EXHIBIT
3: ISSUES OF DISPUTED FACT OR LAW
Darlie
Lynn Routier Application
Respondent's
Answer
Issues
of Disputed Fact or Law
I. Because Petitioner Is Innocent Of The
Crime For Which She Was Convicted, Her Sentence And Conviction Are
Unconstitutional Under Schlup v. Delo And Violate The Eighth Amendment And
Petitioner's Federal And State Constitutional Rights To Due Process And A
Fundamentally Fair Trial
Legal
Standard: Petitioner must "show
that a constitutional violation has probably resulted in the conviction of one
who is actually innocent." To
establish that probability, "the petitioner must show that it is more
likely than not that no reasonable juror would have convicted him in light of
the new evidence." Schlup.
Legal
Standard: Applicant must prove by
"clear and convincing evidence" that no juror would have convicted
her in light of the new evidence. Ex
parte Franklin.
ISSUE
OF LAW
See
Applicant Darlie Lynn Routier's Reply to Respondent's Original Answer to
Applicant's Article 11.071 Application for Writ of Habeas Corpus ("Reply
Br.") Pt. II.
I.A. Newly Discovered Evidence Supports The
Defense's Theory At Trial That The June 6, 1996, Crime At 5801 Eagle Drive,
Rowlett, Texas Was Committed By An Intruder
I.A.1. A Bloody Fingerprint Lifted From the Glass
Table in the Family Room Establishes That an Unknown Adult Was in the Routiers'
Residence on the Morning of June 6, 1996 During or Right After the Attacks
ISSUE
OF FACT
See
Reply Br. Pt. II.A.
James
Cron testified that the bloody fingerprint on the family room coffee table
(Exh. 85J) "lacked sufficient points of identification." C.R.R. Vol. 35, p. 2265:15. He further testified that the fingerprint
"fits the criteria to be a younger person's prints" - possibly those
of a five or six year old child. C.R.R.
Vol. 35, p. 2266:4-5. The jury
"likely dismissed the fingerprint evidence as belonging either to Devon or
Damon Routier." First App. 17.
Pat
Wertheim tested Exh. 85J against known samples and was able to exclude all persons
contributing fingerprint samples except Applicant. Resp. Ans. 26.
Applicant
mischaracterizes Prof. Jantz's report by claiming that "the latent
fingerprint had sufficient points of identification for [Jantz] to conduct an
anthropological analysis of the fingerprint." Resp. Ans. 26. Ms.
Wertheim states in her affidavit that "[f]ingerprint examiners use the
word 'identification' differently from most other scientists. When a fingerprint examiner states that an
unknown print has been identified, that means the print was made by the same
area of friction skin as a known print to which it was compared." Resp. Ans. Exh. 1 at 2.
Unlike
on other issues Applicant raised, Respondent did not go back to Lt. Cron to
have him explain his testimony; instead, Respondent consulted a different
expert who was not familiar with the case.
That calls into question Respondent's confidence in Lt. Cron's findings.
Respondent's
theory of the source of the fingerprint is a moving target; at trial,
Respondent represented that the fingerprint was one of the minor victims; now,
Respondent claims the fingerprint belongs to Applicant.
Prof.
Richard Jantz conducted an anthropological analysis of the bloody fingerprint
and "concluded that the latent print belongs to an adult not a
child." First App. 18. He also determined that the print did not
match any of the fingerprint samples from Petitioner, Darin, Damon, and Devon
Routier, and all law enforcement personnel who responded to 5801 Eagle
Drive. First App. 18.
Prof.
Jantz's report is unreliable under the Kelly test for determining the
admissibility of scientific testimony under Rule 702. Resp. Ans. 22. In support
of its position, Respondent attaches the affidavit of Ms. Wertheim.
The
Jantz report nowhere states that he excluded any of the fingerprints of known
persons at the scene as the source of the latent fingerprint. Resp. Ans. 26-27.
The
Jantz reports undermines Applicant's claim of actual innocence in suggesting a
higher probability that the latent fingerprint was left by an adult
female. Resp. Ans. 26.
Ms.
Wertheim concluded that "all of the people whose fingerprints were
compared were excluded as the source of 85 J except Darlie Lynn Routier. She could be neither excluded nor
identified." Resp. Ans. Exh. 2 at
2.
Prof.
Jantz's method was consistent with the standard practice of forensic
anthropologists who routinely assess the age of skeletal remains from dental
development, bone length or bone development.
Robert
Lohnes, an independent fingerprint examiner, previously determined that Exh.
85J was not made by Petitioner.
Ms.
Wertheim's statements about the applicable legal standards for determining the
admissibility of scientific evidence should be disregarded as outside her area
of expertise.
