Petition — ANTHONY R. PEEK V. FLORIDA (No. 82-5909)

“RECEIVED

DEC17 1982

Orrwc UF tric Cicnd

SUPREME COURT, U.S.

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Case No.

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PAGE NO.

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U.S. v. Morgan, 346 U.S. 502 (1954).....sesereeceerenresneeees

U.S. v. Taylor, 648 F.2d 565 (9th Cir. 1981).....-.-eeeeeeeees

Washington v. Texas, 438 U.S. 14 (1967).......0seeeeeseeeeeees

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The opinion and judgment of the Supreme Court of Florida sought to be

reviewed via this petition is an order denying Petitioner's request for leave

to file a petition for error coram nobis. It is reproduced in the appendix

as Item 3 (A46).

The Supreme Court of Florida issued the opinion and judgment in this

case on September 9, 1982 (A46). Petitioner filed a Motion for Rehearing

(A47-A50) which was denied on November 16, 1982 (A5]). Petitioner asserted

below and asserts here a depravation of his rights as guaranteed under the

United States Constitution. Title 28, United States Onde, Section 1257(3),

and Rule 17 of the United States Supreme Court Rules confer certiorari

jurisdiction in this Court to review the judgment in this case.

, Petitioner was sentenced to death on May 2, 1978. The conviction and

sentence were affirmed by a five-two margin of the Florida Supreme Court in Pesk

ake

BEG MR GGG RR MBE BE RR i A ts

¥, State, 395 So.2d 492 (Fla. 1980), cert. denied, 101 S.Ct. 2036 (1981)

_ (attached as Appendix Al - Al5). On Jume 23, 1982, Petitioner filed a re-

quest for leave to file a petition for writ of error coram nobis in the

trial court (attached as Al6 - A45), which was denied by the Florida Suprene

Court without opinion, over tw dissents (attached hereto as A46). The re-

quest was accompanied by two pieces of substantial new evidence, neither of

which existed at the time of trial, and which substantially altered the

weight of the evidence against Petitioner. Petitioner contends that if he

is permitted to present this new evidence, neither the judgment nor sentence

could stand. A rehearing petition (A47-A50) was denied by the Florida

Supreme Court on November 16, 1982 (attached as Append’ x A51).

The State presented three pieces of evidence incriminating Petitioner _

at trial:

1. Blood and seminal fluid stains taken from the victim's pajanas

indicated the presence of type "0" secretor blood. According to the trial

testimony, 33% of the population has type "0" secretor blood, including both

the victim end Petitioner.

2. The victim's car was found the day after the crime at a park ap-

proximately one mile from her residence, and near her place of employment.

Numervus fingerprints were found inside the car, including one on the window

that matched Petitioner's. Petitioner testified that, the mmrning after the

crime, he saw the unlocked car while eating breakfast in the park at which

the car was found, and he decided to “look around.” However, he testified

that there was nothing worth toking, and he left. This fingerprint explains

how Petitioner became a suspect in the crime. It was the only positive

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3. A piece of stocking containing a single fragnent of « strand of negroid

hair was found on the floor of the garage of the victim's home (although the

victim's body was found in the bedroom). fn employee from the Florida De-

noted by the Florida Supreme Court in its opinion, that “various studies by many

persons now working in my field have determined that there is probably no more

than two people out of every ten thousand persons who will exhibit exactly the

game characteristics in their hairs” (R-453). Base | upon documents authored by

the analyst's supervisors, we now know that the hairs exanined were probably mixed

up, and that the comparison was incorrectly done. Also, based upon recent scien-

tific developments, we now know that the statistics relied upon are "grossly in

error."

Petitioner presented an alibi defense which consisted of the records

of the State's halfway house, where Petitioner resided at the time of the

crime, indicating that a bed check was made om the night of the crime and

that all residents, including Petitioner, were “present or accounted for."

