IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

ROBERT WILLIAM CLAYTON
   Petitioner,     v.

RON J. WARD, Warden of the Oklahoma            )      PETITION FOR A WRIT OF

State Penitentiary, and DREW EDMONDSON,       )      HABEAS CORPUS PURSUANT

Attorney General of the State of Oklahoma          )      TO 28 USC SECTION 2254 BY

                                              A PERSON IN STATE CUSTODY

                                                    Respondents.
 

PETITION FOR A WRIT OF  HABEAS CORPUS

Section II
 
 

PROCEDURAL HISTORY:

      Petitioner Robert Clayton was convicted of first degree murder on March 1, 1986,  in the district
court for Tulsa County.  Criminal judgment and sentence were entered against Mr. Clayton on March
7, 1986.  Mr. Clayton was convicted of killing Rhonda Timmons and sentenced to death.      After
timely filing his Notice of Intent to Appeal and Petition in Error, Mr. Clayton unsuccessfully appealed
his conviction and sentence. Clayton v. State, 840 P.2d 18 (Okla. Crim. App. 1993).  The Petition for
Writ of Certiorari to the United States Supreme Court was denied on March 29, 1993.  Mr. Clayton's
application for state post-conviction relief was filed August 26, 1993.  His application for relief was
denied on January 14, 1994.  In Post-Conviction proceedings, the state district court denied Mr.
Clayton's application for post-conviction relief on January 14, 1994, without entering a scheduling order
or setting time limits for a requested amendment to that petition, and without an evidentiary hearing.
Further, the application was denied without providing  the petitioner with discovery requested by motion
filed contemporaneously with that petition. (See Appen. at 1).

      Mr. Clayton timely filed notice of appeal and appealed denial of  his application for state
post-conviction relief. The Court of Criminal Appeals entered its order confirming the District Court's
denial of his application for state post-conviction relief on January 10, 1995.  Mr. Clayton then timely
filed a Petition for Certiorari to the United States Supreme Court on June 9, 1995.  On October 2,
1995, the Petition was denied.  Mr. Clayton brings this Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. Section 2254. This Petition is filed pursuant to the court's scheduling order entered on
January 9, 1996, and modified by the court's extention entered March 1, 1996, extending the filing time
to March 5, 1996.

      Mr. Clayton is currently incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma,
while awaiting execution of sentence.
 
 
 
 

PROPOSITIONS ONE AND TWO:  INEFFECTIVE ASSISTANCE OF COUNSEL IN FIRST
              STAGE PROCEEDINGS AND PROSECUTORIAL                               MISCONDUCT
 
 

A.  Introduction
 
 

      Mr. Clayton's trial was characterized by two overriding themes:  a theatrical presentation  by the
prosecution that was carefully calculated to mislead the jury as to the relevant facts and legal
standards applicable to Mr. Clayton's case, and the complete failure of Mr. Clayton's counsel to
provide him with any meaningful defense. Mr. Clayton's defense as presented by counsel consisted of
no opening statement to the jury; practically no relevant cross-examination of any major witness;  the
presentation of no case in chief on behalf of the defendant;  a closing statement covering a mere nine
transcript pages, and voir dire questioning apparently calculated to inform the jury that he did not want
Mr. Clayton's case.  Tellingly, a review of the trial transcript has not revealed a single instance in which
Mr. Clayton's counsel referred to any prior witness statement or other impeachment evidence outside
the record.  This is so even though a wealth of information was available that not only called into
question the guilt of Robert Clayton, but actually strongly implicated at least one, and possibly two, of
the State's primary witnesses as Rhonda Timmons' killer.

      Mr. Clayton's counsel has stated that his reason for not presenting a more powerful defense was
that he had "very little evidence to fight back with,"  and that he "wanted to maintain credibility with the
jury" for the mitigation stage of the proceedings.  (Appen. at 3-5).  This position was taken even though
Mr. Clayton's counsel informed the trial court that "in all honesty, Judge, there is not a lot left to
mitigate for Robert William Clayton . . ."  (TR at 968).

      Mr. Clayton's "trial" was conducted in an atmosphere that had already been poisoned beyond
recovery by the comments of both the defense and the prosecution on voir dire.  The defense had
effectively informed the jury that:

      1.  There were cases he really didn't want to take, but his boss made him take them. (TR at 194).

      2.  His mother didn't like him handling criminal defense cases, and that she often asked him if he
"got anybody off this week."  (TR at 459).

      3.  That "not guilty" meant that there was no "objectional [sic] reason why that person [a lawyer]
represented was found not guilty, but that he "got him off."(TR at 459-460. The impact of these
comments cannot be underestimated when taken in conjunction with the repeated questions by the
prosecution designed to convince jurors that:

      1.  The "beyond a reasonable doubt" standard meant only that they had to be "reasonably well"
convinced,  (TR at 53-54), and that it implied a "judgment about what the possibility" of something
was.(TR at 335).  The prosecution also implied to the jury that "absolutely convinced" (in the words of
the juror being questioned) was a higher standard than that required by law.  (TR at 360).

      2.  That taking into account the nature of the murder, and the extent to which the jury was
offended by that murder did not constitute prejudice or bias, but provided a       rational basis for
making a guilt determination.  (TR at 98, 221, 276-277).

      3.  That the job of the District Attorney was to "seek the truth," not to prove someone guilty.  (TR
at 414-415).

      Because the factual issues relating to the ineffectiveness of Mr. Clayton's counsel and the
misconduct of the prosecution at trial span the scope of the entire trial, the presentation of those
issues has been broken down in a manner designed to provide the Court with an understanding of the
trial that was actually held, together with an analysis of the defense that could have been presented
had Mr. Clayton's counsel exercised even a minimal effort on Mr. Clayton's behalf.

      In order to do this effectively, the testimony of each witness at trial has been broken down into
three parts:

a.  The witness' testimony at trial.

b.  The actual cross-examination of that witness by the defense.

c.  The information readily available to the defense that could have been used for cross-examination
and/or impeachment purposes.  None of the facts found in any paragraph (c) below were presented to
the jury, even though they were readily available in transcripts, police reports, witness interviews (had
they been conducted), and through simple evidentiary analysis.
 
 

These witness breakdowns are followed by a discussion of additional "evidence" that was presented or
argued to the jury by the prosecution that was simply untrue.

B.    The Prosecution's Evidence at trial, the prosecution presented the following exhibits and
testimony relating to Mr. Clayton's alleged guilt:
 
 

BILL TIMMONS

      a.  Mr. Timmons' testimony at trial (TR at 582-615):

      Mr. Timmons was Rhonda Timmons' husband.  Mr. Timmons left for his job as a delivery man at
7:30 a.m., and returned home once at 8:00.   He spoke to his wife from work by phone at
approximately 10:30, and he attempted to call her again later.  (TR at 584).  He left work to make the
ten minute drive home for lunch at 12:20 or 12:25.  Id.  Mr. Timmons went to the back door of his
apartment, where he saw two towels, a pillow, and the baby's swimming pool scattered around.  He
put his key in the lock (which Rhonda always kept locked), but discovered that the door was unlocked
and the dog's chain was stuck in the door. The dog was about four feet inside the door.(TR at 585).

      When he opened the door, Mr. Timmons "saw blood everywhere," including handprints on the
walls and footprints, when he opened the door. He walked in and followed the blood through the house
to the bathroom, where he noticed things scattered, and diluted blood in the sink and on the floor. Mr.
Timmons then went to the baby's bedroom, where he discovered his wife face down in a fetal position
in the middle of a "pond of blood."  Mrs. Timmons' bikini top was pulled up around her neck.  She was
still wearing her bikini pants.  Mr. Timmons touched his wife once on the back, and returned to the
kitchen, where checked the refrigerator to see if his gun was still there, called his father, and then the
police.  He then got his baby and left the house.

      When Timmons left the house, he kicked the pillow that was outside onto to roof of the house.
 

      At trial, Mr. Timmons identified State's exhibit 1 (a map with a plastic overlay showing objects and
blood in the house), and exhibits 2-11 and 14-26 (photos) as accurately representing the scene as he
saw it when he discovered his wife.

      b.  Cross-Examination of Mr. Timmons (TR at 615):

      NONE

      c.  Cross-Examination and other relevant material available to the defense, but not used

      The defense made no mention at trial of the fact that fewer than ten days earlier, Bill Timmons had
threatened a group of men who had whistled at his wife while she was laying out.  Timmons had taken
his gun from the top of the refrigerator, and threatened the men with the gun. (Appen. at 10).  Mr.
Timmons admitted getting his gun, but denied threatening the men.  (PH at 25).  The prosecution filed
a motion in limne with regard to this incident, alleging that taken by itself, it did not implicate Mr.
Timmons as a possible suspect. The defense conceded the motion without comment.

      While the prosecution was correct that taken by itself, the incident involving the teenagers was not
sufficient evidence to implicate Mr. Timmons, what the defense failed to point out, or even make any
effort to discover was that there was a wealth of other information calling into question Mr. Timmons'
account of what took place on the day his wife was killed:

      1.   Mr. Timmons' testified at trial that he left work at around 12:25. (TR at 584). This would have
placed him at his apartment around 12:35,  and would have put his call to 911 about ten to fifteen
minutes after he arrived.  Officer Marshall, the first to arrive on the scene arrived at 12:58.  No evidence
has ever been provided the defense as to the exact timing of the 911 call, but it is assumed that the
police would not have taken more than ten minutes responding to a murder call.  This conclusion is
further borne out by the fact that when  Timmons originally testified at preliminary hearing, he said he
left work at 12:40,  (PH at 8) and he certainly would not have testified that he arrived after the 911 call
had been made.  Mr. Timmons' testimony as to when he left work is in conflict with the statements of
at least three witnesses who saw him leave.  All three witnesses agreed that he left work no later that
12:15, (Appen. at 9) which would have placed him at his apartment by 12:25, a full twenty minutes
before the earliest possible 911 call time.  Mr. Timmons did not clock out from work that day, a fact
his manager called "very unusual."  Id.

