Reply Brief — Kelley v. Florida (No. 86-106)

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= FILED

No. A-964 . AUG 29 1988

| SEPH F. SPANIOL, JR.

CLERK

In the Supreme Court

of the United States

October Term, 1985

William Harold Kelley,

Petitioner,

-against-

The State of Florida,

Respondent.

abe

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

PETITIONER'S REPLY BRIEF

=m om

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Nathan Z. Dershowitz

Victoria B. Eiger

Dershowitz & Eiger, P.C.

225 Broadway

New York, New York 10007

(212) 513-7676

Attorneys for Petitioner

William Harold Kelley

Of Counsel

Laura Hanft

TABLE OF CONTENTS

Table of pg ee ee, |

Argument

I. Respondent fails to meet

Petitioner's argument that the

Florida Supreme Court's

"variable analysis test" is

constitutionally defective........l

II. Respondent misconstrues

Petitioner's argument that the

admission of an alleged prior

consistent statement deprived

Petitioner of due process and

the right to confrontation........1ll

III. Respondent misunderstands

Petitioner's argument that the

imposition of the death

penalty in this case is

BRCORSTIEUCLONOL. oceccvcesvccsecovchd

ee ee a ee eee es

TABLE OF AUTHORITIES

Brady v. Maryland, 373 U.S. 83 (1963)......l

California v. Green, 399 U.S. 149 (1970)...14

California v. Trombetta, 104 S.Ct. 2528

PRUNE RGSS SESS SCS EHS ees cccccsccesccccccece’

Cardinale v. Louisiana, 394 U.S. 437

SN. A.

Hitchcock v. Wainwright, cert. granted,

106 S. 4 2888 a wees we

McCleskey v. Kemp, cert. granted,

i re rr COMPO cone cccsccocecccecseds

Ohio v. Roberts, 448 U.S. 56 (1980)........14

Solem v. Helm, 463 U.S. 277 (1983).........16

United States v. Agurs, 427 U.S. 97 (1976).1

United States v. Quinto, 582 F.2d 224

(2d Cals en ccowccceshl

United States v. West, 670 F.2d 675

(7th Cir.), cert. denied, 457 U.S.

1124 caw eees e*eeeees? ee

Other Authorities

D. Louisell & C. Mueller, Federal

Evidence §419 CC EES re |

I. RESPONDENT FAILS TO MEET PETITIONER'S

ARGUMENT THAT THE FLORIDA SUPREME COURT'S

"VARIABLE ANALYSIS TEST" IS

CONSTITUTIONALLY DEFECTIVE

The government's Response in Opposition

ignores the significance of Petitioner's

challenge to the Florida Supreme Court's

"variable analysis test." This case presents

the critical issue whether it is

constitutionally permissible to deny an

otherwise meritorious claim that critical

evidence was destroyed, merely because the

reviewing court can find no evidence of

governmental bad faith. This Court's

decisions in Brady and Agurs would clearly

prevent such a result; they hold that’ the

government's conduct is irrelevant to the

court's analysis of the impact of the missing

evidence at the defendant's trial. Cf. Brady

v. Maryland, 373 U.S. 83, 87 (1963); United

States v. Agurs, 427 U.S. 97, 110 (1976). In

this case, however, the Florida court grounded

—

its decision on the alleged absence of

governmental bad faith, concluding that "if

even the slightest hint of prosecutorial

misconduct was present in the case the result

might well be different." Respondent glibly

asserts on one hand that the Fiorida decision

is "consistent" with Brady and Agurs, and then

attempts on the other hand to defend the

decision’s emphasis on good faith by “noting"

that this court's recent decision in

California v. Trombetta, 104 S.Ct. 2528

(1984), also contained a discussion of

governmental good faith. Respondent does not

-- indeed can not -- explain how a decision

which turns on a finding of governmental good

faith can be "consistent" with this Court's

insistence that “the moral culpability of the

prosecutor” should not contribute to the

court's ultimate decision, much less determine

it. Agurs, 427 U.S. at 110.

