THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT
DAMIEN WAYNE ECHOLS, Petitioner,
vs.
STATE OF ARKANSAS, Respondent.
Case No. CR 94-928 (Direct Appeal)
Case No. CR 99-1060 (Rule 37 Appeal)
Craighead Co. Circuit Court Nos 93-450, 450A (Circuit Court Trial
and Rule 37 Proceedings)
PETITIONER’S REPLY IN SUPPORT OF MOTION TO RECALL THE MANDATE
AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT
OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF
On October 29, 2004, petitioner
tendered to this Court his Motion to Recall the Mandate and to Reinvest
Jurisdiction in the Trial Court to Consider Petition For Writ of Error Coram
Nobis or for Other Extraordinary Relief. On December 2, 2004 the Court
issued an order directing that the motion be submitted as a case; that the
state respond to the motion by December 13, 2004; and that petitioner reply to
the response five days thereafter. The state having duly filed its response on
December 13th, the following constitutes petitioner’s reply 1:
INTRODUCTION
The most salient feature of the state’s response to petitioner
Echols’s “Motion to Recall the Mandate” (and for other relief) is the absence
therein of any challenge to the factual assertions advanced by Echols in
support of his constitutional claims for a new trial.
There may be multiple reasons why respondent has failed to raise any factual
dispute at this point in the proceedings. Surely one is that so many of
Echols’s assertions are unassailably true. The trial record itself
establishes that the venire from which petitioner’s jury was selected had been
inundated with inflammatory media reports concerning the charged murders and
the just-completed trial of Jesse Misskelley; that all jurors had been exposed to
those reports and several other jurors had formed a preconception of Echols’s
guilt based upon them; that despite the fact that petitioner’s trial had been
severed from Misskelley’s because Misskelley’s statement to the police was, as
a matter of federal constitutional law, inadmissible against Echols, a
prosecution witness at petitioner’s trial shoehorned a reference to
Misskelley’s statement into the record; and that the jury had been judicially
admonished to ignore that reference, an admonition
1 Five days after December 13, 2004 falls on Saturday,
December 18, 2004. With its submission on the next available Court day
thereafter, the reply is timely.
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deemed adequate by the trial court to ensure Echols a fair trial only because
the witness had not disclosed the details of the Misskelley statement. As
to Echols’s assertions that jurors drew up charts during their deliberations
listing the reasons for and against convicting Echols and his codefendant
Baldwin and that certain items on both lists subsequently were covered over,
the charts themselves have been maintained as court exhibits; there can be no
dispute as to their existence.
Of particular importance, the state makes no suggestion that the crucial
factual information recently discovered by petitioner which forms the
cornerstone of his constitutional claims is false or unreliable: i.e., that a
juror’s notes reveal the Misskelley statement was listed on the jury’s charts
as a reason to find both Echols and Baldwin guilty, and that the jury foreman
expressly relied on the inadmissible and unadmitted statement in voting to
convict. It may be that respondent’s investigation has already
ascertained the truth of these factual allegations, or it may be that the state
deems a response to them premature at this stage of the proceedings. In
either case, the facts alleged in petitioner’s “Motion to Recall” and
supporting memorandum, all supported by documentary evidence, have been left
uncontested by respondent and must be taken as true for purposes of the
decision of this motion.
On the present factual record, there can be no doubt that the conviction of
Echols was fundamentally unfair. Under controlling precedent of the United
States Supreme Court, no defendant can be convicted on the basis of a statement
to the police by an alleged coparticipant in a charged crime when that
coparticipant is not available for cross-examination at the defendant’s trial. 2
That would be true even if the coparticipant’s statement had been admitted
into evidence
2 Bruton v. United States, 391 U.S. 123, 88
S.Ct. 1620, 20 L.Ed.2d 476 (1968).
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at the defendant’s trial and even if it appeared on its face to be factually
accurate. Here, in a case in which every quantum of evidence properly
admitted at trial against Echols was of questionable probative value, jurors,
in violation of their oath, convicted petitioner based on inaccurate “private
talk [and] public print” 3 concerning an out-of-court
statement by Misskelley that itself was riddled with palpable falsehoods.