I.A.2. A Rowlett Woman Returning Home in the
Early Morning of June 6, 1996 Observed Two Suspicious Men Walking from the
Routier Neighborhood One of Whom Matched Petitioner's Description of the
Assailant
ISSUE
OF FACT
See
Reply Br. Pt. II.B.
Potter
recalls observing two suspicious men on Dalrock Road, near the Routiers'
residence after 2:00 a.m. on the morning of June 6, 1996. First App. 18-19.
Potter
does not explain why she did not come forward with her information
earlier. Resp. Ans. 29.
Potter's
affidavit places the suspicious men walking away from the Routiers' home a half
hour before Petitioner's 911 call.
Resp. Ans. 28.
Lt.
David Nabors examined Dalrock Road and determined that the location of the
"S" curve Potter describes in her affidavit is at least 1.23 miles
from the Routiers' residence (and possibly as much as 2.3 miles). Resp. Ans. Exh. 3 at 2.
Respondent
has not dispelled the conclusion that Ms. Potter places an individual matching
Applicant's description of her attacker near the crime scene on the morning
Applicant was attacked. Ms. Potter's
affidavit is not more specific as to time than "after" 2:00 a.m.
I.A.3. In the Spring of 1996, Darin Routier Had
Intentions to Have His Residence "Hit" to Collect Insurance Proceeds
ISSUE
OF FACT
See
Reply Br. Pt. II.B.
In the
spring of 1996, Darin Routier inquired of Petitioner's father whether he knew
anybody who would "burglarize" his home "so he could make an
insurance claim." First App. 19.
Darin
Routier's affidavit reinforces Respondent's evidence that Applicant had a
financial motive to murder her children.
Resp. Ans. 29.
Darin
Routier's affidavit establishes that he, not Applicant, had a motive and
apparent wherewithal to follow through on such a scam.
I.B. Preliminary Analyses by Forensic Experts
Have Revealed Physical Evidence Inconsistent With The State's Circumstantial
Case
ISSUES
OF FACT
See
Reply Br. Pt. III.B.1.
I.B.1. Knife Number 4
Knife
No. 4 may have been contaminated with fingerprint powder. First App. 21.
Applicant
misstates evidence by claiming that "'[d]efense experts have concluded
that the source of the fiber was fingerprint powder used to dust the knives
recovered from the Routiers' residence.'"
Resp. Ans. 31. Palenik's
affidavit merely suggests the possibility of contamination. Resp. Ans. 31.
See
Reply Br. Pt. III.E. Mr. Linch was not
accurate in his testimony about the width of the fingerprint brush.
Mr.
Linch's notes support the possibility of contamination given proximity of the
fingerprint powder residue on the butcher block to Knife No. 4.
I.B.2. Petitioner's Nightshirt
The
blood spatter on Petitioner's nightshirt is inconsistent with it having been
worn as she stabbed her children with her right hand. First App. 21.
The
affidavit of Terry Laber is cumulative and does not exculpate Petitioner. Resp. Ans. 33.
Respondent's
answer creates a disputed issue of fact that should be evaluated by the Court.
I.B.3. Vacuum Cleaner
Most of
the bleeding that occurred on the vacuum cleaner happened after the vacuum
cleaner was knocked over onto the floor.
First App. 22.
The
affidavit of Terry Laber impeaches Petitioner's testimony that she used the
vacuum cleaner as a crutch to support herself.
Resp. Ans. 33.
Respondent's
answer creates a disputed issue of fact that should be evaluated by the Court.
I.B.4. Wine Glass
The
dispersal pattern of the glass chards of the wine glass is inconsistent with
someone having smashed the glass onto the floor. First App. 22.
The
affidavit of Terry Laber is cumulative and does not exculpate Petitioner. Moreover, his affidavit does not address the
finding of clean glass shards on top of Petitioner's bloody footprint. Resp. Ans. 34.
Respondent's
answer creates a disputed issue of fact that should be evaluated by the Court.
I.C. Petitioner Must Be Given Access to
Physical Evidence Not Tested at All or Not Adequately Tested by the State or
Defense Counsel to Fully Present Her Claims for Relief
Petitioner
should be permitted to scientifically test the blood stains on Darin Routier's
blue jeans, the fingerprint brush and powder used to dust Knife No. 4, the
blood-stained physical evidence removed from 5801 Eagle Drive, and the garage
window screen. First App. 22-23.
Applicant
renews her request for access to evidence to conduct forensic testing.
II. The Manifestly Defective Reporter's Record
Renders Any Post-Conviction Review Inadequate, Denies Petitioner Her Federal
and State Constitutional Rights to Due Process, and Prevents Effective Exercise
of Petitioner's Constitutional and Statutory Rights to Petition This Court for
Habeas Corpus Relief
Susan
Simmons refused to certify the first fifty-four pages of Volume 10 which
contain the transcript of the October 21, 1996 hearing at which Mulder was
substituted as counsel. An accurate
transcript of that proceeding is critical to Petitioner's conflict-of-interest
claim. First App. 24, 26.
