Petition for Writ of Certiorari — Roger W. Murray, Petitioner v. Charles L. Ryan, Director, Arizona Department of Corrections
Supreme Court briefJul 13, 2018
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGER WAYNE MURRAY,
Court of Appeals No. 08-99013
District Court No. 03-775-PHX-DGC
Petitioner/Appellant,
CAPITAL PUNISHMENT CASE
vs.
DORA SCHRIRO, et al.,
Respondent/Appellee.
ON APPEAL FROM A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA
APPELLANT’S REPLY BRIEF
John E. Charland, Esq. 012089
The Charland Law Firm
3707 North 7th Street
Suite 250
Phoenix, Arizona 85014
info@CharlandLawFirm.com
Attorney for Appellant
TABLE OF CONTENTS
Page
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . .
iii
ARGUMENT .. . . . . . . . . . . . . . . . . . . . . .
1
A.
PREJUDICIAL PUBLICITY DENIED DUE PROCESS. . .
1
B.
THE EXCLUSION OF CHRISTIANS VIOLATED THE SIXTH
AMENDMENT, THE FAIR CROSS SECTION DOCTRINE, AND
THE EQUAL PROTECTION CLAUSE. . . . . . . .
10
1.
Striking Jurors with Religious Scruples
Against Judging Others Violated the Sixth
Amendment. . . . . . . . . . . . . . .
11
2.
The State Violated the Fair Cross-Section
Doctrine.. . . . . . . . . . . . . . .
18
3.
The Exclusions Violated Equal
Protection.. . . . . . . . . . . . . .
20
C.
THE STATE VIOLATED BATSON. . . . . . . . .
23
D.
THE TRIAL COURT VIOLATED DUE PROCESS BY DENYING
AN INSPECTION OF THE CRIME SCENE. . . . . .
38
E.
THE FAILURE TO INSTRUCT THE JURY ON INTOXICATION
VIOLATED DUE PROCESS. . . . . . . . . . . .
38
F.
THE FAILURE TO INSTRUCT THE JURY ON A LESSER
INCLUDED OFFENSE VIOLATED DUE PROCESS. . .
38
G.
THE STATE COURT’S FAILURE TO DEEM MITIGATION
APPLICABLE UNLESS IT CAUSED THE OFFENSE VIOLATED
EDDINGS v. OKLAHOMA AND DUE PROCESS. . . .
38
-i-
H.
THE FRACTURED RELATIONSHIP VIOLATED THE RIGHT TO
COUNSEL. . . . . . . . . . . . . . . . . .
42
I.
THERE WAS NO FAIR HEARING ON THE SLEEPING LAWYER
SIXTH AMENDMENT VIOLATION. . . . . . . . .
54
J.
COUNSEL WAS INEFFECTIVE IN NOT CALLING AN EYE
WITNESS. . . . . . . . . . . . . . . . . .
54
K.
ROBERT MURRAY’S CLAIMS. . . . . . . . . . .
54
CONCLUSION .. . . . . . . . . . . . . . . . . . . .
55
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . .
55
CERTIFICATE OF SERVICE .. . . . . . . . . . . . . .
56
-ii-
TABLE OF AUTHORITIES
CASES
PAGE
Alexander v. Louisiana, 405 U.S. 625 (1972).. .
Batson v. Kentucky, 476 U.S. 79
(1986). . . . . . . . . . . . . . .
22, 23
23, 24, 27, 31, 32
Castaneda v. Partida, 430 U.S. 482 (1977).. . . . .
Duren v. Missouri, 439 U.S. 357 (1979). . .
Eddings v. Oklahoma, 455 U.S. 104
(1982). . . . . . . . . . . . . . .
20
18, 19, 20
38, 39, 40, 41, 42
Gray v. Mississippi, 481 U.S. 648 (1987). . . . . .
15
Hernandez v. Texas, 347 U.S. 475 (1954).. . . . . .
23
Irvin v. Dowd, 366 U.S. 717 (1961). . . . . . . . . .
8
Johnson v. Mississippi, 486 U.S. 578 (1988).. .
44, 46
Lee v. Kemma, 534 U.S. 362 (2002).. . . . . . .
43, 44
Lockhart v. McCree, 476 U.S. 162 (1986).. . . . . .
Miller-El v. Dretke, 545 U.S. 231 (2005). .
11
28, 31, 32
Purkett v. Elem, 514 U.S. 765 (1995). . . . . .
27, 28
Rideau v. Louisiana, 373 U.S. 723 (1963). . . . . . .
9
Smith v. Texas, 543 U.S. 37 (2004). . . . . . . . .
42
Snyder v. Louisiana, 552 U.S. 472 (2008). .
33, 34, 37
Torcaso v. Watkins, 367 U.S. 488 (1961).. .
18, 20, 21
Wainwright v. Sykes, 433 U.S. 72 (1977).. . . . . .
-iii-
44
Wainwright v. Witt, 469 U.S. 412 (1985).. . . .
12, 15
Williams v. Taylor, 529 U.S. 362 (2000).. . . . . .
52
Witherspoon v. Illinois, 391 U.S. 510
(1969). . . . . . . . . . . . . . .
10, 11, 12, 13, 14
Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2004).
52
Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1983). . . .
9
Daniels v. Woodford, 428 F.3d 1181
(9th Cir. 2005). . . . . . . . . . . . . . . . .
1, 7, 8
Docter v. Walters, 96 F.3d 675 (3d Cir. 1996).. . .
44
Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990).. . .
12
Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005).
20
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006). . .
25
Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001).
45
Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).. . . .
54
Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996)..
45
Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008). 40, 41
United States v. Gelb, 881 F.2d 1155 (2nd Cir. 1989). 18
United States v. Potter, 552 F.2d 901 (9th Cir. 1977).19
United States v. Raskiewicz, 169 F.3d 459 (7th Cir.
1999).. . . . . . . . . . . . . . . . . . . . . . .
18
United States v. Schlesinger, 360 F. Supp. 3d
(E.D.N.Y. 2005).. . . . . . . . . . . . . . . . . .
512
18
State v. Henry, 189 Ariz. 542, 944 P.2d 57 (1997)..
49
-iv-
State v. Lindsay, 5 Ariz. App. 516 (App. 1967). . .
47
State v. Jones, 197 Ariz. 290 (2000). . . . . . . .
12
State v. Murray, 184 Ariz. 9, 906 P.2d 542
(1995). . . . . . . . . . . . . . . . . . . . . .
2, 39
State v. Pearson, 98 Ariz. 133 (1965).. . . . . . .
46
State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002).45, 46
State v. Torres, 208 Ariz. 340, 93 P.3d 1056
(2004). . . . . . . . . . . . . . . . .
47, 48, 49, 54
State v. Valdez, 160 Ariz. 9, 770 P.2d 313 (1989)..
45
State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999).12
Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965).20
Ariz. Rev. Stat. §§ 28-1381 to -1384. . . . . . . .
-v-
29
ARGUMENT
A.
PREJUDICIAL PUBLICITY DENIED DUE PROCESS
The record shows massive prejudicial publicity from
the
Murrays’
arrest
through
trial.
The
publicity
contained prejudicial opinions and false statements about
alleged killing sprees and other violent conduct that
would never be admitted at trial.
Many jurors read or
heard the publicity before trial with two jurors even
hearing the publicity on the way to the courthouse to
serve as jurors in this very case.
In Daniels v. Woodford, 428 F.3d 1181 (9th Cir.
2005), the Ninth Circuit pronounced a three factor test
in evaluating prejudicial publicity:
(1) whether there was a ‘barrage of
inflammatory publicity immediately prior
to trial, amounting to a huge . . . wave
of public passion’; (2) whether the news
accounts were primarily factual because
such
accounts
tend
to
be
less
inflammatory
than
editorials
or
cartoons; and (3) whether the media
accounts
contained
inflammatory
or
prejudicial material not admissible at
trial.
Id. at 1211 (citations omitted).
in the present case.
1
All three factors exist
The opening brief details the prejudicial newspaper
and radio reports.
There also were extensive television
reports. E.R. Vol. IV, Part 1, Tab B, at 45:8-11.
