Petition for Writ of Certiorari — Evans v. Thompson (No. 89-516)
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Suprame Court, U.S.
89-5 16" FILED
SEP 27 1889
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EN@, commen | JOSEPH F. SPANIOL, .
CLERK
1
—
- i—_—_-—
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
WILBERT LEE EVANS,
Petitioner,
Ve
CHARLES THOMPSON, Superintendent,
Mecklenburg Correctional Center,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ARTHUR F. MATHEWS *
THOMAS F.. CONNELL
MARK D. CAHN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
JONATHAN SHAPIRO
1013 Princess Street
Alexandria, Virginia 22314
(703) 684-1700
Counsel for Petitioner
September 27, 1989 * Counsel of Record
._~: ——"
QUESTIONS PRESENTED
1. When a defendant has been sentenced to death un-
der a state statute which automatically mandates a sen-
tence of life imprisonment if the death sentence is later
set aside because of constitutional error, and the sentence
is later set aside for that reason, does it violate the ex
post facto clause of the United States Constitution to
resentence the defendant to d«.:th under a statute, en-
acted long after the defendant’s initial sentence had be-
come final, which permits capital resentencing.
2. When a defendant has been sentenced to death un-
der a state statute which automatically mandates a sen-
tence of life imprisonment if the death sentence is later
set aside because of constitutional error, and the sentence
is later set aside for that reason, does it violate the equal
protection clause of the United States Constitution to
resentence the defendant to death under a new statute
which permits capital resentencing, when other similarly
situated defendants tried under the earlier law received
the mandatory sentence of life imprisonment.
3. When a state has secured a death sentence through
the knowing use of false evidence, at a time when state
law mandated a sentence of life imprisonment for any
defendant whose death sentence was later determined to
be unconstitutional, does it violate the defendant’s fed-
eral right to the due process of law if the state fails for
two years to disclose the known misconduct, and then
seeks to resentence the defendant under a newly enacted
statute which (unlike the prior law) authorizes capital
resentencing.
4. When the trial record in a capital case plainly in-
dicates that the defendant has been sentenced to death on
the basis of false evidence, does it violate the defendant’s
federal rights to effective assistance of counsel and the
due process of law if his counsel fails to discover or as-
(i)
ii
sert those errors during the course of the defendant’s
direct appeal, at a time when, but for counsel’s failure,
the defendant’s sentence would automatically have been
commuted to life imprisonment.
5. When a capital sentencing jury asks the court dur-
ing deliberations if a split decision will automatically re-
sult in the imposition of a sentence of life imprisonment,
and the answer to that question plainly is yes, does it
violate the defeadant’s federal right to the due process of
law when the court refuses to answer the jurors’ ques-
tion, but instead instructs them that they must reach a
unanimous verdict.
octet .
TABLE OF CONTENTS
QUESTIONS PRESENTED ................2..22..2..eceeeeeeeneeeeees
TABLE OF AUTHORITIES ...........22..........-----eeeeeeseeeees
Be asd ccenadninpiinncenintdoewnntcnennenenesetunnces
aed nk hebitlantesthnderlnctisiwinncatehsoutacenenscarenremnees
CONSTITUTIONAL AND STATUTORY PROVI-
TIED iccicterlisanhinsln cherebdaresionacenuneadiendnceenreceens
oe vy iy | El ot | nnn
REASONS FOR GRANTING THE WRIT .....................
I.
ITI.
THIS COURT SHOULD GRANT CERTIORARI
TO CLARIFY THE SCOPE OF DOBBERT v.
FLORIDA, WHICH THE FOURTH CIRCUIT
MISCONSTRUED TO REACH AN UNPRECE-
IE nccntinintiennictanchbunnansenamnnecencercees
A. Resentencing Evans to Death Under Vir-
ginia’s Amended Capital Statute Violated
the Ex Post Facto Clause ..................-----.--------
B. Resentencing Evans to Death Under Vir-
ginia’s Amended Capital Statute Violated
the Equal Protection Clause ....
. THE LOWER COURT’S REJECTION OF
EVANS’ DUE PROCESS CLAIM RESTS
ON A FUNDAMENTAL MISCONCEPTION,
WHICH THIS COURT SHOULD CORRECT,
ABOUT THE LEVEL OF SCRUTINY RE-
QUIRED IN FEDERAL HABEAS CORPUS
IIE ibiridtiantechchacminnnne (CS SUT A a ae
THE DECISION BELOW EVISCERATES THE
IMPORTANT CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL
reals ccndiethnaeennannsacnassnaiannmyeenannence
10
12
15
18
22
iv
TABLE OF CONTENTS—Continued
Page
IV. THIS COURT SHOULD GRANT CERTIORARI
TO RESOLVE THE CONFLICT BETWEEN
STATE AND FEDERAL COURTS OVER
WHETHER DUE PROCESS REQUIRES A
CAPITAL SENTENCING JURY TO BE TOLD,
IN RESPONSE TO THEIR SPECIFIC QUES-
TION, THAT A SPLIT DECISION WILL AU-
TOMATICALLY RESULT IN A SENTENCE
OF LIFE IMPRISONMENT .....WWw ww. 25
ITT <iiciceninncnintsnnesaialaatintgussieth aaa a 30
v
TABLE OF AUTHORITIES
Cases Page
Arizona v. Youngblood, 109 S. Ct. 333 (1988) -....... 21
Barfield v. Harris, 540 F. Supp. 451 (E.D.N.C.