      2.  When Timmons finally got around to calling for help, he didn't call 911 first, but instead called
his father.

      3.  Mr. Timmons testified he was going home for lunch.  However, Willie Carr, an eyewitness at
the scene, (who saw no one other than Timmons around) indicated that when Timmons pulled up to
his apartment, he got out of his truck, and left the truck door open.  Timmons also left out another
important part of his activities on the day in question.  He did not simply wait for the police outside of
the apartment with his baby.  After "discovering" his wife in the apartment, he walked out, without the
baby, and asked Henry Rodgers, who was standing near Willie Carr, if he had "observed any 'shit'"
over at his apartment.  Timmons did not inform Carr or Rodgers that his wife was injured, nor did he
ask them to get help.  He then kicked the pillow on the roof, and went back into the apartment.
(Appen. at 10).

      4.  It is not clear whether Timmons made the 911 call before or after he questioned the men
outside.

      5.  At least two knives, one a lock blade, were found in Timmons' apartment.  These were
apparently returned to Timmons without having been tested by the police. (Appen. at 18-20).

      6.  Timmons key was found in the door of the apartment.  Timmons explained at trial that he did
not notice the dog chain in the door until he opened the door.  (TR at 585).

      6.  The neighbors who were questioned indicated they didn't hear anything unusual that day.
Pointedly, there is no testimony that anyone heard Rhonda Timmons scream.  (Appen. at 10-11).

      7.  The medical examiner testified that the damage to Mrs. Timmons' head could have been
caused by any blunt object, and while a fist is a possibility, the damage to her head was severe.  Mr.
Timmons had access to, and admitted touching while he was in the apartment, a common
bludgeoning instrument - the butt of his gun.  (TR at 862).

      8.  Mr. Timmons barely touched his wife on finding her, making no attempt to revive her or see if
she was alive.  (TR at 588).
 

OFFICER DAN MARSHALL

      a.  Officer Marshall's testimony at trial (TR at 616-622):

      Officer Marshall was the first of the emergency personnel to arrive at the crime scene.  He arrived
at 12:58 p.m. and saw Mr.  Timmons, holding the baby, motioning to him. (TR at 616-617). Officer
Marshall went into the apartment, where he noticed blood stains on the kitchen counter, the kitchen
floor, and the hall.  He found Mrs. Timmons slumped in the northwest bedroom. (TR at 617).   Marshall
checked the Mrs. Timmons and found no pulse. (TR at 619). She was wearing a bikini bottom and no
top.

      Marshall ran back out to radio for help, and at that time, EMSA and Sergeant Richard Bowen
arrived.  Marshall told EMSA to take life support equipment into the apartment, saying he didn't know
how long the victim had been "in that condition." (TR at 619-620).   Marshall testified that Timmons
told him he "took his son from the baby bed, went directly to the kitchen, and called the police
department." (TR at 622).

      Officer Marshall identified the plastic overlay on State's Exhibit 1 as "pretty much" accurately
reflecting the blood in the apartment when he first went in.  (TR at 618).
 
 

      b.  Cross-examination of Officer Marshall (TR at 622-624):

      On cross-examination, the defense elicited the following testimony:

      1.  The door to the apartment was open when Marshall arrived.

      2.  Marshall didn't touch anything in the apartment, except possibly a wall.

      3.  As far as Marshall knew, only he, EMSA, and the Sergeant were in the apartment while he
was at the scene.
 
 

      c.  Cross-examination and other relevant material available to the defense, but not used

      Not a single State's witness discussed, or was asked about the impact of, the EMSA personnel
and officers on the integrity of the crime scene.  Not a single witness discussed the possibility that
part, or even all, of the "blood trail" in the apartment was caused, not in the assault on Mrs. Timmons,
but by the resuscitative efforts made by EMSA and the police.  In state post-conviction proceedings,
Don F. Cravens, an investigator with the Oklahoma County Public Defender's office, was retained to
analyze the impact of the EMSA activities on the crime scene, and to discuss the conclusions
reached by the State's "expert," Ken Ede (Mr. Ede's testimony was found by the Oklahoma Court of
Criminal Appeals to be inadmissible because of his lack of qualifications).  Mr. Cravens Affidavit
(Appen. at 27), concludes that the majority of the blood spatter found in the apartment resulted from
the CPR administered to Mrs. Timmons, and the movement of her body out of the apartment, and that
objects at the crime scene were moved prior to the time the photographs of the scene were taken. Mr.
Craven's affidavit also indicates only one point of attack, the bedroom where Mrs. Timmons was found.
 
 

JODIE McDONALD (TR at 624-634):
 
 

      a.  Jodie McDonald's testimony at trial
 
 

      Jodie McDonald was one of the EMSA employees who responded to the scene.  The EMSA
personnel arrived at 12:59 p.m. (TR at 627).  After checking Rhonda Timmons vital signs, and
determining that she was not alive, the EMSA personnel began performing emergency procedures,
including CPR and inserting a breathing tube in her trachea.  Ms. McDonald testified that the victim
had a "sucking chest wound" that bubbled every time they breathed for the victim. (TR at 628).  The
EMSA personnel initiated emergency procedures because:
 
 

[t]he police officer that was standing outside made the comment that if she died, she just died and the
husband was standing outside with the baby and we figured we at least owed it to him to try, since we
had no idea how long she had been down.

TR at 630.  Ms. McDonald identified several items in the photographs of the apartment that were left
behind by EMSA.  (TR at 631-633).
 
 

      b.  Cross-examination of Jodie McDonald

      NONE

      c.  Cross-examination and other relevant material available to the defense, but not used

      The defense could have easily bolstered the evidence of a contaminated crime scene by
confirming with Ms. McDonald the number of EMSA and other personnel in the apartment, the
equipment that was taken in, and the areas through which they moved.  In addition, no questions were
asked of EMSA concerning how Mrs. Timmons was handled and moved by them.  It is possible, and
even likely, that much of the bruising she received could have been caused by EMSA moving her, not
as a result of the attack.
 
 

OFFICER RICHARD BONDY
 
 

      a.  Officer Bondy's testimony at trial (TR at 636-641):

      Officer Bondy prepared the maps and diagrams used by the State at trial.  He based those
diagrams of the apartment and the overlay showing the "blood trail" based on unidentified "pictures,
measurements, and reports."  (TR at 637).
 
 

      b.  Cross-examination of Officer Bondy (TR at 641):

      NONE

      c.  Cross-examination and other relevant material available to the defense, but not used
 
 

      Officer Bondy failed to identify the "pictures, measurements, and reports" he used to prepare the
"blood trail" overlay.  Further, there is no evidence any measurements were ever provided the defense.
(See cross-examination of officer Marshall, at page 8, supra., and cross-examination of Ken Ede at
page 27, infra., for a discussion of how this "blood trail" overlay represented only the scene as
contaminated by EMSA, who clearly spread large quantities of blood throughout the house when they
removed Mrs. Timmons.  As a result, this overlay was completely useless to show the house as it
was found by Mr. Timmons or Officer Marshall).
 
 

HELEN SYPHURS
 
 

      a.  Helen Syphur's testimony at trial (TR at 641-646):
 
 

      Helen Syphur's testified that she lived in South Brook Apartments, near to the murder scene.  She
"knew" and had known Mr. Clayton for twenty years.  Helen Syphurs is Sherry Reinke and Tony
Hartsfield's mother.  On June 25, the day of the murder, Mr. Clayton arrived at her house between
12:00 and 12:30. (TR at 643).   Ms. Syphurs explicitly remembered he was wearing blue bib overalls
with a shirt and a pair of tennis shoes.  (TR at 643).  She did not see anything on Mr. Clayton's
overalls.  When he came in, Robert was breathing hard, and he bent over, putting both hands on his
knees.  (TR at 644).  Robert was shaking one of his hands, and said he had gotten into a fight with a
black guy and a Mexican or an Indian.  He said he thought he had killed the "son of a bitch."  (TR at
644).

      When Robert came into the house, he went to the back bedroom and used the phone.  He then
told Ms. Syphurs that Tony was not home and asked her to take him to Sherry's. (TR at 644).   Ms.
Syphurs apparently said '"no", and resumed cleaning.  Robert then went in the bathroom and took a
shower.  He came out in a towel, and asked if Ms. Syphurs had any men's clothes.  She said no. (TR
at 644).  Robert then put his old clothes in a paper bag, and used the phone again.  Ms. Syphurs
heard him say he wouldn't be back to work because a few problems had come up.  He told Ms.
Syphurs he would have to wait on Tony, and she said, no, she would take him back to her daughter's
house on 27th place off of Sheridan Road. (TR at 644-645).
 
 

      b.  Cross-examination of Helen Syphurs (TR at 646):
 
 

      On cross-examination, the defense elicited the following testimony from Helen Syphurs:

      1.  Robert told her the men he had gotten into a fight with were going to rob him. (TR at 647).

      2.  Robert was at Helen Syphurs' apartment for fifteen to twenty minutes.  (TR at 647).

      3.  Tony Hartsfield is Helen Syphur's son, and he and Robert had both come back from Texas and
were staying at Sherry Reinke's house.

      c.  Cross-examination and other relevant material available to the defense, but not used

      The police found a lock blade knife at Mrs. Syphur's house (a fact never discussed at trial) when
they searched it.  This knife was not left by Robert Clayton, and may have belonged to Tony Hartsfield,
her son.  See Police Report (Appen. at 35).
 
 

SHARON REINKE
 
 

      a.  Sharon Reinke's testimony at trial (TR at 649-661):

      Ms. Reinke (Sherry) testified that Tony Hartsfield, and Robert Clayton (also known to her as
"Robin" and "Ooger") arrived at her house the evening of June 24th (the night before Mrs. Timmons
was killed) and spent the night.  The next morning, Sherry and Tony drove Robert to Keystone Lake to
get clothes for Robert to go to work in.  The clothes were in Tony's trailer that was parked at the lake.
Robert got three specific items of clothing:

      "Bib overall and a white T-shirt and his tennis shoes."

