Writ of Habeas Corpus

IN THE COURT OF CRIMINAL APPEALS

IN AUSTIN, TEXAS

AND

IN THE CRIMINAL DISTRICT COURT NO. 3

IN DALLAS, TEXAS

EX PARTE

DARLIE LYNN ROUTIER

Writ No. W96-39973-J0000000

(Trial Court No. F96-39973-J)

FIRST APPLICATION

FOR POST-CONVICTION WRIT OF HABEAS CORPUS

PURSUANT TO TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 11.071

THIS IS A CAPITAL CASE

OF COUNSEL:

Michael F. Flanagan, Pro Hac Vice

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC  20036

(202) 955-8500

Rey Rodriguez (SBN 00791557)

Richard A. Smith (SBN 24027990)

GIBSON, DUNN & CRUTCHER LLP

2100 McKinney Avenue, Suite 1100

Dallas, TX  75201

(214) 698-3100

Steven C. Losch (SBN 00789805)

906 Delia Drive

Longview, TX 75601

(903) 234-1373

Counsel for Petitioner Darlie Lynn Routier

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES            vi

INTRODUCTION            1

STATEMENT OF FACTS            3

CLAIMS FOR RELIEF            13

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............ 13

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............ 16

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............ 17

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............ 18

3............ In the Spring of 1996, Darin Routier Had Intentions to Have His Residence “Hit” to Collect Insurance Proceeds............ 19

B............ Preliminary Analyses by Forensic Experts Have Revealed Physical Evidence Inconsistent With The State’s Circumstantial Case............ 21

1............ Knife Number 4............ 21

2............ Petitioner’s Nightshirt............ 21

3............ Vacuum Cleaner............ 22

4............ Wine Glass............ 22

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............ 22

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............ 24

III............ The Ineffective Assistance of Defense Counsel Deprived Petitioner of Her Federal and State Constitutional Rights to Effective Counsel and a Fundamentally Fair Trial............ 27

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............ 27

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............ 28

2............ Petitioner Did Not Waive Her Right to Conflict-Free Representation of Counsel............ 34

B............ Defense Counsel Failed to Conduct and/or Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to Petitioner’s Defense............ 39

1............ Defense Counsel Failed to Pursue Critical Expert Testimony to Rebut the State’s Scientific Case Against Petitioner............ 40

2............ Defense Counsel Failed to Investigate Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense for Petitioner............ 53

C............ Defense Counsel Failed to Object to the State Mounting an Unfair Prosecution with Inadmissible Evidence............ 56

1............ The Prosecution Was Allowed to Build its Case for Guilt Substantially on the Basis of Character Evidence............ 58

a............ Propensity Evidence............ 58

b............ Admissions of the Prosecution’s Propensity Evidence Violated Petitioner’s Right to Due Process and Demonstrated that Her Defense Counsel was Ineffective............ 60

2............ The Prosecution Was Allowed to Introduce Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner............ 66

3............ The Prosecution Was Allowed to Introduce, Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner’s Conduct and State of Mind............ 70

a............ Medical Witnesses............ 70

b............ James Cron............ 74

D............ Defense Counsel Failed to Challenge the Constitutionality of the Interrogation of a Sedated Petitioner Confined in her Hospital Bed After Surgery............ 78

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............ 81

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............ 84

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............ 88

V............ Defense Counsel Failed to Challenge Prosecutorial Misconduct At Trial Depriving Petitioner of Her Right to a Fundamentally Fair Trial............ 89

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............ 100

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............ 102

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............ 104

1............ The Prosecution Failed to Disclose Charles Linch’s History of Mental Incapacity and Involuntary Psychiatric Commitment for Depression and Alcohol Dependence............ 105

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............ 106

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............ 109

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............ 111

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............ 113

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............ 113

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............ 116

IX............ The Texas Death Penalty Statute Is Unconstitutional On Its Face And As Applied In Petitioner’s Case............ 118

PRAYER FOR RELIEF            123

TABLE OF AUTHORITIES

Page

Cases

Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972)..... 59

Atkins v. Virginia, No. 00-8452, 2002 U.S. LEXIS 4648 (June 20, 2002)..... 122

Brady v. Maryland, 373 U.S. 83 (1963)..... passim

Brady v. United States, 397 U.S. 742 (1970)..... 35

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993)..... 60

Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200 (Tex. App. Dec. 6, 2001)..... 34, 38

Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986)..... passim

Callahan v. United States, 371 F.2d 658 (9th Cir. 1967)..... 81

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 2000)..... 99

Chessmen v. Teets, 354 U.S. 156 (1957)..... 26

Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996)..... 95

Cook v. State, 904 S.W.2d 623 (Tex. Crim. App. 1996)..... 101, 116

Darden v. Wainwright, 477 U.S. 168 (1986)..... 90

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)..... 75

Dennis v. United States, 384 U.S. 855 (1966)..... 82

Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992)..... 66

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)..... 90

Duffy v. State, 567 S.W.2d 197 (Tex. Crim. App. 1978)..... 96

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)..... 70

East v. Johnson, 123 F.3d 235 (5th Cir. 1997)..... 102

Ex Parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ..... 114

Ex Parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1990)..... 1, 95, 116, 117

Ex Parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993)..... 114

Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)..... 13, 14, 16

Ex Parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978)..... 40

Ex Parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996)..... 114

Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983)..... 56

Ex Parte Prejean, 625 S.W.2d 731 (Tex. Crim. App. 1981)..... 35

Ex Parte Smith, 561 S.W.2d 842 (Tex. Crim. App. 1978)..... 36

Ex Parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990)..... 46, 48

Florio v. State, 532 S.W.2d 614 (Tex. Crim. App. 1976)..... 82

Foster v. California, 394 U.S. 440 (1969)..... 116

Furman v. Georgia, 408 U.S. 238 (1972)..... 119

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)..... 27

Giglio v. United States, 405 U.S. 150 (1972)..... 101, 114

Glasser v. United States, 315 U.S. 60 (1942)..... 34

Gonzales v. State, 685 S.W.2d 47 (Tex. Crim. App. 1985)..... 98

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)..... 82

Guerra v. Collins, 916 F. Supp. 620 (S.D. Tex. 1995)..... 119

Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 837 (2000)..... 66

Hardy v. State, 71 S.W.3d 535 (Tex. App. 2002)..... 66

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)..... 27, 80. 87

Herrera v. Collins, 506 U.S. 390 (1993)..... 13, 14, 15, 16

Holloway v. Arkansas, 435 U.S. 475 (1978)..... 31, 39

Idaho v. Wright,  497 U.S. 805 (1990)..... 66

Jaubert v. State, No. 0260-01, 0261-01, 0262-01, 0263-01, 0264-01, 2002 Tex. Crim. App. LEXIS 82 (Tex. Crim. App. April 10, 2002)..... 58

Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)..... 81, 82

Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975)..... 90, 99

Kyles v. Whitley, 514 U.S. 419 (1995)..... 102

Landrum v. State, 356 S.W.2d 673 (Tex. Crim. App. 1962)..... 36

Linsey v. King, 769 F.2d 1034 (5th Cir. 1985)..... 114

Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)..... 40, 53

Martinez v. Wainwright, 621 F.2d 184 (5th Cir. 1980)..... 114

McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) (Amended June 10, 1993 and reported at 1993 U.S. App. LEXIS 9685)..... 60

Menefee v. State, 614 S.W.2d 167 (Tex. Crim. App. 1981)..... 92

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)..... 77

Michelson v. United States, 335 U.S. 469 (1948)..... 59

Mickens v. Taylor, 122 S. Ct. 1237 (2002)..... 27, 39

Mincey v. Arizona, 437 U.S. 385 (1978)..... 78, 80

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)..... 56

Muniz v. Johnson, 132 F.3d 214 (5th Cir. 1998)..... 78

Murray v. Carrier, 477 U.S. 478 (1986)..... 16

Napue v. Illinois, 360 U.S. 264 (1959)..... 113

Old Chief v. United States, 519 U.S. 172 2d 574 (1997)..... 56

Owens v. State, 827 S.W. 2d 911 (Tex. Crim. App. 1992)..... 59

Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000)..... 28, 30, 31, 32, 34

Planned Parenthood v. Casey, 505 U.S. 833 (1992)..... 123

Richardson v. State, 744 S.W.2d 65 (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914 (1989)..... 110

Rubin v. Gee, No. 01-6411, 2002 U.S. App. LEXIS 10740 (4th Cir. June 5, 2002)..... 28, 29