1982), aff'd, 719 F.2d 58 (4th Cir. 1983), cert.
denied, 467 U.S. 1210 (1984) .............................. 28
Caldwell v. Mississippi, 472 U.S. 320 (1985) _...... 28-29
Cartwright v. State, 1989 Okla. Crim. App. LEXIS
Gr ee I Waitt es cattniihcsihinetecinterienen 11
Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d
784 (1979), cert. denied, 444 U.S. 1049 (1980).. 27
Clements v. United States, 266 F.2d 397 (9th Cir.),
cert. denied, 359 U.S. 985 (1959) —....................... 15
Coleman v. McCormick, 874 F.2d 1280 (9th Cir.
Be Me I iii nian etek ecieigdacinietneintinemeenaninie 10
Coleman v. Saffle, 869 F.2d 1877 (10th Cir. 1989) .. 10
Commonwealth v. Crenshaw, 470 A.2d 451 (Pa.
RED eidsotbaeteviasshneodastedetaendcigth beskes Aiciiddaishiaihdanaetinlasgmetnitansnensntiin 18
Commonwealth v. Story, 440 A.2d 488 (Pa. 1981).. 18
Cuyler v. Sullivan, 446 U.S. 335 (1980) _................ 20
Darden v. Wainwright, 477 U.S. 168 (1986) -........ 29
Dobbert v. Florida, 482 U.S. 282 (1977) ................. passim
Dutton v. Dixon, 757 P.2d 376 (Okla. Crim. App.
EERO a oh Cra are ce eel 11
Evans v. Bair, 483 U.S. 1010 (1987) ...................... 10
Evans v. Commonwealth, 222 Va. 766, 284 S.E.2d
816 (1981), cert. denied, 455 U.S. 1038 (1982)
ek gp me SE PINE A 5
Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d
14 (1984), cert. denied, 471 U.S. 1025 (1985)
I aaah lita caiiandptinesehianseanionl 6, 10, 20
Evitts v. Lucey, 469 U.S. 387 (1985) ..................-..... 22
Falter v. United States, 23 F.2d 420 (2d Cir.),
cert. denied, 277 U.S. 590 (1928) ...............0.0020.. 15
Klasing v. State, 771 S.W.2d 684 (Tex. Ct. App.
BE Wiidieicstacthessiekiciateadcereicctneeamliaea dL aigillca ee ais cecaeaancenese 11
Kring v. Missouri, 107 U.S. 221 (1888) —.............. 14
Lee v. State, 340 So. 2d 474 (Fla. 1976) (per
I decttice te aicihictinatenel iladl cicapiseubchdiabe couse eeaaeintinaitan 17
vi
TABLE OF AUTHORITIES—Continued
Mafnas v. Government of Guam, 228 F.2d 283 (9th
ere nes eet ee Or re
Marshall v. Lonberger, 459 U.S. 422 (19838) ...... 18,
Miller v. Fenton, 474 U.S. 104 (1985) —..........000......
Mills v. Maryland, 108 S. Ct. 1860 (1988) ............
Meller v. State, 581 P.2d 3 (Nev. 1978) (per
SETA EES nares Some re Re es A ge ee
Patterson v. Commonwealth, 222 Va. 653, 283
I a as hthicliniols
Proffitt v. Florida, 428 U.S. 242 (1976) —.......00.......
Smith v. Murray, 477 U.S. 527 (1986) 000.
Sobiek v. Superior Court, 28 Cal. App. 3d 846, 106
Rs ___. RRR NR Tere gree aeerrer wm Pom
State v. Creekpaum, 782 P.2d 557 (Alaska App.
1987), rev’d, 753 P.2d 1189 (Alaska 1988) .........
State v. Creekpaum, 753 P.2d 1139 (Alaska 1988) ..
State v. Edwards, 701 P.2d 508 (Wash. 1985) (en
IED. cccesencushithsiiinndtnestttitissiihitsdualidliiiceidanaabididiahah ameatinadasis
State v. Loyd, 459 So. 2d 498 (La. 1984) ................
State v. Norton, 675 P.2d 577 (Utah 1983), cert.
denied, 466 U.S. 942 (1984) 2.00.00...