(TR at 650).  [These are the same three specific articles of clothing Helen Syphurs said she saw
Robert wearing].  Sherry and Tony took Robert home, where he changed, and then took him to work at
South Glen Apartments.Tony and Sherry then went to a truck stop to send Tony's wife money, and
stopped and ate breakfast.  They then went back to Sherry's house, picked up Donald Reinke
(Sherry's husband) and Michael (Sherry's son) and went to Woodland Hills Mall. They got back from
the mall at about "12:30 or 1:00".  (TR at 651). Tony and Don then went to the store. Robert Clayton
showed up at the house around 1:30 with Helen Syphurs.  Robert was wearing a towel and carrying a
paper sack.  He changed clothes in the back bedroom, and then told Sherry he had been in a fight
with two guys around 71st and Lewis, close to the Pizza Hut.  He told Sherry "he had blood on his
clothes, and [Sherry] told him he should wash them because of blood stains."  (TR at 653).  Sherry
testified Robert showed her the overalls, taking them out of the paper sack, and they had blood:

      "right in front, the knees, right in here (indicating).  Thighs, right in here, and up here (indicating).

* * *

      "It was full of blood.  You could see it really good."

(TR at 654). Sherry testified that the blood was still wet.

      After Sherry told him to, Robert took the overalls and the sack to the washing machine and turned
it on.  Mr. Clayton called South Glen Apartments, and Sherry Reinke told them "one of his hands
[was] hurting and his stomach was hurting."  Clayton's hand was not injured that morning.

      Around 3:00, a detective came to the house.  Mr. Clayton came in the bedroom and said that the
police were there and he was going to run.  He went over to the open bedroom window.

      Mrs. Reinke did not originally tell Detective Bishop about the clothes in the washer, but did when
he told her the death of a woman was involved.  She was present when he removed the clothes from
the washer, and saw a sock on the floor next to the washer.  It matched a sock that was in the
washing machine.  Detective Bishop was the only one who went with her into the garage.  (TR at 660).

      In addition, it was Mrs. Reinke who found a knife (State's Exhibit 31) in the backyard that was
presented by the prosecution at trial as the alleged murder weapon.  Tony Hartsfield called her and
"told her," and she went out to the back yard and found the knife.  (TR at 661).  She pointed it out to
the detectives who were looking for it in the yard at that time.
 
 

      b.  Cross-examination of Sharon Reinke (TR at 661-667):

      On Cross-examination, the defense elicited the following:

      1.  Robert Clayton was acting a little edgy that day.  He said it was about the fight he had   been
in.  (TR at 662).

      2.  The blood on the overalls was not dripping, but was wet. (TR at 662).

      3.  Sherry suggested that Robert put the clothes in the washer twice.

      4.  The open window was 4 feet tall by 1 and 1 half feet wide.

      5.  Robert Clayton did not run, but went "downtown" with the police.

      6.  The knife was found about twenty feet from the house in six inch tall grass.  The search in
which it was found was the second search of the yard.  Sherry looked for about fifteen minutes.  (TR at
665).

      7.  Robert had had "something to cut with" when she had seen him at the lake previously. (TR at
666).

      8.  Sherry Reinke was Tony Hartsfield's sister and Helen Syphur's daughter.

      c.  Cross-examination and other relevant material available to the defense, but not used

      There is simply no rhyme or reason to the questions asked of Sherry Reinke by the defense.  If
fact it appears that by asking the leading questions about Mr. Clayton's nervousness and the fact that
Robert had something to cut with, the defense was assisting the state in clarifying its case against
him.  It is obvious that counsel was simply fishing, and had no idea of what his theory of defense was,
of what Mrs. Reinke's responses were going to be, or of what questions should have been asked.
There is simply no logical reason counsel could want to establish that Robert had "something to cut
with,"  that he was nervous, or that the blood was not dripping.  It is ironic that the one witness with
who there would be little to gain on cross in any coherent presentation is the one counsel chose to
spend the most time with.

      The one issue on which Reinke could have been cross-examined was what happened to the sack
Robert Clayton put his clothes in.  If in fact his clothes were as bloody as she testified, there should
have been blood on that sack.  At pretrial, Mrs. Reinke testified she knew Detective Bishop "took it
[the sack] outside."  (PH at 43).  Yet, there is no indication in any police report or evidence log
provided to the defense that the sack was ever delivered to the police evidence locker or tested for
blood. (See affidavit of Jeremy B. Lowrey, Appen. at 53).
 
 

DONALD REINKE

      a.  Donald Reinke's testimony at trial (TR at 668-673):

      Donald Reinke is Sherry Reinke's husband.  He testified that on the day Rhonda Timmons was
killed, he, Tony, Sherry, and Michael went to Woodland Hills Mall.  They got back from the mall at
around 12:30.  Tony and Donald then went to the grocery store. (TR at 670).  They got back from the
store at around 1:00, and Robert was at his house, wearing cut-off blue jean shorts.  At some point,
Robert mentioned he had been in a fight, and he acted as if his left hand was hurt.

      At around 3:30, two men in suits pulled up.  (TR at 671).  Mr. Reinke went outside to talk to
them.  Mr. Reinke told them he didn't think "Randy Clayton" was at his house.  He then told them that
he would go inside and get Mr. Clayton.  At that time, Robert was either in the hall or back bedroom.
Robert told Don to tell the men that he was not there, but Don told him he should go outside and talk
with them.  Robert was nervous and excited. (TR at 672).

      Robert went out to talk with the police.  Mr. Reinke was present when his house was searched
and when his yard was searched.  (TR at 672-673).

      b.  Cross-examination of Donald Reinke (TR at 673-676):

      On cross-examination, the defense elicited the following additional information:

      1.  Reinke originally lied to the officers about whether Clayton was in the house.  (TR at 673).

      2.  The grass in the back yard was two or three inches high, and no one cut it prior to the search.
(TR at 674).

      3.  Tony Hartsfield, Robert Clayton, Sherry Reinke, Michael Reinke, and Don Reinke were the
people staying in the house at that time.

      c.  Cross-examination material and other relevant material available to the defense, but not used

      Both Donald Reinke and Sherry Reinke (Smith) have indicated in recent interviews taken on behalf
of Mr. Clayton that they were not with Tony Hartsfield on the morning of June 25, 1985.  Further, both
independently recalled that Don worked that morning.  See Proposition five, New Evidence, at page
53.  Although as a practical matter, it is difficult to confirm whether Don worked or went to the store at
this late date, such would not have been the case for the defense had this issue been investigated in
1985.  If Don worked that morning, the entire testimony of the Reinke's, and particularly Tony
Hartsfield, is called into question, and the true question becomes, why did Tony Hartsfield need an
alibi?
 
 

TONY HARTSFIELD

      a.  Tony Hartsfield's testimony at trial (TR at 676-704):

      Tony Hartsfield testified that he had known Robert Clayton most of his life.  Tony Hartsfield's
mother and Robert's mother were friends.  (TR at 676).  Robert had gotten together with Tony in
Odessa, Texas about three weeks earlier, and they had gone to Houston. (TR at 678).  They spent
about two weeks in Houston, and a week in Dallas before going to Oklahoma.  Tony's wife was with
them in Texas, but went back to Alabama because they were low on money.  (TR at 678).  Robert and
Tony went to Tulsa, because Robert got his old job back working at South Glenn Apartments, and was
going to try to get Tony a job there. (TR at 679).

      They parked Tony's travel trailer at Keystone Lake, and drove his pickup to Sherry Reinke's
house.  Tony was not familiar with Tulsa at that time.  (TR at 681).  The next morning Tony, Sherry,
and Robert went to Keystone lake to get Robert some clothes from the trailer.  Robert got "some bib
overalls, a shirt - T-shirt - and a pair of socks."  (TR at 682).  The socks belonged to Tony Hartsfield.
(TR at 682).  They then returned to Sherry's house where Robert changed clothes.  Tony testified that
Robert was wearing the clothes from the lake, including the socks.        Tony and Sherry dropped
Robert off at work,  sent Tony's wife some money from the 76th Truck Stop, and went back to the
house. (TR at 684-685).  They then went to Woodland Hills Mall with Don and Michael, and arrived
back at the house around 11:30.  Don and Tony then went to Safeway.  (TR at 685).   They were gone
about forty-five minutes (they got back between 12:00 and 12:30), and when they got back, Robert
was there wearing a pair of blue shorts, and acting "nervous, scared." (TR at 687).   Robert told
Hartsfield he had gotten into a fight with two boys who tried to steal his money.  (TR at 689).
Hartsfield thought Robert said the fight occurred around the Pizza Hut.  Tony testified that Robert told
Tony (between him and Tony only) that he had cut one of the boys with a knife and hoped he hadn't
killed him.  (TR at 690).  Robert went to the bathroom once, and Tony heard the shower running, and
Robert went to the garage (where the washing machine was) once.  (TR at 691).  Robert then went
back to the bathroom for about fifteen minutes.  Robert then made a phone call to work, saying they
were going to move the camper trailer to Sherry's house.  Tony was in fact planning to move the trailer
that day.  (TR at 703).  All of these activities together took from forty-five minutes to an hour. (TR at
692).

      When the police came, Robert told everyone to say he wasn't there and got real panicky.  When
Don came back in to get him, Robert was sitting in the window sill of the back bedroom.  Don talked
him out of running away.  As Robert went by, Tony testified that he told Tony "not to let them find the
knife."  (TR at 695).  Tony said that Robert carries a three inch folding knife that he saw with Robert in
Houston.  (TR at 696).  Tony had seen Robert with the knife earlier that morning.  (TR at 696).