These
broadcasts reached all areas of Mohave County with the
exception
of
a
few
areas
that
were
not
sent
jury
summonses, State v. Murray, 184 Ariz. 9, 22, 906 P.2d
542, 555 (1995), so that any area not covered by the
publicity also had no jurors at the trial.
E.R.
Vol.
III, Part 2, Tab N, at 16:10-15.
The publicity reached the jurors.
Nine out of 14
Grand Jury jurors were familiar with the case and the
inflammatory
prosecutor
newscasts.
Id.
Tab
acknowledged,
“[T]here
A,
at
10.
The
has
been
extensive
amount of publicity concerning this particular incident
both in the local newspaper and on the radio.”
Mr.
Murray’s motion to remand to the Grand Jury to determine
the level of pretrial publicity and bias was denied.
E.R. Vol. II, Tab G.
At a change of venue hearing just weeks before trial,
David Hawkins, the news director of KAAA and KZZZ radio
stations in Kingman, Arizona (the County seat), presented
2
61 news scripts he had written for broadcast from the
time of the arrest to trial. See ER 1715 of Robert
Murray’s excerpt of records.
That averages about five
individual radio broadcasts each month, more than one a
week, which are then repeated throughout the day they are
released. Immediately after the change of venue hearing,
the press ran an inflammatory article showing the Murrays
in handcuffs and jailhouse garb getting into a paddywagon
to return from the hearing to jail. The print under the
picture read, “At least eight law enforcement officers
escorted the brothers into the courthouse and guarded the
exit doors.
Two officers armed with shotguns were seen
perched on rooftops as the van made its way the short
distance to the jail.” E.R. Vol. I, Part I, Tab B,
(exhibit E).
This signaled to the public how terrible
and dangerous the Murrays were since they already were in
custody and yet maximum security was still necessary.
Even
on
the
first
day
of
trial,
the
radio
ran
broadcasts about the case that two jurors heard on their
way to the court house.
Both jurors served on the jury.
See supplemental E.R., at 26.
3
They were receiving,
before they arrived at the court house, information about
the very case they were on their way to judge.
E.R. Vol.
IV, Part 1, Tab B, at 40:12-13; see also id. at 133:1618.
Another prospective juror testified about news media
accounts one to two months before trial, showing the
nonstop coverage of the case, as trial approached.
Tab A, at 80.
Id.
Of the jurors questioned at voir dire, the
judge noted about half of them had heard about the case.
Supplemental E.R. at 24.
The
barrage
of
publicity
also
was
inflammatory.
David Hawkins testified the community was angry about
what happened to the victims. E.R. Vol. III, Part 2, Tab
N, at 24. He also testified everyone was expressing the
opinion
the
Murrays
were
guilty.
Id.
John
Collier
Freeman, an investigator, testified he had been to all
parts of the County and most everyone he spoke with knew
about the case and had a negative opinion about the
defendants.
Id.
Grasshopper Junction is unmarked with high desert and
nothing else all around it. One driving along the highway
would not know it from the next highway stop miles down
4
the road.
However, the locals all know it as it was a
well known landmark for Mohave County.
T, at 2.
E.R. Vol. II, Tab
Several jurors testified about knowing Mr.
Morrison or about going to Grasshopper Junction just to
eat there.
pie.
Juror Miller would drive there to eat the
E.R. Vol. IV, Part 1, Tab A, at 35.
Juror Tyra
knew the victims well. Id. at 45. Juror Moulder would eat
there five years earlier than the trial (the prosecutor
avowed Mr. Morrison owned Grasshopper Junction for the
past 15 years). Id. at 57 and Id. at 55. Juror Alaria
knew
the
victims.
victims.
Id.
at
Id.
77-79.
at
62.
Juror
Juror
Jenks
Williams
knew
would
eat
the
at
Grasshopper Junction. Id. at 92. Juror Confer knew the
victims. Id. at 99. Juror Way was a fellow Mason of Mr.
Morrison.
Id., Tab B at 108. Juror Burns also had Mason
and Shriner affiliations.
Id. at 123-124. Few were
struck.
A prime example of the impact from the publicity is
shown by Juror Evans who testified she read the papers at
the outset and that thereafter, “[W]hen it’s in the
paper, I read it.”
Her jury questionnaire was blatant,
5
stating: “They’re guilty, now pay.”
Her ability to be
fair was “substantially impaired,” yet, the judge denied
the challenge for cause.
Id. at 26-31.
Accordingly, the
Daniels court’s first element is met as the publicity was
literally nonstop and inflammatory.
The news accounts also contained inflammatory opinion
from the police and from the Sheriff himself. As outlined
in the opening brief, Detective Lent opined to the media
that the Murrays “snuck up behind the house” and how
loved Mr. Morrison was by the community. E.R. Vol. I,
Part 1, Tab B, Exhibit E.
The press ran several stories
how the Murrays were wanted for armed robbery in Alabama
and how the police thought the Murrays were killing
people across the country even quoting the Sheriff.
Id.
(“[Sheriff Joe] Cook said officials also are looking into
other, similar homicides in other states to see whether
the
crimes
might
be
connected.").
He
identified
California and New Mexico unsolved murders. There was not
an
iota
of
evidence
supporting
allegations.
6
these
inflammatory
The papers also showed several pictures of defendants
in the courtroom wearing jailhouse attire.
The morning
after the change of venue hearing, the Daily Miner ran
the article with the graphic picture of the Murrays,
wearing handcuffs and jailhouse garb, and the many guards
it allegedly took to guard the Murrays for the “short
ride” to the jail, with more police on the roof tops with
shot guns Id.
Thus, the reports were sensational and
inflammatory, thereby meeting the second Daniels element.
The
reports
allegations.
also
were
full
of
inadmissible
The fact the Murrays were wanted in Alabama
on a charge of tying up an elderly lady and robbing her
house was not admissible and was not proffered as it was
clearly prejudicial.
Yet, the public was well aware of
it from the repeated press reports.
These prospective
jurors heard the Murrays broke in, assaulted, and robbed
an elderly lady by taking her household valuables in a
pillow
case
perpetrators
in
Alabama.
(identified
They
as
the
then
Murrays),
heard
broke
that
in,
assaulted, and robbed an elderly couple by taking their
household valuables in a pillow case in Arizona.
7
Copycat
crimes causing prejudice based on the news accounts of
evidence that could not be presented at a fair judicial
trial.
News
accounts
that
the
Murrays
were
actual
“suspects” in California and New Mexico heightened the
readers’
belief
that
authorities
must
have
specific
murders in mind to which the Murrays were being linked,
if
they
were
already
classified
as
“suspects.”
Therefore, all three factors of Daniels are met.
In Irvin v. Dowd, 366 U.S. 717, 728 (1961), similar
to the present case, the defendant submitted 46 exhibits
of
pretrial
news
reports
that
outlined,
among
other
things, the modus operandi of prior burglaries which
allowed the comparison to that of the burglary and murder
with which defendant was charged. Id. at 725.
The Court
found such publicity of copycat crimes prejudicial, even
though jurors responded to the trial court that they
would follow the court’s instructions.
See id. at 728
(“No doubt each juror was sincere when he said that he
would
be
fair
and
impartial
to
petitioner,
but
the
psychological impact requiring such a declaration before
one’s fellows is often its father.
8
Where so many, so
many
times
admitted
prejudice,
such
a
statement
impartiality can be given little weight.”).
enormity
of
the
publicity
and
its
of
Thus, the
effect
clearly
prejudiced Mr. Murray.
The State attempts to distinguish this case from
Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1983), however,
the allegedly distinguishing facts actually show the
strikingly
similarity
to
the
present
case.
As
in
Coleman, the Sheriff made sensational and untruthful
comments that he never retracted. Like Coleman, he stated
they had conclusive evidence of guilt. He also opined
about the egregiousness of the crime and how the Murrays
were actual suspects in murders in California and New
Mexico.
Last, the State’s argument that Mohave County’s
population
of
95,000
is
too
large
for
there
to
be
prejudice is unavailing as prejudice was found in Rideau
v. Louisiana, 373 U.S. 723, 724 (1963) where Calcasieu
Parish had a population of 150,000.
have a fair trial.
