# Amicus Curiae Brief — Holmes v. South Carolina

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0083%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 319

## Text

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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0083%3A13. Public record. Not legal advice.