Reply Brief — Jeffery Day Rieber, Petitioner v. Alabama

No. 18-5103

IN THE SUPREME COURT OF THE UNITED STATES

JEFFERY DAY RIEBER,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

REPLY IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

THIS IS A CAPITAL CASE

Frank M. Tuerkheimer, State Bar No. 1009722

Email: ftuerkhe@gklaw.com

Counsel of Record

James A. Friedman, State Bar No. 1020756

Daniel C.W. Narvey, State Bar No. 1086860

GODFREY & KAHN, S.C.

One East Main Street, Suite 500

P.O. Box 2719

Madison, WI 53701-2719

Telephone: (608) 257-3911

Fax: (608) 257-0609

Lawrence Bensky, State Bar No. 1017219

LAW OFFICE OF LAWRENCE BENSKY, LLC

10 E. Doty Street, Suite 800

Madison, WI 53703

Email: lbensky@benskylaw.com

Telephone: (608) 204-5969

Fax: (608) 204-5970

Dated: August 24, 2018.

Counsel for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................... ii

ARGUMENT .................................................................................................................. 1

I.

THE COURT SHOULD GRANT THE PETITION TO REVIEW

THE PATENTLY INEFFECTIVE ASSISTANCE OF

MR. RIEBER’S COUNSEL. .................................................................................. 1

II.

ALABAMA’S FORMER CAPITAL SENTENCING SCHEME,

AND MR. RIEBER’S SENTENCE, BOTH SUFFER FROM THE

SAME CONSTITUTIONAL FLAW IDENTIFIED BY THE

COURT IN HURST V. FLORIDA, 577 U.S. ___, 136 S. CT. 616

(2016). .................................................................................................................... 7

CONCLUSION............................................................................................................... 9

CERTIFICATION ........................................................................................................ 11

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TABLE OF AUTHORITIES

Page

CASES

Beck v. State,

396 So. 2d 645 (Ala. 1980) ......................................................................................... 2

Burns v. State,

229 Ala. 68, 155 So. 561 (1934) .................................................................................. 3

Chavers v. State,

361 So. 2d 1106 (1978) ............................................................................................... 2

Crosslin v. State,

446 So. 2d 675 (Ala. Crim. App. 1983) .................................................................. 2, 3

Ex parte Bohannon,

222 So. 3d 525 (Ala. 2016) ..................................................................................... 7, 8

Ex parte Kyzer,

399 So. 2d 330 (Ala. 1981) ......................................................................................... 2

Fulghum v. State,

291 Ala. 71, 277 So. 2d 886 (1973)............................................................................. 2

Gibson v. State,

89 Ala. 121, 8 So. 98 (1889).................................................................................... 2, 3

Harris v. Alabama,

513 U.S. 504 (1995) ................................................................................................ 7, 8

Hooks v. State,

21 So. 3d 772 (Ala. Crim. App. 2008) ........................................................................ 6

Hopper v. Evans,

456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982) ............................................ 2

Hurst v. Florida,

577 U.S. ___, 136 S. CT. 616 (2016) ....................................................................... 7, 8

Ring v. Arizona,

536 U.S. 584 (2002) .................................................................................................... 7

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State v. Santiago,

318 Conn. 1, 122 A.3d 1 (2015) .................................................................................. 9

Wiggins v. Smith,

539 U.S. 510 (2003) .................................................................................................... 6

STATUTES

ALA. CODE § 13A-5-46 (1982) ......................................................................................... 7

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ARGUMENT

Petitioner Jeffery Day Rieber asks the Court to grant his Petition for

Certiorari to review his counsel’s unconstitutionally ineffective assistance and to

review Alabama’s unconstitutional former capital sentencing scheme.

I.

THE COURT SHOULD GRANT THE PETITION TO REVIEW THE PATENTLY

INEFFECTIVE ASSISTANCE OF MR. RIEBER’S COUNSEL.

With respect to the ineffective assistance of counsel claim at the trial stage,

the State’s Brief in Opposition warrants two rejoinders.

First, the State observes that Mr. Kempaner, Mr. Rieber’s trial counsel, had

twenty-five years of experience as a criminal defense attorney, and he had appeared

in at least 15 capital cases. While this might be loose circumstantial proof of his

competence, the direct evidence in the case completely undercuts such proof.

Mr. Kempaner’s judgment and knowledge were so impaired that he was not the

right lawyer to represent anyone charged with a crime, let alone one that carried

the death penalty.