9
Mr. Murray did not
B.
THE EXCLUSION OF CHRISTIANS VIOLATED THE SIXTH
AMENDMENT, THE FAIR CROSS SECTION DOCTRINE, AND
THE EQUAL PROTECTION CLAUSE
The State’s brief concedes the Jury Commissioner
automatically
excused
Christians
who
against their religion to judge others.
stated
it
was
E.R. Vol. III,
Part 2, Tab S, at 41:19-25.
In fact, the Commissioner
specifically
excused
identified
the
denomination
Jehovah Witnesses or Seventh Day Adventists.
Id.
as
The
State concedes there was no investigation of the jurors’
ability to follow the law.
Id. 42:24-25 to 43:1-4.
The
State argues automatically excusing those who say they
have religious scruples against judging others does not
violate the Constitution. However, the practice violates
the Constitution in three independent ways.
First, the
automatic exclusion violated the sixth amendment right to
an
impartial
jury.
See
generally
Illinois, 391 U.S. 510 (1969).
Fair Cross-Section doctrine.
Protection Clause.
10
Witherspoon
v.
Second, it violated the
Last, it violated the Equal
1.
Striking Jurors with Religious Scruples Against
Judging Others Violated the Sixth Amendment
The State argues Mr. Murray did not cite Witherspoon
below and, therefore, he waived this issue. The State is
wrong.
Mr. Murray cited and argued Witherspoon below.
E.R. Vol. I, Part 2, Tab I, at 2-6.
merely
a
case
that
interprets
guarantee of an impartial jury.
the
Witherspoon is
sixth
amendment’s
Mr. Murray argued below
that automatically excluding Christian jurors with no
questioning of their ability to follow the law violated
the sixth amendment. See E.R. Vol. I, part 2, tab F, at
16:5-15
&
part
1,
tab
B,
at
59.
Citing
the
constitutional provision is what controls.
The district
court
Lockhart
then
cited
Witherspoon’s
progeny,
v.
McCree, 476 U.S. 162, 174 (1986), in response to the
argument and Mr. Murray cited and argued both Lockhart
and Witherspoon in his Traverse.
at
2-6.
Thus,
the
Vol. I, part 2, tab I,
constitutional
provision
and
Witherspoon itself were cited and argued and the issue is
not precluded now on appeal.
11
Witherspoon
is
applicable
to
irrespective of their pre-Ring role.
Arizona
juries,
See State v. Jones,
197 Ariz. 290, 302 (2000) (“The trial judge incorrectly
stated that the Witherspoon/Wainwright standard does not
apply
because
Arizona
juries
do
not
sentence
defendants”); State v. Van Adams, 194 Ariz. 408, 417, 984
P.2d
16,
25
Arizona).
(1999)
When
(holding
states
Witherspoon
voluntarily
chose
applies
to
in
create
constitutional liberty interests, such as the application
of Witherspoon to assure an impartial jury, state actors
cannot thereafter violate those liberty interests without
violating the constitution.
See, e.g., Jackson v. Ylst,
921 F.2d 882, 886-87 (9th Cir. 1990) (state can create a
constitutionally-protected interest by adopting policies
that restrict official discretion).
present
case,
Witherspoon’s
applies
to
does
not
claim
interpretation
this
case
and
The State in the
otherwise.
Therefore,
of
the
sixth
amendment
the
facts
show
the
State
violated the Impartial Jury clause.
The Jury Commissioner testified she excluded those
Christians
(specifically
identifying
12
them
as
Jehovah
Witnesses
or
Seventh
Day
Adventists)
who
wrote
they
prefer not to serve because “a page out of their bible
[states] that it is against their religious beliefs to
sit in judgment of anyone.”
41.
Vol. III, part 2, tab S at
In Witherspoon itself, the Supreme Court noted,
“Only one venireman who admitted to ‘a religious or
conscientious scruple against the infliction of the death
penalty in a proper case’ was examined at any length.”
Id. at 515.
That venireman stated she “would not like to
be responsible” for deciding somebody should be put to
death, for which the trial judge struck.
The Supreme
Court held that striking the juror because she has a
religious
scruple
against
being
responsible
for
the
punishment is unconstitutional as long as the juror is
willing to apply the law, even if with some difficulty.
Id.
The Jury Commissioner excusing jurors simply because
they state it is against their religion to judge others
without determining whether the jurors would follow the
law also is unconstitutional.
In the present case, one juror slipped through and
was questioned by the trial judge.
13
Juror McCall stated,
“[T]he Bible tells me not to judge no man, but at the
same time it says to obey the laws of the land.
have mixed emotions about that.”
would
rather
not
have
to
So I
The juror explained he
judge,
similar
to
the
Witherspoon’s venireman’s stating she would prefer not
being responsible.
81:18-22.
could
E.R. Vol. IV, Part 1, Tab A, at
The trial court inquired whether Juror McCall
follow
the
promised to try.
court’s
instructions.
The
juror
The trial judge dismissed Juror McCall
even though he had already stated he could be fair and
impartial. Id. at 80:17-20.
This is like dismissing the
juror in Witherspoon because she would not want to be
responsible for the decision even though she too thought
she could follow the law.
The trial court also sought assurances that Juror
Brower did not have “any religious scruples” in judging
other
people.
transcripts
Id.
are
at
87:25-88:1.
undisputed
the
Accordingly,
Jury
the
Commissioner
automatically struck those with religious scruples before
they could come to the court house (and others were being
weeded out by the trial judge for the same religious
14
scruples) without the State’s ever being put to its
burden of showing they were impaired from following their
duty. See Gray v. Mississippi, 481 U.S. 648, 652 n.3
(1987) (“A motion to excuse a venire member for cause of
course must be supported by specified causes or reasons
that demonstrate that, as a matter of law, the venire
member
is
not
qualified
to
serve.”).
After
actual
discourse, when the State offers its challenge for cause,
“[i]t is then the trial judge’s duty to determine whether
the challenge is proper.”
412, 423 (1985).
Wainwright v. Witt, 469 U.S.
In the present case, the State’s
excusing the jurors (even if it was one juror) before
they ever got to the courthouse prejudiced Mr. Murray
from having the prosecutor and the trial judge perform
their respective constitutional duties before removing a
juror for cause.
The prospective jurors’ mere lack of a
belief in imposing punishment on religious grounds was a
“broader basis” for exclusion than inability to follow
the law and it violated the constitution.
While jurors who might have been able to follow the
law despite their religious scruples were automatically
15
struck, most jurors were biased in favor of a conviction
and not struck. For example, Juror Manderfield disagreed
with the burden of proof and wished to apply a lower
standard.
E.R. Vol. IV, Part 1, Tab B, at 12-14.
Juror
Cochrum knew a witness, felt the system was too soft, and
felt victims had too many rights.
Id. at 40-43.
Juror
Azzolino felt that if a defendant did not testify, he
probably was guilty.
Id. at 92-96.
The best he could
do, following page after page of questioning by the trial
judge in an effort to rehabilitate him, was to state he
would “not necessarily” take this prejudicial view into
account.
Id. at 93:11-13.
Juror Evans, who had been
following the publicity in the case all along from arrest
to trial, came right out and stated, “They’re guilty, now
pay.”
Id., Tab A, at 28:8-13.
challenge for cause.
The Judge denied the
Juror Alaria thought criminals
enjoyed too many rights.
Id. at 64.
Juror DiGiovanni
was deemed very anti-criminal by the defense, but the
judge would not allow counsel to voir dire her.
89.
Juror
Williams
admitted
he
had
a
Id. at
preconceived
opinion because he read about it in the paper but the
16
trial court denied the challenge for cause.
Id. at 95.
Juror Manderfield felt that a defendant needed to get on
the stand and explain what happened.
Id., Tab B, at 14.
Juror Bell thought that once a person was arrested, he
was probably guilty and had at least one foot in the
door.
Id. at 25. Juror Harshman followed the newspaper
and television stories and his daughter-in-law actually
worked for the County Attorney prosecuting the case.
trial court denied the challenge for cause.