Although the Assistant Director of the halfway house could not positively

etate that Petitioner was present because he could have been out on authorized

leave and, therefore, be “accounted for", Petitioner testified that he was

on restriction that evening because he was unemployed and was not permitted

The case against is concededly circun-

. But we are , when considered

in the evidence relating to the matching

fingerprint, the hair the blood and

clude that titio ‘s) Suan proven bape

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reasonable ‘

that the evidence did not prove Respondent's guilt beyond a reasonable

Soe

Because the fingerprint on tle victim's autambile was explained, and

because the blood and sanen could have come from at least one third of the

population, the Linchpin of the State's case was the hair evidence and the

statistical probability of two hairs matching. The jury undoubtedly gave

the “statistical probability” testimony great weight. ‘The prosecutor at-

tached considerable significance to it, and argued it stremously in his

closing argument (R-722-725). Similarly, the State also relied heavily on

these statistical probabilities in its brief filed with the Florida Supreme

Court. This "probability evidence” was clearly the straw that broke the

camel's back in this case of circumstantial evidence.

Through his request for leave to file writ of error coram nobis, Pe-

titioner sought to present tw pieces of newly discovered evidence which

totally destroys the hair evidence and probability statistics presented at

trial. First, some months after the trial, the hair examiner resigned after

receiving an unusually poor employee evaluation. Upon rating the analyst as

"\msatisfactory” in evidence handling (A28), the evaluation states:

Evidence Handling

Evidence | is one of Ms. Bass’ cost problen-

atical areas. does rot @ ee eee

pgs 2 ro blood and semen in the population, and

uncovered condition on a . top overnight

This failure to protec’ the : mackaring tr

tae % *) * & 4 OLVeC Pl € i f e NIV eS a

Via RONG PROBABILITY GF EXTRANEOUS CUNTAMINALIO

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ea ~CLAS LA UL A iy ee

is . i a recent

case, Ms. Bass conducted a

an fexier and a A the conclusion

This strong probability of extraneous contamination

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at that time of y . eoongh moordh pow

see Taek te tas nlemenalgeie O@ eS

protect them by the eis supervisor.

This new evidence raises the “very strong probability of" tampering,

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albeit unintentional, which is crucial in light of the fact thet the loca-

tion of the hair samples was unknown for the six month period beginning with |

its arrival at the crime lab and continuing until the anelysis was performed.

Mbreover, immediately after the analysis, the evidence was lost.

The employee evaluation also raises questions of equal seriousness

regarding the analyst's abilities to perform a hair comparison:

- (Emphasis supplied) (A30).

the analyst lost the hair immediately subsequent to testing and so

there is no opportunity now to go back and demonstrate conclusively that it

wan not consistent with Petitioner's. However, the evaluation shows that

the analyst's repeated failure to properly care for evidence, in the wrds

of the Florida Department of Law Enforcement supervisory personnel, “leaves

a very strong probability of extraneous contamination, cross-contamination

_3/ The Florida Supreme Court held that the State's failure to demon-

to the Court, only where the Defendant proves “probable tampering."

_4/ Scale counting was the method utilized in this case.

qung items, and possible loss of trace evidence." Thus, Petitioner can now

with the evidence. Also, Petitioner can show that the analyst did not have

the abilities to perform a accurate analysis. In a study published several

months after the trial, it was found that one of three inexperienced hair

statistics. At the time of the trial, there was only one experiment in the

field which purported to establish statistical probsbilities for matching

hair. This experiment arrived at a statistical probsbility of 1 in 4500

that two heirs will match. Baged upon this experiment, the analyst testified

in my field have determined thet

subsequent to trial, the author of this experiment significantly qualified

it in further wrk, and conceded that the statistics would not apply to a

case euch as this. Then, in April, 1982, the latest and only other crticle

on the subject concluded that the first experiment was totally incorrect:

In the seven years thet have have lapsed since the publi-

cation of the first article, “contin Gnu’ work

(Emphasis supplied) (A34). ‘Thus, the testimony of the hair witness concerning

probebilities has been completely discredited in the field and Petitioner

alleged below and was prepared to prove that the witness’ statistics are not

relied upon by any other hair experts.

_5/ Petitioner can also show that the witness was seriously mistaken,

in her that the ce consistent with Tetitioner’s heir 2”

30-35 . Gl 25 such characteristics are recognized to ex-

_6/ Petitioner attached the anal: 's affidavit to the coram nobis

cittol ich ovated thet he wae relying upon tiie experince. ae

This simply was not true. However, it was the of the public

to cross-examine on it. He did not. ~

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without opinion, but over two dissents, the Florida Supreme Court

denied Petitioner's request for leave to present these two crucial pieces

cf new evidence -- the employee evaluation and the new probability studies

-- to the trial court for the purposes of either guilt or the appropriateness

of the death sentence.

trial, unless the Florida Supreme Court’ first determines that the new evidence

would “conclusively” have prevented the conviction, violates the Sixth,

Eighth and Fourteenth Amendments to the United States Constitution.

