Amicus Curiae Brief — Holmes v. South Carolina

Supreme Court, U.S.

FILED

NOV 3 6 2005

‘or tHE CLERK

No. 04-1327

In the Supreme Court of the United States

BOBBY LEE HOLMES,

Petitioner,

V.

THE STATE OF SOUTH CAROLINA,

Respondent.

On Writ of Certiorari to

the Supreme Court of South Carolina

BRIEF OF THE INNOCENCE PROJECT, INC.

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

BARRY C.SCHECK . ELAINE METLIN

PETER J. NEUFELD Counsel of Record

COLIN P. STARGER «__ANN=MARIE LUCIANO

Innocence Project, Inc. ERIN L. WEBB

100 Fifth Avenue, 3rd Floor ROSS K. KIRSCHNER

New York, NY 10011 Dickstein Shapiro Morin

(212) 364-5357 & Oshinsky LLP

2101 L Street, NW

Washington, DC 20037-1526

(202) 785-9700

Counsel for Amicus Curiae

TABLE OF CONTENTS

OR Cae Fs LINE Bi cteenicintipinitiinintnnepeinsnncevimnitinaties iti

DUT s COE ARGC ATS CURIA 0... ceceescosreccvsccnntostecesosensnescees 1

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I.

SOUTH CAROLINA’S EVIDENTIARY RULE

CANNOT PASS CONSTITUTIONAL MUSTER

WHEN IT EXCLUDES EVIDENCE OF THIRD-

PARTY GUILT THAT DIRECTLY

UNDERMINES THE STRENGTH OF THE

PROSECUTION’S EVIDENCE AGAINST THE

UTED ciiertesisvistnentinsieststhmuititenenecbeiieionestsbicieelnitanaiiseciin 4

A. South Carolina’s Evidentiary Rule Is

Unconstitutional Because It Undermines A

Defendant's Constitutional Right To A Fair

FUE COND ccptenincscsntceuincsscnenihtensnniniiiiaaememmantanmanenvnien S)

1. The Presumption of Innocence ..............:s000 5

STR I Oa 0 Fey TI onic esccesiccsccecncesesees 7

B. The Gregory-Gay Rule, As Interpreted By The

South Carolina Supreme Court, Permits

Exclusion Of Third-Party Guilt Evidence

Even Where The Strength Of The

_ Prosecution’s Evidence Has Been

Undermined By Credible Evidence Of

Fabrication And Contamination ............:sseseeen 9

1. Petitioner's Evidence Significantly

Undermined the Premise of “Strong”

GRID siccninssescsiianiniiassovnpiiatanhatemipuinacnennietiaitiicniiasnes 10

il

Page

a. Third-Party Guilt Evidence ............:008 10

b. Fabrication and Contamination

I 11

2. Application of the Gregory-Gay Rule Is

Particularly Dire When There Is

Evidlence OF Piaritlteg ........sccsosercsssccnscsssecsnesesee 15

Il. ABSENT THIS COURT’S INTERVENTION TO

PROTECT PETITIONER’S CONSTITUTIONAL

RIGHT TO PRESENT A DEFENSE, THERE IS A

SIGNIFICANT RISK THAT AN INNOCENT

MAN WILL BE EXECUTED AND THE ACTUAL

PERPETRATOR WILL REMAIN FREE TO

CONTINUE TO ENDANGER THE PUBLIC .............. 17

A. Christopher Ochoa and Richard Danziger .......... 17

EI ccccisssntccnnstcissisencinrnttnepitcinanientpinateen 18

C. Ronald Williamson and Dennis Fritz ..............0006 19

NE FI eesecicicrninscensiceciccstseasmnsecniinersincnepniiciatating 21

Be . CR eer crccistomnctensitsinincttrssvnsivasieniitheincenshaeiiatiinta 22

FU IS octatnnsnrivocsninninventefecsiniencnseniniimmnenennnmisniiéinin 23

ili

TABLE OF AUTHORITIES

Page

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...........::000+ eats 7

Ball wr. Viale, O61 US. SOO CIGD) oisssisincnsvsscssssesscnsssscosescnsosessce 5

Carella v. California, 491 U.S. 263 (1989) ......ccscseseseseneeseseneees 8

Chamberlain v. Mantello, 954 F. Supp. 499

is Ws OUT Pcinisicietnicntindiainteintiindinienieianesinnanbiiien 15, 16

Coffin v. United States, 156 U.S. 432 (1895) ......ccccssssssssssseeeseeee 5

Cooper v. Brown, 358 F.3d 1117 (9th Cir. 2004)... 13

Duncan v. Louisiana, 391 U.S. 145 (1968)... eecessceseteeeeeees 7

Estelle v. Williams, 425 U.S. 501 (1976) ...ccccccssscssescssssesssseessen 5,6

Godschalk v. Montgomery County District Attorney's

Office, 177 F. Supp. 2d 366 (E.D. Pa. 2001).........ccceeeeeeees 1

Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002)........cccscsseseseseees 1

Morissette v. United States, 342 U.S. 246 (1952) oo... ccceecsesesees 6

Osborne v. District Attorney’s Office for Third Judicial

District, 423 F.3d 1050 (9th Cir. 2005).........ccecseeseeseeeeeees 1

Peek v. State, 488 So. 2d 52 (Fla. 1986) .........cccccessecseseseeeeneneees 16

Sandstrom v. Montana, 442 U.S. 510 (1979) .......ceeceeeeeeee el T

State v. Gay, 541 S.E.2d 541 (S.C. 2001)... eeeeeceeeteeeeeteeeees 4

State v. Gregory, 16 S.E.2d 532 (S.C. 1941) ....cccccecsessesscesseresesrees 4

State v. Holmes, 605 S.E.2d 19 (S.C. 2004), cert. granted

in part, 73 U.S.L.W. 3604 et al. (U.S. Sept. 27, 2005)

REA TREE 4,9,10,11

State v. Hunt, 457 S.E.2d 276 (N.C. 1994)......cccsscesseecseeeeees 21

State v. Lee, 778 So. 2d 656 (La. App. 4 Cir. 1/4/01)............. 15

iv

Page

State v. Munson, 886 P.2d 999 (Okla. Crim. App. 1994) .......15

United States v. Martin Linen Supply Co., 430 U.S. 564

GRIF FD. xcrcocecenrasesscapsorsennsnssesiasinicepsentiniodantealunimemamemelcaaind 8

United States v. U.S. Gypsum Co., 438 U.S. 422 (1978).........4. 7

Williamson v. Reynolds, 904 F. Supp. 1529

GREED: CIT, BMD ceercesnsssotcccivicsoicanssnsnctenssbvestincstiedienanitliiian 24

Supreme Court Rules

BRNDG SF Ib .cccrsensencerenseepisecsinenvectenmepscnsinqeniintnegiiintiininminnilgiaaiii 1