The
affidavits of three prosecutors and Applicant's original defense counsel
confirm that Ms. Simmons' transcript of the October 21, 1996 hearing is
substantively accurate. Resp. Ans. 47;
Resp. Ans. Exhs. 4-7.
ISSUE
OF FACT
See
Reply Br. Pt. III.A.
Respondent's
claim that the court record is reliable is belied by the fact that the State of
Texas has filed a lawsuit against Mr. Halsey because of the condition of that
record. See Plaintiff's First Amended
Petition, Dallas County v. Halsey, No. 99-09032-C, 68th Judicial District
Court, Dallas County, Texas (filed June 2, 2000).
Deficiencies
in the court record necessarily will prevent "meaningful and effective
review . . . of the testimony, evidence, and arguments in Petitioner's
trial" necessary to determine issues to raise in Petitioner's habeas
application. First App. 26.
Applicant
is procedurally barred from complaining that the court reporter's record is
incomplete; the issue is raised in her direct appeal. Resp. Ans. 42.
ISSUE
OF LAW
See
Reply Br. Pt. III.A.
Applicant's
claim here is that the trial record's condition prevents her from identifying
all her claims on habeas review which is not the issue raised in her direct
appeal.
III. The Ineffective Assistance of Defense Counsel
Deprived Petitioner of Her Federal and State Constitutional Rights to Effective
Counsel and a Fundamentally Fair Trial
ISSUES
OF FACT AND LAW
See
generally Reply Brief Pt. I and III.B.
Applicant's
claim should be summarily denied because she did not attach an affidavit from
her trial counsel to her Application.
Resp. Ans. 62.
No
legal authority requires Applicant to support her ineffective assistance of
counsel claim with an affidavit from her ineffective counsel.
III.A. Defense Counsel had an Actual Conflict of
Interest Under Mickens v. Taylor Because He Was Concurrently Representing
Petitioner's Husband, Darin Routier and as a Condition of His Retention by the
Family Agreed to Petitioner's Detriment not to Implicate Darin Routier
III.A.1. Defense Counsel's Attorney-Client
Relationship with Darin Routier and Employment Arrangement with the Routier
Family Prevented Defense Counsel From Presenting an Effective Defense for
Petitioner and From Effectively Cross-Examining Darin Routier at Trial
Defense
counsel represented Darin Routier at the gag order proceeding and thus had a
pre-existing attorney-client relationship when he undertook the representation
of Petitioner.
Applicant
is procedurally barred from raising a conflict-of-interest claim because that
claim was raised in her direct appeal.
Resp. Ans. 49.
ISSUE
OF FACT AND LAW
Applicant's
conflict-of-interest claim is based on extra-record facts and new law, and
therefore she may properly raise it on habeas review.
See
Reply Br. Pt. I.A.
As a
condition of his employment as defense counsel to Petitioner, defense counsel
agreed not to pursue a defense strategy that implicated Darin Routier. Perillo.
First App. 28
Applicant's
affidavits in support of her conflict-of-interest claim "add nothing new
to the trial record she relied upon in the direct appeal because they do not
show that Mulder had an attorney-client relationship with Darin that extended
beyond the gag order hearing or that Mulder advanced Darin's interests over
Applicant." Resp. Ans. 49.
The
affidavit of Darin Routier does not dictate a different result because it does
"not state that he personally hired Mulder to represent him in any
capacity" and "does not state that he told Mulder at any time about
attempts to hire someone to burglarize his home or that he and Applicant fought
on the night of the murders" and "never states . . . that he provided
Mulder with any confidential information about him that Mulder could not (or
did not) use to Applicant's benefit during the trial." Resp. Ans. 52-53.
The
affidavit of Douglas Parks only "identifies Mulder's representation of
Darin at the gag order hearing as a source of a conflict." Resp. Ans. 53.
Applicant
was represented by untainted counsel as well as Douglas Mulder. Resp. Ans. 56.
A
"blame Darin" defense "would almost guarantee a guilty verdict
because it would help explain otherwise weak points in the State's
case." Resp. Ans. 57-58. Therefore Applicant's trial counsel's
decision not to pursue Darin Routier as a suspect must be viewed as trial
strategy. Resp. Ans. 58.
ISSUE
OF FACT AND LAW
Respondent
acknowledges that an actual conflict of interest exists "if counsel is
required to make a choice between advancing his client's interest in a fair
trial or advancing other interests to the detriment of his client's
interest." Resp. Ans. 54.