Mr. Kempaner firmly believed that if he struck a potential juror on racial

grounds, this would guarantee reversal because it violated the prospective juror’s

rights. Or, as he put it, “I set about that we got some error into the record so if he

did get convicted, which I thought he would, it would get reversed,” by striking a

juror of east Asian ancestry. (R. 300-01.) This was a view he held at trial, urged on

appeal as one of the key grounds, and even as late as the 2011 post-conviction

hearing, he did not understand why he did not prevail on this frivolous argument.

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(R. 325.) A trial lawyer with such poor judgment hardly deserves deference on his

strategy decisions.

Second, Mr. Kempaner totally misunderstood Alabama law at the time

insofar as it allowed for voluntary intoxication to serve as the basis for negating

specific intent. He said he was “not sure, not on good ground on using self-induced

intoxication to negate intent.” (R. 322-23.) Had he been aware of relevant Alabama

law, he would have known that the cases Mr. Rieber relied on in the Petition more

than establish the viability of a lesser included manslaughter option for the jury in

this case. The State relies on Crosslin v. State, 446 So. 2d 675 (Ala. Crim. App.

1983), to suggest otherwise. But in Crosslin, the judgment of conviction was

reversed precisely because the jury was not permitted to find that Mr. Crosslin’s

drug consumption may have precluded his ability to form the specific intent

required for capital murder.

“The standard to be applied in this state is that in a

capital case the jury must be instructed on each lesserincluded offense which has ‘any basis in the evidence.’

Beck v. State, 396 So. 2d 645 at 658 (Ala. 1980); Ex parte

Kyzer, 399 So. 2d 330 (Ala. 1981). A lesser included

offense instruction should be given if ‘there is any

reasonable theory from the evidence which would support

the position.’ Hopper v. Evans, 456 U.S. 605, 102 S. Ct.

2049, 72 L. Ed. 2d 367 (1982); Chavers v. State, 361 So. 2d

1106 (1978); Fulghum v. State, 291 Ala. 71, 75, 277 So. 2d

886, 890 (1973). Our decisions are to the effect that

‘Every prisoner at the bar is entitled to have charges

given, which, without being misleading, correctly stated

the law of his case, and are supported by any evidence,

however weak, insufficient, or doubtful in credibility.’

(Emphasis added.) Gibson v. State, 89 Ala. 121, 8 So. 98

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(1889). See also Burns v. State, 229 Ala. 68, 155 So. 561

(1934).

“No matter how strongly the facts may suggest that

appellant was not so intoxicated at the time he committed

the offense that he was incapable of forming the necessary

specific intent, the jury should have been instructed on

manslaughter as a lesser included offense since there was

a ‘reasonable theory from the evidence which would

support the position.’”

446 So. 2d at 682.

Here, the evidence demonstrated that Mr. Rieber consumed alcohol and

numerous hard drugs in the period just before the homicide. While it is true that

different witnesses saw different drug consumption, that in no way makes their

testimony inconsistent, as the State suggests. They just saw him at different times.

The State also ignores evidence of unusual behavior by Mr. Rieber shortly after the

homicide: testimony by Dennis Howell that Mr. Rieber rocked in stone silence for

about 45 minutes that same evening – something he had never seen before.

(R. 381.) Further, the State quotes that part of the trial court decision that

minimizes the drug consumption evidence, stressing that Mr. Rieber used drugs “at

some point during the day of the offense.” (C. 2872.) The State might just as well

have said “the decade” of the offense. Evidence at the Rule 32 hearing, set forth in

the Petition, proves that the drug parties did not begin until 3:00-3:30 in the

afternoon, and that Mr. Rieber was seen consuming these various drugs around

dusk or early evening – in short, within an hour or hour and a half before the crime.

(Petition for Cert. (“Petition”) 15.) Mr. Kempaner was well aware of Mr. Rieber’s

drug use once he read the Rogers report. Further, this defense was not inconsistent

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with Mr. Rieber’s denial that he was at the scene of the crime. In sum, there was

ample evidence supporting a lesser included offense of manslaughter, loudly

portended by Dr. Rogers’ report, which Mr. Kempaner never pursued.

Trial counsel never considered the alternative because of a complete failure

to understand Alabama law on the subject. The failure to pursue the defense laid

out by Dr. Rogers – who ended up believing Mr. Rieber – was especially glaring in

light of the fact trial counsel conceded that the alibi defense on which he relied

almost certainly would fail.