The conduct of the Echols jury described in petitioner’s moving papers is
wholly at odds with the guarantees of the Fifth and Sixth Amendments,4
and the state makes no suggestion to the contrary in its response.
Thus the transcendent question this petition poses is whether a defendant who
may well be innocent and who was sentenced to death after a trial that was
plainly violative of federal constitutional standards nonetheless must be
executed, or whether Arkansas law provides a remedy for such a grave
wrong. The state maintains death is required either because (a) the
constitutional violations of which Echols complains can never be remedied
because they are unprovable under Arkansas law; or (b) even were a remedy
available under state law for these classes of constitutional violations, the
time for seeking relief has expired, and no procedural vehicle remains
available to petitioner to attack his convictions, no matter how well taken his
federal constitutional claims may be. None of these evidentiary or
procedural objections precludes decision of petitioner’s claims on the merits.
/ /
3 Patterson v. Colorado, 205 U.S. 454, 462, 27
S.Ct. 556, 558 (1907)
4 See Turner v. Louisiana, 379 U.S. 466, at
472-473 85 S.Ct. 546, at 550, 13 L.Ed.2d 424 (1965) ("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.")
-3-
As to its evidentiary objection, the state claims that under Arkansas Rule of
Evidence 606(b) (2004) “a court cannot consider claims founded upon jurors
impeaching their verdict by their descriptions of their deliberations....”
(State’s Response [hereafter “Resp.,” at 7-8]). The state’s response is
defeated by the plain language of the statute upon which it relies. While
the state is quite right in contending that Rule 606(b) generally puts
inquiries into juror deliberations off-limits, the glaring exception to that
principle carved out by the statute is precisely the class of claims that
Echols has persuasively advanced in his motion: that “extraneous prejudicial
information was improperly brought to the jury’s attention [and] outside
influence was improperly brought to bear upon [the] juror[s].” 5
Additionally, Echols’s juror bias claim does not implicate in any way the
limitations of Rule 606(b).
Furthermore, the state’s contention that petitioner’s claims must be rejected
because “at bottom...[they are] claim[s] that the jury disregarded its
instructions” (Resp., at 8) turns the law on its head. This Court has held that
a jury’s consideration of extraneous material in defiance of an explicit
judicial admonition to disregard any such information dispositively strengthens
the claim, rather than defeating it.
/ /
5 Arkansas Rule of Evidence 606(b), adopted in 1975,
reads:
Upon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon his or any other juror's mind
or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith, nor may
his affidavit or evidence of any statement by him concerning a matter about
which he would be precluded from testifying be received, but a juror may
testify on the questions whether extraneous information was improperly brought
to the jury's attention or whether any outside influence was improperly brought
to bear upon any juror.
-4-
The state’s contention that Echols’ motion comes too late rests on the factual
assumption that the newly discovered evidence on which petitioner’s
constitutional claims rest could have been discovered at an earlier date.
The state has offered no evidence to support that contention; at a minimum,
consideration of the state’s assertion of a time bar would require the
convening of an evidentiary hearing. Furthermore, the airing of petitioner’s
constitutional claims would not delay final resolution of this case in the
Arkansas courts, because, as the state acknowledges, Echols’s “Act 1780 [DNA]
proceeding is still pending in circuit court.” (Resp., at 2).
Finally, there is no case law holding that a juror misconduct or bias claim
cannot be raised on coram nobis when the facts underlying the claim are
unearthed too late to raise the contention on a new trial motion or in a Rule
37 proceeding. To hold that no procedural vehicle exists under state law to
consider such a federal constitutional claim would offend the spirit of the
Fifth and Sixth Amendments and would cede to the federal system the right of
Arkansas’s appellate courts to review in the first instance all constitutional
claims arising from state criminal proceedings.
ARGUMENT
I. RULE 606(b) EXPRESSLY AUTHORIZES A CLAIM THAT IN REACHING THEIR
VERDICT, JURORS CONSIDERED EXTRANEOUS INFORMATION AND WERE AFFECTED BY OUTSIDE
INFLUENCES
Noting that this Court “has oft-stated its confidence in the finality of jury
verdicts and an unwillingness to entertain claims that would impeach those
verdicts by invading the sanctity of the jury room,” the state argues that
“[r]eopening here will not serve the integrity of the judicial system, but will
only begin the disintegration of the finality jury verdicts bring to it.”