Respondent
concedes the existence of the side agreement between Darin Routier and
Applicant's trial counsel through its failure to obtain a contradictory
affidavit from Douglas Mulder.
Respondent
skirts the issue of the obvious implication of defense counsel conditioning his
employment on not implicating a logical suspect. Nothing in Respondent's Answer dispels the conclusion that that
situation created an actual conflict of interest.
Respondent
misconstrues the Parks affidavit; the conflict arose because Darin Routier was
a suspect, not from his representation at the gag order hearing. Resp. Ans. 53.
The
merits of this strategy could not be assessed without any investigation into
the strategy. Therefore, defense
counsel's decision not to implicate Darin Routier cannot be considered trial
strategy because Applicant's trial counsel made the side agreement before
conducting a fact investigation.
See
Reply Br. Pt. I.
III.A.2. Petitioner Did Not Waive Her Right to
Conflict-Free Representation of Counsel
Petitioner
did not knowingly waive her right to conflict-free counsel. First App. 37.
Respondent
concedes this point; this position is supported by the Notice of Conflict of
Interest Applicant's prosecutors filed with the Court.
III.B. Defense Counsel Failed to Conduct and/or
Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to
Petitioner's Defense
Applicant's
claim should be summarily denied because she did not attach an affidavit from
her trial counsel to her Application.
Resp. Ans. 62.
No
legal authority requires Applicant to support her ineffective assistance of
counsel claim with an affidavit from her ineffective counsel.
III.B.1. Defense Counsel Failed to Pursue Critical
Expert Testimony to Rebut the State's Scientific Case Against Petitioner
ISSUES
OF FACT
See
Reply Br. Pt. III.B.1.
Defense
counsel failed to investigate or present evidence to refute (1) Linch's
conclusions regarding debris found on Knife No. 4; (2) hesitation marks on
Petitioner's nightshirt; or (3) Mr. Bevel's testimony about blood spatter in
the garage and on the back of Petitioner's nightshirt. First App. 42-45.
Applicant's
trial counsel investigated evidence demonstrating that she was a good mother
and investigated evidence of the mysterious black car. Resp. Ans. 65.
Applicant's
trial counsel elicited favorable testimony through its cross-examination of
Messrs. Bevel and Linch. Resp. Ans. 71.
Applicant's
trial counsel hastily discharged forensic experts Messrs. Laber and Epstein
even though their preliminary findings were favorable to Applicant.
Forensic
experts Terry Laber and Barton Epstein's preliminary findings were not
consistent with a staged crime scene.
First App. 45-46. Such evidence
should have been presented to rebut the State's case.
Applicant
"failed to prove that her experts actually had favorable testimony to
give." Resp. Ans. 66.
Mr.
Laber's affidavit states that "Based on the analysis I performed in this
case, it was my professional opinion in November 1996, and is my professional
opinion today, that there were numerous pieces of physical evidence we reviewed
that were not consistent with a staged crime scene." First App. Exh. 7 ¶ 11.
Defense
counsel should have consulted and presented testimony from an expert in
disassociative symptoms and bruises.
First App. 50.
Applicant
materially misrepresents the trial record in claiming that defense counsel
failed to consult with experts on disassociative symptoms and bruising because
both Dr. Lisa Clayton and Dr. Croons , and Dr. Dimaio, respectively, testified
on those subjects. Resp. Ans.
77-78. Respondent claims that counsel
violated Rule 3.03 of the Texas Rules of Disciplinary Professional Conduct in
making this "misrepresentation" to the Court. Resp. Ans. 79.
Drs.
Clayton, Croons, and Dimaio, although experts in the field of psychiatry, are
not experts in bruising and disassociative symptoms.
III.B.2. Defense Counsel Failed to Investigate
Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense
for Petitioner
ISSUE
OF FACT
See
Reply Br. Pt. III.B.1.
Defense
counsel failed to investigate evidence suggesting that Darin Routier had
arranged the attack at his residence.
First App. 53. That evidence
together with the evidence of the mysterious black car observed in the
Routiers' neighborhood support Petitioner's claim of innocence. First App. 55.
Under
Strickland, defense counsel is not required to pursue investigations that a
defendant has given counsel reason to believe would be fruitless; Applicant
informed her trial team that Darin Routier was not involved in the crime. Resp. Ans. 70.
The
affidavit of Darin Routier conclusively establishes that the Routiers were in
financial straits and thus is favorable to Respondent's case. Resp. Ans. 77.
Applicant's
trial counsel had been advised by Applicant's original counsel, whom he
replaced, that evidence in the case implicated Darin Routier and that a proper
defense of Applicant should involve that theory.