      Later, Detective Bishop removed some clothes from the washing machine.  These were the
clothes that Robert was wearing earlier. (TR at 697).   There was a sock on the floor that the detective
also picked up.  (TR at 697-698).  Tony saw a knife in the backyard that same day, when the police
were searching the yard, but he didn't tell them about it. (TR at 698-699).  Tony identified State's
exhibit 31 as Robert Clayton's knife.  Tony identified the socks at the washing machine as belonging
to Tony.  (TR at 702).

      Hartsfield testified that the next morning, Clayton called Tony from jail, and Tony asked him why
he "killed the girl."  Tony testified that Robert responded "I flipped out."  (TR at 703).

      b.  Cross-examination of Tony Hartsfield (TR at 704)

NONE

      c.  Cross-examination and other relevant material available to the defense, but not used.

      Tony Hartsfield was the single most devastating witness for the prosecution. His testimony about
the socks and the knife tied the only physical evidence in the case to Mr. Clayton.  The question,  of
course, is how credible the testimony of Tony Hartsfield is.  On the issue of pointing out to the jury
Tony's lack of credibility, the defense failed miserably, beyond the point of any reasonable
representation decision.  Mr. Hartsfield's testimony contradicted, in almost every significant detail, the
original recorded statement he made to the police.  (Appen. at 36-49).  In that statement, Hartsfield
told the police that:

      1.        There appeared to be nothing wrong with Clayton when Tony saw him that afternoon at
Sherry Reinke's house.  He was "sitting there, being his usual self, . . ."

      2.        Hartsfield has never seen Clayton with a pocketknife.

      3.      The only injury Clayton appeared to have was a little scratch on his knuckle.

      4.      Tony was not in the laundry room when the Police got the clothes out.

      5.      Robert did not tell Tony he had been in a fight, but that he "felt sick."

      6.        Tony told Robert that if he wasn't going back to work "we can go get my camper and move
it up her in my sister's yard.  That'll save me $8.00 a day."

      7.      Tony was not sure what socks Robert Clayton was wearing.

      8.        Tony had not seen Robert for seven or eight years.

      It is clear from these statements that Tony was simply lying on at least one of the two occasions -
either to the police, or on the witness stand.  The question then becomes, what motivation would have
prompted him to lie.  One answer to that question is simple, (although there is quite possibly a
second, and equally compelling answer) -- Tony only began to implicate Robert Clayton when
confronted with threatened prosecution for attempted murder in Texas.

      Following his initial statement Tony's wife, Tammy, was interviewed.  At the time of that interview,
she informed the police that her husband, Tony, had hit a man in the head (just as the victim here
was hit in the head) with a metal tool in the parking lot at Gilley's Bar in Houston.  (Appen. at 55-74;
See pages 71-73 ).  Interestingly, when asked why Tony did this, Tammy (in her original statement)
indicated it was because they needed money.  Bill Timmons testified that money was missing from
his wife's purse.  (PH at 20).

        When confronted with allegations  that he had hit the man (Albert Lacy), Hartsfield requested
that he be permitted to speak with his wife prior to continuing his conversation with the police.  After
he did so, he returned, and in a taped statement that has never been produced to the defense (see
Appen. at 51-53, and Proposition Three, infra.), Hartsfield told police that Robert Clayton had been the
one that attacked the man in Texas.  Hartsfield received ten year's probation for the matter in Texas
(apparently subsequently deferred), (Appen. at 74-75) and testified at trial as set forth above.  Both he
and Tammy  testified at the mitigation phase of trial that Robert Clayton hit Albert Lacy with the
crescent wrench.

      It is obvious that it was to Tony Hartsfield's benefit to lie about his involvement in Texas, and to
implicate Mr. Clayton as a violent criminal.  Rather than serving serious time in jail on a charge of
assault with a deadly weapon, his claimed more passive role in the altercation let him go free.
Further, the other primary witness against Mr. Clayton was Sherry Reinke, Tony's Sister!

      As stated above, there is also a second issue that should have been raised at trial by the defense
as an explanation for why Tony was lying -- Tony's peculiar knowledge of the circumstances
surrounding the crime.  Only Tony was able to provide the police with information they did not already
possess;  i.e. where the knife was located.  Further his explanation that he saw the knife when the
police were searching for it the first time is questionable, as Officer Huff (the Officer who searched)
testified that no one was in the yard with him when he searched it, and that he did not recall having
met Hartsfield. (TR at 770).   In addition, Hartsfield testified at trial as to the exact location of the
bloody sock in the garage, even though in his original statement to the police he informed them that he
had not gone in the garage.  Finally, only Tony testified that Robert Clayton was even wearing socks
that day, and  the socks, by his own testimony at trial, belonged to Tony.
 
 

CLAUDIA BIESEL AND JACQUELINE MATTINGLY

      a.  Biesel and Mattingly's testimony at trial (TR at 706-720):

      Biesel and Mattingly were employees of South Glenn Apartments.  They each spoke by telephone
to Clayton on the day Rhonda Timmons was killed.  Biesel indicated that Robert had just started his
job as groundskeeper for the apartments that day.  Robert called "around 12:30" and spoke to Biesel,
saying he had run into a few problems and wouldn't be back in.  (TR at 710).  She said Clayton
sounded "upset."  (TR at 712).  She referred his call to Mattingly, who talked to Clayton.  He told her
the same thing.  TR at 719.

      b.  Cross-examination of Biesel and Mattingly (TR at 712-714, 719-720):

      On cross-examination, the defense asked both Biesel and Mattingly whether they were familiar
with Clayton's voice, and they said yes.  The defense asked Biesel whether it was her job to determine
whether people were upset over the phone and she said yes.  (TR at 713).

      c.  Cross-examination material available to the defense, but not used

      Biesle originally told police that Clayton called her at exactly 12:26.  This fact is important,
because he called her from Helen Syphur's house after he had taken a shower, and had been seen by
a maintenance man at the "shop" at 11:55 (See John Thomas' testimony below).  This call was
practically Clayton's last act at Helen Syphur's house, and he had already had time to travel to Mrs.
Syphur's house from the apartment complex, make a prior call, :"been there for a little" and talked with
Mrs. Syphurs, (PH 105 at ), take a shower, and bag up his clothes.  This would have left very little
time for him to have committed the crime he was accused of, and then to travel to Helen Syphur's
house.  By Mrs. Syphur's testimony, in fact, Mr. Clayton could have arrived as early as five minutes
after he spoke to Mr. Thomas, providing no gap within which the crime could have been committed.
 
 

JONATHAN THOMAS
 
 

      a.  Mr. Thomas' testimony at trial (TR at 720-723):

      Thomas testified that in May, when Clayton previously worked at the apartment complex, he had
seen the victim sunbathing and told Thomas that he would like to meet her.  (TR at 721). Thomas told
Clayton she was married.

      Thomas saw Robert on the morning of June 25 at about "10:30", at which time Clayton wanted
him to pick up some cheeseburgers at Burger King.  Thomas saw Clayton again at the "shop" at
11:55, and told him he was going to lunch.  Clayton told Thomas he was tired and was going to sit in
the shop for a few minutes.  When Thomas returned at 12:25, the shop was locked up, and he didn't
see Clayton around.  (TR at 723).
 
 

      b.  Cross-examination of Thomas (TR at 724):

      The defense asked Thomas why he hadn't told police investigators about Clayton's comments
about the victim, and he said the police said he didn't have to talk to them, but that the DA's office
would contact him.
 
 

      c.  Cross-examination material available to the defense, but not used

      One of the more compelling exhibits admitted at trial was a photo of Robert Clayton's left hand,
showing an injury claimed to have been consistent with his having hit Rhonda Timmons.  (State's
Exhibit 50). Unfortunately for Mr. Clayton, what was not pointed out by his counsel at trial was that he
had this injury prior to the time Mrs. Timmons was assaulted.  Both Mr. Thomas and Danny Joe
Livingston informed police that at 8:00 on the morning of June 25, one and one-half hours before Bill
Timmons' last conversation with his wife, Mr. Clayton had shown them his left hand and that it was
injured and swollen.  (Appen. at 76).  Ironically, the prosecution even presented this evidence at the
mitigation phase as evidence of Clayton's participation in the assault in Texas, conveniently forgetting
that the injury had already been claimed to have been a result of the Timmons assault.
 
 

DETECTIVE VERNON WHERRY

      a.  Wherry's testimony at trial (TR at 733-75-):

      Detective Wherry responded to the scene with Detective Corporal Fred Parke.  When they arrived,
Detective Bishop and EMSA were working on giving aid to Rhonda Timmons, who was on a gurney.
(TR at 733).  After speaking with Mrs. Roper in the apartment office, Sergeant Hunt and Wherry drove
to Sherry Reinke's house.  Detective Wherry provided testimony as to the reading of the "Miranda"
rights to Clayton and his invocation of the right to counsel.  [This issue and Detective Wherry's
testimony on this issue are discussed in more detail in Propositions Six through Eight at page 54,
infra.].

      On the following day,  Wherry and Sergeant Hunt returned to the Reinke house to search  the
back yard.  During that search, Mrs. Reinke, who was also there, pointed out an open lock-blade knife
lying on the ground.  (TR at 744).  Wherry recovered the knife with a handkerchief and gave it to
Sergeant Hunt. After the knife had been fingerprinted on June 27, with negative results, it was returned
to Detective Wherry, who carried it in his pocket for the remainder of the day.  At 4:00 on the 27th, he
returned it to the lab to determine whether there was blood on it.
 
 

      b.  Cross-examination of Wherry (TR at 750-755):

      On cross-examination, Wherry testified that he had been in the garage of the Reinke's house on
June 25th while he and Hunt were there, and that he and Hunt had made a prior "cursory search" of
the premises. (TR at 751).  Wherry recalled meeting Hartsfield on the 25th.  Detective Bishop was
called ten minutes after Wherry and Hunt arrived at the Reinke's.
 