(Resp., at 5). It is certainly true that preserving the sanctity of the
jury room and the finality of jury verdicts
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are important values that the law promotes; it is just as true that the federal
constitution promotes the values of a bias-free jury and a trial at which a
criminal defendant is assured that he or she will be judged only on the basis
of evidence subjected to the adversarial process. Those constitutional
protections are, of course, never more needed than when the state seeks to take
a defendant’s life.
To the extent that these important values can conflict, both the Congress of
the United States and the Arkansas Legislature have fashioned a compromise to
resolve that tension in the nearly identical federal and state versions of Rule
606(b). Rule 606(b) honors the integrity of jury deliberations by barring
inquiry into the process of arriving at a verdict in most instances, even in
the face of an allegation that the jury breached a judicial instruction in
convicting a defendant. For example, had petitioner claimed that the
jurors at his trial ignored the court’s directive to find him guilty only upon
proof beyond a reasonable doubt and instead convicted by reliance on the civil
standard of a preponderance of the evidence (or some even less rigorous
standard), that claim would not be cognizable, no matter how factually
accurate, because under Arkansas Rule Evid. 606(b),
[u]pon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind
or emotions as influencing him to assent to or dissent from the verdict or
indictment or concerning his mental processes in connection therewith, nor may
his affidavit or evidence of any statement by him concerning a matter about
which he would be precluded from testifying be received....
Rule 606(b) is, however, as clear in stating what is a proper basis for
intrusion into the deliberative process as it is in defining what is not.
The Legislature has determined that there is a
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class of conduct that poses such a threat to the right to a fair trial that it
must be remedied even at the cost of breaching the confidentiality of juror
deliberations. For that reason, Rule 606(b) creates an exception to the general
ban on inquiring into jury verdicts in that it permits a juror to “. . .
testify on the questions whether extraneous information was improperly brought
to the jury’s attention or whether any outside influence was improperly brought
to bear upon any juror.”
The heart of petitioner’s constitutional claims is his assertion, fully
supported by the evidence he has presented, that jurors relied on information
that they had received outside the courtroom – media reports that Jesse
Misskelley had confessed to being involved in the murders of Chris Byers,
Michael Moore, and Steve Branch and told the police that Echols and Baldwin
were the principal authors of the crimes – in convicting Echols of the three
charged murders. The core questions underlying petitioner’s claims are
“whether extraneous information was improperly brought to the jury’s attention
or whether any outside influence was improperly brought to bear upon any
juror”; that being so, contrary to the state’s argument, petitioner has indeed
demonstrated that a “court could consider the purported evidence supporting
[his claims] under A.R.E. 606(b).” (Resp., at 7). That the state’s 606(b)
objection to the evidence tendered by petitioner is more reflexive than
seriously advanced is demonstrated by the fact respondent does not cite a
single case interpreting Rule 606(b) which supports its position, much less
distinguish the numerous cases interpreting the rule relied upon by Echols in
his opening memorandum. 6
6 See, e.g., Witherspoon v. State, 322 Ark.
376, 382, 909 S.W.2d 314, 317-18 (1995) (Arkansas Rule of Evidence 606(b)
"establishes an extraneous information exception which allows jurors to
testify that one or more members of the jury brought to trial specific personal
knowledge about the parties or controversy or acquired such knowledge from
sources outside the courtroom during the trial or deliberations."); Sunrise
Enterprises, Inc. v. Mid-South Road Builders, Inc., 337 Ark. 6, 11, 987
S.W.2d 674, 676-677 (1999) (citation omitted). ("To show that extraneous
materials were brought to the jurors attention, the trial judge may properly
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As noted in the Introduction above, the state contends that petitioner’s claims
must be rejected because “at bottom...[they are] claim[s] that the jury disregarded
its instructions” (Resp., at 8). This is simply untrue: petitioner’s
claims are that during deliberations the jury considered the most prejudicial
form of extraneous information imaginable – inaccurate media reports of a
co-defendant’s unreliable statement implicating the defendant in the charged
crime – thereby demonstrating bias and committing misconduct. These
federal constitutional claims would require a new trial even had the jury not
been expressly instructed to base its verdict only on the evidence admitted in
court and to ignore Detective Ridge’s reference to the Misskelley
statement. Thus Echols is not raising a claim which is in essence one
that the jury “disregarded its
instructions.”