III.C. Defense Counsel Failed to Object to the
State Mounting an Unfair Prosecution with Inadmissible Evidence
ISSUES
OF FACT AND LAW
See
Reply Br. Pts. III.B.2. & III.C.
III.C.1. The Prosecution Was Allowed to Build its
Case for Guilt Substantially on the Basis of Character Evidence
III.C.1.a. Propensity Evidence
Defense
counsel failed to object to the State's characterizing Petitioner as someone
who would commit capital murder. First
App. 57.
The
introduction of character evidence indicating that Applicant was a "good
mother" in opening and closing arguments and through witnesses was a
critical part of her defense strategy and thereby opened up the issue of
character. Resp. Ans. 82.
Respondent's
Answer ignores fundamental tenets of law that a prosecutor may not initiate a
case based on the accused's character, that a prosecutor must limit any
character evidence to a rebuttal of the evidence put on by the defense, and
that the evidence offered on direct examination of a prosecution witness cannot
be in the form of specific acts.
Respondent
offered character evidence before the defendant opened the door to it, offered
evidence not that rebutted a "good mother" defense but that
affirmatively urged propensity to murder, and proved such through specific
instances of conduct, all in contravention of the rules of evidence.
Defense
counsel failed to object to the State's introduction of evidence about
Petitioner's material possessions.
First App. 63.
Evidence
that Applicant had breast implants is not character evidence because it does
not evidence "a generalized personal trait or propensity to behave in a
certain way." Resp. Ans. 84.
Applicant's
trial counsel used Respondent's character evidence in its favor by indicting
Respondent for commenting on how people should live their lives. Resp. Ans. 85.
Respondent's
evidence clearly were specific acts introduced to suggest bad character and to
support Respondent's propensity arguments.
III.C.1.b. Admissions of the Prosecution's Propensity
Evidence Violated Petitioner's Right to Due Process and Demonstrated that Her
Defense Counsel Was Ineffective
III.C.2. The Prosecution Was Allowed to Introduce
Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner
Defense
counsel failed to object to the State's introduction of inadmissible
hearsay. First App. 67.
Applicant
has failed to demonstrate that she was harmed by the inadmissible hearsay or
that her trial counsel's strategy was not to object to hearsay evidence that
the State could introduce through other testimony. Resp. Ans. 87-88.
Respondent's
hearsay evidence of Darin Routier's statements to the CPS worker was admissible
as prior inconsistent statements and evidence of bias. Resp. Ans. 89.
Applicant's
trial counsel's failure to object to Respondent's hearsay evidence resulted in
its improper use for substantive purposes.
Darin
Routier's statements to the CPS worker were not inconsistent with prior
statements he had made.
III.C.3. The Prosecution Was Allowed to Introduce,
Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner's
Conduct and State of Mind
III.C.3.a. Medical Witnesses
Defense
counsel failed to object to the State's introduction of state-of-mind evidence
under the guise of expert testimony from medical personnel. First App. 70.
The
testimony of medical personnel was admissible as non-expert opinion testimony
based on their personal perceptions.
Resp. Ans. 91.
Respondent
misstates Applicant's argument and fails to address her claim that the
testimony of these witnesses was speculative and inadmissible regardless of their
qualifications.
Speculative
testimony is not "rationally based on the perception of the witness"
nor "helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue."
First App. 70; Tex. R. Evid. 701.
III.C.3.b. James Cron
Defense
counsel failed to object to Lt. Cron's expert opinion testimony about the usual
conduct of criminal intruders. First
App. 74.
Because
Lt. Cron's field of expertise was other than "hard science," the test
for admissibility of his crime-scene evidence need only satisfy the
following: (1) the field of expertise
is a legitimate one; (2) the subject matter of the evidence is within that
field; and (3) the testimony properly relies upon principles in the field. Lt. Cron's testimony satisfied all three
conditions. Resp. Ans. 94.
Applicant's
trial counsel used Lt. Cron's testimony to Applicant's advantage through
cross-examination, e.g., pointing out that his conclusions were based on a
20-min walkthrough of the Routiers' home.
Resp. Ans. 95.
Respondent
misstates Applicant's argument and fails to address her claim that the
testimony of this witness was speculative and inadmissible regardless of his
qualifications.
III.D. Defense Counsel Failed to Challenge the
Constitutionality of the Interrogation of a Sedated Petitioner Confined in her
Hospital Bed After Surgery
See
Reply Br. Pts. III.B.2. & III.C.
Defense
counsel failed to object to the introduction of Petitioner's statements in an
interview that was involuntary and not the product of free will under
Mincey. First App. 79.
Applicant's
trial counsel used the fact that the medication administered to Applicant had
the effect of a "truth serum" to suggest that her failure to confess
to the crimes indicated that she was innocent.
Resp. Ans. 97.