Federal Rules of Evidence

RG. TR, TIN GO cisnnicosnicnsscosijncteentnitteitcnintinesindiaonmaiiimadnis 9

PO. FR. BWA, GIBB. .wanrsscasessssccsiccevinsonssesnsicsnonspinnesinesnnntiudninll 9

Ped. TR, Bae R, Go is cecccasessseneniiinnspeesinsceniionephdinitiutiiieiiainininiaiall 9

Other Authorities

Associated Press, Inmates Freed from Death Row at a

Glance, July 6, 2003, LEXIS, News Library. ................00 16

Diana Baldwin, Experts Disagreed on Hair Analysis,

Daily Oklahoman, May 27, 2001 ......:c::csssssssessseeseserereesees 21

4 W. Blackstone, Commentaries on the Laws of

II SEP GET OS cevcenisascsarysvvectstnanententchittapentianeiamiaaina 7

Alisa Bralove, Baltimore County Accepts Plea Deal in

1984 Murder of Resedale Girl, Daily Rec., May 21,

BOO ssocscosnenamscinspnionsensmmsnitetesengsilliteespisitipiiddihiaiadidanenan 19

Edward Connors et al., Convicted by Juries After Trial,

35-37 (1996), available at http://www.ncjrs.org/

pdffiles/ dnaevid.pdf (Jume 1996)........cccseeeeeeeees 18, 19

Page

Bill Dedman, DNA Tests Are Freeing Scores of Prison

Inmates, N.Y. Times, Apr. 19, 1999 .........cccscssesesesesrenseees 20

Beth DeFalco, DNA May Free Ist Arizonan Inmate

Convicted Twice in Murder, Ariz. Republic, Apr. 5,

iri seceinassieiniienitinitnimninnsitanseoniviasesimbtmassestoanstatetiingenstesicevines 22

Scott Dodd, New Evidence May Free Inmate; Bites on

Body Led to Verdict, Times-Picayune, June 11, 1995........ 22

Mark Donald, Lethal Rejection, Dallas Observer, Dec.

BR Bei ictcntenescneriniinisniesthceasieneniiotsntatnnseisctsetareemmunbinastes 17, 18

Samuel R. Gross et al., Exonerations in the United States:

1989 Through 2003,-95 J. Crim. L. & Criminology

UTE chinsipiennibststeinnnenicesiabapestetepieanecsuiitiasinnndnindatimateniciaase 23

Samuel R. Gross, Lost Lives: Miscarriages of Justice in

Capital Cases, 61 Law & Contemp. Probs. 123

INE SR ce ereticccncnensennscnseneuneenanentennsnnetomnncsnoveenemetssane 23

Stephanie Hanes, ‘84 Investigation Quick to Overlook the

Culprit, Balt. Sum, May 22, 2004 ...........cccccesssesssesesrsnsnenseees 19

Lisa Hoppenjans & Phoebe Zerwick, Brown Pleads

Guilty to Murder of Sykes, Winston-Salem J., Dec.

Ba ee eeittenisrcersnepantneraciadanannanbeneantannnineneninsnnninteinaninntnsnsseanee 21

Max M. Houck, Statistics and Trace Evidence: The

Tyranny of Numbers, 1 Forensic Sci. Comm. (1999) ..14, 15

Larry King Live (CNN television broadcast July 21,

ES eS cea ee ee 18

James S. Liebman, The Overproduction of Death, 100

I, es BI, Bt Cc cccncesennccssecemetneresassecznsensvevces 23

Joseph Neff & Michael Biesecker, Wrongly Convicted

Man Freed, The News Observer, Dec. 25, 2003............... 21

Robert Nelson, Ray Krone’s Got It All. A New Look.

Money. Problem Is, He Can't Seem To Forgive Those

Who Screwed Up and Put Him on Arizona's Death

Row, Phoenix New Times, Apr. 21, 2005...........0.00+. 22-23

Page

Offender Information Detail, Texas Department of

Criminal Justice, available at http:/ /168.51.178.33/

webapp/ TDC] / imdex2. Wt ............eseceeseneresesnensenneceeeneenees 18

Offender Lookup, Oklahoma Department of

Corrections, available at http://docapp8.doc.

CRRA TID ccncesenensenecerpseeneeeinenennnnmammnnt nan 20-21

Plaintiffs’ Brief in Support of Summary Judgment,

Fritz v. City of Ada (E.D. Okla. Jan. 8, 2002)

BO, FIR VO cxrencsscvsesnnentnieceensenninoreninamtnsnsemngeuteanaaees 20

Maurice Possley & Steve Mills, Crimes Go Unsolved as

DNA Tool Ignored, Chic. Trib., Oct. 26, 2003..........00+s000+ 2

Barry Scheck, Peter Neufeld & Jim Dwyer, Actual

Innocence: Five Days to Execution, and Other

Dispatches From the Wrongly Convicted (2000) .............-.-+-. 2

Barry Scheck, Peter Neufeld & Jim Dwyer, Actual

Innocence: When Justice Goes Wrong and How to

RES FE TRE GIT wecennscsn sine rstccesnecscnenpenevenentanceainemnamarerenn 2

Henry Weinstein, Death Penalty Foes Mark a Milestone,

Reh, TRIG, Dae. GER, BIIBE wccsncecceqecsncnssnessesnsessssnsnsnassssesenusts 22

Mark Wrolstad, Hair-Matching Flawed as a Forensic

Science: DNA Testing Reveals Dozens of Wrongful

Verdicts Nationwide, Dallas Morning News, Mar.

Phoebe Zerwick, New Suspect in Hunt Case, Winston-

eo He, Bee See ccanisteinenccentetesitininsriniuttidasiajasibnaiitintinis 21

INTEREST OF AMICUS CURIAF)

The Innocence Project, Inc. is a nonprofit legal clinic

and criminal justice resource center. Founded by Professors

Barry Scheck and Peter J. Neufeld at the Benjamin N.

Cardozo School of Law/ Yeshiva University in 1992, the

Innocence Project provides pro bono legal services to

indigent prisoners and death row inmates for whom post-

conviction DNA testing can provide conclusive proof of

innocence. The Innocence Project pioneered the litigation

model that has exonerated, to date, at least 163 innocent

persons through post-conviction DNA testing, and has

served as lead or co-counsel in the majority of these cases.

Currently, the Innocence Project represents more than 100

clients seeking post-conviction DNA testing in dozens of

states around the nation.

In addition to seeking relief for its clients under state

DNA testing statutes (which the Innocence Project helped

author and/or enact into law by contributing technical

expertise during the legislative process), the Innocence

Project has also served as chief counsel in the leading cases

concerning the federal constitutional right of access to

potentially exculpatory DNA evidence. These include, inter

alia, Osborne v. District Attorney’s Office for Third Judicial

District, 423 F.3d 1050 (9th Cir. 2005); Harvey v. Horan,

285 F.3d 298 (4th Cir. 2002); and Godschalk v. Montgomery

County District Attorney’s Offic 177 F. Supp. 2d 366 (E.D.