That being said, by discussing the Misskelley statement, placing it on its list
of factors favoring a conviction, and relying on it to convict, jurors did
violate express admonitions of the trial judge. Rather than defeating
petitioner’s constitutional claims, that breach of the court’s admonitions to
disregard the Misskelley statement and to decide the case solely on the
evidence admitted in court strengthens rather than weakens Echols’s entitlement
to relief. See, e.g., Diemer v. Dischler, 313 Ark. 154, 162, 852
S.W.2d 793, 797 (1993)(citing factors deemed “determinative” in deciding claim
jurors made unauthorized visit to accident scene, the first of
consider the content of conversations that took place in the jury room.");
see also Rushen v. Spain, 464 U.S. 114, 121 n.5, 104 S.Ct. 453, 457
n.5, 78 L.Ed.2d 267 (1983) ("A juror may testify concerning...whether
extraneous prejudicial information was improperly brought to the juror's
attention. See Fed.R.Evid. 606(b)."); United States v. Brown,
108 F.3d 863, 867 (8th Cir. 1997) ("Although Rule 606(b) generally
prevents a juror from testifying 'as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of anything upon
that or any other juror's mind,' the rule does allow jurors to 'testify on the
question whether extraneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was improperly brought to
bear upon any juror.' Fed.R.Evid. 606(b).")
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which was whether trial court had instructed jury not to visit the
scene). Petitioner’s claims are not precluded by the operation of Rule
606(b).
II. ON THIS RECORD, PETITIONER’S CLAIMS CANNOT BE DEEMED UNTIMELY
As noted above, it is the state’s position that despite the United States
Supreme Court’s having held that the consideration of extraneous information by
jurors constitutes a fundamental violation of a criminal defendant’s Fifth and
Sixth Amendment rights,7 Arkansas provides no means of
remedying such a federal constitutional violation; according to respondent,
“claims founded upon jurors’ impeachment of their own verdict are never
timely....” (Resp., at 7). Alternatively, the state argues that “it
simply cannot be that [Echols] various constitutional claims could be made only
a decade after his trial.” Id.
The state’s assertion that petitioner’s claims could have been brought sooner
necessarily relies on a factual proposition – that the evidence of juror
misconduct Echols recently unearthed could have been obtained earlier – for
which respondent offers no factual support. On the other hand, petitioner
has offered evidence tending to prove a contrary conclusion. For example,
the affidavits of investigators attesting that the jury foreman was aware of
details of the Misskelley statement and relied on that information to convict
also contain evidence that despite requests for interviews, the foreman had not
discussed his role in the deliberations until he did so two months ago in
October. It certainly cannot be said on this record that Echols could
have developed his
7 Parker v. Gladden, 385 U.S. 363, 364, 87
S.Ct. 468, 870, 17 L.Ed.2d 420 (1966) (statements of bailiff in charge of a
deliberating to jurors that the defendant was a "wicked fellow" who
was guilty and that any improper guilty verdict would be corrected by the
Supreme Court violated "the command of the Sixth Amendment, made
applicable to the States through the Due Process Clause of the Fourteenth
Amendment.")
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present claims sooner than he did; at a minimum, an evidentiary hearing would
be required to address that question.
Of equal importance, the issue of diligence is not formally jurisdictional in
nature, but one implicating considerations of equity. Menendez v. Holt,
128 U.S. 514, 524, 9 S.Ct. 143 (1888) (“[I]t is in the exercise of discretionary
jurisdiction that the doctrine of reasonable diligence is applied . . .”)