The
Id. at 44-45
and 50.
The Constitution requires more than a biased juror
who might not necessarily take his biased view into
account.
Mr. Murray was entitled to the chance of having
competent jurors who would be less inclined to view
someone accused of a crime as guilty, but who would
follow the law.
Jurors who will not prejudge is just who
should be on the jury.
dismissal
of
those
In light of the foregoing, the
with
religious
scruples
with
no
colloquy to establish bias violated the sixth amendment
right to an impartial jury.
17
2.
The State
Doctrine
The
State,
argues
the
Violated
without
excluded
the
Fair
Cross-Section
citation
to
legal
authority,
Christians
were
merely
a
group
defined by shared religious beliefs against sitting in
judgment of others, which fails to satisfy Duren v.
Missouri,
439
U.S.
357
(1979)’s
distinctive
requirement of Fair Cross-Section analysis.
group
Yet, the
Jury Commissioner identified the denomination as Jehovah
Witnesses or Seventh Day Adventists.
2, Tab S, at 41.
E.R. Vol. III, Part
The law holds groups defined by
religious beliefs are indeed “distinctive groups.” United
States v. Gelb, 881 F.2d 1155, 1161 (2nd Cir. 1989) (Jews
are a distinctive group); United States v. Schlesinger,
360 F. Supp. 3d 512, 527 (E.D.N.Y. 2005) (same); see also
United States v. Raskiewicz, 169 F.3d 459, 463 (7th Cir.
1999) (“Religious faith has been held to suffice.”).
Accordingly, Jehovah Witnesses, Seventh Day Adventists,
and other such Christian faiths are distinctive groups.
See Torcaso v. Watkins, 367 U.S. 488 (1961) (discussing
the now unconstitutional practice of discrimination among
18
Christian denominations against one another in early
American history).
The second Duren element of the proportion excluded
also is met.
The Jury Commissioner’s testimony itself
shows she viewed these jurors as philosophically impaired
from serving.
She excluded all such Christians who so
identified themselves as Jehovah Witnesses or Seven Day
Adventists.
Vol. III, part 2, tab S, at 41.
Therefore,
the deviation between those in the community and those
who served on the jury was 100%.
United States v.
Potter, 552 F.2d 901, 906 (9th Cir. 1977).
(“[A] small
deviation may destroy the presence of a fair crosssection than would be the case with a group which is less
clearly defined.”). Thus, Mr. Murray meets the second
element of showing disproportionate representation as
none were represented.
Last, there can be no cavil there was systematic
exclusion of these Christians as all were automatically
excluded
with
no
colloquy
at
all.
exclusion was a systematic exclusion.
19
The
automatic
Mr. Murray has met
all three Duren elements.
This jury was not a fair
cross-section of the community.
3.
The Exclusions Violated Equal Protection
Even
stronger
is
Mr.
Murray’s
Equal
Protection
argument.
The State argues Mr. Murray cannot meet the
first
the
of
three
elements
of
an
Equal
Protection
violation as set forth in Castaneda v. Partida, 430 U.S.
482, 494-95 (1977), because there is no identifiable,
distinct class.
However, case law is clear that the
government cannot discriminate against those who would
serve on a jury on the basis of religion or no religion.
See, e.g., Schowgurow v. State, 240 Md. 121, 124, 213
A.2d 475 (1965) (striking down requirement jurors must
believe in God as discriminatory irrespective of the
numbers of actual atheist who might ever be struck); see
Torcaso v. Watkins, 367 U.S. 488 (1961) (striking down
religious requirements in being a notary); Kaufman v.
McCaughtry, 419 F.3d 678 (7th Cir. 2005) (“the court has
adopted a broad definition of ‘religion’”). Mr. Justice
Hugo Black’s lengthy discussion in Torcaso of the history
of Christian denominations’ discriminating against one
20
another in America shows Christian denominations are
distinct classes.
Id. at 490.
The Jury Commissioner
might have been a Christian too, but she arbitrarily
excused those Christians whose beliefs disfavored judging
others.
and
Thus, this group (composed of Jehovah Witnesses
Seventh
Day
Adventists)
is
an
identifiable
and
distinct class.
This case meets all elements of an Equal Protection
Violation.
The deviation was substantial because all
such Christians were excused and those who made it into
the court house were excused by the judge even though
they indicated they intended to follow their oaths.
deviation is 100%.
The
Last, the disparity was created
solely as the result of intentional practices that were
aimed at this specific protected classification. The
State
excused
these
jurors
not
because
of
an
inconvenience, such as child care, but only because of
their religion, a class based characteristic.
Indeed,
the prosecutor asked the Jury Commissioner whether she
purposefully excluded any religion denominations only to
hear
her
state
she
indeed
21
did
automatically
exclude
Jehovah Witnesses or Seventh Day Adventists on religious
grounds.
Vol. III, Part 2, Tab S, at 41.
This case is governed by Alexander v. Louisiana, 405
U.S.
625,
630-31
(1972).
In
Alexander,
the
jury
commissioner was able to see from what was marked on the
returns which potential jurors were Negro.
There was no
evidence of any intentional elimination of such jurors,
but, there was a substantial deviation between those
selected compared to the Negro population.
The Court
held the deviation alone created a prima facie case of
discrimination shifting the burden to the State to show
discrimination was not a factor.
prima
facie
case
of
Id. at 631-32 (“Once a
invidious
discrimination
is
established, the burden of proof shifts to the State to
rebut the presumption of unconstitutional action * *
*.”).
The Alexander Court held the jury commissioner’s
testimony that race was never taken into consideration
was not dispositive:
The Court has squarely held, however,
that affirmations of good faith in
making
individual
selections
are
22
insufficient to dispel a prima facie
case of systematic exclusion. ‘The
result bespeaks discrimination, whether
or not it was a conscious decision on
the
part
of
any
individual
jury
commissioner.’ Hernandez v. Texas, 347
U.S., at 482.
Id.
at
632
(internal
citations
omitted).
Whereas
in
Alexander there was no evidence of intentional exclusion
and the case depended on shifting burdens and rebutting
a
prima
facie
case,
in
the
present
case,
the
jury
commissioner openly admitted she excused jurors because
of their religious beliefs.
tried
to
rebut
the
The State cannot and has not
evidence.
Therefore,
the
State
violated the Equal Protection clause.
C.
THE STATE VIOLATED BATSON
The State argues the prosecutor’s proffered reasons
for striking the two Hispanic jurors, Ms. Pethers (nee,
Garcia)
and
plausible.
Mr.
Alvarado,
However,
the
were
State
race
neutral
discusses
only
and
the
prosecutor’s second set of explanations for why he struck
Ms. Pethers while it ignores the prosecutor’s initial
denials and explanations.
The state courts and district
court committed the same error and unreasonably found the
23
facts. The State also provides a limited juror comparison
analysis that is rebutted by the record.
The prosecutor initially explained the reason for
striking Ms. Pethers by stating, “I don't believe that
she is a Hispanic. * * * I don't recall if she appeared
to talk Hispanic to me.” E.R.
20-21.
Vol. IV, Part 1, Tab C, at
The State’s belief that a juror had to “talk
Hispanic”
for
Batson
to
apply
is
clearly
erroneous.
Batson applies to the purposeful striking of Hispanics
even if the prosecutor can argue that they “talk white.”
Moreover,
defense
counsel
pointed
out
the
juror
identified herself as Hispanic on the jury questionnaire
and that she had stated “Garcia” was her maiden name.
Id. at 21. Prosecutor read the jury questionnaire.
The prosecutor then stated being named “Garcia” did
not make the juror Hispanic, “as opposed to Spanish.”
Id. The prosecutor’s attempt to argue the name “Garcia”
sounded to him like Spanish, instead of Hispanic was
specious.
Arguing the juror bears a Spanish name, of
unknown origin, in the present case so that the strike
was race neutral and not geared toward Hispanics, is like
24
the prosecutor’s arguing in Kesser v. Cambra, 465 F.3d
351, 357 (9th Cir. 2006), that a brown skinned woman he
struck was “of unknown origin” and, therefore, the strike
was not geared at Native Americans.