Pa. 2001). The Innocence Project also regularly consults

with legislators and law enforcement officials on the state,

local, and federal level, conducts research and training,

' Pursuant to Rule 37.6, Amicus certifies that no counsel for a party

authored this brief in whole or in part. This brief was written by

undersigned co.. 21. No person or entity other than Amicus and its

counsel made any monetary contribution to the preparation of this brief.

2

produces scholarship, and proposes a wide range of

remedies to prevent wrongful convictions, while continuing

its primary work to exonerate individual clients through

post-conviction DNA testing.

SUMMARY OF ARGUMENT

DNA testing has exposed deeply rooted, systemic

problems with the criminal justice system, demonstrating

with unprecedented certainty that more innocent people

suffer in prison or await execution than most lay citizens

and legal scholars have ever imagined.? Analysis of DNA

exonerations has revealed a variety of common causes for

wrongful convictions, including faulty eyewitness

identification; false confessions; careless or fraudulent

forensic evidence; junk science; prosecutorial misconduct;

careless and inadequate defense counsel; and racial bias.

Of course, in all cases where wrongful convictions occur,

the real perpetrator has escaped punishment. Through the

use of DNA databases, however, the real perpetrator has

been apprehended in more than a third of the post-

conviction DNA exonerations.‘

The profound effects of these wrongful convictions

on the criminal justice system have yet to be fully

acknowledged or appreciated. In this case, the South

Carolina Supreme Court failed to recognize that the

existence of apparently “overwhelming” forensic evidence

against a defendant does not necessarily mean that he is

2 DNA exonerations have “laid bare” the “fabric of false guilt.” Barry

Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days to

Execution, and Other Dispatches From the Wrongly Convicted xv (2000).

3 See generally Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence:

When Justice Goes Wrong and How to Make It Right 163-202 (2003)

(hereinafter “ Actual Innocence”).

‘ In a study by the Chicago Tribune of 115 post-conviction DNA

exonerations, there were 51 cases where new suspects were identified

through the use of DNA databases. See Maurice Possley & Steve Mills,

Cnmes Go Unsolved as DNA Tool Ignored, Chic. Trib., Oct. 26, 2003.

3

guilty. Indeed, many Innocence Project clients have been

exonerated after DNA testing conclusively demonstrated

that evidence initially adjudged as “overwhelming” was in

fact deeply flawed. This experience has underscored the

need for protecting a robust and meaningful presumptiun

of innocence at trial in order to prevent wrongful

convictions from occurring in the first place.

The Innocence Project files this amicus brief in

support of Bobby Lee Holmes’s petition because experience

dictates and due process requires that every defendant

should have a fair opportunity to present evidence of his or

her innocence to a jury. Unfortunately, the South Carolina

Supreme Court failed to preserve Holmes’s right to a fair

jury trial by denying Holmes the ability to present to the

jury credible and compelling evidence that a third party had

committed the crime for which he was accused. Defying

logic, the court below excluded this third-party guilt

evidence by reference to “overwhelming” forensic evidence

against Holmes, which, in the eyes of the court, lessened the

relevance of Holmes’s proof that somebody else committed

the crime. To the contrary, Holmes’s evidence that Jimmy

White killed Mary Stewart was directly relevant not only to

Holmes’s general innocence claim, but also to his specific

claim that the “overwhelming” forensic evidence against

him was actually the product of either contamination or

planting.

The prosecution of Bobby Lee Holmes is one of

those rare but extremely important cases where a criminal

defendant presents substantial and credible evidence that

the police may have planted forensic evidence to secure a

guilty conviction. I{olmes was allowed to present parts of

his theory of police misconduct to the jury but his efforts

were severely hamstrung by the exclusion of credible third-

party guilt evidence. Without this evidence, Holmes’s

innocence claim was less coherent and believable. The

court’s decision to exclude this vital evidence thus created a

higher risk that the jury convicted an innocent man. In light

~

4

of this, Amicus files this brief in support of petitioner's

request for a new trial.

I. SOUTH CAROLINA’S EVIDENTIARY RULE

CANNOT PASS CONSTITUTIONAL MUSTER

WHEN IT EXCLUDES EVIDENCE OF THIRD-

PARTY GUILT THAT DIRECTLY UNDERMINES

THE STRENGTH OF THE PROSECUTION’S

EVIDENCE AGAINST THE DEFENDANT

In affirming the lower court's order denying Holmes

an opportunity to present evidence of third-party guilt to

the jury, the South Carolina Supreme Court relied on the

standards set out in State v. Gregory, 16 S.E.2d 532, a

(S.C. 1941), and State v. Gay, 541 S.E.2d 541, 550 (S.C. 200

(“Gregory-Gay rule”) to decree that where there is “strong

evidence” of a defendant's guilt, especially where that

evidence is forensic, proffered evidence about a third

party's alleged guilt does not raise a reasonable inference as

to the defendant's own innocence. State v. Holmes,

605 S.E.2d 19, 24 (S.C. 2004), cert. granted in part, 73 U.S.L.W.

3604 et al. (U.S. Sept. 27, 2005) (No. 04-1327). As a result of

the circular nature of this rule, the court did not consider

how petitioner's third-party guilt evidence undermined the

rule’s premise that there was “strong” evidence of his guilt.

This rule is constitutionally defective as a general matter,5

inherently illogical and ill-conceived as an evidentiary

matter, and is particularly unfair as applied to petitioner,

given the plethora of evidence supporting Holmes’s theory

of fabrication and/or contamination of the forensic

evidence. As explained below, it is for these reasons that

the Innocence Project urges this Court to grant petitioner's

request for a new trial.

5 This amicus brief does not address the constitutional arguments that

South Carolina's rule violates a defendant's right to present a complete

defense, as those arguments are addressed by petitioner.

5

A. South Carolina’s Evidentiary Rule Is

Unconstitutional Because It Undermines A

Defendant's Constitutional Right To A Fair

Jury Trial

1. The Presumption of Innocence

The presumption of innocence is a long-recognized

and well-settled principle in our criminal justice system that

is integral to a defendant's Fourteenth Amendment right to

a fair trial. See Bell v. Wolfish, 441 U.S. 520, 533 (1979)

(“Without question, the presumption of innocence plays an

important role in our criminal justice system.”); Estelle v.