(Emphasis supplied)] Again, on the present record this Court must assume
that Echols, if given the opportunity to establish his claims on the merits,
can demonstrate that, in a case where evidence of his guilt is scarce, his
trial and sentence of death were fundamentally unfair. Deciding petitioner’s
present claims on the merits, if those claims prove well-founded, will thus
avoid a grave miscarriage of justice. On the other hand, a merits decision will
not delay the ultimate disposition of this case in the Arkansas courts because,
as the state acknowledges, this matter is still pending in the circuit court on
Echols’s motion to prove his innocence through DNA testing. Equitable
considerations compel the conclusion that petitioner’s “Motion to Vacate”
should not be denied as untimely.
III. THE COURT SHOULD RECALL THE MANDATE BECAUSE THE CIRCUMSTANCES
PRESENTED IN THIS CASE ARE EXTRAORDINARY WITHIN THE MEANING OF ROBBINS
V. STATE
Putting to the side questions as to the availability of the ultimate relief
sought by petitioner, the state also argues that the Court should not recall
the mandate because such an order is not warranted under Robbins v. State,
353 Ark. 556, 114 S.W. 3d 217 (2003), the very decision invoked by Echols in
support of his pending motion. (Resp., at 4-7). In so contending, the
state does not dispute that this Court possesses the inherent authority to
recall the mandate; as petitioner observed in his opening motion (at 4-5), Robbins
makes that point abundantly clear.
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353 Ark. at 563, 114 S.W.3d at 221. The state
instead argues that Echols’s case is not sufficiently extraordinary within the
meaning of Robbins to outweigh the judicial system’s interest in the
finality of jury verdicts and warrant recall. (Resp., at 4). In
this connection, the state seeks to distinguish the three circumstances which
this Court discussed in Robbins as the bases for the relief afforded
there.
The state’s argument is unpersuasive. As identified in Robbins, the
extraordinary circumstances which justified the recall of the mandate consisted
of (1) an alleged fundamental defect in the verdict form which, if found
present, would compel reversal under established Arkansas precedent; (2) the
federal district court's dismissal of Robbins’s federal habeas corpus petition
in order to give the state courts the opportunity to explore the issue, and (3)
the enhanced scrutiny that this Court requires in death cases. Robbins,
353 Ark. at 564-65, 114 S.W.3d at 222-23. While the state may be correct that
all of these precise circumstances are not presented in the
instant case, those appearing here are sufficiently similar to those in Robbins
to warrant recall in this matter.
Of course, one of the Robbins circumstances — the enhanced scrutiny
triggered by a state judgment subjecting a petitioner to execution — is
identical to one of those presented here. The state seeks minimize the
significance of this factor by contending that such scrutiny is “‘unique’ to
every death case” (see Resp., at 6, n. 4), but this hardly does justice to this
Court’s view that a defendant’s complaints in this narrow class of criminal
cases must be accorded special attention, particularly where they implicate the
reliability of the guilt or penalty phase result, given the ultimate sanction
that looms if those complaints are found wanting. See, e.g., Robbins,
353 Ark. at 561-62, 114 S.W.3d at 220-21 (citing and quoting, inter alia, Zant
v. Stephens, 462 U.S. 862,
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884-885 (1983): "[B]ecause there is a qualitative difference between death
and any other permissible form of punishment, there is a corresponding
difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case."); Eddings v. Oklahoma,
455 U.S. 104, 118 (1982) (O'Connor, J., concurring) ("[T]his Court has
gone to extraordinary measures to ensure that the prisoner sentenced to be
executed is afforded process that will guarantee, as much as is humanly
possible, that the sentence was not imposed out of whim, passion, prejudice, or
mistake."); see also Robbins, 353 Ark. at 561, 114 S.W.3d at 220
(“This court, early on, voiced its belief in the ‘humane principle applicable in
general to criminal cases, and especially those where life is involved,’ and
declined to exalt form over substance when dealing with the death penalty. Bivens
v. State, 11 Ark. 455, 457 (1850)”). 8
Second, the fact that the federal court in Robbins had dismissed a
habeas petition on the grounds that Robbins had not exhausted his state
remedies, see Robbins, 353 Ark. at 559, 114 S.W.3d at 219, while no
such dismissal has occurred in the present matter does not present a meaningful
distinction between these cases. As of the time of filing the present
motion, petitioner had initiated an action seeking habeas relief from the
federal district court in connection with the claims he seeks to pursue here.