Schlup v. Delo, 513 U.S. 298 (1995)..... 14, 15, 16

Sellers v. Estelle, 651 F.2d 1074 (5th Cir. 1981)..... 101

Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988)..... 90

State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994)..... 13, 14

State v. Nkwocha, 31 S.W.3d 817 (Tex. App. 2000)..... 14, 16

Strickland v. Washington, 466 U.S. 668 (1984)..... passim

Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992)..... 95, 100

Trop v. Dulles, 356 U.S. 86 (1958)..... 122

United States v. Bagley, 473 U.S. 667 (1985)..... passim

United States v. Bontkowski, 865 F.2d 129 (7th Cir. 1989)..... 114

United States v. Cronic, 466 U.S. 648 (1984)..... 48

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)..... 34, 36, 37, 38

United States v. Greig, 967 F.2d 1018 (5th Cir. 1992)..... 36, 38

United States  v. LeQuire, 943 F.2d 1554 (8th Cir. 1991)..... 99

United States v. Matlock, 491 F.2d 504 (6th Cir. 1974)..... 81

United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997)..... 114

United States v. Quinones, 196 F. Supp. 2d 416, 2002 U.S. Dist. LEXIS 7320 (S.D.N.Y. 2002)..... 121, 122

United States v. Quinones, 2002 U.S. Dist. LEXIS 11631 (S.D.N.Y. July 1, 2002)..... 118, 120, 122

United States v. Ramirez-Benitez, No. 00-1497, 2002 U.S. App. LEXIS 10684 (1st Cir. June 4, 2002)..... 29, 32

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975)..... 59

United States v. Scott, 518 F.2d 261 (6th Cir. 1975)..... 81

United States v. Wallach, 935 F.2d 445 (2d Cir. 1991)..... 114

United States v. White, 706 F.2d 506 (5th Cir. 1983)..... 36, 38

Viterbo v. Dow Chem. Co., 826 F.2d 420 (1987)..... 77

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)..... 59, 90

Williamson v. State, 771 S.W.2d 601 (Tex. App. 1989) ..... 92, 93

Winn v. State, 871 S.W.2d 756 (Tex. App. 1993)..... passim

Constitutional Provisions

Tex. Const. art. I, § 19..... passim

U.S. Const. amend. V..... passim

U.S. Const. amend. VI..... passim

U.S. Const. amend. XIV..... passim

Statutes

Tex Code Crim. Proc. art 1.05[3][4]..... 100

Rules

Rule 404(a)..... 58

Rule 404(b)..... 58

Tex. R. Evid. 403..... 68

Tex. R. Evid. 701..... 70, 71

Tex. R. Evid. 801(d)..... 67

Tex. R. App. Proc. 33.1..... 95

Other Authorities

Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html (last visited July 9, 2002)..... 119

Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html#state (last visited July 9, 2000)..... 120

Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002)..... 19, 20, 54

Holly Becka and Howard Swindle, Analyst Left Psych Ward to Testify:  County Forensic Expert Crucial in Murder Trials, Dallas Morning News, May 7, 2000 at 1A..... 105, 106

Holly Becka and Howard Swindle, Routier Trial Expert Cast Doubts on His Own Abilities:  Prosecutors Say Forensic Analyst Competent; Defense Questions Credibility of Testimony, Dallas Morning News, May 10, 2000 at 1A..... 105, 109

Holly Becka and Howard Swindle, Memos Detail Internal Struggle at Lab:  Reports Could Raise Questions About Reputations of Analyst, County Crime Office, Dallas Morning News, May 10, 2000, at 21A..... 109

James S. Liebman, Opting for Real Death Penalty Reform, available at http://www.law.ohio-state.edu/LawJournal/liebman.htm (last visited July 9, 2002)..... 119

Texas Defender Service Report, A State of Denial:  Texas Justice and the Death Penalty, Chapter 9:  Bitter Harvest, available at http://www.texasdefender.org/study/study.html (last visited July 9, 2002)..... 120