Williams, 425 U.S. 501, 503 (1976) ("The right to a fair trial is

a fundamental liberty secured by the Fourteenth

Amendment. The presumption of innocence, although not

articulated in the Constitution, is a basic component of a fair

trial under our system of criminal justice.~ (citation

omitted)); Coffin v. United States, 156 U.S. 432, 453 (1895)

(“The principle that there is a presumption of innocence in

favor of the accused is the undoubted law, axiomatic and

elementary, and its enforcement lies at the foundation of the

administration of our criminal law.”). Because the

presumption of innocence can be defeated only when the

prosecution convinces the jury of a defendant's guilt with

proof beyond a reasonable doubt, “[t]o implement the

presumption, courts must be alert to factors that may

undermine the fairness of the fact-finding process . . . courts

must carefully guard against dilution of the principle that

guilt is to be established by probative evidence and beyond

a reasonable doubt.” Estelle, 425 U.S. at 503. The Gregory-

Gay rule, as interpreted by the South Carolina Supreme

Court, completely undermines this bedrock principle and

interferes with the fundamental right to a fair trial

guaranteed by the Constitution.

As construed and applied by the South Carolina

Supreme Court, the Gregory-Gay rule compels a court -

rather than a jury - to evaluate the strength of the

6

prosecution’s evidence of defendant's guilt without also

requiring that the trial court weigh. and consider

defendant's countervailing evidence. Based on the South

Carolina Supreme Court's interpretation, the Gregory-Gay

rule places the cart before the horse by allowing the court to

determine that the evidence against a defendant is “strong”

without ever considering the reliability of that evidence in

light of the defendant's rebuttal evidence. In evaluating the

strength of the prosecution’s evidence against a defendant

in a vacuum, the Gregory-Gay rule strips defendants of their

right-to present a defense and “‘conflict[s} with the

overriding presumption of innocence with which the law

endows the accused.” Sandstrom v. Montana, 442 U.o. 510,

523 (1979) (quoting Morissette v. United States, 342 US. 246,

275 (1952)).

The Gregory-Gay rule, as interpreted by the South

Carolina Supreme Court, violates a defendant's due process

rights because it allows a court to determine guilt - “strong”

guilt - without requiring the State to carry its full burden of

proof beyond a reasonable doubt. In requiring the trial

court to consider only the prosecution’s evidence, even

when the defendant's evidence directly discredits it, the

Gregory-Gay rule “undermine[s}] the fairness of the fact-

finding process,” Estelle, 425 U.S. at 503, by making that

process a one-sided fait accompli. Moreover, the Gregory-Gay

rule turns the innocence presumption on its head by

declaring that one-sided “strong” evidence of a defendant's

guilt means that a defendant cannot raise a reasonable

inference of his or her own innocence, rather than first

allowing for the evaluation of countervailing evidence to

determine whether the State can show, beyond a reasonable

doubt, that a defendant is guilty. The South Carolina

Supreme Court violated the innocence presumption in

concluding, based exclusively on the State’s evidence, that

petitioner could not raise a reasonable inference of his own

innocence.

7

2. The Right to a Jury Trial

The Gregory-Gay rule is also constitutionally

defective because it “’invade(s] [the] factfinding function’

which in a criminal case the law assigns solely to the jury.”

Sandstrom, 442 U.S. at 523 (quoting United States v. U.S.

Gypsum Co., 438 U.S. 422, 446 (1978)). The constitutional

right to a jury trial embodies “a profound judgment about

the way in which law should be enforced and justice

administered.” Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

The right to a jury also “reflect{s] a fundamental decision

about the exercise of official power - a reluctance to entrust

plenary powers over the life and liberty of the citizen to one

judge or to a group of judges.” Id. at 156; see also Apprendi v.

New Jersey, 530 US. 466, 477 (2000) (reaffirming the

historical principle that “‘[t]lo guard against a spirit of

oppression and tyranny on the part of rulers,’ and ‘as the

great bulwark of [our] civil and political liberties,’ 2 J. Story,

' Commentaries on the Constitution of the United States 540-

541 (4th ed. 1873), trial by jury has been understood to

require that ‘the truth of every accusation, whether preferred

in the shape of indictment, information, or appeal, should

afterwards be confirmed by the unanimous suffrage of

twelve of [the defendant's] equals and neighbours... .””

(citing 4 W. Blackstone, Commentaries on the Laws of

England 343 (1769)) (emphasis original)).

For Holmes, the jury’s fact-finding function was

arbitrarily relegated to a single trial court judge who made a

pre-trial determination as to whether the third-party guilt

evidence should be presented to the jury. What is most

compelling about this case is that the South Carolina

Supreme Court - in dizzying circularity - affirmed one

judge’s exclusion of all of petitioner’s evidence of third-

party guilt, despite the fact that much of that evidence

discredited the very evidence on which the South Carolina

Supreme Court relied. In so doing, the South Carolina

Supreme Court allowed the Gregory-Gay rule to serve as a

detour around petitioner's right to a jury trial A

defendant's constitutional right to a jury trial, however,

cannot hinge upon one judge’s premature evaluation of

evidence:

A defendant may assuredly insist upon

observance of this guarantee [of a right to a

jury trial] even when the evidence against-

him is so over-whelming as to establish guilt

beyond a reasonable doubt. That is why the

Court has found it . constitutionally

impermissible for a judge to direct a verdict

for the State.

Carella v. California, 491 U.S. 263, 268 (1989) (Scalia, J.,

concurring) (citing United States v. Martin Linen Supply Co.,

430 U.S. 564, 572-73 (1977)). Likewise, these constitutional

guarantees must be honored in this case, so that petitioner

can exercise his right to have a jury evaluate all of the

relevant evidence.®

® Indeed, a jury is particularly well-suited to determine the significance of

law enforcement'’s failure to investigate and prosecute Jimmy White for

Mary Stewart's murder. The inquiry is a common-sense one into the

motives and veracity of the witnesses in the case and is far less

demanding than resolving the vital but highly technical conflicting

testimony regarding the forensic DNA evidence in this case. As

explained below, important technical problems with the DNA tests were

raised by the defense and never answered by the prosecution. Yet

without the third-party guilt evidence, the jury had an incomplete

context in which to examine and resolve these scientific issues.

9

B. The Gregory-Gay Rule, As Interpreted By

The South Carolina Supreme Court,

Permits Exclusion Of Third-Party Guilt

Evidence Even Where The Strength Of The

Prosecution’s Evidence Has Been

Undermined By Credible Fvidence Of

Fabrication And Contamination

The flaws in the Gregory-Gay rule are demonstrated

by its application in this case. The rule is a classic non

sequitur. Neither as a matter of logic nor reason does it

follow that, because the South Carolina Supreme Court

concluded that the forensic evidence against Holmes was

“strong” and “overwhelming,”’ Holmes could not raise a

reasonable inference of his innocence. This is especially true

in this case because there was credible evidence of

contamination that undermined the strength of the forensic

evidence. Moreover, the excluded third-party guilt

evidence, if admitted, might have convinced the jury that

the government's forensic evidence was planted or

contaminated.

