THIS IS A CAPITAL CASE
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DAMIEN WAYNE ECHOLS, Petitioner,
vs.
GRANT HARRIS, Warden, Varner Unit, Arkansas Department of Corrections,
Respondent.
PETITION FOR A WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472
DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
INTRODUCTION
1. Damien Wayne Echols, petitioner, by and through his undersigned
counsel, hereby presents the instant petition for habeas corpus relief pursuant
to 28 U.S.C. section 2254.
2. Petitioner is unlawfully incarcerated and restrained in violation of
the United States Constitution by Grant Harris, Warden of the Arkansas state
prison known as the Varner Unit located in Grady, Arkansas.
PROCEDURAL HISTORY
3. Following is a summary of the state court proceedings relating to the
instant petition:
Petitioner’s Conviction and Direct State Court Appeal
4. On March 19, 1994, following trial by jury, an Arkansas trial court
sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered
judgment against petitioner for three counts of first degree murder in
connection with the homicides of three eight-year old boys in West Memphis,
Arkansas, in May, 1993. On that same date, the trial court sentenced
petitioner to death for the crimes.
5. Echols timely appealed from the judgment and sentence, which were
affirmed by the Arkansas Supreme Court in an opinion issued on December 23,
1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509
(1996).
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Petitioner thereafter challenged the state Supreme Court’s appellate ruling by
filing a timely petition for a writ of certiorari in the United States Supreme
Court, which petition was denied in an order issued on May 27, 1997.
The Concluded State Proceedings Relating to Petitioner’s Motion for
Post-Conviction Relief Under Rule 37
6. Meanwhile, on March 11, 1997, well prior to the conclusion of direct
appellate proceedings on May 27, 1997, Echols filed a motion for
post-conviction relief from the trial court’s judgment and sentence, pursuant
to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37")
Petitioner’s final Rule 37 petition, which raised many of the claims presented
in the instant petition, was denied by the Craighead County Circuit Court in an
order issued on June 17, 1999.
7. Petitioner timely appealed from the Circuit Court’s June 17, 1999
order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion
of the district court’s ruling but otherwise reversed and remanded in light of
the Circuit Court’s failure to make required factual findings as to
petitioner’s claims. See Echols v. State, 344 Ark. 513 (2001).
8. Following remand, in an order issued on July 30, 2001, the Circuit
Court issued a new order again rejecting all of petitioner’s claims under Rule
37. Petitioner timely appealed this order but it was affirmed in an order
issued on
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October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127
S.W.3d 486 (2003).
The Concluded State Motion to Reinvest Jurisdiction in the Circuit Court
9. Meanwhile, on February 27, 2001, while the Rule 37 proceedings
described above were pending, Echols petitioned the Arkansas Supreme Court for
an order reinvesting jurisdiction in the Circuit Court to allow him to seek a
writ of error coram nobis. The state Supreme Court denied that
petition in an opinion issued on October 16, 2003 (i.e., before the conclusion
of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark.
414, 125 S.W.3d 153 (2003).
The Pending State Motion to Permit Forensic Testing
10. On July 25, 2002, and likewise while the Rule 37 proceedings remained
pending, petitioner filed a “Motion for Forensic DNA Testing” (hereinafter “DNA
motion) in the Arkansas Circuit Court pursuant to Arkansas Code section
16-112-201 et seq. Invoking the Eighth Amendment’s prohibition against
cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal
protection and due process of law, the motion asserted that the judgment and
sentence should be vacated because petitioner was actually innocent of the
crimes.
11. On January 27, 2003, the Craighead County Circuit Court judge who
presided at
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petitioner’s trial ordered the impoundment and preservation of all material
that could afford a basis for petitioner’s actual innocence claim pursuant to
this statutory scheme.
12. Testing of the material subject to the Circuit Court’s preservation
order and related trial court proceedings remain in progress as of the time of
filing the instant petition.
TIMELINESS OF PETITION
13. 28 U.S.C. section 2244(d)(1) requires a petitioner to file a federal
petition for habeas corpus relief within a year of the latest of four
alternative triggering dates, including the date that the disputed state
judgment became final upon conclusion of direct review.
14. 28 U.S.C. section 2244(d)(2) states that the time during which a
properly filed application for State post- conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
15. In this matter, petitioner filed his Rule 37 petition in the state
courts prior to the conclusion of direct review. (See par. 6, supra.)
The petition was a properly filed application for state post-conviction review
within the meaning of section 2244(d), and proceedings founded on the petition
did not conclude until
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the Arkansas Supreme Court issued its opinion on October 30, 2003. Ibid.
Accordingly, pursuant to section 2244(d)(2), the one-year limitations period
established by section 2244(d)(1) cannot have commenced any earlier than
October 30, 2003.
16. The Arkansas Supreme Court has expressly declared that petitioner’s
pending state DNA motion was properly filed. See Echols v. State,
350 Ark. 42, 44 (2002)(per curiam) (granting stay of Rule 37 proceedings
pending outcome of petition for DNA testing). Furthermore, as stated in
Arkansas Code section 16-112-201, the statutory scheme invoked by petitioner’s
pending DNA motion expressly authorizes a person convicted of a crime to rely
on such evidence in order to “. . . vacate and set aside the judgment and to discharge the
petitioner or to resentence the petitioner or grant a new trial or correct the
sentence or make other disposition as may be appropriate. . . . ” Ibid.