The Response in Opposition demonstrates

the need for a clarifying decision from this

Court. It reflects precisely the kind of

confusion about the role of governmental good

or bad faith in a destruction of evidence

analysis which requires authoritative

resolution. States such as Florida are using

Trombetta's passing discussion of governmental

good faith to change fundamentally the

substance of destruction of evidence analyses,

ignoring the limits set by this Court in Brady

and Agurs. This case presents an appropriate

vehicle to resolve the confusion. Indeed, the

difference between a correct and an incorrect

test in this case is also the difference

between life and death for Petitioner.

The Response in Opposition also asserts

that Petitioner's challenge to the Florida

Supreme Court's “variable analysis test" is

not properly before this court because

a

Petitioner's "contention that the Florida

Court applied an unconstitutionally stringent

test was never asserted by Petitioner nor

passed upon by the Florida Supreme Court."

Opposition at 10. This argument is specious.

Obviously, Petitioner could not ask the

Florida court to "pass upon” the

constitutionaiity of its legal reasoning

before the court had issued its decision

relying on that reasoning. The Supreme Court

of Florida's analysis, legal reasoning, and

selection of precedent could not be

anticipated in advance; there were no lower

court opinions in this case addressing the

constitutional aspects of Petitioner's due

process Claim. At every level, from a pre-

trial motion to dismiss the indictment through

his appeal to the Florida Supreme Court,

Petitioner asserted that he was denied his

constitutional right to due process and was

unable fully to defend himself because the

government had intentionally destroyed

critical exculpatory evidence. Thus,

Petitioner's due process claim was fully

preserved and is properly before this court.!

The Response in Opposition attempts to

undermine Petitioner's demonstration of the

materiality of the destroyed evidence by

noting that it was the state's exhibits

against John Sweet which were destroyed and by

asserting that Petitioner could readily have

substituted unspecified "lab results" for the

Critical missing evidence. Opposition at 14 -

16. These assertions are grossly misleading.

True, the state's exhibits against Sweet were

ithe government's reliance on Cardinale v.

Louisiana, 394 U.S. 437 (1969) (Opposition at

10) is misplaced. In that case, this Court

dismissed its writ for want of jurisdiction

where no federal question had ever been raised

prior to the filing of the Petition for

Certiorari. Here, of course, Petitioner's

constitutional claim has been raised and

preserved throughout.

destroyed, and “the defense exhibits were

still available...." Opposition at 14. But

the interests of Petitioner and Sweet are in

conflict; not only was Sweet the star witness

against Petitioner, but Petitioner contends

that the actual murderer may well have been

Sweet. Consequently, Sweet's "defense"

exhibits cannot be expected to assist

Petitioner's defense. The government's

exhibits however, and in particular the real

evidence relating to the murder scene, would

be highly relevant to proving Petitioner's

innocence. While the government never

contended that Sweet was at the murder scene,

it did contend that Petitioner was. Evidence

-- such as fingerprints and bloodstained

objects-- that was merely tangential at

Sweet's trial would have been vital in

assisting Petitioner to prove that he was not

at the scene.

~ ae

The government blithely contends that

"lab reports pertaining to the sheets” and the

medical examiner's testimony provided

Petitioner with “comparable evidence” to

replace the missing evidentiary items,

including the sheet. Opposition at i6. The

contention is erroneous. Petitioner insisted

at trial that because “Kelley” was seen

shortly after the murder with no blood on his

clothes, he could not have committed this very

bloody crime. The state countered this

assertion -- as it now concedes -- by

contending "that the sheet was wrapped around

the victim before he was stabbed to absorb the

blood.” Opposition at 15. Thus, the cut and

bloodstained sheet's absorption potential was

a central factual issue for both the defense

and the prosecution. Yet the "lab tests”

referred to by Respondent, the only ones

performed before the sheet's destruction, did

no more than identify the blood type found on

the sheet; they were completely irrelevant to

the central dispute about whether the sheet

could have absorbed the blood. Similarly, the

medical examiner's testimony, which

established that the victim's heart continued

to pump for several minutes after the stabbing

intensifies rather than obviates the need for

the sheet itself. Opposition at 16. Did the

blood spurt through the sheet or didn't it?