Despite the court's contention that Holmes’s claims

did not “eviscerate” all of the forensic evidence and other

evidence against him, 605 S.E.2d at 24 n.8, as set out below,

the defense had a variety of important challenges to the

forensic evidence and_ testimonial evidence that

undermined the South Carolina Supreme Court's faulty

premise that there was “strong” evidence of his guilt.

Beyond the evidence collection problems, the missing

evidence, the failure to perform certain tests, and the

technical indications of contamination, the third-party guilt

evidence itself actually impeached the forensic evidence. It

stands to reason that Holmes should have been allowed to

? A court is charged with evaluating the reliability and the relevancy of

evidence rather than its “strength” or “overwhelming” nature. See

generally Fed. R. Evid. 401, 402, 403.

10

present his third-party evidence so that it could be properly

weighed in support of his claim of innocence.

Indeed, the trial court unknowingly highlighted

why it was so important for Holmes to have the

opportunity to present evidence of third-party guilt when it

relied on cases holding that “the fact [that] the forensic

evidence may have been compromised by the

unprofessional manner in which the evidence was collected

goes to the weight of the evidence, not to its admissibility,” id.

(emphasis added). Based on this proposition, the court

should have allowed the third-party guilt evidence to be

admitted subject to the weight that the jury would accord it.

1. Petitioner's Evidence Significantly

Undermined the Premise of “Strong” Guilt

a. Third-Party Guilt Evidence

In addition to the plethora of third-party guilt

evidence pointing to Jimmy White as the real perpetrator of

the crime, much of the evidence that Holmes was barred

from presenting to the jury raised questions as to whether

the forensic evidence against Holmes was fabricated or

planted. As part of his proffer of third-party guilt evidence

relating to planting and fabrication, Holmes sought to use

the testimony of Stephen Westbrook, who testified that

Officer James “Boot” Smith and Investigator Beverly Jane

Potts came to see him before Holmes’s first trial and offered

to get him out of jail if he would testify that Holmes had

confessed to him. 605 S.E.2d at 23. In addition, Westbrook

testified that in June 2000, two months before the pretrial

hearing, he was brought to Rock Hill from Kirkland

Correctional Institute and was confronted by employees

from the solicitor’s office who tried to convince him to

testify against Holmes in the second trial and who informed

him that they had manufactured underwear evidence

incriminating Holmes. Id.

11

Westbrook also testified to two admissions

supporting petitioner’s theory of fabrication. Westbrook

testified that an employee of the solicitor’s office stated that

solicitor’s office employees had lifted one of Holmes’s palm

prints from the county jail door to use against him at trial.

Id. Westbrook also testified that Jimmy White told him that

Officer Boot Smith had told White to keep quiet about his

guilt and that he was out to “frame” Holmes and that

Holmes’s prior attorney urged White to testify against

Holmes. Id. Although this evidence bears directly on the

weight of the State’s evidence, no jury was ever able to

consider it in determining Holmes’s guilt. | Most

significantly, in excluding this evidence, the South Carolina

Supreme Court wholly ignored how the evidence

undermined the “strong” evidence of guilt, as if Holmes

had no discrediting evidence at all. This uninformed

application of the Gregory-Gay rule is particularly troubling

when viewed in light of the evidence Holmes was permitted

to present, as detailed below.

b. Fabrication and Contamination

Evidence

The heart of Holmes’s defense theory was that all of

the physical evidence offered against him, including the

DNA evidence, the palm print evidence, and the fiber

evidence, could be discredited as unreliable because it all

passed through the hands of Captain Mobley, thereby

creating the opportunity for fabrication and planting.

Transcript (“Tr.”) at 4289; see also Joint Appendix (“ App.”)

at 180, Tr. at 2482. Holmes’s theory was well supported by

evidence that demonstrated that the police had the

opportunity to plant, that authorities “lost” evidence that

could have been used to establish this theory, and that they

failed to perform tests that could have confirmed (or

disproved) police fabrication and planting.

The defense’s expert witness, Dr. Peter D’Eustachio,

established that the DNA evidence against Holmes was

12

unreliable and displayed characteristics consistent with his

theory of contamination or planting. There were three

items that allegedly contained DNA evidence in this case:

Holmes’s underwear, his shirt, and a paper towel recovered

from Ms. Stewart's apartment. The underwear and paper

towel allegedly contained a mixture of both Ms. Stewart's

and Holmes’s DNA. App. at 308-09, Tr. at 3824. As

Dr. D’Eustachio testified, there were important problems

with the tests used to support this conclusion.

Initially, Dr. D’Eustachio pointed out that the FBI

could not explain the appearance of “low-lying mounds” on

the DNA charts. App. at 305-06, Tr. at 3820. Although the

laboratory attempted to label these irregularities “dye

blobs,” Dr. D’Eustachio explained that the irregular mounds

appeared in consistent positions on all the samples - a

phenomenon quite in contradiction to the known and

documented random occurrence of real dye blobs. App. at

305-07, Tr. at 3820-23. This was the first reason supporting

Dr. D’Eustachio’s conclusion that the DNA results were

“unreliable.” App. at 307, Tr. at 3822-23.

Even more troubling and relevant to Holmes’s

contamination and planting theories was Dr. D’Eustachio’s

finding that an allele not attributable to either Ms. Stewart

or Holmes appeared at the D3S1358 (“D3”) locus on both

the paper towel and underwear.® App. at 308-13, Tr. at

3823-26, 3844-46. In other words, there was evidence of

8 At any particular DNA locus, an individual will have two alleles - one

inherited from her mother and one inherited from her father. In this case,

Ms. Stewart possessed a 14 allele and a 16 allele at the D3 locus, while

Holmes possessed a 15 and 16 allele at the same locus. App. at 309, Tr. at

3825. On both the underwear and paper towel, however, there was an 18

allele clearly visible at the D3 locus that could not be attributed to either

Holmes or Stewart. App. at 308-09, 311-13, Tr. at 3824-25, 3844-45.

Dr. D’Eustachio explained that “the importance of it [the extra 18 allele] is

that we know from looking at their known standards that neither Bobby

Lee Holmes nor Mary Stewart is capable of producing type 18 DNA.

They literally just don’t have it in them.” App. at 309, Tr. at 3825.

13

human DNA on the underwear and towel that could not

have come from Ms. Stewart or Holmes. This extra DNA

was never explained by the prosecution and is at the very

least consistent with a theory of planting or contamination.

This finding formed the second basis for Dr. D’Eustachio’s

conclusion that the DNA tests were “unreliable” and that

the evidence was not handled in a manner “necessary to

prevent contamination from one item to the next or from

outside sources.” App. at 310, Tr. at 3826.