17. Given the finding of the Arkansas Supreme Court and the statutory
language set forth in Arkansas Code section 16-112-201 et seq., petitioner’s
pending DNA motion facially qualifies as a properly filed application for State
post- conviction or other collateral review with respect to the pertinent
judgment within the meaning of 28 U.S.C. section 2244(d)(2). Furthermore,
the DNA motion has been pending since July 25, 2002, i.e., from a date well
before the end of the
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tolling period (October 30, 2003) effected by the proceedings under Rule 37, as
described in par. 6-8, supra. Accordingly, the one year
limitations period applicable to the instant petition, as established by 28
section 2244(d)(1), has not yet commenced in this matter.
18. Notwithstanding the foregoing analysis, the Supreme Court and Eighth
Circuit Court of Appeals have yet to decide whether an Arkansas DNA motion
filed pursuant to Ark. Code section 16-112-201 et seq. or a similar state
DNA motion meets the criteria set forth in 28 U.S.C. section 2244(d)(2),
thereby tolling the one-year limitations period set forth in 28 U.S.C. section
2254(d)(1). In the event that the Supreme Court or Eighth Circuit
were to decide that such a motion does not toll that one-year limitations
period, Echols’s petition for federal habeas corpus relief would arguably be
due in this Court within a year of the date that the Rule 37 proceedings
terminated, i.e., by October 30, 2004.
19. Accordingly, acting with an abundance of caution and in light of the
sentence imposed in this matter, Echols is submitting the instant petition
prior to October 30, 2004, thereby avoiding any possible challenge to its
timeliness.
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REQUEST FOR ORDER HOLDING PETITION
IN ABEYANCE PENDING EXHAUSTION
OF CERTAIN CLAIMS IN STATE COURT
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20. As a result of filing this petition while challenges to petitioner’s
convictions are still pending in the state courts of Arkansas, this petition
contains claims as to which petitioner has exhausted his state remedies as well
as unexhausted claims. The exhausted claims are stated in sections IV.
and V. (par. 59-83), infra. The unexhausted claims are stated in
sections I., II., and III. (par. 34-58), infra.
21. Echols requests that the district court hold his petition in abeyance
pursuant to the procedure authorized by Lee v. Norris, 354 F.3d 846
(8th Cir. 2004) .
22. Every circuit other than the Eighth Circuit has authorized the
regular use of the “stay-and-abeyance” procedure for mixed petitions. See
Pliler v. Ford, 124 S. Ct. 2441, 2450 (2004) (Breyer, J., dissenting);
Akins v. Kenney, 341 F.3d 681, 685-86 (8th Cir. 2003). The
Supreme Court recently granted certiorari to settle the propriety of the
procedure, see Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), cert.
granted 124 S. Ct. 2905 (Oct. 4, 2004), and it appears likely that the
Court will approve the stay-and-abeyance procedure.
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23. In Ford, the five-member majority decided not to “address[]
the
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propriety of this stay and abeyance procedure;” instead, it issued a narrow
ruling that district courts are not required to give pro se litigants
specific warnings about the procedure. Ford, 124 S.Ct. at 2446. Justices Breyer, Souter, and Stevens, however, explicitly endorsed the
procedure. See id. at 2448 (Stevens, J., concurring); id.
at 2449-50 (Breyer, J., concurring). Justices Ginsburg and O’Conner,
moreover, both suggested that they would endorse the procedure. See
id. at 2448 (“I note, however, that the procedure is not an idiosyncratic
one; . . . seven of the eight Circuits to consider it have approved stay and
abeyance as an appropriate exercise of a district court’s equitable powers.”)
(O’Connor, J., concurring); id. at 2448-49 (Ginsburg, J., dissenting).
24. It thus appears that when the Supreme Court issues its ruling in Rhines,
at least five members will endorse the stay-and-abeyance procedure. But
even putting aside any predictions about the outcome Rhines, the
Eighth Circuit has itself authorized the procedure in at least some
cases. Thus, under Lee v. Norris, a district court may hold a
petition in abeyance when “exceptional circumstances” exist. 354 F.3d at
849.
25. Mr. Echols filed his Motion for DNA Testing
under Arkansas Code 16-112-202 et seq. on July 25, 2002, and that motion
is still pending in state court. The motion for DNA testing raises a
variety of challenges to his conviction. The
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DNA motion should, in Mr. Echols’s view, qualify as “a properly filed
application for State post- conviction or other collateral review” within the
meaning of 28 U.S.C. 2244(d)(2). Mr. Echols therefore maintains that
the AEDPA statute of limitations will be tolled during the pendency of his DNA
motion. He maintains, in other words, that his one-year limitations
period has not yet begun to run since his DNA motion was filed before the Arkansas
Supreme Court rendered its final judgment on his Rule 37 petition.
26. The Eighth Circuit, however, has not yet determined whether a motion
under Arkansas Code 16-112-202 entitles a prisoner to statutory
tolling. If Mr. Echols waited to file his habeas petition until after
exhausting his DNA claims, the state could argue at that time—and this court or
the Eighth Circuit could rule—that his DNA motion did not come within the
tolling provision of 2244(d)(2). If this court ruled at that time
that the DNA motion did not qualify for statutory tolling, it would likely set
the expiration of the 2244(d)(1) limitations period on October 30, 2004,
one year after the Arkansas Supreme Court’s final disposition of his Rule 37
petition. Such a ruling would render Mr. Echols’s entire petition
time-barred. In short, if Mr. Echols waited to file his habeas petition
until after exhausting his DNA claims, he would risk forfeiting all federal
review.