The Ninth Circuit
rejected this argument as facially unpersuasive.
Id.
The prosecutor then retreated from his position of
not allegedly believing Ms. Pethers was Hispanic, that
she did not indicate she was Hispanic, that she did not
“talk Hispanic,” that she was Spanish, not Hispanic, and
that he apparently was completely unfamiliar with her.
Instead,
he
suddenly
revealed
he
actually
was
well
acquainted with her because his office had prosecuted her
mother
and
uncle
for
alleged
drug
violations.
The
prosecutor’s statement that he in reality knew not just
who she was, but also who her mother was, and who her
uncle was, and “the people around them,” shows he knew
about her and her family background all along.
His
earlier denials of not knowing her were not credible
which makes his subsequent “race neutral” explanations
dubious.
25
The prosecutor followed the above denials by then
making a series of inconsistent “race neutral” statements
to justify his strike of this Hispanic juror, by (1)
stating there was a major drug investigation into Mrs.
Garcia, but he then hedges that with, “If I understand
[correctly],” (2) stating the defendants went to jail for
a time, but then hedges that with he is not sure about
Mrs.
Garcia,
(3)
stating
and
basically
agreeing
the
charges against Mrs. Garcia actually were dismissed, (4)
then switching to claiming there was a negotiated deal,
and (5) he then backs off of that too, by saying he is
not positive or sure even about that. Id. at 21-22. The
statement shows the prosecutor had little information on
the
prosecution,
appeared
to
be
embellishing
what
happened, followed by then quickly and repeatedly backing
off his representations implying he was not sure what
happened.
The prosecutor was fishing for an excuse for
having struck her.
Moreover, by freely talking about
Mrs. Garcia by name, he was acknowledging he knew all
along that Juror Pethers was a Garcia, just as she
identified herself on her questionnaire.
26
The defendants
responded to the prosecutor’s contradictory soliloquy by
noting it was not persuasive and was contrary to the
record.
See Supplemental E.R., at 22-23.
Moreover, after the lawyers had passed the panel for
cause,
the
prosecutor
requested
a
break
to
prepare
peremptory strikes and noted the judge did not “have to
be there for it, unless we get into a Batson problem.”
Id. at 17:7-10 (filed on 4-15-10).
The prosecutor’s
suggestion of a possible Batson issue implies he already
planned on striking the Hispanic jurors.
If there were
no Hispanics on the jury, he never would have thought
about Batson.
It also shows that if he had Batson in
mind,
also
then
he
would
have
been
mindful
whether
striking a particular juror might draw a Batson challenge
and he would have reviewed the jury questionnaires and
known who was and was not Hispanic.
Indeed, he asked for
the adjournment to review the information on those he
considered striking.
At this third stage of the inquiry, “implausible or
fantastic justifications may (and probably will) be found
to be pretexts for purposeful discrimination.”
27
Purkett
v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
No where
in
court’s
the
state
court’s
opinion,
the
district
opinion, or the State’s brief is there any discussion of
the prosecutor’s contradictory statements.
courts unreasonably found the facts.
The state
The explanations
were implausible and pretexts.
A comparison of nonstruck white jurors also shows the
explanation was pretextual.
U.S. 231, 239 (2005).
Miller-El v. Dretke, 545
Ms. Pethers testified her mother’s
case was quickly dismissed and it would have no affect on
her ability to be fair.
E.R. Vol. IV, Part 1, Tab C, at
80-81. The prosecutor asked no questions at all. At the
same time, Tina Marie Bonsang, who is white, stated that
her
brother-in-law
was
even
then
actively
being
prosecuted by the County Attorney for driving under the
influence
(DUI)
and
one
of
Roger
Murray’s
defense
attorneys was representing the brother-in-law on that
charge.
Id. Tab A, at 46-47, 51.
DUI, but a series of them.
juror.
Id.
Id. Tab C, at 26.
28
It was not just one
Ms. Bonsang served as a
The State argues Juror Bonsang would be less likely
to be biased than Juror Pethers because Ms. Bonsang’s
brother’s offense was a series of DUIs, whereas Ms.
Pether’s mother faced a major drug charge.
According to
the State, that difference would make Ms. Pethers biased,
but not Ms. Bonsang.
The State’s argument is specious.
The charges in Mrs. Garcia’s case were dismissed.
In
contrast, a series of drunk driving offenses results in
a long sentence.
Ariz. Rev. Stat. §§ 28-1381 to -1384.
If there were going to be a bias, the more serious one is
with Ms. Bonsang where there is certain jail time, not
with Ms. Pethers where the system worked and the charges
quickly dismissed.
The cases cited by the State and district court that
justify the dismissal of jurors with relatives who have
been convicted do not apply to Ms. Pethers as there was
no conviction.
They do apply to Ms. Bonsang.
Moreover,
Ms. Bonsang’s bias would be exacerbated by the fact the
same defense attorney who was representing Bonsang’s
relative on his latest DUI also was representing the
current defendant. A prosecutor would fear Juror Bonsang
29
might not want to upset her brother-in-law’s lawyer by
voting to convict the lawyer’s current client.
Yet, the
prosecutor did not strike her.
Another
juror,
Mr.
Ellis
had
a
actually was convicted of drug charges.
Tab B, at 29.
son-in-law
who
Vol. IV, Part 1,
After arguing a prosecution for drugs
would more likely bias a juror compared to a series of
DUI
prosecutions,
the
State
then
argues
Juror
Ellis
however would not be biased like Ms. Pethers, because he
said he would not be.
The State ignores that Ms. Pethers
also stated she would not be biased and the Garcia case
already was dismissed.
It could not hearten Mr. Ellis’s
concern for his daughter’s family to think his daughter’s
husband could be jail bound.
The State borrows the
district court’s claim that Mr. Ellis and Ms. Pethers
were not similarly situated because Mr. Ellis said his
son-in-law got off “too easy.” Yet, the record shows Ms.
Pethers
never
said
anything
different.
Why
assume
a
Hispanic woman would feel different from the white male
juror.
30
The district court cited case law justifying the
dismissing of a juror whose relative was convicted, even
though Mrs. Garcia was not convicted, but the district
court did not apply that case law to Mr. Ellis where
there was a conviction.
The cited case law supports Mr.
Murray’s position that the State’s explanation was not
credible and it applied different standards to who to
strike, that were race based.
The
State’s
arguing
that,
Ellis’s
relative
was
convicted for drugs, but Ellis said he could be fair and
that Bonsang’s relative was convicted of a series of
DUIs, but drugs are worse than alcohol, attempts to split
fine hairs on whether the jurors are similarly situated.
The
Supreme
Court
has
held,
“A
per
se
rule
that
a
defendant cannot win a Batson claim unless there is an
exactly
identical
white
juror
would
leave
Batson
inoperable; potential jurors are not products of a set of
cookie cutters.”
n.6.
Miller-El v. Dretke, 545 U.S. at 247
The most that can be inferred from the distinction
the State argues is that Hispanics who have relatives
allegedly into drugs or alcohol abuse are more biased
31
than non-Hispanics with relatives into drugs or alcohol
abuse.
“If a prosecutor’s proffered reason for striking a
[minority] panelist applies just as well to an otherwisesimilar [non-minority] who is permitted to serve, that is
evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.”
at 241.
Miller-El, 545 U.S.
The prosecutor’s claim of not knowing the juror
was Hispanic was disingenuous to begin with, he followed
it
with
a
series
of
contradictory
allegations,
and,
finally, he offered a reason that actually applied with
greater force to white jurors who he did not strike.
Therefore, the reasons were pretextual for striking Juror
Pethers.
The same analysis applies to the peremptory strike
used against the only other Hispanic, Mr. Alvarado.
The
prosecutor stated he struck Mr. Alvarado because Mr.
Alvarado was “too nice” and “you couldn’t get him to
disagree with you” and “He is just indecisive” which
would interfere with Mr. Alvarado’s ability to disagree
with or hurt anybody.
Supplemental E.R., at 22. A review
32
of the voir dire transcript shows the proffered reason is
pretextual.