Holmes’s DNA-planting theory was also supported

by testimony showing that Chief Mobley never noted the

presence of blood on Holmes’s underwear or shirt when he

first inventoried the evidence. App. at 195, Tr. at 2621-23,

4293. Not only did the forensic evidence inventory sheet

not refer to the presence of any blood, but it also did not

contain any request for any scientific tests to be performed.

Record on Appeal at 6771-72; Tr. at 4293-94. Miraculously,

blood later appeared on these items after Ms. Stewart's

blood samples were lost. Tr. at 3373, 3763, 4294-95. EDTA

tests, which could provide reliable evidence as to whether

the blood on the underwear and shirt came from a blood

vial (consistent with a planting theory), were never

performed. Tr. at 3765, 4302; see, e.g., Cooper v. Brown, 358

F.3d 1117 (9th Cir. 2004) (ordering the district court to order

_ EDTA testing of a T-shirt after Cooper's filing of a habeas

application because “(t]he presence of such a preservative

[EDTA] would show that his blood was not on the t-shirt at

the time of the killings, but was rather placed there at some

later time”). Furthermore, Ms. Stewart's paper towel, which

allegedly contained a mixture of Holmes’s DNA and her

DNA, was not sent to the South Carolina Law Enforcement

Division (“SLED”) for evaluation for nine days. App. at

192-93, Tr. at 2618, 4305.

The defense also sought to discredit the palm print

evidence by reminding the jury that Captain Mobley

testified that he was alone at the crime scene when he

allegedly lifted two handprints, thereby demonstrating that

14

he had the opportunity to plant evidence. Tr. at’2566, 2595,

4290. No usable prints other than two palm prints were

found throughout the entire house. Tr. at 2727, 4290.

Significantly, Ms. Stewart's pocketbook, the money

allegedly stolen from it, and the telephone were never

tested for fingerprints. Tr. 2728, 2735-36, 4303 (pocketbook);

App. at 192, 325, Tr. at 2614, 3944, 4303 (money); App. at

209, Tr. at 2728, 2735-36, 4303 (telephone). In addition, both

palm prints, which allegedly came from the same door,

contained two entirely different striation patterns,

potentially indicating that they came from two different

surfaces. App. at 214-15, Tr. at 3965, 3990-91, 4291.

Further questions were raised regarding the

reliability of the fiber evidence used against petitioner and

its accuracy in linking petitioner to the crime. The defense

pointed out that the State argued that cotton and polyester

fibers from Holmes’s sweatshirt matched those found on

Ms. Stewart's bed, but failed to explain how Holmes’s tank

top, which was underneath his sweat shirt, did not have

any polyester fibers on it. Tr. at 4297. The defense also

pointed out that the State failed to explain the source of

unknown amounts of blue acrylic fiber, gold modacrylic

fiber and a brown fiber ball. App. at 227-229, Tr. at 3028-30,

4298.

In addition to the issues raised at petitioner's trial

about the fiber evidence, recently questions have been

raised generally regarding the reliability of “matching”

fibers to prove a defendant's presence at the crime scene.

FBI Supervisory Physical Scientist Max M. Houck, a

defender of microscopic hair comparison, has explained

why fiber analysis is scientifically imprecise: “The number

of different fiber types found on any one textile, such as

clothing, therefore, is potentially very large, making it

impossible to track each type to its source or sources.” Max

M. Houck, Statistics and Trace Evidence: The Tyranny of

Numbers, 1 Forensic Sci. Comm. (1999). Houck explains that

because there are 17 generic classes of manufactured fibers,

15

over 1,770 fiber manufacturers worldwide, 500 different

types of cross-sectional shapes for manufactured fibers (not

counting copycats and patent infringements), more than

8,000 dyes and pigments used in the coloring of textile

fibers, all of which are assembled into finished textiles by

approximately 113,000 manufacturers, the “web of

production makes it difficult, if not occasionally impractical,

to trace any one product and identify its components to

their sources.” Id. Although Houck concludes that trace

evidence such as fibers often can answer “how” a crime was

committed, “trace evidence can rarely tell us who

definitively” committed the crime. Id. The South Carolina

Supreme Court considered this unreliable fiber evidence as

part of the “overwhelming” case against Holmes despite the

_ ¢ross-contamination evidence, further demonstrating the

error of its premise.

In sum, all of the forensic evidence allegedly

implicating Holmes - DNA, palm prints, and fibers -

suffered from demonstrable reliability errors that

undermine the South Carolina Supreme Court's conclusion

that such evidence was “strong.” At the very least, Holmes

showed that planting or contamination was possible and

not inconsistent with the scientific data.

\

2. Application of the Gregory-Gay Rule Is

Particularly Dire When There Is Evidence

of Planting

While rare, evidence planting does occur. See, e.g.,

State v. Lee, 778 So. 2d 656 (La. App. 4 Cir. 1/4/01)

(affirming grant of motion for a mistrial and motion to

suppress evidence where prosecutor planted evidence in

defendant's clothes); Chamberlain v. Mantello, 954 F. Supp.

499, 512 (N.D.N.Y. 1997) (granting habeas petition where

supervising officer committed perjury and planted evidence

linking the inmate to the bicyclist’s death and where the

prosecution's expert framed the inmate and testified falsely

regarding the evidence); State v. Munson, 886 P.2d 999 (Okla.

16

Crim. App. 1994) (overturning conviction where prosecutor

deliberately suppressed photographs and _ reports

suggesting defendant was innocent and where forensic

evidence was provided by a doctor who later pled guilty to

seven felony counts involving autopsies he performed or

failed to perform in other cases); Peek v. State, 488 So. 2d 52

(Fla. 1986) (acquitting defendant after third retrial where

expert testimony concerning hair identification evidence

was proven false).? These case examples demonstrate why

it is imperative that a defendant be permitted to present _

evidence rebutting the prosecution, including third-party

guilt evidence. Indeed, if the State fabricates evidence

against a defendant, it may be the defendant's hee hope of

discrediting it.

As stated in Chamberlain, the potential damage to

our judicial system from such false evidence is profound:

Our criminal justice system cannot tolerate

perjury and evidence tampering from those

whom we trust to enforce the law.

Dishonesty by the law _ enforcement

personnel of the State, left uncorrected, is a

wellspring of tyranny. To tolerate such an

attempt to pervert the truth would tarnish

the well deserved reputation of the

overwhelming number of police officials

who are dedicated to justice.

954 F. Supp. at 512. Petitioner’s evidence of third-party

guilt is too important for its suppression to be tolerated.

Therefore, because the third-party guilt evidence would

support the defense’s theory of planting, such evidence

should at least go to the jury to determine its credibility and

weight.

% See Associated Press, Inmates Freed from Death Row at a Glance, July 6,

2003, LEXIS, News Library.