 

      c.  Cross-examination material available to the defense, but not used

      The prior discussion relating to the devastation of the crime scene by EMSA and the police could
have been further bolstered by Wherry's testimony.  More important, however, Wherry could have cast
doubt on the validity of Robert Clayton's "confession" to Fred Parke.  At the hearing held on the
admissibility of the "confession,"  Wherry testified that Mr. Clayton "seemed a little bit on the slow
side" and that a "considerable amount" of conversation with him was necessary in order for Mr.
Clayton to understand what was going on. (PH excerpt at 44).  This conclusion is born out by a
reading of the five pages of Mr. Clayton's conversations that were recorded by the police department,
in which he makes no incriminating admissions, but will clearly answer "yes sir" to practically any
question asked of him.  (Appen. at 77-81).  In that transcript, Clayton is clearly confused by a concept
as simple as his right to an attorney, but according to Fred Parke, the detective to whom Mr. Clayton
made his "confession,"  (See discussion of Fred Parke testimony at page 32, infra.) Clayton suddenly
and miraculously became completely lucid, requiring little prompting whatsoever, when alone with that
detective.  Wherry's testimony clearly would have cast doubt on Parke's.  (See also, Affidavit of Ron
Wallace (Appen. at 3) for further evaluation of Mr. Clayton's mental ability at the time).
 
 

OFFICER ROY HUNT

      a.  Officer Hunt's testimony at trial  (TR at 755-763):

      When Hunt arrived at the scene, EMSA and Detective Bishop were administering CPR to Rhonda
Timmons.  She was on a gurney located in the living room of the apartment (between the kitchen and
the bedroom in which she was found).  (TR at 756).  Hunt noted that Mrs. Timmons had been stabbed
twelve or thirteen times, and that she appeared to have been strangled.  At the time Hunt saw Mrs.
Timmons, she was not wearing any clothes, but he saw bikini bottoms at the scene.  (TR at 758).

      Hunt and Wherry went to Sherry Reinke's house and took Mr. Clayton back to the police
department.  [Detective Hunt's testimony as to Mr. Clayton's Miranda rights is discussed in
Propositions Six through Eight , infra.].  On the afternoon of the next day, Hunt and Wherry searched
the backyard of the Reinke's house, where Wherry found a folding pocket knife.  (TR at 762).

      b.  Cross-examination of Officer Hunt (TR at 763-765):

      On cross-examination, the defense elicited the following:

      1.  The knife was found the day after Mr. Clayton's arrest, and Hunt and Wherry told the Reinke's
they were looking for a knife when they arrived to search.  (TR at 764).

      2.  Hunt doesn't know who Tony Hartsfield is and doesn't recall having met him.  (TR at 765).

      3.  Hunt and Wherry "held the scene" until Bishop arrived.  (TR at 765).

      c.  Cross-examination material available to the defense, but not used

      NONE (other than previously discussed EMSA crime scene contamination).
 

OFFICER MIKE HUFF  (TR at 767-769):
 
 

      a.  Officer Huff's testimony at trial

      Huff searched the bedrooms of the Reinke house on the evening of June 25, and "10 to 15 feet out
into" the back yard.  (TR at 769).

      b.  Cross-examination of Officer Huff  (TR at 769-771):

      The defense elicited testimony that Huff told the Reinkes he was looking for a knife.  He said it
seemed as if they were expecting him.  There was one man and one woman present when he
searched, and they stayed in the living room.  Huff does not recall having met Tony Hartsfield. (TR at
770).

      c.  Cross-examination material available to the defense, but not used

      NONE
 
 

OFFICER RICHARD BISHOP

a.  Officer Bishop's testimony at trial (TR at 771-784):

      When officer Bishop arrived at the scene, the EMSA technicians were in the process of placing
Rhonda Timmons on a gurney.  Bishop administered CPR chest compression's for them as they
moved her through the kitchen door. (TR at 773).  Bishop left the scene in response to the call from
Wherry and Hunt, and went to the Reinke house, where Wherry and Hunt introduced him to the
Reinkes. (TR at 777).   He obtained a search waiver, and went to the garage with Mrs. Reinke.  He
recovered the clothes from the washing machine, (States Exhibits 30, 33, 34, 35 and 39) and a sock
from the floor that appeared to have blood on it (State's Exhibit 32).  (TR at 778). He turned the clothes
in to the property room of the Tulsa Police Station.

      Detective Bishop saw bloody footprints on the floor of the bathroom of the apartment where the
victim was found, and took a photograph of the footprint.  (TR at 780). He also saw a "spotty area"
around the sink where it appeared someone had washed their hands and had dripped blood and water.
(TR at 782).   Detective Bishop identified State's Exhibits 2, 3, 4, 5, 6, 7, 8, and 9, and 11-26 (photos
of the apartment) as accurately reflecting the area he was investigating.
 
 

b.  Cross-examination of Officer Bishop (TR at 784-786):

      Detective Bishop spoke to Tony Hartsfield in order to determine who he was and what his
association with Robert Clayton and the Reinkes was. (TR at 785).   Bishop saw no handprints at the
sink in the Timmons apartment, and was simply speculating that someone had washed his or her
hands.  (TR at 786).

c.  Cross-examination material available to the defense, but not used

      The most important question for Bishop would be what happened to Robert Clayton's sack that he
put his clothes in.
 
 

OFFICER PHILIP CAMPLIN

      a.  Officer Camplin's testimony at trial (TR at 787-793):

      Officer Camplin sprayed the Timmons apartment for fingerprints and collected blood samples from
the apartment.  He also collected a bathing suit, hair samples, blood samples, some jewelry, and
fingernails.  "I believe that is it."  (TR at 791).  He then filled out an evidence log and a field ID report
detailing that evidence. (TR at 792).
 
 

      b.  Cross-examination of Officer Camplin (TR at 793):

      Officer Camplin did not process the fingerprints himself.
 
 

      c.  Cross-examination and other material available to the defense, but not used

      In addition to the items Camplin listed as having been found at the crime scene, he found what
appears from close scrutiny of a smudged area on the evidence log to have been a "red pocket knife"
in the living room of the Timmons apartment.  This is in addition to a "folding knife and case" logged in
by Detective Bishop as having been found in the bedroom dresser.  Appen. at 20.
 
 

OFFICER ROBERT YERTON

      a.  Officer Yerton's testimony at trial (TR at 797-805):

      Officer Yerton assisted in lifting fingerprints from the Timmons apartment, and compared the prints
lifted to Mr. Clayton, Detectives Parkes, Bishop, Hunt and Camplin, his own prints, Bill Timmons
prints, and the prints of Officers Bowen and Marshall.  One print matched Detective Camplin, and one
matched Rhonda Timmons.  Of the eleven prints lifted, these were the only two that matched anyone
tested against.  Yerton also found no prints on the knife recovered from the Reinke house.  Yerton
testified that it was possible to be in a location and not leave useable fingerprints.

      b.  Cross-examination of Officer Yerton (TR at 805):

      NONE

      c.  Cross-examination and other material available to the defense, but not used

      Important here is what Officer Yerton did not do.  He did not test the fingerprints against Tony
Hartsfield, or the boys across the street with whom Bill Timmons had his altercation.  Further, no run
of the prints was made on any AFIS system, nor, apparently, were they forwarded to the FBI.
 
 

ROGER EDENS

      a.  Roger Eden's testimony at trial (TR at 806-810):

      Roger Edens is a civilian fingerprint technician with the Tulsa Police Department.  He testified that
it would be possible to wipe prints off of the knife found at the Reinke's house.

      b.  Cross-examination of Roger Eden (TR at 810):

      NONE

      c.  Cross-examination and other material available to the defense, but not used;

      The defense did not even bother to point out that Mr. Edens could not say whether prints had
actually been wiped off of the knife,  and that any testimony in that regard was purely speculative.
 
 

KENNETH EDE

      a.  Kenneth Ede's testimony at trial (TR at 811-835):

      Kenneth Ede presented three types of forensic testimony at trial:  Blood analysis, Hair analysis,
and blood spatter analysis. [His testimony on blood spatter analysis was found to be inadmissible, but
harmless error, by the Oklahoma Court of Criminal Appeals on post-conviction].  He provided a
general, but not extensive, list of his qualifications as a forensic chemist.  He then testified that:

      1.  He found blood on the knife found in the Reinke's back yard, but not in a sufficient amount even
to determine whether it was human blood.  (TR at 817).  He said it was possible to wash blood off of a
knife. (TR at 817).

      2.  He found no blood on any of the clothes recovered from the Reinke's washing machine.  (TR at
818-820).  He also testified that blood could be washed out of clothes if it had not set for a day or two.
[Apparently to the extent that no chemical trace of the blood would remain.]  (TR at 820).

      3.  He found type AB blood on the sock of Tony Hartsfield's that was lying beside the washing
machine.  (TR at 821).  Rhonda Timmons' blood type was type AB.  Robert Clayton's blood type was
O.  Ede testified that type AB blood is rare, occurring in only three to four percent of the population.
(TR at 821).

      4.  He found "two pubic hairs" on the sock.  He testified that the pubic hairs were "consistent" with
pubic hairs taken from Robert Clayton.   Ede testified that in making hair comparisons, he compared
fifteen different factors, and in defining "consistent" stated that in his experience he had "never found
two individuals with identical hair. . ."  (TR at 825).

      5.  Ede presented testimony that the blood spatters at the scene of the crime indicated three
points of attack - outside the apartment by the back door,  in front of an inside door, and possibly in
the bedroom. (TR at 827-835).   He testified that it was his opinion that the back door was open during
the assault on Mrs. Timmons.
 