INTRODUCTION

On June 6, 1996, six-year old Devon Routier, five-year old Damon Routier, and their mother, Darlie Lynn Routier (“Petitioner”), were the victims of a horrible attack while they slept in the family room of the Routiers’ residence at 5801 Eagle Drive, Rowlett, Texas.  Devon and Damon were killed in the attack, and Petitioner came within millimeters of losing her life from a vicious cut across the front of her neck.  This crime outraged an entire community because the lives of two young children were lost.  That outrage, however, did not then, and cannot now, justify the complete subversion of justice that resulted in the capital conviction and sentence of Petitioner for a crime she did not commit. [1]

The State’s theory of the case was that Petitioner killed her own children to collect on their $5,000 burial insurance policies and then staged the crime scene and inflicted her own near-fatal injuries to cover up what she had done.  That case was built entirely upon circumstantial and character evidence; the most compelling of which was an irrelevant and unduly prejudicial videotape of Petitioner at a gravesite birthday celebration to honor the memory of Devon Routier, which the State – though in possession of a surveillance video showing this event was part of a several-hour tearful and solemn family visit to the children’s graves – introduced out of context.  In investigating and presenting this case to the jury, the State ignored significant evidentiary leads that not only were inconsistent with its own theory but consistent with the defense’s theory that an intruder committed the attacks, withheld exculpatory and impeachment evidence that it was constitutionally required to turn over to the defense, and violated explicit court rulings precluding the introduction of irrelevant and unduly prejudicial evidence.  Through such tactics, the State manufactured a conviction in which this Court should have little confidence.

The State’s misconduct is matched only by the unethical and unconstitutional actions of Petitioner’s own defense counsel, who, even though advised by her prior counsel that the husband was a possible perpetrator, agreed not to implicate Petitioner’s husband in her trial as a condition of being hired by the family to defend her.  By completely foreclosing this line of defense, her counsel never learned or presented to the jury evidence that Darin Routier had arranged to have his car stolen in 1994 to collect insurance proceeds and for a period of months before the events on June 6, 1996, had inquired of relatives and associates whether they knew of anyone who would “burglarize” his home so that he could collect the insurance proceeds.  That alone rendered defense counsel’s representation unconstitutional yet did not constitute the extent of the deficiencies in defense counsel’s representation.  Defense counsel, for example, never retained forensic experts to conduct scientific tests of the physical items removed from the Routier residence at 5801 Eagle Drive, Rowlett, Texas.  As a result, the State’s scientific evidence was never challenged at trial.  The jury thus was left with a factually erroneous impression of what that evidence showed, when in fact some of the physical evidence not only was inconsistent with a staged crime scene but indicated that Petitioner is innocent.

Thus, from start to finish, the process culminating in Petitioner’s capital murder conviction and death sentence was undermined by misconduct, omissions, and failures – not only by the State but by her own counsel – that deprived Petitioner of her federal and state constitutional guarantees to due process and a fundamentally fair trial.  Accordingly, Petitioner respectfully asks this Court to vacate her conviction and sentence and to issue the writ of habeas corpus.

STATEMENT OF FACTS

In the weeks before June 6, 1996, neighbors of the Routiers noticed a strange black car in the back alley behind and across the street from their residence at 5801 Eagle Drive, Rowlett, Texas – just watching the house.  C.R.R. Vol. 36, p. 136:5-15; C.R.R. Vol. 41, pp. 84:21-85:24.  Because the windows of the car were tinted, no one could identify what the driver looked like or whether any passengers were in the car.  These neighbors’ observations took on added significance after June 6, 1996.

In the early morning hours of June 6, 1996, Petitioner and her two older sons, Devon and Damon, were attacked with a knife in the family room, where earlier they had fallen asleep watching television.  C.R.R. Vol. 44, p. 4865:10-22.  Like most victims of violent crime, Petitioner does not remember many details from that morning.  She recalls being awakened by Damon’s hitting her right shoulder and saying “mommie,” and seeing a man walk from the family room couch into the kitchen.  C.R.R. Vol. 44, p. 4866:1-4, 8-9.  Petitioner believes that whomever she saw that morning killed Devon and Damon and came within millimeters of killing her as well.  Physical and circumstantial evidence corroborate Petitioner’s belief.