27. On the other hand, if Mr. Echols were to file a federal petition now
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containing only exhausted claims, he would be forced to forfeit any claims
relating to his DNA motion and other federal constitutional claims yet to be
decided by the Arkansas courts. Such claims could not be raised in a second or successive
petition; such petitions are barred by 28 U.S.C. 2244(b).
28. Mr. Echols thus faces a Hobson’s choice. If he waits to file
his petition until his DNA claims are exhausted in state court, he risks an
adverse ruling on 2244(d)(2) tolling that would deny him all federal
relief. But if he files a petition now including only exhausted claims,
he forfeits all opportunity for federal review of his DNA-related and other
claims still pending in state court. No prisoner—and especially no prisoner
on death row—should be forced to make such a choice.
29. Mr. Echols is not seeking to circumvent the state court review
process or to undermine the principles of comity that underlie the exhaustion
doctrine. See Rose v. Lundy, 455 U.S. 509, 515-21 (1982). He
has been diligent in pursuing his claims. Mr. Echols has made every
effort to comply with both Arkansas’s procedural rules and those of
AEDPA. The problem he faces is not one of his own making—it is the result
of an unresolved question of federal law. This unique situation of
uncertainty is precisely the sort of “exceptional” case where a district court
should employ the stay-and-abeyance procedure under Lee v. Norris, supra.
30. In the alternative, this court could solve this problem by resolving the
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currently unresolved question of law. This court could issue a ruling
that Mr. Echols’s state court DNA motion will entitle him to statutory tolling
under 28 U.S.C. 2244(d)(2) during the pendency of that motion. It
could then dismiss Mr. Echols’s petition without prejudice to refiling
following complete exhaustion. See Slack v. McDaniel, 529 U.S.
473, 488-89 (2000); Stewart v. Martinez Villareal, 523 U.S. 637,
650-51 (1998); Singleton v. Norris, 319 F.3d 1018, 1028-29 (8th Cir.
2003); Camarano v. Irvin, 98 F.3d 44, 45-47 (2d Cir. 1996). This
court could thereby allow Mr. Echols to complete his state court proceedings
without a risk of forfeiting all federal review.
31. Mr. Echols is stuck in a bind created by the AEDPA limitations
period, the rule against successive petitions, and the unsettled question of
law regarding the status of Arkansas state DNA motions. He seeks to
exhaust all claims in state court before pursuing federal remedies, but he
obviously seeks to do so in a manner that will comply with AEDPA’s various
procedural restrictions. He respectfully asks this Court to issue a
ruling that will allow him to do so.
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GROUNDS FOR RELIEF
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32. This case arises under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, for each of the reasons set forth
herein. The Arkansas state courts’ adjudications of the exhausted claims
set forth in sections IV. and V., infra, constitute decisions that 1)
were contrary to, or involved an unreasonable application of, clearly
established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2)
were based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings within the meaning of 28
U.S.C. § 2254(d)(2).
33. Furthermore, should the unexhausted claims set forth in sections I.,
II., and/or III., infra, be decided against petitioner in the Arkansas
state courts, such decisions will be 1) contrary to, or involve an unreasonable
application of, clearly established federal law, within the meaning of 28
U.S.C. § 2254(d)(1) and/or 2) based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings within
the meaning of 28 U.S.C. § 2254(d)(2).
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CLAIMS FOR RELIEF
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I. THE JURY’S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE
INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED
OFFENSES VIOLATED PETITIONER’S FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION,
CROSS-EXAMINATION, COUNSEL, AND DUE PROCESS OF LAW, REQUIRING THAT HIS
CONVICTIONS BE VACATED
34. The claims and factual allegations set forth
in all other sections of this Petition are realleged as if set forth entirely
herein.
35. Prior to petitioner’s trial, the state tried and convicted Jesse
Misskelley for allegedly participating with petitioner and defendant Jason
Baldwin in the murders at issue. Misskelley was tried and convicted of
murder in a separate trial that concluded shortly before the joint trial of
petitioner and Baldwin. See Misskelley v. State, 323 Ark. 449
(1996)(setting forth the evidence adduced at Misskelley trial and disposing of
Misskelley’s claims on appeal).
36. As the Arkansas Supreme Court noted, see Misskelley v. State, 323
Ark. 449, 459 (1996), the state’s case against Misskelley rested almost
entirely on a statement which he made to police on June 3, 1993, implicating
himself as well as petitioner and Baldwin in the murders for which petitioner
and Baldwin were also convicted at their later trial. The Misskelley
statement, however, was fundamentally unreliable and, in all respects material
to Echols, utterly false.
37. Under firmly established Supreme Court precedent, it would have been
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error of federal constitutional dimension to admit the Misskelley statement at
a joint trial of the declarant (Misskelley) and the codefendants (Echols and
Baldwin) unless the declarant were to take the stand and be subject himself to
cross-examination by his codefendants, an event which never occurred in this
matter. Bruton v. United States, 391 U.S. 123 (1968). Injection of
such evidence into the trial proceedings against Echols necessarily would have
violated his federal constitutional rights, including those arising under the
Sixth Amendment’s Confrontation Clause, because the extraordinarily prejudicial
nature of a cross-incriminating statement of a non-testifying defendant cannot
be dispelled by a trial court admonition limiting the statement’s admissibility
to the declarant alone. Ibid.