With respect to the ineffective assistance of counsel at the sentencing phase,

Mr. Rieber brings two points to the Court’s attention.

First, Mr. Moran’s failure to present cases “worse” than the instant case

constituted constitutionally inadequate representation because such cases

demonstrate that the application of the death penalty to Mr. Rieber was arbitrary

and capricious. The State claims that because the Rule 32 Petition did not allege

this failure, consideration of the issue is procedurally barred. The State completely

overlooks the fact that when it raised that objection at the Rule 32 hearing, the

court overruled the objection – on the obvious basis that had it been sustained, a

motion to conform the pleadings to the proof could hardly have been denied as there

was no prejudice to the State in the admission of published Alabama case law.

Mr. Rieber prevailed on the admissibility of the evidence, over the State’s objection,

and the State did not cross-appeal that adverse ruling. The admission into evidence

of Alabama cases no longer can be attacked on procedural grounds.

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On the merits, the State claims that whether the cases are “worse” or not is a

“nuanced question.” (Brief in Opposition 17.) No amount of supposed “nuance” can

render the application of the death penalty in this case other than arbitrary and

capricious when it was not imposed in the cases referred to. The gore and gross

brutality evidenced in those cases more than speaks for itself, and the life sentence

imposed in each of those cases points unmistakably to the need for a similar

sentence here.

Second, the State suggests in its response that the only evidence tendered by

the defense at the sentencing stage was evidence showing that Mr. Rieber was a

good person, that the conduct at issue was aberrational and, therefore, he should

not be subject to the death penalty. This misreads the record.

The Rogers report was placed into evidence before the sentencing jury and, as

shown in the Petition, the State aggressively attacked it on the ground that it was

self-serving and of no weight. Mr. Moran did nothing after the jury’s

recommendation to insure that a similar argument could be met head on in the

sentencing proceeding before Judge Blankenship. If, as the State contends,

Mr. Moran’s effectiveness was established by the jury’s 7 to 5 vote for life

imprisonment, then the State should agree that the sentencing proceeding before

the jury was the final word on sentencing, a position the State has fought bitterly

throughout this case.

Mr. Moran’s failure becomes painfully obvious when, at the subsequent

hearing, Judge Blankenship specifically asked whether there was any evidence

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corroborating the Rogers report and, despite the abundance of such evidence as

shown at the Rule 32 hearing almost twenty years later, the answer had to be, there

was none. (C. Supp. 183-89.) The State’s argument that Mr. Rieber has “presented

no facts indicating that the court would have been more sympathetic had it known

further details of his sordid past,” (Brief in Opposition 19), suggests that Judge

Blankenship was engaged in a meaningless inquiry when she asked whether there

was evidence corroborating the Rogers report. There is no basis to so conclude, and

there is every basis to conclude, as the 2011 hearing showed, that diligent counsel

would have presented such evidence. Since the sentencing strategy was to pursue

two lines of mitigation, Mr. Rieber’s good side and his drug use, lines not

necessarily inconsistent, Mr. Moran was under a constitutional obligation to

conduct enough of an inquiry into Mr. Rieber’s drug use to answer Judge

Blankenship’s question affirmatively. His failure constitutes ineffective

representation within the meaning of Wiggins v. Smith, 539 U.S. 510 (2003).

As to ineffective assistance of counsel on appeal, the State effectively admits

that Alabama consistently relies on an irrebuttable presumption of counsel

competency if the case record does not include reasons explaining counsel’s actions.

For example, it cites Hooks v. State, 21 So. 3d 772, 793 (Ala. Crim. App. 2008),

where the court said that “[w]hen a record is silent as to the reasons for an

attorney’s actions we must presume that counsel’s conduct was reasonable.” (Brief

in Opposition 20.) The Court should grant certiorari to end Alabama’s reliance on

this irrebuttable presumption.

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The State also argues Mr. Rieber’s contention of appellate ineffectiveness was

meritless because “[b]oth state appellate courts determined that the trial court’s

conclusions as to stalking were justified ….” (Id. at 22.) In support, it quotes an

Alabama Supreme Court statement that the evidence indicated Mr. Rieber “cased”

the store. (Id.) The court could hardly have found otherwise because – incredibly –

Mr. Rieber’s counsel admitted in the appeal brief that the evidence supported the

finding, (Petition 22-23), when, on the contrary, the record demonstrably refutes the

finding. Mr. Rieber was prejudiced by Alabama’s reliance on the unconstitutional

presumption of competency.

II.