See Echols v. Norris, Eastern Dist. of Arkansas No. 04CV00391
HLJ. In that petition, Echols has asked the federal court to stay the
action to permit him to exhaust his present claims in the Arkansas courts, as
any petitioner must ordinarily do as a prerequisite to triggering federal
review. Rose v. Lundy, 455 U.S. 509, 522, 102
8 It bears noting, moreover, that the presence of
petitioner's death sentence is a circumstance that, standing alone,
significantly narrows the class of cases in which recall requests, apart from
those granted to defendants seeking a writ of certiorari as to an otherwise
concluded appeal (see Robbins, 353 Ark. at 563-64, 114 S.W.3d at 222),
should be entertained in the first instance.
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S.Ct. 1198, 71 L.Ed.2d 379 (1986). If that request for a stay is granted, it
will be to permit the very consideration, and hence exhaustion, as is sought by
the present motion and related request for relief. If, on the other hand,
the federal request is denied, the federal court will dismiss the petition as
an alternative and appropriate response to a federal petition containing
unexhausted claims, just as occurred in Robbins. See Rose,
supra. In either event, it is clear that petitioner must fairly
present his claims to the Arkansas state courts before he will permitted to
further pursue his proffered constitutional claims in federal court, again,
just as Robbins was required to do.
As to the final extraordinary circumstance identified in Robbins,
petitioner cannot allege the presence of a deficiency in a verdict form which,
if established, would entitle him to relief from the penalty-phase judgment, as
was true in Robbins. Petitioner has, however, alleged the
presence of errors which, if established, are if anything more “fundamental”
than that asserted in Robbins, i.e., a guilt-phase verdict that,
corrupted by egregious jury misconduct and bias, was the product of rampant
passion and prejudice rather than reasoned consideration of only the evidence
admitted at trial. Such errors would invalidate not only the penalty
phase result, but, surpassing Robbins, the underlying conviction
itself. Thus, to the extent that the nature of the alleged error bears on
the location of extraordinary circumstances sufficient to warrant recall under Robbins,
such errors are surely presented here. The rationale which justified
recall of the mandate in Robbins is equally applicable in the instant
case. 9
/ /
9 As indicated above, an additional extraordinary
circumstance attending this case, one not presented in Robbins,
is the presence of the ongoing DNA proceedings in the circuit court.
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IV. UPON REOPENING THE CASE, THE COURT SHOULD PERMIT PETITIONER TO
SEEK RELIEF IN CORAM NOBIS PROCEEDINGS OR BY FUNCTIONALLY EQUIVALENT MEANS
At the conclusion of its Response, the state argues that the Court should not,
in any event, consider the instant motion because coram nobis relief is not
available for the type of claims advanced by petitioner in his opening
memorandum. (Resp., at 10-11). This argument, however, is premature, given that
the present motion seeks an order recalling the mandate for the very purpose of
determining the availability of specific remedies to press his constitutional
claims.
In any event, the state’s argument is not well-founded. The writ of error
coram nobis is an extraordinary remedy which “should be allowed only under
compelling circumstances to achieve justice and to address errors of the most
fundamental nature.” State v. Larimore, 327 Ark. 271, 279, 938 S.W.2d
818, 822 (1997). The function of the writ is to secure relief from a judgment
rendered while there existed some fact which would have prevented its rendition
if it had been known to the trial court and which, through no negligence or
fault of the defendant, was not brought forward before rendition of
judgment. Troglin v. State, 257 Ark. 644, 645-46, 519 S.W.2d
740, 741 (1975). Due diligence is required in making the application for
relief, but the time limits applicable to Rule 37 applications are not
applicable. Id. Finally, coram nobis proceedings are attended by
a strong presumption that the disputed conviction is valid, and an application
for relief must be accompanied by specific factual allegations on which the
petitioner relies. Id.