38. It was for the foregoing reason that the state trial court severed
the trial of Echols and Baldwin from that of Misskelley. Despite the
importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley
statement, however, a reference to the statement was injected into the Echols
trial through a prosecution witness’s unresponsive answer to a question on
cross-examination. While striking the answer from the record and admonishing
the jury to ignore it, the trial court justified its ruling denying a defense
motion for a mistrial on the ground that the jury had heard
mention only of the statement’s existence, not
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its prejudicial contents.
39. Nonetheless, the trial of Echols and Baldwin was plagued by the very
unfairness the severance of their case from Misskelley’s was designed to
avoid. Having learned of its contents through media reports, jurors
considered the Misskelley statement and relied on it to convict, as evidenced
by the fact that a chart drawn up during jury deliberations and copied into one
juror’s notes listed the Misskelley statement as a ground upon which to rest a
verdict of guilt as to both defendants.
40. The jurors’ discussion of the Misskelley statement breached a direct
judicial command. In addition, such discussion ran afoul of the Fifth,
Sixth, and Fourteenth Amendments and firmly established Supreme Court precedent
prohibiting jurors from considering in their deliberations information received
from extrajudicial sources such as newspaper or television reports. For
instance, in Turner v. Louisiana, 379 U. S. 466 (1965), the
Court reversed the defendant’s murder conviction and sentence of death where
two deputy sheriffs who served as bailiffs during Turner's trial also testified
as witnesses for the prosecution. The Court explained:
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In the constitutional sense, trial by jury in a criminal case necessarily
implies at the very least that the ‘evidence developed’ against a defendant
shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of
cross-examination, and of counsel. What happened in this case operated to
subvert these basic guarantees of trial by jury.
Turner, 379 U.S. at
473; see also Rideau v. Louisiana, 373 U.S. 723 (1963) (relying on due
process clause to reverse conviction of defendant where jurors discussed
extra-judicial evidence in form of televised news report containing defendant’s
pre-trial self-incriminating statements); Parker v. Gladden, 385 U.S.
363 (1966) (holding that bailiff’s negative comments concerning defendant’s
character to one deliberating juror and improper comment to another mandated
reversal given patent violation of defendant’s rights to confrontation,
cross-examination, and counsel.)
41. The unfairness caused by the jury’s discussion and weighing of the
Misskelley statement was even greater than would have resulted had the trial
court erroneously admitted the out-of-court statement over hearsay and
Confrontation Clause objections. In that instance, the defense, on notice
that the statement was before the jury, could have proceeded during its case to
demonstrate that every line of the statement was false. Instead, having
heard no evidence to the contrary, the jury was left under the delusion that
Misskelley had provided the police with credible information establishing his
own culpability and that of his codefendants.
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The devastating impact of the extrajudicial information received by the jury
dwarfed the persuasive force of the minimal evidence properly admitted into
evidence against Echols. This grossly prejudicial Fifth, Sixth, and
Fourteenth Amendment violation mandates the habeas relief sought in the instant
petition.
II. ECHOLS WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL
RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE
SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT, MANDATING
THAT HIS CONVICTIONS BE VACATED
42. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
43. The evidence described in the foregoing claim for relief concerning
the extraneous information injected into the deliberations of the Echols jury
proves the jury’s receipt of, and reliance on, extrajudicial information in
patent violation of the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. That same evidence also establishes a related but
distinct constitutional deprivation of Echols’s right to twelve impartial
jurors.
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44. During individualized voir dire at Echols’s trial, no juror admitted
to being aware of the fact that Jesse Misskelley had given a statement or
confession to police interrogators, and certainly none disclosed knowledge that
any such
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statement implicated either Echols or Baldwin. Yet during deliberations
the Misskelley statement was listed on a jury display board as a reason to
convict both Echols and Baldwin. That conduct can now be explained by the
fact that three jurors have now admitted at the time of jury selection they
were aware of the Misskelley statement.
45. Furthermore, the foreperson has admitted an extensive familiarity
with the media reports disseminated on the eve of trial, particularly
those details incriminatory of Echols and Baldwin, despite the fact that during
jury selection he denied knowing anything about the Misskelley matter other
than that Misskelley had been previously convicted of something, although the
foreperson did not know what.
46. A second juror at petitioner’s trial maintained during voir dire that
he had not discussed the case with his father, but recently has stated that in
a pre-trial conversation with that juror, his father “spit out” the details of
the case. The receipt of that information surely explains the fact that
during the trial this juror not only held the opinion that the defendants were
guilty, but that they had supporters in the courtroom who were capable of
killing the juror as well, leading the juror to be terribly frightened for his
own life at a time he was supposed to be dispassionately deciding the guilt or
innocence of Echols.
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47. A third juror at petitioner’s trial has sworn that she decided the
guilt of the defendants before hearing closing arguments and the trial court’s
instructions.
48. Several other jurors admitted during voir dire that they tended to
believe that the defendants were guilty, although they promised to set those
opinions aside.
49. The United States Supreme Court has held that “[T]he right to jury
trial guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717,
722 (1961). “‘The theory of the law is that a juror who has formed an opinion
cannot be impartial.’ Reynolds v. United States, 98 US 145, 155
[1878].” Id. at 722. While a juror who truly can put aside his
or her opinions may fairly serve, “those strong and deep impressions, which will close the mind against the
testimony that may be offered in opposition to them; which will combat that
testimony and resist its force, do constitute a sufficient objection to [that
juror].” Id. at n 3 (quoting Chief Justice Marshall in 1 Burr’s
Trial 416 (1807).)