 

      b.  Cross-examination of Kenneth Ede (TR at 835-839):

      On cross-examination, in explaining his direct testimony, Ede indicated that the blood spatters in
the hallway showed that Rhonda Timmons was still moving while being hit at the "second" point of
attack.   (TR at 837).  Ede also testified that it would be easier to clean a smooth surface, such as a
knife, of blood, than a rough surface.  He testified that on a hot day in June, blood would dry within a
half hour to an hour.  (TR at 837).  Ede only checked the hair samples in question against Rhonda
Timmons' hair and Robert Clayton's. (TR at 838).   He did not check the blood samples taken from the
apartment for blood type.

      c.  Cross-examination and other material available to the defense, but not used

      The "hair comparison" performed by Mr. Ede was the sole corroborating evidence of Tony
Hartsfield's claim that Robert Clayton was wearing his socks on the day in question, and as such its
importance at trial cannot be underestimated.  With regard to his evaluation of hair "evidence," Mr. Ede
was either unforgivably ignorant, or less than honest with the jury.  It has been repeatedly
demonstrated that hair comparison is simply less than reliable.  (Indeed, hair comparison analysis is
so unreliable that the United States District Court for the Eastern District of Oklahoma recently found it
to be inadmissible under the standard set forth in Daubert v. Merrill Dow Phamaceuticals,  ___ U.S.
___, 113 S.Ct. 2786 (1993).  See, Williamson v. Ward, ___ F.3d ___ (E. D. Okla. 1995) (Case Number
CIV-94-539-S).  Further, materials on this lack of reliability were readily available to the defense at the
time of trial.  In 1982, four years prior to Mr. Clayton's trial, the Law Enforcement Assistance
Administration (LEAA)  conducted a study in which controls were employed to ensure that the
analysts did not know ahead of time the persons or places from which the hairs came.  In that study,
hair analysis testing was one of the most unreliable of all tests which the LEAA utilized in law
enforcement laboratories.  In the test, laboratories were asked to identify the species from which five
different hairs originated.  On four of the five hair samples analyzed, the majority of the laboratories
were incorrect.  D. E. Imwinkelreid, Forensic Hair Analysis: The Case Against the Underemployment
of Scientific Evidence,  30 Wash. and Lee L. Rev. 41, 44 (1982).  This means that the laboratories
could not even determine the correct species from which the hair samples originated.  The anecdotal
evidence as to the reliability of hair comparison submitted by Ken Ede should not even have been
admissible to show reliability, but certainly should have been challenged when it was admitted.

      An even more obvious line of attack existed, however.  The sock was found on the floor of a house
in which Mr. Clayton had been living for a considerable period of time.  (Although he had just returned
from Texas, he had lived in the house prior to going to Texas). (See Reinke Interview, Appen. at 86).
It is highly probable that over the course of that time period, while his clothes were being washed, hair
belonging to Mr. Clayton dropped onto the floor where the sock was found.  There simply can be no
certainty whatsoever that the hairs in question came from the person who was wearing the socks.

      In addition to Mr. Ede's hair testimony, his testimony concerning the ability of Mr. Clayton to wash
blood out of his clothes is similarly suspect.  In Oklahoma v. Alfred Brian Mitchell, Case Number
CF-91-206, Joyce A. Gilchrist, a forensic chemist for the Oklahoma City Police Department, testified
as follows concerning chemical analysis of blood stains that have previously been washed out:
 
 

      The luminal is a chemical.  It's chemiluminescence spraying technique that when used in a totally
dark area surface that your object that you are spraying that if blood had been present but had been
previously washed out the object will flouresce. . .
 
 

See Transcript Excerpt - (Appen.  at 132).  Obviously Mr. Ede's confident assertions that blood can be
washed out, like so much else he testified to, are at best extreme exaggerations.
 
 

DOCTOR ROBERT HEMPHILL

      a.  Doctor Hemphill's testimony at trial  (TR at 849-887):

      Doctor Hemphill is the Deputy Chief Medical Examiner for the State of Oklahoma.  (TR at 849).
He did an external examination on Rhonda Timmons body at 9:45 p.m. on June 25, 1984, and
performed a complete autopsy the next day.  Dr. Hemphill testified that the strangulation marks on
Rhonda Timmons indicated that the object used to cause the ligature marks on her neck had been
held from behind her neck,  (TR at 858), and that her bikini top could have been the object used to
cause the marks on her neck. He indicated that in his opinion, Mrs. Timmons was alive at the time the
marks were caused.  (TR at 860).

      There were several abrasions and bruises on Mrs. Timmons' face that Dr. Hemphill testified were
"blunt injuries."  (TR at 861).  The autopsy revealed a large area of fracturing behind the nose caused
by a blow or more than one blow.  (TR at 862).  Dr. Hemphill indicated that based on damage to the
back of her head, Mrs. Timmons' head was struck by or struck against a large flat blunt object in the
back of the head, in addition to the blow from the front.  (TR at 872).  Dr. Hemphill indicated that the
injury to the front of the head could have been caused by a fist.  (TR at 874).

      Dr. Hemphill detailed twelve stab wounds to Mrs. Timmons.  (TR at 865).  The maximum depth of
the stab wounds was three inches.  (TR at  877).    Dr. Hemphill testified that the knife found in the
Reinke's yard could have caused the stab wounds.  (TR at 876).  Dr. Hemphill indicated that the cause
of death was a combination of the multiple stab wounds and blunt head injuries.  (TR at 878).

      Dr. Hemphill indicated that Mrs. Timmons had some scratches on her left hand and arm that were
"not inconsistent" with a defensive motion. (TR at 883).  He indicated they were not typical of defensive
type wounds.  Id.  Dr. Hemphill indicated that "it is likely that this person would have been
unconscious after sustaining [the] wounds to the head.  Of course, I don't know when the wounds to
the head were sustained in relation to the stabs."  (TR at 885).  He also testified that while the stab
wounds would probably not cause immediate loss of consciousness, "[t]he head injuries on the other
hand, I would expect to produce unconsciousness immediately after they were received."  (TR at
886).
 
 

      b.  Cross-examination of Doctor Hemphill (TR at 887-889):

      On cross-examination, defense counsel confirmed that the head injuries could have been caused
by someone hitting Mrs. Timmons in the face, and her falling backward and hitting her head on a
concrete floor. (TR at 987).  The defense also elicited testimony that although it was likely that Mrs.
Timmons was unconscious as a result of the blow to her face, it was possible that she remained
conscious afterward.  (TR at 889).
 
 

      c.  Cross-examination and other material available to the defense, but not used

      It seems apparent based on Dr. Hemphill's testimony, that the injury to Mrs. Timmons' head could
have been caused by a silver crescent wrench.  Perhaps more puzzling however, is the defense's
elicitation of testimony that Mrs. Timmons could possibly (no matter how unlikely) have remained
conscious after the blow.  This question did nothing for the guilt innocence stage of the trial, and
bolstered the state's evidence that the crime was heinous, atrocious, or cruel.
 
 

DETECTIVE FRED L. PARKE

      a.  Detective Parke's testimony at trial (TR at 890-903):

      Detective Parke responded to the scene shortly after 1:00 p.m.  He testified at trial that he
assisted in measuring the house and looking for and recovering evidence.  After he was finished with
his duties at the scene, he returned to the station, where he met Detective Hunt and Detective Wherry,
who had returned with Robert Clayton and Tony Hartsfield. (TR at 892). Detective Park took a
statement from Tony Hartsfield.  When he was finished with Hartsfield, he saw Mr. Silva, from the
Public Defender's office, who met with Mr. Clayton, and then, in Detective Parke's presence, advised
him not to make a statement or answer any more questions. (TR at 894).

      Detective Wherry was filling out a booking slip, using the name Randy for Mr. Clayton.  Parke
notice this, and turned and asked Mr. Clayton what his correct name was, as well as his date of birth
and social security number.  Parke testified that Detective Wherry left to get a new form to start over,
and Mr. Clayton told Parke he wanted to talk to him and get something off his chest. (TR at 896).
Parke testified he told Clayton to remember what his attorney had told him about not making more
statements.  Clayton said he wanted to go ahead and talk to Parke. (TR at 897).

      Parke testified that Mr. Clayton gave his statement in narrative form, and Parke asked "about" two
questions. (TR at 897).   Parke testified that Clayton told him that he was employed as a yard worker
at the apartment complex, and was going to the Circle K to get something to eat.  Clayton saw Mrs.
Timmons in a skimpy bathing suit, and she made suggestive remarks to him.  Parke testified that
Clayton said she wanted to have sex with him, pulled up the top of her swimsuit and pulled down the
bottoms. (TR at 898).  Clayton went into the kitchen with her, and she grabbed his "sex organ."  (TR at
898).  He barely remembered her slapping him and saying that her husband was going to blow his
head off.  She also asked him if it made any difference to him to know that her husband was on his
way home.  Parke stated that Clayton said he then blacked out, and the next thing he remembered,
he was on the floor in the bedroom of the apartment.  He then got up and went to Helen Syphur's
house.  (TR at 899).

      The "two questions" asked by Parke were where the knife was when he saw Mrs. Timmons, and
where it was when he was being interviewed by Parke.  Parke testified that Clayton told him that he
had a knife in his pocket when he went by Mrs. Timmons' house, and that now the knife was at Sherry
Reinke's house, but he didn't know where. (TR at 899).

      Parke also testified to seeing a scratch on Clayton's left knuckle, and one on his right arm that
was bleeding.  Clayton told him he had hurt his hand on the lawnmower.  Clayton indicated that he
was left-handed.  The next day his left hand was swollen badly, and Parke had it photographed
(State's Exhibit 50). (TR at 901).
 
 

      b.  Cross-examination of Detective Parke (TR at 903-910):

      On cross-examination, the defense elicited the following from Parke:

      1.  The room Parke was in with Clayton was routinely used to question people.  There was a tape
recorder on the table.  Parke did not record the statement because Clayton did not want it recorded.
(TR at 905).

      2.  Parke was paraphrasing Clayton's "confession" on direct examination.  (TR at 905-906).

      3.  Parke said Wherry came back with the booking slip, and Clayton told him he wanted to talk to
Park alone, so Wherry stayed outside.  (TR at 908).
 