Florida law requires that in order to present new evidence to the trial

court after trial in a criminal case, a petitioner mst first seek leave in

the appellate court which has previously entertained an appeal from the final

judgment in the case and affirmed it by ite mandate. Hallman v. State, 371

So.2d 482 (Fla. 1979). The evidence must be newly discovered ~~ that is, it

did not exist nor could it have been discovered at the time of trial.

Neither the employee evaluation nor the 1982 study existed et the time of

txial in this case,

Next, Florida law requixss that in order to be permitted to present the

new evidence, Petitioner mst show that the new evidence would “conclusively

prevent the entry of judgnent against the Petitioner." Haliman, supra (4-3

majority opinion). Although the Florida Suprene Court did not spacifically

state in the instant case thet its reason for denying Petitioner the relief

he sought was based upon this doctrine, because the evidence did not exist at

the time of trial, the only logical conclusion is that the majority of the

Florida court believed that Petitioner failed to meet this requirenent by

alleging sufficient prejudice. It is this procedural rule of Florida which

Three of the seven justices of the Florida Supreme Court have recognized

the constitutional infirmity in Florida's coram nobis procedure, at least in

death cases. In a partial concurrence and partial dissent in Hallman, these

clusiveness test.' view, the ragid a

of the Ncechuntiocedian sabe" poche oe ig cases

whace: the Gane penetey ee ee ones As Mr.

in Ly, Us ek Bice 430 U.S. 349, 351 (1977),

of punishment Galen. both in its ond £

I believe our failure these

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Id. at 487. The view of the dissenting justices has recently been proved

correct by this Cumt in Eddings v. Oklahoma, 50 U.S.L.W. 4161 (1982), and —

Green v. Georgia, 442 U.S. 95 (1979). In Eddings, this Court held that the

sentencing authority must consider in mitigation any aspect of defendant's

character and any of the circumstances of the offense. Clearly, where rele-

vant and substantial new evidence exists which did rot exist at the time of

trial and could not reasonably have been discovered at the time of trial,

and where that new evidence places in substantial doubt the correctness of

the conviction and sentence, the sentencing authority must be pemmitted to

consider that evidence, if only for the appropriateness of the sentence.

Similarly, in Green v. Georgia, 442 U.S. 95 (1979), this Court held

that a state procedural rule which forbids the sentencing authority in a

death case to consider relevant and reliable evidence violates the Sixth,

Eighth, and Fourteenth Amendments of the United States Constitution. See

Petitioner's Petition for Rehearing before the Florida Supreme Court at 3

(A49) .

The constraints imposed upon state procedural rules by the Constitution

were well analyzed by the Seventh Circuit in Moprris v. isree) 643 F.2d

458, 460-61 (7th Cir. 1981). The Court there explained:

courts. The Federal Constitution, however, imposes a

Cir. 1972); Alices v. Gagnon, 675 F.2d 913, 923 (7th Cir. 1982).

Unquestionably, the State of Florida has an interest in the finality of

its convictions. However, the rumerous decisions of this Court -- Gardner,

Lockett, Green, and Eddings, to name a few -- establish the well-settled pro-

position that imposition of the death sentence is unique, in both its severity

and its finality. Prior to the imposition of a death sentence, a death

sentenced individual mst be permitted to present evidence which, had it

heen available to him at trial, there is a reasonable possibility that the

death penalty would not have been imposed.

In pursuit of its interest in the finality of its convictions and ser

tences, Florida clearly has a right to impose a prejudice standard on @

petitioner seeking to present new evidence after trial. In a motion fur «

new trial under Fed. R. Grim. P. 33 or under Fla. R. Gr. P, 3.600 based

upon newly discovered evidence, a petitioner must show that the newly dis-

covered evidence probably wuld have resulted in acquittal. Ashe v. United

States, 288 F.2d 725, 733 (6th Cir. 1961); Baker v. State, 336 So.24 364

(Fla, 1976). Where navly discovered evidence was available to the prose-

cutor ani rot submitted to the defense, a lesser standard of prejudice mst

be sham. United States v. Agurs, 427 U.S. 112 (1976>. _fee sive Unites

States v. Anderson, 574 F.2d 1347, 1354 (Sth Cir. 1978).

