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