No tests were performed analyzing the size and

direction of the slits or the quantity of

blood found on the sheet. Had the sheet been

preserved, expert analysis and testimony could

have answered this critical factual question.

Without the sheet, each side could only ask

the jury to engage in conjecture. Because the

sheet was thus of such critical evidentiary

importance, its materiality to Fetitioner's

defense cannot be denied, nor was there any

"comparable evidence" available to Petitioner

after its destruction.

The government concedes that Petitioner

waS an active suspect in the case at the time

the evidence was destroyed. Opposition at 2.

Yet they also admit that he was given no

notice or opportunity to challenge the

destruction of all of the real evidence

relating to the murder scene. Had anyone

stopped to consider what impact the proposed

destruction would have on any eventual trial

of Petitioner, the exculpatory potential of

items such as the sheet would have been

obvious. Respondent quotes this court's

language in Trombetta that, for destroyed

evidence to be constitutionally material it

must “possess an exculpatory value that was

apparent before the evidence was destroyed."

104 S.Ct. at 2534. That phrase must mean an

obvious exculpatory potential, since the

actual exculpatory value can never be known

for certain before the trial and will depend

in large measure on who the defendant is and

the defense theory of the case. For example,

fingerprints from the scene of a crime often

possess exculpatory potential value at the

time they are lifted but their actual value

depends on the facts of the case. Where, as

here, a bloodstained, knife-cut sheet and

other items constitute the only evidence

relating to the murder scene, it should be

obvious that such items have the potential to

exculpate a suspect such as Petitioner,

because they are both the best and the only

means to recreate, through expert analysis,

Critical aspects of the crime. By destroying

this evidence, the state effectively deprived

Petitioner of his ability to demonstrate that

he could not have been the murderer.

~10<

II. RESPONDENT MISCONSTRUES PETITONER'S

ARGUMENT THAT THE ADMISSION OF AN ALLEGED

PRIOR CONSISTENT STATEMENT DEPRIVED PETITIONER

OF DUE PROCESS AND THE RIGHT TO CONFRONTATION.

Petitioner was deprived of dve process

and the right to confrontation by the

admission into evidence of the testimony of

Abe Namia. Petition for Writ of Certiorari at

42 - 49. Sweet's testimony was the only

evidence linking Petitioner to Maxcy's death.

At trial, "[d]Jefense counsel clearly

established an inference of improper motive to

fabricate through its extensive cross-

examination of Sweet concerning the laundry

list of crimes for which he had been given

immunity in return for his testimony against

Kelley.” Opinion of Florida Supreme Court,

Petition for Writ of Certiorari at A-7.

Namia's testimony -- that in 1967 Sweet told

Namia of his and Kelley's involvement in

Maxcy's death -- was offered to rebut this

"clearly established ... inference." Despite

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Sweet's vigorous in-court protests that he

never told Namia anything of the sort, Sweet's

1967 statement was admitted for the truth of

the matter asserted: that Petitioner had

killed Maxcy. Petitioner had no opportunity to

confront the declarant, since Sweet denied

making the statement.

In Opposition, Respondent asserts, "this

claim that there must be a foundation by

eliciting the declarant's testimony that he

made prior consistent statements is

unsupported by any authority.” Opposition at

19. Respondent misunderstands Petitioner's

claim. The admission of Namia's statement

violated the plain terms of the statute, which

requires that the declarant be "subject to

cross~examination concerning the statement”

and that the statement be "consistent with

[the declarant's] testimony.” Fla. Stat.

$90.801 (West 1979). Here, the statement was

=12=-

inconsistent with the declarant's in-court

testimony and the declarant was not subject to

cross-examination -- because Sweet testified

that he never made the statement. Numerous

decisions reflect the necessity for

consistency and the opportunity to cross-

examine. See, e.g., United States v. West, 670

F.2d 675, 687 (7th Cir.), cert. denied, 457

U.S. 1124 (1982); United States v. Quinto, 582

F.2d 224, 234 (2d Cir. 1978). See also D.

