonment seems to flirther none of these ends.
E. The principles of respect for state court decisions founded in the bedrock of federalism presupposes that an adequate state remedy exists. Young V. Ragen, 337 U.S. 235, 238 (1949). Under our current system, no such presumption may be extended to our habeas review process since it has deprived one group of their right to review without any justification other than political expediency.
For these reasons, this Court concludes that the Applicant should
be granted relief on this
ground and that no further order may be set for his execution
until such time as he has had the full protections of collateral review
restored via change in the statute or in the current case law.
VI. In re the claims on the clemency procedures
A. This Court believes that under the due process doctrine the procedures currently in use by the Board of Pardons and Paroles via the delegation by the governor's office are faciarly unconstitutional as they do not even provide the barest minimum of due process guarantees. The Rules for Clemency Applications do not prohibit any improper considerations, nor do they require any explanation of any decision by the Board members as to their conclusions. A member could literally deny clemency based upon race, religion, whim, or the toss of a coin under these procedures. As such they fall below even the bare threshold of due process requirements.
B. In Ohio V. Woockird, _____ U.S._____ (1998), a plurality of the justices of the Supreme Court determined that minimum due process requirements did indeed apply to even clemency procedures. A prisoner has a continuing life interest. Connecticut Board of Pardons n Dumschal, 452 U.S. 458 (1981).
C. As to the claim on equal protection, the Court notes that the Applicant is an African-American, and as such a protected class for purposes of equal protection analysis. Further, the Court notes that in its recent history, no person of African American descent has been awarded relief by the Board of Pardons and Paroles, despite many such applications. That this may have something to do with the lack of constraints on the board members has already been addressed.
Accordingly, this court respectiftlly recommends that no order setting
execution shall issue
matter until all matters regarding the perceived unfairness of the
clemency procedures are
in this resolved.
This Court offers the preceding Findings of Fact and Conclusions
of Law to the Court of Criminal Appeals for its consideration and review.
Submitted respectfully,
Presiding Judge
Date
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