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50. A pivotal factor in determining a prospective juror’s impartiality is
his or her candor in responding to questions on voir dire. “Voir dire plays a
critical function in assuring the criminal defendant that his [or her] Sixth
Amendment right
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to an impartial jury will be honored.” Rosales-Lopez v. United States,
451 U.S. 182, 188 (1981). “The necessity of truthful answers by
prospective jurors . . . is obvious.'" McDonough Power
Equipment, Inc. v. Greenwood 464 U.S. 548, 554 (1984)(plurality)
(Rehnquist, J.); see also McDonough, 464 U.S. at 556 (1984) (Blackmun,
J., concurring) (“[T]he honesty and dishonesty of a juror's response is the
best initial indicator of whether the juror in fact was impartial.”); Clark
v. United States, 289 U.S. 1, 11 (1933) (Cardozo, J.) (“The judge who
examines on the voir dire is engaged in the process of organizing the court
[and] if the answers to the questions are wilfully evasive or knowingly untrue,
the talesman, when accepted, is a juror in name only.”)
51. In Irvin, supra, eight of the twelve jurors selected to sit
on the defendant’s jury had formed the opinion that he was guilty based on
exposure to pretrial publicity, although each stated “that notwithstanding his
opinion he could render an impartial verdict.” Irvin, 366 U.S. at
724. The Supreme Court vacated the defendant’s murder convictions and
sentence of death, holding that:
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With his life at stake, it is not requiring too much that petitioner be tried
in an atmosphere undisturbed by so huge a wave of public passion and by a jury
other than one in which two thirds admit, before hearing any testimony, to
possessing a belief in his guilt.
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Id., 366 U.S. at 728.
52. In light of the foregoing precedent and related cases, the facts
alleged in support of the present claim require vacation of Echols’s
convictions for at least three closely related reasons.
53. First, the responses of certain jurors demonstrate that, contrary to
the express assurances they gave to the trial court during voir dire, such
jurors had in fact known the details of the devastatingly prejudicial
Misskelley statement and of related negative publicity concerning
petitioner. Such concealment demonstrates that one or more of the jurors
who returned verdicts of guilt against Echols harbored an impermissible bias
against him, a prejudicial violation of his rights under the Fifth, Sixth and
Fourteenth Amendments.
54. Second, the responses of certain jurors likewise demonstrates that,
again contrary to the assurances provided on voir dire, they prejudged
defendant’s guilt prior to the close of evidence, again constituting a
prejudicial violation of Echols’s rights under the relevant Constitutional
guarantees.
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55. Third, the Supreme Court’s holding in Irvin, supra, 366 U.S.
at 728, establishes that such disavowals of bias as were expressed by the
jurors at Echols’s
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trial cannot under any circumstance be deemed conclusive when the exposure of
jurors to inadmissible and prejudicial information is so great that a majority
of sitting jurors was predisposed to a finding of guilt when selected to
serve. That critical mass of bias and prejudgment was reached in this
case, yet another reason why Echols’s convictions must be set aside.
III. PETITIONER’S INCARCERATION AND SENTENCE OF DEATH VIOLATE HIS
FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND PROTECTION AGAINST CRUEL AND
UNUSUAL PUNISHMENT INSOFAR AS FORENSIC EVIDENCE NOT AVAILABLE AT THE TIME OF
TRIAL DEMONSTRATES HIS ACTUAL INNOCENCE OF THE CRIMES
56. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
57. Subsequent to his convictions in this matter, petitioner filed a
“Motion for DNA Forensic Testing” in the Arkansas Circuit Court for Craighead
County pursuant to Arkansas Code section 16-112-202 et seq.
58. The biological material which is the subject of Echols’s pending
motion for DNA forensic testing will establish that petitioner is actually
innocent of the crimes of which he was convicted in the Arkansas trial court
and for which he was sentenced to death. The judgment and sentence pursuant to
which petitioner remains in custody and subject to execution by the state have
thus been imposed in violation of the Eighth Amendment’s prohibition against
cruel and unusual
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punishment and the Fourteenth Amendment’s guarantee of equal protection and due
process of law, and must accordingly be vacated.
IV. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT
HIS TRIAL COUNSEL LABORED UNDER VARIOUS CONFLICTS OF INTEREST WHICH DENIED
PETITIONER HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
59. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
60. Petitioner alleges that all of his convictions were obtained in
violation of his Fifth, Sixth and Fourteenth Amendment rights to the effective
assistance of counsel in light of trial counsel’s multiple conflicts of
interest. The United States Supreme Court enunciated the standard for
establishing such a violation in Cuyler v. Sullivan, 446 U.S. 335
(1980), and related precedent. The standard articulated in Sullivan
holds that to establish a Sixth Amendment violation based on a conflict not
exposed on the record in the trial court, a defendant must show: (1) the
presence of an actual conflict of interest; and (2) that the conflict resulted
in an adverse effect upon the lawyer’s performance. Once the defendant
establishes such an adverse effect, he need not establish prejudice, which is
presumed to result from the conflict. 446 U.S. at 349-50; Mickens v. Taylor,
535 U.S. 162, 172-73 (2002).
61. A defendant can establish an “adverse affect” on his counsel’s
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representation by demonstrating that “a specific and seemingly valid or genuine
alternative strategy or tactic was available to defense counsel, but it was
inherently in conflict with his duties to others or to his own personal
interests.” United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990)
(citing Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)).