In the 2:00 a.m. hour on June 6, 1996, a Rowlett woman driving home along a stretch of Dalrock Road that is approximately a ten-minute walk from the Routiers’ neighborhood, observed two suspicious men.  See generally Darlene Potter Affidavit (“Potter Aff.”). [2]   As she approached the “S” curve on Dalrock Road, the Rowlett woman slowed down because a trailer was attached to the back of her vehicle.  Potter Aff. ¶ 3.  She then noticed a man in his late twenties, medium build, shoulder-length disheveled hair, and barefoot walking along the side of the road.  Potter Aff. ¶ 3.  She was surprised to see someone on the street at that hour.  Potter Aff. ¶ 4.  As she drove out of the curve, she then noticed for the first time a second man who appeared to be in his late twenties, wearing a baseball cap and white t-shirt.  Potter Aff. ¶ 6.  The second man stepped from the curve as if to approach her vehicle, but the first man motioned “no” to him.  Potter Aff. ¶ 5.  When the woman arrived home, she went to bed but did not fall asleep.  Potter Aff. ¶ 8.  Approximately forty-five minutes later, she noticed a small dark-colored car riding its brakes in the fields next door to her house.  Potter Aff. ¶ 8.

A similar car was sighted by one of the Routiers’ neighbors later that afternoon on Eagle Drive, after the Rowlett Police Department had secured the crime scene at the Routiers’ residence.  This neighbor informed Police Officer Jimmy Patterson about the peculiar car but neither he nor to his knowledge, anyone else from his department followed up on the information.  C.R.R. Vol. 42, pp. 25:15-26:5.

Only a few months before the first sightings of the black car in the Routiers’ neighborhood, Darin Routier devised a fraudulent scheme to have his house “hit” so that he could collect the insurance proceeds from the “burglary.”  See Darin Routier Affidavit (“Routier Aff.”) ¶¶ 3-4.  The “burglar” was supposed to enter the Routiers’ home, remove items from the home and store them until the insurance proceeds were paid, from which the “burglar” would be compensated.  Routier Aff. ¶ 3.  In the spring of 1996, Darin Routier asked Petitioner’s step-father, Robbie Kee, whether he knew anyone willing to commit such a burglary.  See Robbie Gene Kee (“R. Kee Aff.”) ¶ 2; see also Routier Aff. ¶ 3.  “Between March 1996 and May 1996, [Darin Routier] told multiple people of [this] planned insurance scam.”  Routier Aff. ¶ 4.  On at least two prior occasions, however, once in 1994 (see Routier Aff. ¶ 2) and then again in 1995, Darin Routier in fact executed schemes for his 1982 Jaguar and wallet to be stolen so that he could collect insurance proceeds.

The jury that convicted Petitioner never heard these facts and thus never had the opportunity to piece them to arrive at a more plausible explanation than the flimsy one offered by the State for why the events of June 6, 1996 might have happened – an insurance scam gone wrong.  Douglas Parks, Petitioner’s original appointed counsel intended to present this defense to the jury (see Douglas Parks Affidavit (“Parks Aff.”) ¶ 4; Routier Aff. ¶ 4) but, at her family’s urging, Petitioner accepted new defense counsel.  Thereafter, defense counsel did not investigate whether someone known to Darin Routier had committed the “hit” on his house; indeed, defense counsel never had any intention to do so because a condition of his retention by Petitioner’s family was that he not implicate Darin Routier in the crimes.  See Routier Aff. ¶ 7.  By agreeing to that condition – without Petitioner’s consent – defense counsel completely foreclosed that line of defense for her, a defense that offered a more plausible explanation of the crimes, including the near fatal attack on Petitioner. 

The jury also never heard exculpatory evidence that the State knowingly did not disclose to the defense – even though constitutionally required to do so – evidence that one of its key witnesses, Charles Linch, had a long history of depression and alcoholism, caused in part by job-related stress from working at crime scenes and testifying at capital trials.  The State also never corrected certain misimpressions created by or false statements made in the testimony of Linch, James Cron, and Alan Brantley.  Linch falsely testified that at the time he received the kitchen knives from 5801 Eagle Drive, only two had been dusted – neither of which was Knife Number 4 from which he recovered the fiber that he claimed came from the garage window screen.  C.R.R. Vol. 37, p. 144:17 – 145:6.  Linch now admits that, in fact, all of the knives had been dusted, before he received them for testing.  This constitutes further evidence that Knife Number 4 was contaminated in the course of dusting the scene for fingerprints, and thus the fiber is not evidence of a staged crime scene.