Mincey
is inapplicable because in Applicant's case she did not express a desire not to
speak with the police detectives and she was not suffering the effects of
medication. Resp. Ans. 99.
The
evidence from the hospital room interview was otherwise before the jury and so
any error from the admission of the interview statements was harmless. Resp. Ans. 101.
The
effect of the medication administered to Applicant is an issue of disputed
fact. One witness testified that her
medication rendered Applicant susceptible to confusion, disorientation and
temporary memory loss. First App. 79.
Respondent's
description of Applicant's medication as a "truth serum" supports her
claim because statements induced by a "truth serum" have been held to
be involuntary. See Townsend v. Sain,
372 U.S. 293, 307-08 (1963).
Respondent
adopts too narrow a reading of Mincey, which broadly held that any criminal
trial use of an involuntary statement is a violation of due process where the
defendant's decision to speak was not the product of a rational intellect and
free will. Mincey is not limited to
cases in which the defendant expressed a wish not to speak.
Mincey
held that any use of an involuntary statement is a due process violation, and
therefore may not be put before the jury under any grounds.
III.E. Defense Counsel Failed to Object to the
State's Interfering with the Defense's Access to Witnesses, Which Deprived
Petitioner of Her Federal and State Constitutional Rights to Due Process
See
Reply Br. Pts. III.B.2. & III.C.
Defense
counsel failed to object to the State's conditioning access to certain State
witnesses on a district attorney being present at the interviews. First App. 83.
Applicant
has failed to identify any witness whom she was not allowed to interview or
demonstrate that she was prejudiced by denied access. Resp. Ans. 102-03.
Applicant's
trial counsel admitted on the record in the proof-evident hearing that he did
not know the substance of the testimony of witnesses he desired to question. Resp. Ans. 102.
Respondent
ignores the constitutional implications of its conditioning access to its
witnesses on a prosecutor being present during the interview.
III.F. Defense Counsel Failed to Offer Evidence
from a Secretly Taped Police Video That Would Have Negated a Highly Prejudicial
Videotape Offered by the State
Defense
counsel failed to introduce evidence to negate the highly prejudicial video of
the graveside birthday party. First
App. 84.
The
entire graveside video was cumulative and would not have added significantly to
the defense's case. Resp. Ans. 104.
The
affidavit of Juror Sanford is inadmissible under Rule 606(b). Resp. Ans. 104.
The
complete graveside video put in context Applicant's mourning on the day the
video was secretly taped.
Rule
606(b) does not apply.
IV. The Cumulative Effect Of Defense Counsel's
Actions Deprived Petitioner Of Her State And Federal Constitutional Rights To
Due Process And A Fundamentally Fair Trial
The
cumulative effect of defense counsel's failures denied Petitioner her
constitutional right to effective assistance of counsel. First App. 88.
Applicant
attacks only "isolated aspects of her trial team's representation"
and thus her claim violates one of the precepts of Strickland requiring an
examination of the totality of her counsel's representation. Resp. Ans. 105.
ISSUE
OF FACT AND LAW
See
Reply Br. Pt. III.B.
V. Defense Counsel Failed to Challenge
Prosecutorial Misconduct At Trial Depriving Petitioner of Her Right to a
Fundamentally Fair Trial
ISSUES
OF FACT AND LAW
See
Reply Br. Pts. III.B.2. & III.C.
The
State introduced propensity evidence in violation of the Texas Rules of
Evidence's prohibition against offensive use of character evidence. First App. 89.
Defense
counsel failed to object to the alleged prosecutorial misconduct that Applicant
identifies. Resp. Ans. 107.
Applicant's
trial counsel introduced the issue of character in opening statements and
through witnesses. Resp. Ans. 110.
Respondent
contends that the prosecutorial misconduct in Applicant's case was proper, but
also that her trial counsel did not object.
This begs the question of whether Applicant had adequate representation.
Respondent
misconstrues the rules of evidence applicable to character evidence (Rules 403
and 404). A defendant may not be tried
on the theory that she has the propensity to commit a crime and yet Respondent
did exactly that.
Respondent
may not dictate the scope of character evidence introduced because its evidence
must rebut the character evidence introduced by the defense, and may only be
introduced if and when the defense has introduced character evidence.
Character
evidence offered on direct examination is limited to opinion or reputation
evidence and not specific instances of conduct - as Respondent presented in
this case.
As
Respondent concedes, opening statements are not evidence and therefore defense
counsel did not open up the issue of character through opening statements. Respondent was, therefore, required to let
the defense determine if and when character would be introduced and to
determine the scope of that evidence.
The
State improperly injected his opinion on the credibility of witnesses at trial
(including Petitioner, Darin Routier, and the Rowlett Police Department). First App. 93.