Alternatively, a defendant can show that “some plausible alternative defense
strategy or tactic – ‘a viable alternative’ – might have been pursued.
Perillo v. Johnson, 79 F.3d 41, 449 (5th Cir. 1996); see also United
States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988), cert. denied,
492 U.S. 906 (1989) (holding that to prevail on claim under Cuyler,
the defendant simply needs to show that an alternative was available to counsel
and that it ‘possessed sufficient substance to be a viable alternative’
[quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.
1985)])
62. The defendant need not show that any such “available strategy” is
likely to have resulted in a different outcome at trial. See, e.g.,
Rosenwald v. United States, 898 F.2d 585, 589 (7th Cir. 1990)(per
curiam)(relief required even though strength of the state’s case makes it
improbable the conflict caused any harm to the accused); Thomas v. Foltz,
818 F.2d 476, 483 (6th Cir. 1987) (pressure to plead guilty, brought to bear by
conflicted attorney, requires reversal even though strength of state’s case
makes it obvious non-conflicted attorney would have given
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same advice); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir.
1984)(when conflict induced attorney to retreat from particular defense,
reversal is mandated; “it is irrelevant that such a defense is unlikely to
prevail and was unsuccessfully urged by [co-defendant]”; Westbrook v. Zant,
704 F.2d 1487, 1499, & n. 14 (11th Cir. 1983) (reversible error if conflict
prompted counsel to refrain from raising a particular defense, even if that
defense would not have proven successful); Brien v. United States, 695
F.2d 10, 15 (1st Cir. 1982) (to prevail on conflict claim, petitioner need only
show conflicted attorney failed to pursue plausible strategy, not that strategy
would have been successful).
63. In this matter, Echols alleges that his trial counsel labored under
numerous conflicts of interest which adversely affected his performance in the
course of his representation of Echols and within the meaning of Sullivan
and related precedent, as set forth below:
/ /
/ /
The HBO Contract
64. Prior to trial, trial counsel induced Echols’s agreement to conclude
a contract with Creative Thinking International, a production company engaged
by Home Box Office (“HBO”) to make a film about petitioner’s case and trial. In
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exchange for, inter alia, Echols’s participation in the making of the film,
including, inter alia, Echols’s engagement in interviews and agreement to
placement of cameras in the courtroom, HBO agreed to pay Echols
$7,500. Trial counsel used some of the funds paid under the contract as
compensation for expenses he incurred during the trial. In accordance with the
terms of the contract, trial counsel did not disclose the existence and terms
of the contract to the trial court during petitioner’s trial.
65. The HBO contract spawned an actual conflict between trial counsel’s
interest in pursuing the best possible defense for Echols and counsel’s
interest in the benefits he sought to reap from the contract including, inter
alia, his long term pecuniary, professional, and social interests in release of
a successful film. This actual conflict, moreover, resulted in several adverse
effects on counsel’s representation of Echols, including the following:
a. Publicity concerning the underlying incidents in this matter was
ubiquitous, intense and, to the extent it concerned petitioner’s background and
character, overwhelmingly negative. Though the trial in the Misskelley
matter had concluded a mere two weeks earlier, trial counsel failed to move for
a continuance of the Echols trial date because he wished to conclude the trial
before the film’s release. As he expressly conceded and the state Supreme
Court expressly found
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(Echols v. State, supra, 354 Ark. at 546), trial counsel reasoned that
the impending and pre-scheduled release of the film, production of which had
been facilitated by counsel himself, would undermine petitioner’s defense at
trial; as counsel stated, he “wanted the trial over before the film was shown”
because the film, including its depiction of interviews with Echols, might have
an impact on the jury. Counsel’s failure to seek the continuance led to
the impanelment of jurors who, as alleged elsewhere in this petition, harbored
a significant bias against Echols and/or who, during deliberations, considered
extraneous prejudicial material in the form of the confession elicited from
Misskelley.
b. As a result of the HBO contract, trial counsel relied on the meager
funds to be paid from the HBO contract for such things as pretrial
investigation, discovery, and expert witnesses at both the guilt and penalty
phases of Echols’s trial, thereby causing counsel to forego funds that were
available from the trial court upon request.
/ /
c. As a result of the HBO contract, trial counsel devoted time otherwise
available for trial preparation to participation in the production of the HBO
film, including, inter alia, the staging of defense strategy meetings and other
projects relating to such production.
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d. Adherence to the HBO contract also led counsel to refrain from
challenging the use of cameras in the courtroom during Echols’s trial, which
adversely affected the jurors’ capacity to neutrally and fairly evaluate the
evidence in the case.
Prior Representation of Michael Carson
66. Michael Carson was a critical prosecution witness at Echols’s
trial. Specifically, Carson testified that Jason Baldwin, Echols’s
co-defendant, confessed his participation in the crime alleged against both
Echols and Baldwin. Other state testimony established that Echols and
Baldwin were best friends who spent virtually all of their available time
together, and that they had been together shortly before the time of the
homicides. Carson’s testimony as to Baldwin’s purported confession thus
constituted devastatingly prejudicial evidence not only against Baldwin but
against Echols as well. The Carson testimony was used as the basis for
opinion evidence offered against Echols.