Petitioner submits that, as demonstrated by his opening motion and memorandum
and the discussion above, the constitutional claims and factual allegations he
has presented patently satisfy this standard. Specifically, the errors he
has alleged were egregious and fundamental; if
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established as true, they have rendered the guilt phase verdict wholly
unreliable and the sentence of death an utter mockery of justice. Petitioner
had no reason to know of the misconduct and bias before the rendition of
judgment, which would never have issued had the facts been disclosed to the
trial court. Furthermore, as noted, the present record plainly supports
the inference that he has been sufficiently diligent to avail himself of coram
nobis. The factual allegations themselves could not be any more specific.
To be sure, the state invokes authority (Resp., at 10-11), including the
Court’s earlier opinion in this case, Echols v. State, 354 Ark. 530,
127 S.W.3d 486 (2003), which observes that in Arkansas, coram nobis relief is
available to remedy four kinds of errors, including insanity at the time of
trial, a coerced guilty plea, material evidence withheld by the prosecutor (see,
e.g. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963)), or a third party confession to the crime. Echols, 354 Ark. at
417, 125 S.W.3d at 156. Respondent, however, has failed to cite any
precedent forbidding application of coram nobis to remedy juror misconduct and
bias rising to the level petitioner alleges, and is prepared to demonstrate, in
this case. Nor has the state explained why, in an exceptional case such
as this, the categories of error described in Echols may not be expanded to
accommodate the constitutional claims petitioner asserts here.
Indeed, the state notes that in a recent argument before this Court, it
conceded that the remedy might be “forced to accommodate a fifth category” of
cases involving claims of mental retardation. (Resp., at 11, n.6) A death
case guilty verdict that is founded on rumor responding, in turn, to
information tainted by falsehoods merits no more trust than one by the most
egregious Brady violation or any of the other categories of error described in Echols,
supra, and is as deserving of coram nobis jurisdiction as is a claim that
a defendant has been sentenced to death
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despite being mentally retarded.
Were this Court nevertheless to rule that coram nobis cannot be applied here,
then it should permit Echols to proceed in the trial court with a motion for a
new trial, despite the passing of the governing time limits, or under whatever
rubric will permit his constitutional claims to be fully aired. Indeed,
this Court in Robbins implicitly authorized an equivalent remedy when
it permitted the petitioner to reopen an appeal that had long since concluded
and which, but for this Court’s intervention, would have been remained forever
closed.
One final point bears emphasis: if the substance of petitioner’s misconduct
claims are not deemed cognizable and petitioner is foreclosed from
further pressing them here, that result may simply mean that they are decided
in the first instance by the federal courts. In response to any state
argument that Echols has procedurally defaulted his claims in the Arkansas
courts, the federal district court may well determine that the state’s
procedural barriers to the claims do not constitute an adequate ground for
rejecting them because petitioner was not given a fair opportunity to present
the claims to a state tribunal following the discovery of their factual
basis. Harris v. Reed, 489 U.S. 255, 260-62 (to preclude federal
review, purported state procedural default must rest on grounds that are
“adequate”); Hertz and Liebman, Federal Habeas Corpus Practice and
Procedure, 4th ed., 2001, §26.2d, n.47 (summarizing federal cases holding
that state rule was not adequate because, as applied, it did not permit a
reasonable opportunity to have the federal right heard and determined by the
state courts); id., at n. 48 (summarizing federal cases holding state
rule inadequate where, as applied, it required objection before the error became
reasonably apparent).
/ /
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The irony, of course, is that such a result would gravely undermine the central
role which the AEDPA assigns to this Court in assessing the viability of
federal constitutional claims. Petitioner urges the Court not to permit
that result and thereby potentially sacrifice the preeminent role it is
entitled to assume under the AEDPA.
CONCLUSION
For the foregoing reasons, and for those set forth in the opening motion,
memorandum, and exhibits, petitioner respectfully requests that this Court
issue an order recalling its mandate and investing the Circuit Court of
Craighead County with jurisdiction to consider Echols’s petition for a writ of
error coram nobis and/or other appropriate extraordinary relief.
DATED: December 17, 2004
Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA GIBBONS
DEBORAH R. SALLINGS
By _______________________
DENNIS P. RIORDAN
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
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