For example, the prosecutor felt his case
was so strong, his only offer to defendants was first
degree
murder
(a.k.a.,
the
death
penalty).
If
the
prosecutor really thought Mr. Alvarado was not one to
disagree, the prosecutor would have wanted Mr. Alvarado
on the jury as he would be less likely, in the face of
such evidence, to hold out for an acquittal.
In Snyder v. Louisiana, 552 U.S. 472 (2008), the
prosecutor argued he struck a black juror because the
juror had a busy schedule which might make him rush to
vote for a lesser included offense just to avoid the
penalty phase.
The Supreme Court held the prosecutor’s
logic was “highly speculative.”
The Court concluded that
if the juror wanted to rush to decision, he would be more
inclined to agree with those wanting a first degree
murder verdict.
The same is true in the present case.
If Mr. Alvarado was not one to disagree, he would go with
the crowd and vote in favor of what the State (and the
district court) assessed as overwhelming evidence of
guilt.
Also, there was no lesser included offense in
33
this case, so the only other option besides first degree
murder was acquittal, which would mean having to be even
more of a strong headed, disagreeable person.
The Snyder Court also noted there were a number of
white
jurors
who
also
had
busy
schedules
whom
the
prosecutor did not strike which was strong circumstantial
evidence of racial involvement in striking the minority
juror.
In the present case, comparative analysis of who
was struck and what they said in voir dire and who was
not struck and what they said is revealing.
Nelson
and
Anderson
both
stated
on
their
Jurors
jury
questionnaires that they would have a hard time judging
the guilt or innocence of a defendant.
Vol. IV, part 1,
tab B at 68; id. at 141. Although these jurors to varying
degrees backed off from their questionnaire answers on
examination, if the prosecutor was concerned that a juror
might be “indecisive” in reaching a verdict, he had
written evidence with these jurors.
They both served on
the jury.
The voir dire of Juror Nelson is telling.
When asked
whether she could sit in judgment and make a decision,
34
she testified, “Well, I would hope I’d be able to make a
decision, yes.”
swayed
by
Id. at 69.
others
to
She then agreed she might be
change
her
mind
on
guilt
or
innocence, even if she had decided to vote otherwise.
Id.
The prosecutor did not strike her even though her
answers suggested that she could be indecisive, that she
might not want to be too disagreeable with other jurors,
and that sitting in judgment of others was, at least to
some extent, challenging.
In contrast, the Hispanic juror, Mr. Alvarado never
suggested he would hesitate to pass judgment.
To the
contrary, he testified he had read about the murder in
the paper which he thought was, as he described it,
“execution style.”
Id. tab A at 71.
He also testified
he believed criminals are treated too soft.
Id. at 74.
He even knew the County Attorney and used to cut his hair
for years when he had a barber shop in Phoenix.
73:17-25.
Id. at
He testified decisively that he would listen
carefully and render a verdict based on the evidence.
Id. at 73.
to
keep
Between the choices, a prosecutor would want
the
juror
who
had
35
read
the
inflammatory
publicity, who had had an ongoing and thus successful
financial relationship with the County Attorney, who
thought the system was too easy on criminals, and who
promised to go with the evidence compared to jurors who
stated in writing that it might be a challenge to judge
others.
The prosecutor’s concern about whether Mr. Alvarado
might be unwilling to disagree with others is further
shown to be a pretext when compared to Juror Bonsang who
had to pick up her children each day by 6:00 p.m. in Lake
Havasu.
Id. at 48.
It was a one hour drive from Kingman
to Lake Havasu and court was scheduled to let out at 5:00
p.m., making it a close call on whether she would get to
Lake Havasu on time.
Id.
Juror Bonsang, who was unable
to stay late and debate issues, would be more apt to
agree with other jurors to quickly reach a verdict,
compared to Mr. Alvarado who was unemployed.
Id. at 71.
Last, the prosecutor’s assessment that Mr. Alvarado was
“too nice,” and that he would not want to hurt anyone,
actually expresses the historical and stereotypical voir
36
dire premise that minorities resist the harshness of
criminal law.
The proffered reason for this strike is implausible
when
looking
at
the
reason
in
light
of
the
record
(prosecutor claims juror too agreeable when evidence is
allegedly
overwhelming),
in
light
of
the
historical
context for such assertions (Hispanic too nice and thus
not amenable to law and order arguments), and in light of
the prosecutor’s not striking other jurors who better fit
the prosecutor’s concern (non-Hispanic jurors not struck
despite
evidencing
indecisiveness).
The
evidence
of
pretext in striking one juror is to be considered in
assessing the reason the prosecutor struck the other
juror.
Thus, the pretext for striking Ms. Pethers is
weighed against the State in striking Mr. Alvarado, and
vice-a-versa.
The
Snyder
court
concluded
once
the
proffered reason for striking a juror was not logical,
the reasons had to be deemed pretextual, which created
the proof by inference that the striking of the juror was
based on discrimination.
case.
The same is true in the present
The State’s reasons were not logical and therefore
37
are
deemed
pretextual,
which
creates
the
proof
by
inference of discrimination.
D.
THE TRIAL COURT VIOLATED DUE PROCESS BY DENYING
AN INSPECTION OF THE CRIME SCENE
Mr. Murray will rely on his arguments set forth in
his opening brief as he respectfully submits the State’s
brief did not facially rebut those arguments.
E.
THE FAILURE TO INSTRUCT THE JURY ON INTOXICATION
VIOLATED DUE PROCESS
Mr. Murray will rely on his arguments set forth in
his opening brief as he respectfully submits the State’s
brief did not facially rebut those arguments.
F.
THE FAILURE TO INSTRUCT THE JURY ON A LESSER
INCLUDED OFFENSE VIOLATED DUE PROCESS
Mr. Murray will rely on his arguments set forth in
his opening brief as he respectfully submits the State’s
brief did not facially rebut those arguments.
G.
THE STATE COURTS’ FAILURE TO DEEM MITIGATION
APPLICABLE UNLESS IT CAUSED THE OFFENSE VIOLATED
EDDINGS v. OKLAHOMA AND DUE PROCESS
The trial court found Mr. Murray’s dysfunctional
childhood was not a statutory mitigating factor because
the crime did not occur by “impulse.”
38
E.R. Vol. V, Part
2, Tab H, at 91-92.
The court also concluded such
evidence as independent mitigation could not outweigh the
aggravating factors.
Id. at 96. Mr. Murray argued on
direct appeal that the trial court’s foregoing analysis
and conclusion violated Eddings v. Oklahoma, 455 U.S. 104
(1982) in that it failed to properly consider or weigh
the mitigating evidence of Mr. Murray’s childhood because
it did not cause the crime.
E.R. Vol. VI, Tab A, at 54.
The Arizona Supreme Court too rejected the mitigation
evidence because Mr. Murray “fail[ed] to show how this
background
impacted
Junction.”
State v. Murray, 184 Ariz. 9, 44, 906 P.2d
542, 577 (1995).
his
behavior
at
Grasshopper
The court held, “Family background is
a mitigating circumstance only if a defendant can show
that something in that background had an effect or impact
on his behavior that was beyond the defendant’s control.”
Id.
The State’s argument that Mr. Murray did not raise
the Eddings issue on appeal is simply incorrect.
The State’s argument that the Eddings issue was not
presented to the district court also is incorrect.
See,
e.g., Traverse E.R. Vol. I, part 2, tab F, at 30-31
39
(extensively
arguing
Eddings
issue).
Indeed,
the
district court ruled on the issue, although it held the
issue was precluded because it was the Arizona Supreme
Court that allegedly committed the Eddings error, and
that Mr. Murray therefore had to present the Eddings
error in a motion for reconsideration, which did not
occur.
Mr. Murray agrees that if a state supreme court
commits the error, a motion for reconsideration is the
correct procedure.
In this case, however, Mr. Murray’s
state appellant’s brief makes clear it was the trial
court that committed the Eddings error: the appellate
court merely affirmed the trial court.
Therefore, the
issue
no
was
presented
and
affirmed
and
motion
for
reconsideration is necessary.