/ /
67. Notwithstanding Carson’s pivotal role at trial, Echols’s trial
counsel labored under a conflict of interest arising from his prior
representation of Carson in a juvenile criminal matter, a conflict which trial
counsel never disclosed to Echols. That conflict adversely affected trial counsel’s
performance by causing trial counsel
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to refrain from conducting any cross-examination of Carson, despite such
counsel’s knowledge of matters, including Carson’s prior criminal history, that
would have gravely undermined Carson’s credibility before the jury.
Representation of Mark Byers’ Co-Defendant in Civil Action Pending at
time of Petitioner’s Trial
68. John Mark Byers was a critical witness at Echols’s state trial.
Among other things, defense counsel and, for a time, law enforcement viewed
Byers as the possible perpetrator of the crimes alleged against Echols.
Byers’s interests were thus diametrically opposed to Echols’s interests at
Echols’s state court trial. Trial counsel, however, labored under a
conflict of interest arising from his representation of two co-defendants of
Byers on whose behalf Byers had testified in a civil matter involving an
alleged burglary of a jewelry store. The civil matter had not been
concluded at the time that Echols’s trial counsel questioned Byers at Echols’s
trial. Trial counsel never disclosed the conflict to Echols.
69. Trial counsel’s loyalty to his civil clients and, by extension, to
Byers adversely affected counsel’s representation of Echols at trial.
While counsel conducted some examination of Byers concerning his possible
involvement in the case, his divided loyalties led him to refrain from actively
and zealously questioning
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and impeaching Byers on all relevant matters, including the full history of
Byers’s prior criminal and violent conduct; Byers’s medical condition,
including his affliction with brain tumors which, as trial counsel knew, could
be associated with violent and criminal conduct; and Byers’s involvement in the
civil case in which counsel represented Byers’ codefendant.
V. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT
HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON
70. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
71. Petitioner alleges that all of his convictions were obtained in
violation of his federal constitutional right under the Sixth Amendment to the
effective assistance of counsel under an additional analysis established by
Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668
(1984), the Court held that in order to succeed in challenging a conviction on
this basis, (1) The defendant must show that counsel’s performance fell outside
the wide range of professional competence; and (2) the defendant must prove
that his trial counsel’s conduct was prejudicial to his case, i.e.,
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
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different. Strickland, 466 U.S. at 688-93. Stated otherwise, “.
. . to establish a claim of ineffective assistance of counsel, the defendant
must show that counsel's performance fell below an objective standard of
reasonable competence, and that the deficient performance prejudiced the
defendant.” United States v. Villalpando, 259 F.3d 934, 938 (8th
Cir. 2001) (citing Strickland, 466 U.S. at 687).
72. Under Strickland, decisions may not be viewed as “tactical,”
and hence do not merit deference, when they are the product of counsel’s
ignorance or lack of preparation. Wade v. Armontrout, 798 F.2d 304,
307 (8th Cir. 1986); see also United States v. Gray, 878 F.2d 702 ,
711 (3d Cir. 1989). Furthermore, a “reasonable probability” of a
different outcome does not require a showing that counsel's conduct more likely
than not altered the outcome in the case, but simply “a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
693-4; see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (A
“reasonable probability” is less than a preponderance of the evidence)
/ /
73. Petitioner alleges that his trial counsel rendered objectively
deficient assistance in the following instances, the prejudicial impact of
which, considered alone and cumulatively, mandates reversal under Strickland:
Jury Voir Dire
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74. First, trial counsel unreasonably failed to conduct a
constitutionally adequate voir dire of prospective jurors or submit to jurors a
constitutionally adequate pre-trial questionnaire, despite the presence of
extensive prejudicial publicity concerning Echols, as set forth above. Of great
importance, such publicity included extensive reporting both of the Misskelley
confession implicating defendant as a primary participant in the homicides and
Misskelley’s potential appearance as a witness for the prosecution in the case.
75. Notwithstanding these developments, trial counsel rendered deficient
performance by, inter alia, a) unreasonably failing to conduct an adequate inquiry
into the bias of potential jurors; b) unreasonably failing to determine the
extent and effect of potential jurors’ exposure to news accounts surrounding
the case, including but not limited to the Misskelley confession, and to other
extraneous matter; c) unreasonably failing to recognize the harm that would be
effected by intentionally selecting jurors even after counsel learned of their
exposure to
/ /
prejudicial matters; and d) unreasonably failing to excuse potential jurors in
view of that harm.
76. The foregoing errors and omissions were prejudicial to petitioner
within the meaning of Strickland because, among other things, and as
set forth above, they
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resulted in 1) juror exposure to extraneous evidence, including the Misskelley
confession, and 2) the empaneling of biased jurors who, contrary to their
promises to the court and their obligations as jurors, considered the
Misskelley confession and other extra-judicial evidence during their
deliberations.
Failure to Move for Continuance
77. Second, trial counsel unreasonably failed to move for a continuance
of petitioner’s trial to permit the negative publicity surrounding the case to
subside. This omission prejudiced petitioner under Strickland
not only because the presence of such publicity swayed jurors against
petitioner as a general matter, but also because it resulted in 1) juror
exposure to extraneous evidence, including the Misskelley confession, and 2)
the empaneling of biased jurors who, contrary to their promises to the court
and their obligations as jurors, considered the Misskelley confession and other
extra-judicial evidence during their deliberations.