17

II. ABSENT THIS COURT’S INTERVENTION TO

PROTECT PETITIONER’S CONSTITUTIONAL

RIGHT TO PRESENT A DEFENSE, THERE IS A

SIGNIFICANT RISK THAT AN INNOCENT

MAN WILL BE EXECUTED AND THE ACTUAL

PERPETRATOR WILL REMAIN FREE TO

CONTINUE TO ENDANGER THE PUBLIC

Had Holmes been given the opportunity to present

evidence of third-party guilt to the jury, the evidence on

which he was convicted may have appeared far less

“overwhelming.” Indeed, as the case examples below

demonstrate, DNA testing has exonerated many individuals

who were convicted on the basis of an apparent wealth of

forensic evidence, which was later discredited. If these

defend=nts had not been given the opportunity to prove~

their innocence, they could have spent their lives in prison

or, even worse, they could have been executed, and the real

perpetrators - who were conclusively matched by these

same DNA tests - may never have been identified, thereby

leaving the public at risk of additional acts of brutality.

A. Christopher Ochoa and Richard Danziger

Christopher Ochoa and Richard Danziger were

convicted on the basis of seemingly overwhelming evidence

for the rape and murder of Nancy DePriest. Christopher

Ochoa was brought to the Austin, Texas police station for

questioning a few weeks after the murder, where, after a

long interrogation, he gave a detailed confession, telling the

police that he committed the crime with his friend,

roommate, and fellow employee Richard Danziger. See

Mark Donald, Lethal Rejection, Dallas Observer, Dec. 12,

2002. Ochoa pled guilty to the crime and later testified at

Danziger’s trial. Id. Danziger was convicted on the basis of

Ochoa’s testimony, in addition to the expert testimony of a

State hair examiner who concluded that a single pubic hair

found near the victim’s body was “microscopically similar”

to Danziger’s. See Mark Wrolstad, Hair-Matching Flawed as a

18

Forensic Science: DNA Testing Reveals Dozens of Wrongful

Verdicts Nationwide, Dallas Morning News, Mar. 31, 2002, at

1A. Both men remained in prison for more than a decade.

See Donald, supra.

Post-conviction DNA testing later conclusively

exonerated both Ochoa and Danziger by excluding both

men as the source of the semen found in the victim's body.

Id. Instead, the single DNA profile was found to be a

perfect match to Achim Marino, a man who had confessed

to DePriest’s murder years earlier in a letter to then-

Governor George W. Bush. Id.

Because of the mistaken focus on Ochoa and

Danziger as the perpetrators, Marino was free to terrorize at

least two more individuals. See Offender. Information

Detail, Texas Department of Criminal Justice, available at

http:/ /168.51.178.33/ webapp/TDCJ/index2.htm. After he

murdered Nancy DePriest, Marino committed at least two

aggravated robberies. Id. At the time of his confession in

1996, he was serving three life sentences for sexual assault

and aggravated robbery with a deadly weapon. Id. The

wrongful conviction of Ochoa and Danziger therefore had

real consequences for the lives of other innocent citizens.

B. Kirk Bloodsworth

Another DNA exoneration in the face of seemingly

“overwhelming” evidence of guilt is that of Kirk

Bloodsworth, who was convicted and sentenced to death in

1985 for the rape and murder of a nine-year-old girl. See

Edward Connors et al., Convicted by Juries After Trial, 35-37

(1996), available at http://www.ncj-s.org/pdffiles/

dnaevid.pdf (June 1996). Bloodsworth was a twenty-two-

year-old man who had recently been honorably discharged

from the United States Marine Corps and who had never

been arrested. Larry King Live (CNN television broadcast

July 21, 2005). ©

19

At trial, prosecutors introduced extensive eyewitness

and physical evidence of Bloodsworth’s guilt. See Connors,

supra. Five eyewitnesses testified that they were certain that

Bloodsworth was the man they saw with the victim just

prior to her murder. Id. Police officers testified that during

Bloodsworth’s first police interrogation, he identified a

weapon used in the crime that was not known to the public

at the time. Id. Bloodsworth’s acquaintances testified that

he said he had done something “terrible” that day. Id. The

prosecution presented evidence that the police had received

an anonymous call informing them that Bloodsworth was

seen with the victim earlier that day and that a shoe

impression found near the victim’s body was the same size

as Bloodsworth’s. Id. Bloodsworth was found guilty and

sentenced to death. Id.

In 1993, however, Bloodsworth became the first death

row inmate in the nation to be exonerated and released

based om post-conviction DNA testing, when those tests

excluded him as the source of the semen samples from the

crime scene. Alisa Bralove, Baltimore County Accepts Plea

Deal in 1984 Murder of Rosedale Girl, Daily Rec., May 21,

2004. A decade later, after the Innocence Project convinced

the prosecutors to retest the remaining evidence with DNA

technology that would permit the assailant’s profile to be

entered into state and federal DNA data banks, the sample

matched the DNA profile of the true assailant, Kimberly

Shay Ruffner. See Stephanie Hanes, ‘84 Investigation Quick to

Overlook the Culprit, Balt. Sun, May 22, 2004. Ruffner was in

prison for an attempted rape and murder committed three

weeks after the rape and, murder of the young girl for which

Bloodsworth was initially convicted. Id. This serves as

another example of the innocent lives that are destroyed in

the wake of the wrongful conviction of one individual.

Cc. Ronald Williamson and Dennis Fritz

In 1987, Ronald Williamson and Dennis Fritz were

convicted of the rape and murder of a twenty-one-year-old

20

Oklahoma woman. Bill Dedman, DNA Tests Are Freeing

Scores of Prison Inmates, N.Y. Times, Apr. 19, 1999, at A12:

The evidence against Williamson and Fritz appeared to be

compelling, including detailed testimony from multiple

witnesses. Glen Gore, one of the State’s chief witnesses,

testified that he saw Williamson at the victim's place of

employment shortly before her murder. See Plaintiffs’ Brief

in Support of Summary Judgment, Fritz v. City of Ada (E.D.

Okla. Jan. 8, 2002) (No. 2000-CV-194) (“Fritz Brief’). A

prison inmate claimed that Fritz had confessed in detail to

the murder and that she had heard Williamson threaten to

harm someone’s mother as he had the victim. Id. Other

witnesses testified that the victim had previously

complained to a friend that these two men “made her

nervous” and that Williamson told the police (while in

custody) about a vivid “dream” he had about the crime. /d.

The State’s forensic experts testified that seventeen hairs

from the crime scene “matched” either Williamson or Fritz,

and that upon serological analysis, both men were possible

contributors of sperm that was recovered from the victim.

Dedman, supra.

Once both men were in jail, a DNA profile was

finally run on the semen found in the victim's body. Fritz

Brief, supra. The test results conclusively excluded both

Williamson and Fritz. Id. The DNA profile from the semen

instead matched Glen Gore - the prosecution's star witness.