A motion for reconsideration is necessary in cases
like Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008) in
which
the
Arizona
Supreme
Court
aggravating
factor,
but
did
then
invalidated
not
aggravating and mitigating circumstances.
state
supreme
court
committed
the
reweighing, not the state trial court.
40
reweigh
an
the
Clearly, the
error
of
not
The Ninth Circuit
ruled
the
because
a
reweighing
motion
error
for
issue
was
reconsideration
appellate court’s error.
Id. at 1034.
then
Supreme
held
the
Arizona
not
precluded
addressed
the
The Ninth Circuit
Court’s
ruling
that
mitigation is only weighed when it causes the crime was
unconstitutional.
The district court, in the present
case,
Styers
misconstrues
as
holding
a
motion
for
reconsideration must be filed to preserve an argument
that mitigation evidence was not considered because it
did not cause the crime.
However, the Styers holding on
this point clearly does not apply when the state supreme
court merely affirmed the trial court’s legal error.
Therefore, this issue was presented on direct appeal,
affirmed, and is not precluded.
In Styers, the Ninth Circuit granted relief because
the Arizona Supreme Court held the mitigation factor of
post-traumatic stress disorder would not be considered in
balancing, since it was not a cause of the crime.
The
ruling
v.
was
in
direct
contradiction
to
Eddings
Oklahoma, 455 U.S. 104, 115-16 (1982) and its progeny.
Styers, 547 F.3d at 1035 (“[T]he Arizona Supreme Court
41
appears to have imposed a test directly contrary to the
constitutional requirement that all relevant mitigating
evidence be considered by the sentencing body.
Smith v.
Texas, 543 U.S. 37, 45 (2004) (citing Eddings * * *).”).
The Arizona Supreme Court in the case sub judice, made
the same ruling in affirming the trial court’s view that
the mitigation was unavailing and that there was no
impulse at the crime scene. The application of mitigating
evidence is unconstitutional.
H.
THE FRACTURED RELATIONSHIP VIOLATED THE RIGHT TO
COUNSEL
The
state
courts
ruled
Mr.
Murray’s
fractured
relationship argument was precluded by not being raised
on direct appeal.
However, this state procedural rule is
not an independent and adequate bar to federal review
because it was not firmly established at the time of the
appeal that such claims were to be brought on direct
appeal. Relying on a superceded district court order, the
State
argues
Mr.
Murray
waived
his
“independent
adequate bar” argument in the district court.
and
The State
is incorrect. Initially, the district court inexplicably
42
did rule that Mr. Murray first argued the independent and
adequate bar issue in his motion for an evidentiary
hearing and “because Petitioner did not include that
argument in the Traverse, it is waived and will not be
reviewed by the Court.” E.R. Vol. I, Part 2, Tab H at
17:24-28.
Mr.
Murray
quickly
filed
a
motion
for
reconsideration showing that his Traverse devoted five
pages of argument to the issue.
Why the district court
thought the argument was not in the Traverse is unknown.
In any case, the district court reversed itself and
reviewed the issue on the merits. Id. Tab J, at 4. Thus,
it was presented below. The district court did not apply
the
law
governing
“independent
and
adequate”
jurisprudence and ruled the fractured relationship issue
was precluded.
Whether a state rule is an independent and adequate
bar to federal review is a federal question for the
federal courts. Lee v. Kemma, 534 U.S. 362, 375 (2002).
To be “adequate,” the procedural rule must be firmly
established and consistently applied by the state court
at the time it is being applied to the case sub judice.
43
Johnson v. Mississippi, 486 U.S. 578, 587 (1988).
If the
rule or law is applied inconsistently, then the respect
owed to the state court is eliminated and, in
such
circumstances, a federal court may reach the underlying
federal
issue
without
improperly
impinging
upon
the
State's adjudicatory authority. Wainwright v. Sykes, 433
U.S. 72, 85-86 (1977); Lee, 534 U.S. at 375-76.
The consistency with which a rule is applied concerns
three factors: (1) whether application of the procedural
rule is "unmistakable"; (2) whether the state supreme
court did not address the merits of the claim; and (3)
whether judicial application of the procedural rule is
consistent in similar instances.
Docter v. Walters, 96
F.3d 675, 683-84 (3d Cir. 1996); see also Wainwright 433
U.S. at 85-86.
A failure of any of these factors renders
the procedural rule inadequate to bar habeas review.
Docter, 96 F.3d at 683-84.
In this case, the State’s
preclusion argument fails because of the first and third
factors as (1) application of a procedural bar was not
unmistakable and (2) similar ineffective assistance of
counsel
(“IAC”)
claims
typically
44
were
presented
via
postconviction relief (“PCR”) petitions, leading a lawyer
to believe the same would be true for analogous fractured
relationship claims.
In 1994, when Mr. Murray was filing his opening
appellate brief, even state procedural bars of IAC claims
were not adequate.
In Lambright v. Stewart, 241 F.3d
1201 (9th Cir. 2001), the Ninth Circuit held that how to
present an ineffective assistance of counsel claim was
“‘so
unclear
that
it
d[id]
not
provide
the
habeas
petitioner with a fair opportunity to seek relief in
state court.'"
Id. at 1202 (quoting Morales v. Calderon,
85 F.3d 1387, 1390 (9th Cir. 1996). Subsequently, the
Arizona Supreme Court, in State v. Spreitz, 202 Ariz. 1,
2-3, 39 P.3d 525, 526-27 (2002), conceded its "rule 32
waters"
on
this
point
were
"murky"
and
therefore
clarified that PCR petitions were the correct vehicle to
use.
Cases already in existence at the time of Mr.
Murray’s appeal, however, also showed such claims were to
be presented by PCR petition and not direct appeal.
See
e.g., State v. Valdez, 160 Ariz. 9, 14-15, 770 P.2d 313,
318-19 (1989).
45
The district court erroneously rejected Mr. Murray’s
independent and adequate bar argument by relying on three
cases
in
which
fractured
directly appealed.
relationship
claims
were
Not only do none of those three cases
hold that direct appeal was the required procedure, but
two of those cases came long after Mr. Murray filed his
opening brief to the Arizona Supreme Court in 1994 and
thus they could not serve to show what was an independent
and adequate bar.
The district court legally erred in
relying on those subsequent cases.
Johnson, 486 U.S. at
587 (question is, was rule “firmly established” when
petitioner allegedly violated it).
The Spreitz court
cites to a multitude of cases where IAC claims were
addressed on direct appeal.
39 P.2d at 526-27.
Spreitz, 202 Ariz. at 2-3,
The court made clear that that did
not mean presenting an IAC claim on direct appeal was
firmly established as unmistakable application.
Id.
Mr. Murray could not raise any issue on direct appeal
outside of the trial record.
State v. Pearson, 98 Ariz.
133, 137 (1965) (“assignments of error based on the
conduct or remarks of a trial judge will not be reviewed
46
on appeal where they are not properly supported by the
record”); State v. Lindsay, 5 Ariz. App. 516, 518 (App.
1967) (“The record before this Court is very meager, and
it has been stated repeatedly that the appellate court
will consider and review only those matters which appear
in the record before it and will not consider those
matters not properly supported by the record”).
The PCR
rule’s purpose is to establish proceedings to determine
the
facts
which
underlie
the
petitioner’s
claim
for
relief when such facts are not otherwise fully available
in the trial record.
When an issue needs evidentiary
development, the PCR rule is the obvious procedure.
PCR
counsel
the
submitted
several
affidavits
to
develop
claim, which evidence could not have been submitted on
direct appeal.
E.R. Vol. VI, Tab E, Exhibits 1-5.
A
lawyer needing evidentiary development, thus, must file
a
PCR
petition.
Indeed,
IAC
claims
and
fractured
relationship claims both are sixth amendment right to
counsel claims.
State v. Torres, 208 Ariz. 340, 342, 93
P.2d 1056, 1058 (2004) (“[W]hen there is a complete
breakdown in communication or an irreconcilable conflict
47
between
a
defendant
and
his
appointed
counsel,
that
defendant’s sixth amendment right to counsel has been
violated).”