Alan Brantley gave the jury the misimpression that he had investigated whether there had been similar crimes in the area.  See C.R.R. Vol. 40, pp. 53:24-54:5.  In fact, a spree of crimes that started in December 1995 and ended around  the time of the attack at the Routiers’ residence was not disclosed to the jury.  The assailant’s modus operandi included using implements from the homes of his victim as weapons and using tube socks – like the one found three houses down from the Routier’s home (C.R.R. Vol. 32, p. 71:3-6) – to gag his victims.  Brantley misleadingly suggested that criminal offenders never use objects found in victims’ homes as weapons.  See C.R.R. Vol. 40, p. 84:5-9.

Implausible Theory Advanced By the State:

The jury also never heard any alternative explanations for critical aspects of the State’s case – even though such explanations were available to the defense.  The State’s case against Petitioner was entirely circumstantial, built primarily upon character evidence – some of which the trial court had ruled was inadmissible but the State presented anyway (see, e.g., C.R.R. Vol. 42, pp. 304-06) – that she was a materialistic woman who lived beyond her means and upon the testimony of witnesses Charles Linch, Tom Bevel, and James Cron who were offered as experts.  All three of these witnesses testified that the physical evidence at the crime scene indicated that it had been staged.

Fiber on Knife No. 4/Garage Window Screen:

Linch testified that a fiber recovered from Knife Number 4 was consistent with the material from a torn garage window screen:

Q.            []  Bottom line, from this comparison of the black rubbery material and the glass rods on the window screen and on this knife, what does that say to you as a trace evidence analyst?

A.            I couldn’t tell the difference between this debris and the debris found on the knife and, therefore, this knife could have been used to cause the cut, defect.

C.R.R. Vol. 37, p. 144:17-24.

Blood Spatter on Petitioner’s Victoria’s Secret Nightshirt:

Tom Bevel testified that blood spatter on the back of the Victoria’s Secret nightshirt that Petitioner wore on the morning of June 6, 1996 was consistent with “cast off” stains that would have been deposited when she brought the knife overhead in a stabbing motion:

Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . .  And then just simply did a motion such at this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the night of the attack].

C.R.R. Vol. 39, p. 37:10-38:1.  He explained the significance of his findings to the jury as:

A.            I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.

C.R.R. Vol. 39, p. 38:3-6.

Broken Wine Glass:

Cron testified that a wine glass from a wine rack in the kitchen had been thrown to the floor to suggest a struggle:

Q.            []  While you were telling us what a rocket scientist could and couldn’t do, let me just ask you how you decided, that the wine glass was broken?

. . . .

A.            When I make my – walking through the kitchen the first time, I had no earthly idea.  I thought, well, maybe it was broken during the scuffle with the intruder.  After I finished the walk-through and went outside and came back inside, it looked to me like it had been broken there to simulate or stage an offense, a member of the household broke it and planted it there.

. . . .

A.            After I made the initial walk-through, where I first went through, I didn’t think anything of it.  I thought it was broken maybe in a scuffle.

. . . .

A.            After I went back outside the house, finishing all of the inside, going outside then coming back in, I based my opinion . . . that there was – no intruder and I could only conclude that the glass was broken as part of the staging of this offense to make it appear like there had been an intruder.

C.R.R. Vol. 35, pp. 2287:4-2288:4.

Hoover Vacuum Cleaner:

Bevel testified that a Hoover vacuum cleaner that police officers discovered knocked over actually had been rolled through blood, as indicated by wheel marks on the flooring, and was another effort to stage the crime scene:

A.            []  It is a motion just simply of the wheel rolling through the bloodstain.  However, they are not connected.  You then have another area and you would just about have to lift the vacuum cleaner and go over to another area and then proceed to roll again in a different direction from the original location or – and original direction.

Q.            Okay.  So there were differing directions to these movements; is that right?

A.            As well as not being connected, so there has to be some movement up from off of the floor with the vacuum cleaner.

Q.            The roll marks that you saw on the floor, sir, were they consistent with the State’s Exhibit No. 93 just simply being dumped over or knocked over in one motion?

A.            They would not, no, sir.

C.R.R. Vol. 38, pp. 227:13-228:4.