Respondent's
closing arguments merely summarized the trial evidence and indicated a lack of
bias and thus did not constitute misconduct.
Resp. Ans. 112.
Respondent
was not improperly vouching for the credibility of the Rowlett Police
Department but "was merely acknowledging their efforts in the difficult
task of investigating and prosecuting the offense . . . only that they answered
the call." Resp. Ans. 115.
Respondent's
vouching for the credibility of its witnesses constituted improper
conduct.
The
State made inflammatory statements in closing arguments in an effort to
persuade the jury to find Petitioner guilty out of sympathy for her
children. First App. 95.
Respondent
can properly comment on Applicant's demeanor and thus the characterization of
her crying as insincere was proper.
Resp. Ans. 114.
Respondent
can properly make a "plea for proper law enforcement." Resp. Ans. 116.
Respondent's
invocation of sympathy for the victims of the crime during closing argument
constituted improper conduct.
The
State introduced extra-record evidence that the fingerprints of a man fitting
Petitioner's description of her assailant did not match those left at the
scene. First App. 97.
Respondent's
introduction of extra-record evidence was "invited argument." Resp. Ans. 118 (citing Bush v. State).
Respondent's
reliance on Bush is misplaced because, in Bush, the defense knew that the
witness was unavailable. In this case,
the evidence was not unavailable and Respondent could have introduced it but
chose not to. Under these
circumstances, the interjection of extra-record evidence by Respondent in
closing was improper prosecutorial misconduct.
The
State introduced irrelevant evidence at trial of Petitioner's owning sex toys
and marijuana found on the scene. First
App. 99.
Review
of this claim is barred because this issue was preserved by trial counsel;
Applicant should have raised this issue in her direct appeal. Resp. Ans. 109.
Respondent's
introduction of marijuana evidence was accidental. Resp. Ans. 121.
The
evidence of Applicant's ownership of sex toys was not character evidence
because it was not evidence of a "generalized personal trait." Resp. Ans. 122.
The
cumulative effect of Respondent's misconduct-both that objected to and not
objected to by Applicant's counsel-resulted in a fundamentally unfair trial
that can only be remedied through this proceeding.
Respondent's
answer regarding the marijuana evidence creates an issue of disputed fact that
should be resolved by the Court.
Respondent's
answer regarding the admission of sex toys highlights question of its
relevance, and, under any circumstance, constituted evidence of specific acts
intended to establish Applicant's bad character.
The
cumulative effect of the State's misconduct deprived Petitioner of her
constitutional right to a fundamentally fair trial. First App. 99.
There
is no cumulative effect because Applicant has not demonstrated prosecutorial
misconduct. Resp. Ans. 123. Moreover, Applicant's trial counsel failed
to object to most of the cited instances of alleged misconduct. Resp. Ans. 123.
The
trial record demonstrates a pattern of cumulative prosecutorial misconduct by
Respondent. Applicant's deprivation of
her right to a fundamentally fair trial due to Respondent's conduct can only be
remedied through a new trial.
VI. The State Knowingly Withheld Impeachment
Evidence Regarding Two of the State's Primary Experts In Violation Of Brady v.
Maryland and Petitioner's Constitutional Guarantees To Due Process and a
Fundamentally Fair Trial
ISSUES
OF FACT AND LAW
See
Reply Br. Pt. III.D.
VI.A. The Prosecution Violated Its Duty Under Brady
v. Maryland by Failing to Disclose Evidence of Similar Crimes that Would
Impeach the Testimony of the State's Crime Scene Analyst, Special Agent Alan
Brantley
The
State suppressed favorable evidence within its possession of similar crimes
committed in the time frame and vicinity of the Routier murders. First. App. 102-104.
Knowledge
of police reports in the possession of the Dallas Police Department could not
be imputed to the prosecution because the Dallas Police Department was not
"acting on the prosecution's behalf." Resp. Ans. 132-143.
ISSUE
OF LAW
See
Reply Br. Pt. III.D.1.
Knowledge
of the Dallas Police Department may be imputed to the Dallas County
Prosecutor's Office.
VI.B. The Prosecution Violated Its Duty Under Brady
v. Maryland by Failing to Disclose Known Impeachment Evidence Regarding the
History of Mental Illness and Related Employment Problems of the State's Trace
Evidence Analyst, Charles Linch
VI.B.1. The Prosecution Failed to Disclose Charles
Linch's History of Mental Incapacity and Involuntary Psychiatric Commitment for
Depression and Alcohol Dependence
Prosecutor
Toby Shook had direct knowledge of State's expert Charles Linch's history of
mental illness, including his involuntary psychiatric commitment prior to
Petitioner's trial. First App. 106.