It was only in Torres in 2004 that the Arizona
Supreme Court established the definitive and unmistakable
procedure for presenting fractured relationship claims
and
it
fully
development,
agreed
such
claims
although
it
adopted
postconviction evidentiary remand.
at 1062.
need
a
evidentiary
new
path
of
Id. at 344, 93 P.3d
Torres held that when a trial court does not
hold a hearing on a fractured relationship claim, the
appellate court must remand to the trial court for a
postconviction
evidentiary
hearing.
Id.
The
postconviction evidentiary hearing is conducted by the
trial court just like a PCR hearing would be, but it is
not yet in the postconviction relief posture because the
direct appeal is not yet final.
Clearly, Mr. Murray and
his counsel were correct all along that a fractured
relationship claim needs evidentiary development by the
trial court, postconviction.
be a PCR petition.
48
Prior to Torres, this would
The Torres court went to lengths to show how the new
procedure was similar to IAC claims and it counseled
courts not to confuse the two.
1061.
Id. at 345, 93 P.3d at
The court noted the “quality of counsel” factor
normally
should
not
be
considered
at
the
fractured
relationship hearing because the claim “generally relates
more to a claim of ineffective assistance of counsel
which we have since concluded must be raised in a rule 32
proceeding.”
542,
547,
Id.; see also State v. Henry, 189 Ariz.
944
P.2d
57,
62
(1997)
(finding
that
a
disagreement over tactical decisions is more properly
analyzed in a PCR proceeding).
The Torres and Henry
cases demonstrate the fine line between the claims.
Torres
court
also
counseled
trial
courts
to
The
avoid
combining fractured relationship claims and IAC claims
into
one
hearing
as
is
done
in
some
jurisdictions.
Torres, 208 Ariz. at 345, 93 P.3d at 1061.
Accordingly,
there was no independent and adequate bar at the time of
the direct appeal.
The State’s brief devotes two sentences to the merits
of the claim by arguing the only conflict Mr. Murray
49
alleges
is
that
his
counsel
slept
through
trial.
However, Mr. Murray’s opening brief detailed not only how
Mr. Dickey would fall asleep at the jail, but also how
Mr. Dickey did nothing on the case until a month before
trial.
He showed a complete lack of interest in the
case.
The more Mr. Murray complained, the less Mr.
Dickey responded.
After attending a leading seminar on
how to defend capital cases, counsel suddenly awoke and
admitted to the court he had not prepared the case.
The trial court refused to appoint a death penalty
qualified attorney as cocounsel and instead appointed
fellow
Deputy
Public
Defender
Gerald
received his law license six months
allowed
Mr.
Gavin
to
conduct
inexperience showed through.
Gavin
earlier.
voir
dire
who
had
Mr. Dickey
where
his
For example, when neither
the court, nor the prosecutor had further questions for
Juror McCall, Mr. Gavin raised the issue of the juror’s
religious scruples resulting in the court’s dismissing
the juror for cause.
Vol. IV, Part 1, Tab A, at 81.
Conversely, Juror Adams reported his mother was mugged.
Not only did the present case concern attacking elderly
50
persons, but the press had been reporting the Murrays
were wanted in Alabama for mugging an elderly lady and
Mr. Adams admitted hearing news reports about the case on
the way to the court house.
Mr. Gavin never thought to
challenge for cause and Mr. Adams sat on the jury.
Id.,
Tab B, at 136.
The appointment of a second lawyer did not resolve
the conflict or help in any way to prepare the case.
For
example, in February 1992, Mr. Dickey stated he still
needed to interview many witnesses including critical eye
witnesses.
E.R. Vol. III, Part 1, Tab J, at 3.
He
repeated the point in April. Id. Part 2, Tab L, at 17-18.
By the time of trial in May, counsel still had not
interviewed them and never called them to testify even
though their testimony would have identified others.
The
ongoing inactivity meant counsel went to trial without
experts, without the critical eye witness, without even
a story of what happened.
After
his
conviction
and
before
sentencing,
Mr.
Murray asked the Court to fire his attorneys stating
there was a conflict.
E.R. Vol. V, Part 1, Tab C at 21;
51
see also E.R. Vol. VI, Part 1, Tab E, (several affidavits
outlining the irreconcilable conflict). As a consequence
of this conflict, Mr. Dickey never undertook mitigation
for the sentencing hearing to learn about his client
which ruined Mr. Murray’s chance to avoid the death
penalty.
Mr.
Dickey’s
never
trying
to
resolve
the
conflict meant he never learned Mr. Murray was repeatedly
sexually abused and sodomized by an uncle when Mr. Murray
was only 8 years old.
E.R. Vol. I, Part 1, Tab D.
Instead of nurturing a relationship and discovering his
client’s brutal past, Mr. Dickey put on the “nice boy”
defense to convince the sentencer that Mr. Murray is
“kind to animals and doesn’t commit crimes with his
family looking.”
Ainsworth v. Woodford, 268 F.3d 868,
874 (9th Cir. 2004) (reversing for ineffective assistance
of
counsel
in
not
showing
defendant’s
disturbing
childhood); see also Williams v. Taylor, 529 U.S. 362
(2000) (same).
Mr. Murray himself never would have thought to talk
about what he kept hidden, covered by anger.
Young boys
who are raped become violent menaces to society, despite
52
themselves.
During
federal
habeas
Murray retained Dr. David Lisak.
proceedings,
Mr.
A cursory google search
of Dr. Lisak reveals he is the authority on how boys who
are sexually abused grow up to be violent men.1
The
district court refused to fund Dr. Lisak’s services.
Dr.
Lisak
the
opines
that
trial
counsel
must
identify
existence of the abuse issue and then seek professional
services.
E.R. Vol. I, Part 1, Tab D.
Mr. Dickey never
could do that because of the fractured relationship. Yet,
this evidence would have been powerful mitigation.
In
light of the foregoing, the fractured relationship denied
Mr. Murray assistance of counsel.
The evidence shows Mr. Murray has not sought to
change his appellate counsel, his PCR counsel, or his
habeas
counsel.
requests.
He
is
completely
compliant
in
all
His conflict was only with trial counsel.
The
fractured relationship deserved an evidentiary hearing
that he did not get.
1
In light of the foregoing, this
See, e.g., Dr.Lisak,
http://www.umb.edu/academics/cla/dept/psychology/facult
y/lisak.html
53
court should remand this claim to the district court for
a Torres hearing.
I.
THERE WAS NO FAIR HEARING ON THE SLEEPING LAWYER
SIXTH AMENDMENT VIOLATION
Mr. Murray will rely on his arguments set forth in
his opening brief, as he respectfully submits the State’s
brief did not rebut those arguments.
J.
COUNSEL WAS INEFFECTIVE IN NOT CALLING AN EYE
WITNESS
The State’s brief ignores Lord v. Wood, 184 F.3d 1083
(9th Cir. 1999) and the facts detailed in Mr. Murray’s
brief outlining the prejudice of counsel’s not calling
the eye witness and his wife.
Mr. Murray will rely on
his arguments set forth in his opening brief, as he
respectfully submits the State’s brief did not rebut
those arguments.
K.
ROBERT MURRAY’S CLAIMS
Roger Murray incorporates by reference any and all
claims made in Robert Murray’s appeal.
54
CONCLUSION
WHEREFORE, for all the reasons noted herein, Murray
respectfully
requests
that
this
Court
reverse
the
district court.
CERTIFICATE OF COMPLIANCE
Certificate of Compliance to Fed. R. App. 32(a)(7)
and Circuit Rule 32-1 for case number 08-99013.
I certify that this brief is being filed in a capital
case pursuant to the type-volume limitation set forth at
Circuit Rule 32-4 and is proportionately spaced, has a
typeface of 14 points or more and contains 9732 words.
April 15, 2010
Date
s/
John E. Charland
55
CERTIFICATE OF SERVICE
I
hereby
certify
that
on
April
15,
2010,
I
electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF System.
I certify that all participants in the case are
registered
CM/ECF
users
and
that
service
accomplished by the appellate CM/ECF system.
s/
John E. Charland
56
will
be
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