In its closing arguments, the State explained how this evidence supported its theory that Petitioner had murdered her son Damon:

Well, it doesn’t take Sherlock Holmes to figure out, that this vacuum cleaner was dumped on top of those bloody footprints after it was moved.  But why?  If the defendant did it, it’s because it’s staging.  You need to show some type of struggle occurred, something like that.

But what else didn’t make sense . . . The wine glass.  Supposedly . . . this intruder ran into this wine rack somehow and broke a glass.  Well, there’s glass on top of the bloody footprints, and the officer said they were careful not to step on blood, and not to step on glass.  The trouble is he checked the wine rack and it was real sturdy . . .

That is another indication that something wasn’t adding up . . . with this story . . . .

And when [Linch] tested [] that bread knife, he looked at it under the microscope and what did he find?  Glass rods, the same type of rubber material seen on the bread knife.  And that same type of rubber debris with the glass meshed in.  The same type of stuff that happens when you cut the screen.  And it adds up, that bread knife was used to cut that screen, and . . . that tells you they were trying to fake the crime scene.

. . . .

[what is the explanation for the blood stains on the back of the nightshirt,] the most consistent way it could happen is when the stabbing motion comes up and the knife is over the shoulder . . . .  That tells you that she was stabbing, and Devon’s blood winds up on her back.  It’s not going to wind up there if she is laying on the couch as a man wrestles at her neck.

C.R.R. Vol. 47, pp. 37:25-38.23, Vol. 47, pp. 16-24, Vol. 46 pp. 10-16.

As the State pointed out to the jury, defense counsel presented no scientific evidence to rebut the physical indications of a staged crime scene:

You know, here is the bottom line on Tom Bevel.  You know out there at SWIFS there is another expert, Terry Labor.  He is the DNA blood spatter expert who went out there on behalf of the defendant also, along with Bart Epstein.  And if they want to quarrel with Tom Bevel and tell you that he is wrong, and that he is a witch doctor of some sort, where is Terry Labor then?  Where is their blood spatter expert?  Don’t you know that if he had any criticism of the opinions rendered by Tom Bevel, that just like Bart Epstein, you would see them right up here, and he would be detailing for you what those criticisms are.  But he is not here either, is he?  And for a very good reason. 

C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4.  In fact, in October 1996 defense counsel was aware of contrary evidence.  But the jury never heard that evidence either.

Credible Alternative Explanations for the Physical Evidence at the Crime Scene

Through investigation of undersigned counsel, additional facts have surfaced about the physical evidence from 5801 Eagle Drive, Rowlett, Texas – again, none of which the jury heard.  A bloody fingerprint lifted from a glass table in the family room where the attacks occurred was described at trial by the State as lacking sufficient ridge details for identification.  See C.R.R. Vol. 35, p. 47:7-15.  Professor Richard Jantz from the University of Tennessee has since concluded otherwise and since determined that the latent fingerprint belongs to an adult.  See Richard Jantz Affidavit (“Jantz Aff.”).  The fingerprint has been compared to the fingerprints of Petitioner, Darin, Devon, and Damon Routier and all law enforcement personnel who responded to the scene.  None matched.  See generally Jantz Aff.  To leave a fingerprint before the blood on the family room table had dried, an unknown adult must have been in the Routiers’ home on the morning of June 6, 1996 during or right after the attacks.  This evidence supports what Petitioner has maintained all along:  She and her sons were attacked by the unidentified man that she saw leave through the kitchen on that morning.  See C.R.R. Vol. 44, p. 4866:8-9.

The jury never heard from forensic experts Terry Laber and Barton Epstein, who were retained by Petitioner’s appointed counsel – both of whom were identified by name in the State’s closing arguments as witnesses the defense never called to rebut Linch and Bevel’s testimony.  Laber and Epstein had reached conclusions contrary to the State’s experts before trial that could have been presented to the jury in Petitioner’s defense.  Substitute defense counsel, who was conflicted because of an agreement not to implicate Darin Routier (see Routier Aff. ¶ 7) , decided not to use the exculpatory evidence or to conduct further scientific tests – at a time when he was not familiar with the facts of the case.  At the time they were instructed to stop working on the case, Laber and Epstein had conducted a number of scientific tests on the physical evidence about which Linch and Bevel had testified at trial and had recommended additional testing on other physical evidence.  Laber and Epstein’s conclusions in October 1996 were that the physical evidence did not suggest a staged crime scene, which directly contradicted the testimony of Linch and Bevel.  See generally Terry L. Laber Affidavit (“Laber Aff.”).