Prosecutor
Toby Shook was unaware of Mr. Linch's history of depression or the reason for
his hospitalization until after Applicant's trial. Resp. Ans. 155-156; Aff. of Toby Shook (Resp. Ans. Exh. 13).
ISSUE
OF FACT
See
Reply Br. Pt. III.D.2.
Respondent
has created an issue of fact (and credibility) that can only be resolved by the
Court.
The
Southwestern Institute of Forensic Science (SWIFS) had direct knowledge of
Charles Linch's history of mental illness.
SWIFS knowledge can be imputed to the State. First App. 106.
SWIFS'
knowledge may not be imputed to Respondent for purposes of Brady
disclosures. Resp.Ans. at 157-160.
ISSUE
OF LAW
See
Reply Br. Pt. III.D.2.
Impeachment
evidence known by SWIFS-an agency acting on behalf of Respondent in Applicant's
trial-may be imputed to Respondent.
VI.B.2. The Prosecution Failed to Disclose That
Linch's Desire for Recognition and Propensity to Testify in High-Profile
Capital Murder Cases and Employment Problems at the Southwestern Institute of
Forensic Sciences Biased His Testimony
VI.B.3. The Prosecution's Failure to Disclose Evidence
Regarding Charles Linch's Chronic Depression, Alcohol Dependence, and Tenuous
Employment Relationship Violated the Prosecution's Duty Under Brady v. Maryland
VI.C. The Prosecution Violated Its Duty Under Brady
v. Maryland by Failing to Disclose the Expert Opinion of Psychiatrist Dr.
Kenneth Dekleva that Petitioner Would Not Present a Future Danger
Dr.
Kenneth Dekleva, the State's forensic psychiatrist, informed the prosecution in
connection with his assessment of Petitioner that Petitioner did not pose a
future danger to society. First App.
111-12 and Aff. of Dr. J. Douglas Crowder (First App. Exh. 3).
Dr.
Dekleva did not offer an opinion to the prosecution regarding the ultimate
issue of Petitioner's future dangerousness.
Resp. Ans. 176-83; Aff. of Toby Shook (Resp. Ans. Exh. 13); Aff. of Dr.
Kenneth Dekleva (Resp. Ans. Exh. 18).
ISSUE
OF FACT
See
Reply Br. Pt. III.D.3.
Dr.
Dekleva expressed his opinion to the prosecution prior to Applicant's trial
that she was not likely to constitute a future danger to society.
There
is an issue of fact as to the substance of Dr. Dekleva's opinion and of his
conversation with Dr. Crowder that must be resolved by the Court.
VI.D. The Multiple Failures of the Prosecution Under
Brady v. Maryland Constitute a Material Error That Violated Petitioner's Right
to Due Process Under the Fourteenth Amendment to the United States Constitution
and Art. 1, § 19 of the Texas Constitution
VII. The State Failed To Correct The False
Testimony of Charles Linch In Violation Of Petitioner's Federal And State
Constitutional Guarantees To Due Process And A Fundamentally Fair Trial
ISSUES
OF FACT
See
Reply Br. Pt. III.E.
The
knives and butcher block collected from Petitioner's kitchen were dusted for
latent fingerprints prior to being analyzed by the State's forensic expert,
Charles Linch. First App. 115-16;
Second Aff. of Charles A. Linch (First App. Exh. 9).
Evidence
regarding the chain of custody of the knives and butcher block is inconsistent
with Mr. Linch's statement that the knives were tested for fingerprints prior
to his forensic analysis. Resp. Ans.
202-04; Resp. Ans. Exhs. 3, 21-24.
The
serrated bread knife found in Petitioner's kitchen that contained microscopic
debris (Knife #4) was contaminated by fingerprint powder used to dust the
knives. First App. 21, 116; Aff. of
Samuel Palenik (First App. Exh. 10).
Fibers
from the fingerprint brush "could not have contaminated the knife" on
which Mr. Linch found microscopic rubber dust particles and fiberglass rod
fragments (Knife #4). Resp. Ans. 207.
There
is an issue of fact as to whether the serrated bread knife was contaminated
with fingerprint dusting powder or fragments from Applicant's garage window
screen
VIII. The Cumulative Effect of the State's Misconduct
Deprived Petitioner of Her State and Federal Constitutional Rights to Due
Process and a Fundamentally Fair Trial
IX. The Texas Death Penalty Statute Is
Unconstitutional On Its Face And As Applied In Petitioner's Case
Quinones
was reversed by the Second Circuit.
Resp. Ans. 209.
Applicant
has not demonstrated that anyone on Texas's death row is innocent or has been
executed. Resp. Ans. 210.
ISSUE
OF LAW
See
Reply Br. Pt. IV.
The
Second Circuit's reversal does not dictate the result of Applicant's
constitutional challenge to the Texas Death Penalty Statute.
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