‘The writ of error coram nobis is also used in the f-Jeral system to correct

a grave injustice. ted § , 346 U.S. 502 (1954). When a

coram nobis claim is made, a picteteiac ta euatelat te & heath, et. t2 w-

less the face of the petition clearly shows that he is entitled to no relief,

United State maylor, 648 F.2d 565 (9th Cir. 1981); Quensby v. United States,

oss 9.26 412, 417 (Och Cte. 1965), cert. denied, 383 U.S. 962 (1966), a

standard precisely opposite of Florida's. At the hearing, the case law

seems to suggest that a petitioner has the burden of proof, which, if met,

shifts to the government to show that the error was harmless. E.g., United

tes Gross, 614 F.2d 365 (3rd Cir. 1980).

Despite the general confusion and differing views of the federal courts

on the standard of prejudice which must be shown before post-conviction relief

may be obtained because the trial was tainted, no court, other than the

Florida Supreme Court holds that a petitioner must meet the ultimate burden

of conclusiveness in order to be entitled to a hearing to present his claim.

Such a strict prejudice standard is unconstitutional . The facts of this

case show how strictly that standard is applied in Florida and dewnstrate

ite unconstitutionality.

This issue takes on added significance in light of the recent trend of

trial courts to admit “scientific” evidence on hair and fiber corparisons,

dental comparisons, and mmerous other emerging scientific areas. The art

of science is a changing one. Where scientific evidence is permitted to be

introduced, there must be a reasonable mechanism whereby changes in the

state of the art may also be introduced. The Sixth and Fourteenth Anend-

ments, and the Eighth Amendment in a death case, are all violated where the

State's mechanism to allow the introduction of the latter state of the art

requires such a severe prejudice showing so as to allow for execution where

a reasunable possibility exists that the person would have been aquitted had

the state of science been so advanced at the time of trial. A death penalty

statute is unconstitutionally arbitrary where the same set of facts can be

presented to a jury twice, and yields different results because our scientific

knowledge has advanced, but there is no reasonable mechanism to present the

advances in the case that was tried prior to those advances.

In this case, Petitioner submits that the new evidence is so substantial

that Petitioner would not have been convicted, let alone sentenced to

death, had it been available at the time of trial. After all, without the

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hair evidence, the State's case consisted of a fingerprint found on a car

one mile fram the mirder scene which was explained by Petitioner, and blood

found at the scene consistent with that of the victim, the Petitioner, and

_gpe-third of the population. There seems little doubt that such evidence

would be insufficient to sustain a conviction under the principles of the

United States Constitution eramciated in J: . Virginia, 443 U.S. 307

(1979). But at the very least, Petitioner must be given the right to pre-

sent this evidence where it bears substantially on his innocence as a miti-

gating factor in the sentencing phase.

The distinction draw by Florida between the prejudice that mist be

showm in a motion for a new trial versus a coram nobis petition is an arbitrary

one. There can be no rational basis for a rule which allows new evidence

under certein circumstances within ten days after trial but disallows it

thereafter, where the new evidence happens to come into existence after that

tenth day. No interest of the state is advanced by such a rule and where,

as here, the new evidence did not exist within the ten dey period, a de-

fendant carmot be favlted for failing to find it.

The right to a full and fair state hearing to determine the validity

of a death-sentenced individual's claims is denied by Florida's application

of its coram nobis rule. Petitioners, including the petitioner herein, get

mo opportunity to present their new evidence and prove the incorrectness of

the original judgment. Rather, the state appellate court usurps the deci-

sion of whether coram nobis should issue without the benefit of an eviden-

tiary hearing or a record.

The eclentific evidence at trial in the instant case concerning the

probabilities of matching hairy was based on a lone experiment which has now

been discredited. To deny the Petitioner the cpportunity to show this is to

allow a defendant to be executed based upon scientific propositions of the

caliber that the world is flet, even though we learn that the world is

round prior to the execution. Similarly, we now know from the analyst's

exployee evaluation that there is a high probability that the wrong hairs

were compared and we know fcex certain that the analyst did not have the

requisite skille to perform the analysis. A travesty of justice would occur

if Petitioner is executed without according the trial court the opportunity

to weigh the new evidence.

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