/ /
/ /
Failure to Seek Second Change of Venue
78. Third, trial counsel unreasonably failed to move for a second change
of venue out of Craighead County despite the intense negative publicity
surrounding the case in that locale and the juror responses on voir dire establishing that most had
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formed an opinion as to petitioner’s guilt. Here again, the omission prejudiced
petitioner under Strickland because, inter alia, it likewise resulted
in 1) juror exposure to extraneous evidence, including the Misskelley
confession, and 2) the empaneling of biased jurors who, contrary to their
promises to the court and their obligations as jurors, considered the
Misskelley confession and other extra-judicial evidence during their
deliberations.
Failure to Retain and Use Experts
79. Fourth, trial counsel unreasonably failed to investigate, select,
retain, and make appropriate use of experts, including a forensic odontologist,
forensic entomologist, and/or forensic pathologist in connection with
petitioner’s trial. The omission was prejudicial under Strickland
because, inter alia, it prevented Echols from rebutting the unreliable and
highly prejudicial expert evidence adduced by the state at trial and from
corroborating petitioner’s claim that he was actually innocent of the alleged
crimes.
/ /
Failure to Challenge Expert Testimony Relating to the Occult
80. Fifth, trial counsel unreasonably 1) failed to adequately challenge
the proposed introduction of purported expert testimony from prosecution
witness Dale Griffis, who rendered a variety of speculative and damaging
opinions linking both
-34-
defendant and the homicides to occult practices; and 2) failed to challenge the
trial court’s instructions concerning the permissible uses of such
testimony. The bases for such challenges was readily available to counsel
in light of the Arkansas Supreme Court’s holding in Prater v. State,
307 Ark. 180 (1991), which adopted a standard of expert testimony admissibility
similar to that adopted by the United States Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
81. These failures prejudiced Echols within the meaning of Strickland
because, inter alia, they led directly to the jury’s consideration of Griffis’
fundamentally unreliable and highly inflammatory testimony. The failure
further prejudiced Echols because, in his testimony, Griffis relied on the
Michael Carson statement implicating Jason Baldwin in concluding that the
homicides were occult-related, thereby permitting the jury to rely on that
statement as a basis for incriminating petitioner, notwithstanding the fact
that the statement should have been deemed flatly inadmissible against
petitioner for any purpose pursuant to the dictates of the Fifth, Sixth and
Fourteenth Amendments.
Unreasonable Presentation of Evidence at Sentencing
82. Sixth, at sentencing, trial counsel unreasonably introduced testimony
from defense expert James Moneypenny concerning petitioner’s mental health
-35-
history; unreasonably failed to object to cross-examination of Moneypenny
concerning excerpts drawn from Echols’s mental health records; and unreasonably
failed to seek a limiting instruction as to the use of the Moneypenny
testimony. These failures prejudiced Echols under Strickland because,
inter alia, Moneypenny’s testimony and cross-examination disclosed grossly
inflammatory and otherwise inadmissible material that patently undermined
rather than advanced the effort to mitigate the evidence relating to penalty.
Failure to Investigate and Present Mitigating Evidence at Sentencing
83. Seventh, trial counsel unreasonably failed to investigate and present
substantial mitigating evidence on Echols’s behalf at sentencing. This failure
prejudiced Echols within the meaning of Strickland because, inter
alia, it undermined the defense effort to challenge evidence in aggravation
which was introduced by the state and which resulted in the sentence of death
ultimately imposed by the trial court.
INCORPORATION OF STATE RECORD
84. Petitioner hereby incorporates by reference the entire state court
record relating to the allegations contained in the instant petition, including
but not limited to all related proceedings in the Crittenden County Circuit
Court, Arkansas, and the
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Craighead County Circuit Court, Arkansas, as well as all proceedings reported
and described in Echols v. State, 326 Ark. 917 (1996), Echols
v. State 344 Ark. 513 (2001), Echols v. State, 350 Ark. 42
(2002), Echols v. State, 354 Ark. 414 (2003), Echols v. State,
354 Ark. 530 (2003).
CONCLUSION
Petitioner has no plain, speedy and adequate remedy to obtain his immediate
release from the conditions of custody presently imposed on him.
WHEREFORE, petitioner respectfully requests that this Court:
1. Issue an order holding the instant petition in abeyance to permit
petitioner to exhaust all of his present claims in the Arkansas state courts;
or, alternatively, issue an order finding that petitioner’ pending state DNA
proceeding tolls the statutory deadline for seeking habeas relief in this court
under the AEDPA, and dismissing the instant petition without prejudice to its timely
refiling after the conclusion of that state court proceeding;
2. Grant leave to amend the petition, as may be appropriate;
3. Issue its writ of habeas corpus or an order to show
cause to the Attorney General of Arkansas to inquire into the lawfulness of
petitioner's convictions;
4. Convene an evidentiary hearing to resolve all disputed issues of fact;
5. After full consideration of petitioner’s claims, set aside
petitioner’s convictions and/or sentence of death;
6. Grant petitioner whatever further relief is appropriate in the
interest of justice.
DATED: October 28, 2004
Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA A. GIBBONS
DEBORAH R. SALLINGS
By _______________________
DENNIS P. RIORDAN, Cal. SBN 69320
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
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VERIFICATION
DENNIS P. RIORDAN declares under penalty of perjury:
I am counsel for petitioner Damien Wayne Echols. My offices are in San
Francisco County, California. In my capacity as attorney for petitioner I
am making this verification on his behalf because these matters are more within
my knowledge than his.
I have read the foregoing petition for a writ of habeas corpus, and declare
that the contents of the petition are true to the best of my knowledge.
Executed this 28th day of October, 2004, at San Francisco, California.
_______________________
Dennis P. Riordan