 

      c.  Cross-examination and other material available to the defense, but not used

      The defense failed entirely to question Detective Parke about his remarkably improving memory.
Never before had he recalled Mr. Clayton saying that he had a knife with him when he went to Rhonda
Timmon's apartment.  Indeed, at the hearing on admissibility of the confession, Parke testified initially
in response to the question of whether Mr. Clayton ever mentioned a knife:  "No, sir, he did not."  (PH
excerpt at 63).  Even when his recollection was impermissible refreshed in that hearing (Parke did not
say he could not recall, but instead said "no"), Parke said "apparently I stand corrected."  Id.  He did
finally testify at that hearing that Clayton had left a knife somewhere at the Reinke's house.  The
comments about Mrs. Timmons' having grabbed Mr. Clayton's "sex organ" had also never been
mentioned before, and clearly were designed to lend an air of credibility to Parke's otherwise
detail-poor testimony.  Also not asked of Parke was whether there were any external recording
devices, or whether there was one way glass in this "usual" interrogation room.
 
 
 
 

C.          The Additional "Evidence" Presented to the Jury as a result of the Prosecution's
Argument and Presentation of Irrelevant, Incompetent, and/or Misleading                Evidence.
 
 

      The complete lack of effort put forth by defense counsel at Mr. Clayton's trial stands in remarkable
contrast to the overzealous performance of the prosecution.  The prosecution opened the proceedings
with statements to the jurors that informed them that they could take into account the nature of the
crime in determining guilt, (see discussion on page 2, supra.) and then told them that in essence, the
prosecution was on their side - i.e. the purpose of the District Attorney's office was to "seek the
truth."  (TR at 414-415).  Having done that, and having further implied to the jurors that if they were
"reasonably well" convinced they could convict,  (TR at 53-54), the prosecution proceeded to build its
entire case on how Rhonda Timmons' died - not who killed her.  This campaign of emotion began in
opening statements, where the prosecutor stated that Mr. Timmons "heard the baby crying and he ran
and got the baby and took the baby out of that horrible place."  (TR at 569).  During Mr. Timmons'
direct testimony, the prosecution elicited the fact that Mrs. Timmons was facing her baby when Mr.
Timmons found her, and then proceeded to have Mr. Timmons actually reenact the position.  (TR at
586-587).  He then proceeded to ask Timmons for evidence that implied that Mrs. Timmons' had died
while watching her child. (TR at 68).  Over one of the few creditable objections made by the defense,
the prosecution elicited testimony as to the blood that bubbled out of Mrs. Timmons' chest when CPR
was being administered.  (TR at 628).

      In closing argument, again over counsel's objection, the prosecutor argued that:
 
 

. . . [Mr. Timmons] followed the trail and ran back in there and found her slumped over in the baby's
room, her head turned, looking at the crib, her eyes open.

* * *
 
 

. . . I believe it is reasonable to infer, yeah, there was a couple of areas of assaults here and big one
took place right there, her last hope (indicating).  The last chance she had to keep this horrible thing
from happening in her home with her baby.
 
 

* * *

. . . I think it is a reasonable inference, ladies and gentlemen, from the evidence as we have it, that
those last moments o her life, Rhonda Kay Timmons reached up into her baby's bed, that she reached
up in there and grabbed a blanket and she clutched it to her chest.
 
 

(TR at 920, 947-950).

The Prosecution also elicited testimony that the EMSA emergency personnel began rescucitation
only because of their concern for the husband "standing outside with the baby." (TR at 76).

      In addition to the ongoing effort to stir the emotion of the jury and distract them from the actual
issue of guilt or innocence, the prosecution proceeded to present argument and evidence in such a
way as to either imply to, or directly tell the jury things that were not true.  Perhaps the best example
of this tactic is that used by the prosecution to support its argument in closing that: "The Defendant
told [Detective Parke] where the knife was and isn't it funny that that is where the knife was?"  (TR at
953).  If not a flat out misstatement of fact, this argument would be a considerable stretch, even
standing by itself.  All Parke ever testified to was that Clayton had told him the knife was somewhere
at the Reinke house he thought.  However, when taken with the other comments and questions by the
prosecution at trial, it becomes clear that what was occurring was a concerted effort by the
prosecution to convince the jury that it was Clayton, and not Hartsfield, who told the police the exact
location of the knife in the backyard.  On opening statement, the prosecution told the jury that:
 
 

      Vern Wherry is going to get on the stand and testify to his receiving some information and I
anticipate he is going to tell you that -- where he went and what he did and that he went -- I anticipate
that he is going tell [sic] you about going to the Reinkes house and seeing Robert Clayton, about all
those facts and circumstances surrounding this.
 
 

      Ladies and Gentlemen, retired Detective Roy Hunt, is going to testify - retired - I anticipate he will
testify about going out to that house, Reinke's house, with Vernon Wherry and looking for a knife.
Ladies and gentlemen, Vernon Wherry, I anticipate will testify that he looked in the backyard of that
house and they found the knife.

(TR at 575), [emphasis added].

      When Detective Wherry testified, the prosecution followed his testimony relating to Clayton's
request for an attorney with questions designed to indicate (without explanation) that the police
searched the Reinke's house with specific knowledge of what they were looking for and where.  (TR at
744).  The testimony of Officer Hunt also indicated specific knowledge of the location of the knife
received from an unidentified source.  Hunt informed the jury that when he and Wherry went to the
Reinke house on the second day, "[w]e advised them what we were there for, what we were looking for
and both of them, I believe, signed the waiver of search of their property."  (TR at 761).

      The significance of this testimony is that it implied that perhaps even though Hartsfield knew
where the knife was, Clayton did as well.  Given that Hartsfield's specialized knowledge of the location
of the knife would have been one of the prosecution's biggest problems in the event any coherent
defense had been presented, it strains credulity to believe that these questions and answers were not
carefully calculated to lead to the statement made on closing.  If this were not immediately clear, it
becomes so when another issue is looked at, that of the testimony of Detective Bishop.  In his
testimony, the detective spent three and one-half transcript pages discussing his recovery of the
clothes from the Reinke's garage.  At the end of that series of questions, the following exchange took
place:
 
 

Q.  Detective Bishop, when you were inside the apartment, did you have an opportunity to view the
floor of the bathroom?
 
 

A.  Yes, sir.
 
 

Q.  What did you observe on it?
 
 

A.  I observed what I determined as bloody footprints.

TR at 780.  The state then entered a photo of the footprints into evidence and returned to the
discussion of the clothing.

      At first glance there is nothing wrong with this series of questions, however, on closer review it
seems obvious that they were intended to convey the impression to the jury that there were bloody
footprints at the Reinke house!  There is no other logical reason for the prosecution to have asked this
series of questions in the middle of the discussion without clarification as to the location of the
"apartment."

      Finally it should be remembered that this testimony all took place in the same proceeding in
which Kenneth Ede, the State's forensic "expert," presented both his unbelievable hair comparison
testimony (See discussion at page 29, supra.), and his inadmissible blood spatter testimony.  (See,
decision in Clayton v. State, 992 P.2d 646 (1995)).

      In United States v. Young, 105 S.Ct. 1038, 1048 (1985) the Supreme Court pointed out the
dangers of this type of misdirection, dangers that are made even greater  when the misdirection comes
from someone who has informed the jury his job is to "seek the truth."  The Young court stated that
arguments of this type:
 
 

can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to
the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce
the jury to trust the Government's judgment rather than its own view of the evidence.  See Berger v.
United States, 295 U.S. at 88-89, 55 S.Ct. at 633.

Young at 1048;  See also Napue v. Illinois, 360 U.S. 264 (1959); Mooney v. Holohan, 294 U.S. 103
(1935); and Alcorta v. Texas, 355 U.S. 28 (1957).

      In finding on appeal that prosecutorial misconduct did not prejudice Mr. Clayton at trial, the Court
of Criminal Appeals relied primarily on a finding that Mr. Clayton's counsel had waived the vast majority
of the issues by failing to object.  Clayton v. State, 840 P.2d 18 (Okla. Crim. App. 1992)  As Mr.
Clayton has demonstrated in this petition, it actually appears that his counsel in essence waived the
whole trial. In any event however, the Oklahoma Court's ruling in Mr. Clayton's case simply cannot be
reconciled with any reasoned inquiry into the policies underlying a doctrine of prosecutorial
misconduct.  Indeed, in earlier cases,  the court recognized that prosecutorial comments like those
made here (including denigration of the "beyond a reasonable doubt" standard, prejudicial argument,
and misinformation) can work to deprive the defendant of the "fundamental right" to a fair trial.
Williams v. State, 658 P.2d 499 (Okl.Cr. 1983) [emphasis added];  See Donnelly v. DeChristoforo, 416
U.S. 637, 94 S. Ct 1868 (1974)(Holding that the Due Process Clause of Four­teenth Amendment
would be violated if prosecutorial misconduct infected the trial with unfairness).

      Mr. Clayton should be granted relief based on the misconduct of the prosecution at trial.
 
 

D.  The impact of the defense's failure to prepare for trial

      Where the Court is making an evaluation of the prejudice caused by the actions of ineffective
counsel, one factor that is extremely important is what the defense would have had to work with had
proper preparation been made.  In Mr. Clayton's case, the defense had several options, each of which,
either alone, or in conjunction with other defenses, would have had a significant potential for success:
 

TONY HARTSFIELD AS  THE MURDERER OR THE TEXAS ATTACKER
      There are at least three motivations that could have brought Tony Hartsfield to the Southglen
Apartments on the day Rhonda Timmons was killed. First, Hartsfield testified that Robert Clayton was
going to try to get him a job there.  Second, Hartsfield indicated in his initial interview with the police
that he decided later in the day to move his trailer from Keystone Lake, and it is easily conceivable
that in fact he and Robert had a prior appointment to do that.  (Indeed that was one of the reasons
Robert gave for not returning to work).  Finally, and perhaps most simply, Tony Hartsfield's mother,
who had not seen him in two years prior (according to her testimony) lived only a short distance from
the apartments.  Although there are no eyewitnesses placing Hartsfield at the scene, neither are there
any placing Robert Clayton there.