Dedman, supra. DNA testing also proved that not one of

the seventeen hairs deemed to be “matches” with

Williamson or Fritz at the time of trial (under the

microscopic analysis then available) belonged to either. Id.

As a result, both defendants were exonerated and released

from prison in 1999. Id. Fritz had faced life in prison and

Williamson was nearly executed. Id.

When the State finally matched the DNA to Gore, he

was in prison for an unrelated first-degree burglary,

kidnapping, and assault. See Offender Lookup, Oklahoma

Department of Corrections, available at http://docapp8.

21

doc.state.ok.us (follow "Offender Information" hyperlink;

then follow “Offender Lookup" hyperlink; then search

"153663" under ODOC#). Gore was in an unsupervised

prison work detail and escaped from custody for several

days upon learning that Fritz and Williamson were

exonerated by DNA evidence. See Diana Baldwin, Experts

Disagreed on Hair Analysis, Daily Oklahoman, May 27, 2001.

The State’s mistaken focus on Fritz and Williamson

permitted Glen Gore, the true rapist and murderer, to

remain unaccountable for this crime for years.

D. Darryl Hunt

Darryl Hunt was sentenced to life in prison for the

murder of Deborah Sykes, a twenty-five-year-old woman,

primarily due to several eyewitness who testified that Hunt

was at the scene of the crime around the time that the crime

was committed. See State v. Hunt, 457 S.E.2d 276 (N.C. 1994).

Sykes had been viciously stabbed to death after being raped

and beaten on August 10, 1984, in North Carolina. See Phoebe

Zerwick, New Suspect in Hunt Case, Winston-Salem J., Dec. 20,

2003.

Ten years later, in 1994, DNA testing had excluded

Hunt as the source of the sperm found in Sykes’s body, but

prosecutors contended that the evidence was contaminated or

belonged to an unidentified co-assailant. Joseph Neff &

Michael Biesecker, Wrongly Convicted Man Freed, The News

Observer, Dec. 25, 2003, at A2. Hunt's attorney requested and

obtained additional DNA testing in April 2003 that also

excluded Hunt as the assailant. Lisa Hoppenjans & Phoebe

Zerwick, Brown Pleads Guilty to Murder of Sykes, Winston-

Salem J., Dec. 17, 2004, at Al. When the 2003 DNA profile

was compared with the national database of convicted felons,

it led them to Willard Brown, who had originally been a

suspect in Sykes’s murder. Id. Brown pled guilty to first-

degree murder, rape, kidnapping, and robbery of Sykes and

was sentenced to life plus ten years in prison. Id. Hunt's case

22

serves as another example of the many years of life that can

be lost due to wrongful convictions.

E. Ray Krone

The existence of apparent overwhelming “scientific”

evidence also led to the conviction of another individual,

Ray Krone, for the vicious murder of Kim Ancona, a thirty-

one-year-old woman, who was found on December 29,

1991, nude and stabbed to death in the men’s restroom of

the bar where she worked. Beth DeFalco, DNA May Free Ist

Arizonan Inmate Convicted Twice in Murder, Ariz. Republic,

Apr. 5, 2002, at 1A. The only “forensic” evidence

investigators had were bite marks on the victim's breast and

neck. Henry Weinstein, Death Penalty Foes Mark a Milestone,

L.A. Times, Apr. 10, 2002. Ray Krone also lived near the bar

where the crime was committed and was in Ms. Ancona’s

address book. /d. Krone agreed to give the police a dental

impression by biting down on a plastic foam cup. Id. A

dentist helping police at the crime scene examined Krone’s

bite mark and concluded that it was consistent with the

mark on the victim's left breast. Scott Dodd, New Evidence

May Free Inmate; Bites on Body Led to Verdict, Times-

Picayune, June 11, 1995, at Al6.

Krone was initially convicted of murder and

kidnapping and received a death sentence. DeFalco, supra.

At a second trial, he received a life sentence instead. Id. In

2002, Krone’s attorneys requested post-conviction DNA

testing of the blood and saliva found on the victim. Id. The

results excluded Krone and instead matched a man named

Kenneth Phillips, who had lived 600 yards away from the

location of the crime and who was in the DNA database

because he had been convicted of attempted child

molestation. Id. Phillips was later arrested on charges that

he sexually assaulted and attempted to strangle a seven-

year-old girl three weeks after Ancona’s murder. Robert

Nelson, Ray Krone’s Got It All. A New Look. Money. Problem

Is, He Can’t Seem To Forgive Those Who Screwed Up and Put

23

Him on Arizona's Death Row, Phoenix New Times, Apr. 21,

2005.

These examples demonstrate the risk of serious error

in our criminal justice system even when the evidence

supporting a conviction initially appears unassailable. The

need for caution is particularly acute in heinous capital

cases, where emotions run high and where community

pressure on police and prosecutors to secure convictions

can be overwhelming. See Samuel R. Gross et al.,

Exonerations in the United States: 1989 Through 2003, 95 J.

Crim. L. & Criminology 523, 532 (2005) (citing Samuel R.

Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 61

Law & Contemp. Probs. 123, 129-33 (Autumn 1998); James

S. Liebman, The Overproduction of Death, 100 Colum. L. Rev.

2030 (2000)). As the cases above demonstrate, the

conviction of an innocent person also leaves the real

criminal free to continue to endanger the public. Most of

all, these cases demonstrate why no defendant should be

unreasonably deprived of his right to prove his innocence

through DNA testing or evidence of third-party guilt.

CONCLUSION

In an epilogue to his decision vacating Ronald

Williamson’s conviction, Chief Judge Frank Seay wrote:

While considering my decision in this

case I| told a friend, a layman, I believed the

facts and law dictated that I must grant a

new trial to a defendant who had been

convicted and sentenced to death.

My friend asked, “Is he a murderer?”

I replied simply, “We won't know

until he receives a fair trial.”

24

God help us, if ever in this great

country we turn our heads while people who

have not had fair trials are executed. That

almost happened in this case.

ACCORDINGLY, the Writ of Habeas

Corpus shall issue ....

Williamson v. Reynolds, 904 F. Supp. 1529, 1576-77

(E.D. Okla. 1995). For the foregoing reasons, the Innocence

Project urges the Court to grant petitioner a new trial.

Respectfully submitted,

BARRY C. SCHECK ELAINE METLIN

PETER J. NEUFELD Counsel of Record

COLIN P. STARGER ANN-MARIE LUCIANO

Innocence Project, Inc. ERIN L. WEBB

100 Fifth Avenue, 3rd Floor Ross K. KIRSCHNER

New York, NY 10011 Dickstein Shapiro Morin

(212) 364-5357 & Oshinsky LLP -

2101 L Street, NW

Washington, DC 20037-1526

(202) 785-9700

Counsel for Amicus Curiae

November 30, 2005