ALABAMA’S FORMER CAPITAL SENTENCING SCHEME, AND

MR. RIEBER’S SENTENCE, BOTH SUFFER FROM THE SAME

CONSTITUTIONAL FLAW IDENTIFIED BY THE COURT IN HURST

V. FLORIDA, 577 U.S. ___, 136 S. CT. 616 (2016).

The State argues that Alabama’s former capital sentencing scheme, ALA.

CODE § 13A-5-46 (1982), must be constitutional because this Court has not said

otherwise, and the Alabama Supreme Court recently held as much. In particular,

the State claims that Harris v. Alabama, 513 U.S. 504 (1995), is still good law, and

it notes that the Court denied the certiorari petition in Ex parte Bohannon, 222

So. 3d 525 (Ala. 2016), cert denied, 137 S. Ct. 831 (2017). Harris, of course, predates

Hurst by 20 years; in fact, Harris even predates Ring v. Arizona, 536 U.S. 584

(2002). And Bohannon did not address a true judicial override of a jury’s

recommendation of life imprisonment. Rather, the Bohannon jury voted 11-1 that

Mr. Bohannon be sentenced to death. In this case, to the contrary, Mr. Rieber’s jury

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voted 7-5 for life imprisonment. Hence, Harris and Bohannon provide no support

for the State’s position.

Next, the State claims that “Hurst is being resentenced because Hurst’s jury

failed to find an aggravating circumstance necessary to make him death-eligible.

There is no comparable problem in Rieber’s case.” (Brief in Opposition 29.) In fact,

there is a comparable problem in Mr. Rieber’s case. As the State admits, “the trial

court [had] the benefit of information and experience beyond the jurors’ ….” Id.

at 31. That is precisely the problem. Mr. Rieber’s trial judge found additional facts

and weighed an additional aggravating circumstance that the jury did not find.

“The evidence allows the Court to clearly conclude that the defendant, for at least

three to four days, had stalked the victim ….” (C. 6889.) Without the stalking

finding, which the jury did not find or weigh in the balance, the trial court would

not have overridden the jury’s recommendation of life without parole. Hence, the

fatal flaw in Hurst exists in this case as well.

Finally, the State argues that the Court should not apply Hurst or the new

Alabama capital sentencing statute retroactively to Mr. Rieber because “while

making changes in the law prospectively effective may create certain inequities,

these are outbalanced by the serious disruptions in administrating justice that

would result from retroactive application.” (Brief in Opposition 32.) It is

unthinkable that any minor “disruptions in administrating justice” could outweigh

the inequity of executing Mr. Rieber based on an unconstitutional statute. As the

State notes, when Connecticut abolished its death penalty, the Connecticut

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Supreme Court mandated that the change be applied retroactively to inmates who

were sentenced to death before the passage of the new law. Id. at 33; see State

v. Santiago, 318 Conn. 1, 122 A.3d 1, 10 (2015). The same was true in Illinois,

Maryland, and New Jersey, all of which chose to spare the life of death row inmates

sentenced before those states abolished the death penalty. The Court should do the

same with respect to death row inmates in Alabama whose sentences are based on

unconstitutional judicial overrides of advisory jury verdicts for life imprisonment

without parole.

CONCLUSION

For the reasons stated above and based on the entire record in this action,

Petitioner Jeffery Day Rieber asks this Court to grant his Petition for a Writ of

Certiorari.

Respectfully submitted,

GODFREY & KAHN, S.C.

Dated: August 24, 2018.

By:

s/ James A. Friedman

Frank M. Tuerkheimer, State Bar No. 1009722

Email: ftuerkhe@gklaw.com

Counsel of Record

James A. Friedman, State Bar No. 1020756

Daniel C.W. Narvey, State Bar No. 1086860

One East Main Street, Suite 500

P.O. Box 2719

Madison, WI 53701-2719

Telephone: (608) 257-3911

Fax: (608) 257-0609

9

Lawrence Bensky, State Bar No. 1017219

LAW OFFICE OF LAWRENCE BENSKY, LLC

10 E. Doty Street, Suite 800

Madison, WI 53703

Telephone: (608) 204-5969

Fax: (608) 204-5970

Email: lbensky@benskylaw.com

Counsel for Petitioner

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CERTIFICATION

I hereby certify that this brief conforms to the requirements of Sup. Ct.

R. 33.1. The length of this brief is 2,327 words.

Dated: August 24, 2018.

By:

s/ James A. Friedman

James A. Friedman

19385469.1

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