      The question then becomes for purposes of this discussion - was there enough additional evidence
that Hartsfield was the actual killer to create reasonable doubt in the minds of the jury?  The answer is
yes.  First, it was only Tony Hartsfield, and not Robert Clayton, who had special knowledge of
circumstances relating to the crime that were not in the possession of the police.  Tony Hartsfield told
the police and his sister exactly where the knife was located.  Second, it was only socks belonging to
Tony Hartsfield, not Robert Clayton, that had blood on them.  Although Tony, Sherry Reinke, and
Helen Syphurs described the clothes Robert was wearing that day in detail, only Tony indicated
Robert was wearing socks.  Third, Hartsfield testified to the exact location of the socks, even though in
his initial statement, he told police that he never went into the garage that day.  Fourth, it is now clear
that Hartsfield was the person who hit Albert Lacy in the Gilley's parking lot, much in the same way
Rhonda Timmons was hit.  Based on his wife's original statement to the police (before Tony was able
to get to her), and based on Sherry Reinke's recent interview statement that Hartsfield told her that he
thought he killed a guy in Texas and that he wanted her to "cover" for him simply bears that
conclusion out.  (Appen. at  91-92).

      Finally, even if the Reinkes are to be believed, Hartsfield was out of the house for at least 45
minutes (it is now completely unclear whether this was with Don Reinke or without) at exactly the time
it appears the murder was committed.  Of course, based on the Reinke's new statements, it appears
he may have been out of the house for a much longer period of time without them.

      Hartsfield had numerous possible reasons to lie on the stand.  First, if Mr. Clayton were identified
as the killer of Rhonda Timmons, Hartsfield knew he would be able to place the blame for the Texas
incident on Clayton as well.  The fact that he reached a plea agreement on the Texas incident of
probation that was subsequently deferred indicates that he was correct in his analysis of the
situation.  Once Hartsfield implicated Clayton, the Tulsa police lost interest in Hartsfield except as a
witness.  Second, there is the very real possibility that Hartsfield was protecting himself from
prosecution as Rhonda Timmons' killer.  As far as motives for the killing are concerned, Hartsfield had
two possible ones.  He had no money (a fact repeated by Sherry Reinke in her recent interview).  This
was the same reason given by Tammy Hartsfield as the motive for the robbery in Texas.  And of
course, sex is always a possible motivation.
 
 

BILL TIMMONS AS THE KILLER

      As with Tony Hartsfield, there are facts relating to Bill Timmons on the day in question that are
simply difficult to explain.  Perhaps the two most glaring facts are the discrepancies in the times given
for when he left work, and his conversation with the boys across the street from the house.  If in fact
Mr. Timmons left work when three witnesses placed him leaving work; i.e. prior to 12:15, there is
simply no logical explanation for his delay in calling 911.  Further Timmons did not tell anyone his wife
had been killed until after talking with the boys across the street, and contrary to his testimony at trial,
those boys indicated that he went back into the house after he talked with them.

      There are other equally compelling unanswered questions about Timmons' actions that day - Why
did he leave his truck door open if he was in fact going to lunch, and was not instead rushing to find a
body that he well knew was already there.  Was the dog chain story the truth, or simply an
explanation crafted to explain a key left in a lock in the heat of the moment.

      Timmons is the only person actually placed at the scene by any eyewitness.  He had access to
possible murder weapons (the police found two knives in his house, as well as the gun), and he was
very careful to point out that he had in fact touched the gun that day.  Further, no physical evidence
was located at the scene that indicated that anyone other than Timmons had ever been there.

      With regard to possible motivations, Timmons has all of the earmarks of a very jealous man.
Within ten days prior to his wife's death, Timmons had threatened neighbors with a gun for whistling at
her.  He called her regularly, and would drop in as often as ten times a day.  It is a reasonable
inference that Timmons came home that day after he couldn't reach his wife from work, either believing
she was with another man, or simply angry that she was probably laying out again.  At this time his
truck may not have been parked in front of the apartment, because he could have parked elsewhere in
order to surreptitiously spy on his wife (this conclusion is borne out by his action in leaving the truck
door open).  Something then occurred to trigger his temper, and he killed her.  He retrieved his truck,
drove to the front of the house, and in his anxiety to "discover" the body of his wife, left his truck door
open.  He then checked with the on the scene witnesses to assure himself they had not seen
anything, returned to the house, and called his father.  He then called 911 and gave the appearance of
being an extremely distraught husband.
 
 

THE LACK OF EVIDENCE AGAINST MR. CLAYTON

      The evidence against Robert Clayton rests primarily on his "confession" to Fred Parke.  However
as is discussed in Proposition Six, infra., this "confession" was taken from a man who was obviously
disoriented, very tractable, and who would at the time have agreed to virtually anything asked.  Further,
the confession itself is nebulous, as Parke's testimony changed repeatedly over time as to what was
actually said by Clayton.  Parke easily could have been "summarizing" leading questions to which
Clayton responded affirmatively and added what he thought was necessary to implicate Clayton.

      The remainder of Clayton's actions on the day in question are easily explainable.  First, it was a
hot day in June, and Clayton was not feeling well, probably because of the heat.  The shop foreman
said he was just sitting in the shop at 11:55 looking tired.        Mr. Clayton went to Helen Syphur's
house to try to get Tony to take him home.  It was only on finding that Tony was not at Sherry's and
could not come and get him, that Clayton, who was hot and sweaty (and in that regard, how can one
be sure that overalls soaked in sweat might not appear bloody if the image were put in one's mind),
took a shower.  He then tried again to get Tony to come get him, and Helen Syphurs agreed to take
him home.  Because he wasn't feeling well, he called work and told them he wouldn't be in.  Perhaps
the most telling fact about this entire event is that although his clothes were supposedly wet with
blood at the time, and although he made phone calls and talked the Helen Syphurs, she saw no blood,
and Clayton left no blood traces anywhere at her house.

      Clayton's actions when the police arrived are also easily explainable.  Clayton had a warrant out
for his arrest in an unrelated matter, and had been in Texas when Hartsfield attacked the man at
Gilley's.  These would clearly give a basis for Mr. Clayton to be fearful of the police.

      Finally, the actions of Mr. Clayton only seem suspicious at all if Mrs. Timmons' died between
11:55 and 12:15.  There was no creditable evidence at trial that indicates this was the time of death.
Indeed, she could have died as early as 10:30 in the morning (assuming Bill Timmons is being truthful
about his telephone calls).  While Timmons testified that his wife was still "warm" when he found her,
she died on a hot day in June, and judging from the prosecutions' exhibits, (See State's Exhibit 25), it
appears that the windows of her apartment were open. Thus the whole apartment would have been
"warm."

      In the absence of any creditable evidence tying Mr. Clayton to the sock, and there really is none,
and given the circumstances under which his confession (a general, undetailed statement showing no
special knowledge of the scene) was made, had any of the other defenses discussed above been
presented, there would have been a high probability of acquittal in Mr. Clayton's case.
 
 

THE FAILURE OF THE POLICE

      The other issue completely ignored by the defense was the fact that it was practically impossible
to make any definite evidentiary statements about what happened at the Timmons' apartment because
of the Police failure to follow proper crime scene analysis procedure.  Their investigation was
haphazard at best, and so was their testimony at trial.  Indeed, it is possible that EMSA created many
of the bruises and scratches that were found on Rhonda Timmons' body, further confusing matters.
 
 

E.      Analysis of the Defense's Failure to Defend and the Applicable Legal Standard

      In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that trial counsel has
"a duty to bear such skill and knowledge as will render the trial a reliable adversarial testing process."
In enunciating its two pronged test (ineffectiveness of counsel, and a reasonable probability of a
different result had counsel been effective) for evaluation of ineffective assistance of counsel claims,
the court was careful to caution that "the ultimate focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged."  Strickland at 696.  In United States v. Cronic,
466 U.S. 648, 656-57 (1984) the court stated that the right to effective counsel is the right of the
accused to require the prosecution's case to survive the crucible of meaningful adversarial testing;  and
if the process loses its character as a confrontation between adversaries, the constitutional guarantee
is violated.

      Here it is apparent both from his affidavit, and from the trial that took place, that Mr. Clayton's
counsel, for whatever reason, determined that he could not, or would not, exert the effort necessary to
protect Mr. Clayton's rights at trial.  The sole reason he gave for not doing so - that he wanted to focus
on mitigation - would not be a valid justification for ignoring potential defenses without investigation and
analysis even if counsel had conducted a brilliant mitigation phase, something he did not do.  See
Henderson v. Sargent, 926 F.2d 706, amended, 939 F.2d 586 (8th Cir. 1991), cert. denied, 112 S.Ct.
915 (1992)(holding that where there is evidence that would permit the pursuit of a theory that someone
else committed the killing, failure to pursue that theory cannot be justified as a strategic decision).

      It could be argued by the State that the defense's failure to cross-examine on certain issues, or to
present certain theories of the case was a strategic or tactical move by the defense, taking into
account the risks and benefits to be gained in each choice, but such a contention would not reflect the
reality of what happened in Mr. Clayton's case.  The Petitioner will willingly concede that the defense
had more than one option, and could have made a tactical choice not to present certain of the theories
set out in section D, above.  What the Petitioner will not concede is that there could be any rational
tactical reason for not presenting any of those theories, and simply letting the State's evidence stand
uncontested.

      The defense made no attempt whatsoever to discredit the testimony of Tony Hartsfield, Sherry
Reinke, Fred Parkes, Bill Timmons, Ken Ede, or any of the other witnesses who offered devastating (if
left uncontroverted) testimony at trial.  Certainly, the defense could have chosen to focus its attacks