Louisell & C. Mueller, Federal Evidence §419

(1980) ("Not only claims of lack of memory and

refusals to answer, but also denials of having

made prior statements can effectively thwart

cross-examination") (discussing Fed. R. Evid.

801(d)(1)).2 And the constitutional right to

2Respondent argues that Namia's testimony was

"substantially consistent” with Sweet's.

Opposition at 21. Respondent overlooks the

vital inconsistency in their testimony:

whether Sweet told Namia what Namia said he

did. It is this inconsistency that deprived

Petitioner of an opportunity to confront.

-13-

confrontation has been repeatedly emphasized

by this Court. E.g., Ohio v. Roberts, 448

U.S. 56 (1980); California v. Green, 399 U.S.

149 (1970).

-14-

a...

III. RESPONDENT MISUNDERSTANDS PETITIONER'S

ARGUMENT THAT THE IMPOSITION OF THE DEATH

PENALTY IN THIS CASE IS UNCONSTITUTIONAL

Petitioner has asserted inter alia that

the death penalty is imposed arbitrarily, on

the basis of the victim's race. Petition for

Writ of Certiorari at 50 - 53. The essence of

this claim is currently before the Court.

Hitchcock v. Wainwright, cert. granted, 106 S.

Ct. 2888 (1986); McCleskey v. Kemp, cert.

granted, 106 S.Ct. 3331 (1986). Although

Respondent claims at one point that this issue

was not properly preserved, Opposition at 24,

Respondent concedes that Petitioner raised the

issue “in his brief before the Florida Supreme

Court.” Opposition at 23. In fact, Petitioner

presented this precise issue to the Florida

Supreme Court and Respondent answered on the

merits. Brief of Appellant, Part VI.B; Brief

of Appellee, Part VI.G. Clearly, if there was

no procedural bar to the Florida Supreme

=-15-

Court's consideration of this issue, the issue

was properly preserved, and there is no bar to

this Court's consideration.

Petitioner has also argued that the

imposition of the death penalty here is

unconstitutional. Petition for Writ of

Certiorari at 53 - 59. In this case, Florida's

statutory scheme pyramided aggravating

circumstances and thus enhanced the chance

that the aggravating circumstances would

outweigh mitigating circumstances. In

addition, the statutory scheme permitted the

sentencing judge to consider as an aggravating

circumstance Petitioner's single prior felony

conviction, despite the fact that the only

thing known about this incident is that it

occurred when Petitioner was sixteen years old

and involved $114 and a six-pack of beer. Cf.

Solem v. Helm, 463 U.S. 277, 296-97 (1983)

(sentence of life imprisonment without

=16<

possibility of parole could not be supported

by “relatively minor" felony convictions).

Respondent's sole reply is that "Florida's

aggravating circumstances have been repeatedly

upheld by this Honorable Court." Opposition at

26. Respondent completely misses the thrust

of Petitioner's challenge. Petitioner does not

dispute the facial validity of the Florida

Statute but notes its unconstitutional

application to the Petitioner in this case.

-ji7-

CONCLUSION

Petitioner who has vigorously asserted

that he was not involved in the murder has

been sentenced to death after the State

deliberately and without notice to him

destroyed crucial evidence that could have

established his innocence. The State thus

exploited the absence of the evidence at the

trial and relied on inadmissible hearsay. The

resulting conviction and death sentence of a

defendant, whose only prior felony conviction

was a juvenile offense involving a six-pack of

beer, warrants review by this court.

~+18~

For the above-stated reasons, as well as

those set out in the Petition for a Writ of

Certiorari, this Court should grant the Writ

to decide the important questions of law

raised here.

Respectfully submitted,

Alan M. Dershowitz

Counsel of Record

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Nathan Z. Dershowitz

Victoria B. Eiger

Dershowitz & Eiger, P.C.

225 Broadway

New York, New York 10007

(212) 513-7676

Attorneys for Petitioner

William Harold Kelley

Of Counsel

Laura Hanft

-19-