Fiber on Knife No. 4/Garage Window Screen:

The jury never learned that before Linch tested Knife Number 4, the kitchen knives recovered from 5801 Eagle Drive already had been dusted for fingerprints using a fiberglass brush composed of the same material as the fiber removed from that knife.  No definitive tests were conducted to determine the source of the fiber.  Linch could testify only that the fiber was “consistent” with the garage screen window (See C.R.R. Vol. 37, pp. 144:17-145:6); he had reached a similar conclusion about a hair found in the same garage window screen that he opined was “consistent” with Petitioner’s hair.  See C.R.R. Vol. 37 p. 184:8-13.  In fact, DNA testing determined that he was wrong (See C.R.R. Vol. 37, pp. 183:22-184:2).  Laber and Epstein recommended that definitive testing be conducted on the fiber in October 1996.  See Laber Aff. ¶ 6.  Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

Blood Spatter on Victoria’s Secret Nightshirt:

Laber and Epstein concluded that Petitioner’s nightshirt indicated only minimal areas of blood spatter and that the critical areas of spatter were never subjected to genetic testing.  Bevel explained to the jury that one explanation for the absence of blood spatter was that Damon’s and Devon’s blood was covered by direct hits of Petitioner’s blood from her self-inflicted wounds.  In Laber’s expert opinion, that interpretation requires an extremely unlikely sequence of events.  Laber and Epstein recommended that the critical areas of blood staining be tested in October 1996.  See Laber Aff. ¶ 6.  Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

Broken Wine Glass:

Laber and Epstein concluded that the dispersal pattern of the broken wine glass that the jury was told had been dropped to suggest a struggle was not consistent with the State’s staging theory.  See Laber Aff. ¶ 11.  Broken glass shards discovered on the wine rack indicated that the glass had broken there.  See Laber Aff. ¶ 11.  Laber and Epstein made that finding in October 1996.  See Laber Aff. ¶ 11.  Conflicted defense counsel, however, never presented their finding to the jury.

Hoover Vacuum Cleaner:

Laber and Epstein concluded that the blood spatter indicated on the vacuum cleaner occurred after it had been knocked down and therefore was not consistent with Bevel’s theory that the vacuum cleaner had been pushed around by someone who was bleeding.  See Laber Aff. ¶ 11.  Laber and Epstein made that finding in October 1996.  See Laber Aff. ¶ 11.  Defense counsel, however, never presented their finding to the jury. [3]

The jury that convicted Petitioner on February 1, 1997, for the murder of Damon Routier never heard substantial evidence that undermines the State’s circumstantial case against her and supports her claim of innocence.  And the jury never heard the most likely explanation for the crimes because her counsel had agreed as a condition of retention by Petitioner’s family to protect a more plausible suspect, at the expense of Petitioner.  Petitioner seeks to have her conviction and sentence vacated and a writ of habeas issued because no court can have no confidence in such a tainted verdict.

CLAIMS FOR RELIEF

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.

Petitioner to this date maintains that she is innocent of the crime for which she was convicted and sentenced to death.  It is now well established that “the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution” and the corollary provisions of the Texas Constitution.  State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 397 (Tex. Crim. App. 1994); see also U.S. Const. amends. VIII; XIV; TX Const. art. I § 19; Tex. Code of Crim. Proc. art. 1.04[2][3].  Thus, Texas courts recognize “actual innocence” as “an independent ground for relief” in post-conviction applications for the writ of habeas corpus.  Ex Parte Elizondo, 947 S.W.2d 202, 204 (Tex. Crim. App. 1996); see also Herrera v. Collins, 506 U.S. 390, 417 (1993) (noting that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional”).  “[I]n order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.”  Holmes, 885 S.W.2d at 399.  Since Holmes, Texas courts have clarified the evidentiary showing a defendant must make to satisfy this standard.  See Ex Parte Elizondo, 947 S.W.2d at 209; State v. Nkwocha, 31 S.W.3d 817, 820-21 (Tex. App. 2000).  The requisite showing depends on whether the petitioner is advancing a Herrera-type claim or a Schlup-like claim.  Compare Herrera, 506 U.S. at 405 (describing petitioner’s claim as “not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of