State v. Ramseur, 524 A.2d 188 (N.J. 1987) .........
State v. Rodgers, 242 S.E.2d 215 (S.C. 1978) ......
State v. Williams, 392 So. 2d 619 (La. 1980) .........
Strickland v. Washington, 466 U.S. 668 (1984)....
Sumner v. Mata, 449 U.S. 5389 (1981) (“Sumner
cg Leh a nee OT ee ES, SN
Sumner v. Mata, 455 U.S. 591 (1988) (per curiam)
ge. gg FREE eee cc aero
Thigpen v. Thigpen, 541 So. 2d 465 (Ala. 1989)...
Thompson v. Utah, 170 U.S. 348 (1898) —...0000.....
United States v. Arpan, 861 F.2d 1078 (8th Cir.
1988}, vacated for rehearing en banc, 867 F.2d
pL ERS Rea ee trad
United States v. Fraidin, 68 F. Supp. 271 (D. Md.
FE TE eee eee: ERNE | mee NC RR I
United States v. Henson, 486 F.2d 1202 (D.C. Cir.
ERE SD ERE tare ae cL LETC
Page
14
20
a a a a -
vii
TABLE OF AUTHORITIES—Continued
United States v. Juvenile Male, 819 F.2d 468 (4th
Ci BI sencecetencnetecieseniecnsenninhnninsinnnnverinlemnnninnnnemanans
United States v. Morrison, 449 U.S. 361 (1981)....
United States ex rel. Massarella v. Elrod, 682 F.2d
688 (7th Cir. 1982), cert. denied, 460 U.S. 1037
I ciscirnanstinsnietsicissnapnrnsiggnenennnsnainnsneemmmnssennnnamanssianan
Virginia Department of Corrections v. Clark, 227
Va. 525, 318 S.E.2d 399 (1984) ............................
Weaver v. Graham, 450 U.S. 24 (1981) ...................
Statutory Provisions
BB TAGs B REO GED CIID -nn-xan..nracneevenececcecenecsseceresee
SB U.S.C. 5 RBS (E) CRGGE) q........--2.0 22... renn2e.n22s
Virginia Code § 19.2-264.2(1) (1983) -................... 4,
Virginia Code § 19.2-264.4(E) (1983) ................. Aer
Page
14
22
15
27
14
1
21
26, 27
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
No.—
WILBERT LEE EVANS,
Petitioner,
v.
CHARLES THOMPSON, Superintendent,
Mecklenburg Correctional Center,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Wilbert Lee Evans (“Evans”) petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Fourth Circuit entered in this
case.
OPINIONS BELOW
In this capital case, the United States Court of Appeals
dismissed Evans’ first (and only) federal habeas corpus
petition, affirming the judgment of the federal district
court. The opinions of the court of appeals (hereafter,
the “lower court,” “circuit court,” or “Fourth Circuit’’)
and the district court, which are unreported, are set forth
in the Appendix (“App.”) at 2a, and 17a, respectively.
JURISDICTION
The judgment of the court below was entered on
August 2, 1989. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1) (1982).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The constitutional and statutory provisions involved
are set forth separately at the end of this volume.
STATEMENT OF THE CASE
In this capital case the Commonwealth’s pervasive,
gross, and admitted misconduct has so far successfully
deprived Evans of the sentence of life imprisonment to
which he would otherwise be entitled. As we show below,
Evans was sentenced to death in April 1981 on the basis
of evidence that the Commonwealth later admitted was
known to be false. For 23 months thereafter, the Com-
monwealth stonewalled, citing the false evidence in plead-
ings filed in four courts (including this Court), while
falsely denying for a full year Evans’ explicit, repeated
attacks upon that evidence. Throughout this entire pe
riod, the Virginia Attorney General’s office was lobbying
the state legislature to enact emergency legislation per-
mitting for the first time resentencing in capital pro-
ceedings. On the very day that legislation was adopted
(twenty-three months after Evans’ trial), the Common-
wealth confessed what it had known all along—that
Evans’ death sentence rested on false and unconstitutional
evidence.
This case presents several novel and important ques-
tions concerning whether a state which obtained a death
sentence through the knowing use of false evidence, at a
time when state law prohibited capital resentencing, may
subject the defendant to resentencing under a new law
enacted years after the defendant’s first sentence had
become final. (See Points I-III, below). This case also
presents the important question, on which the lower
courts have divided, of whether a capital sentencing jury
should be told, in response to their specific inquiry during
deliberations, that a split decision will automatically
3
result in a sentence of life imprisonment. (Point IV,
below).
All of the facts material to Evans’ claims are undis-
puted: they come straight from contemporaneous docu-
ments, court filings, and the sworn admissions of two
Commonwealth prosecutors. Because so few of the mate-
rial facts are even mentioned in the opinions below, they
are set forth at length here.
1981 Conviction and Sentencing
Wilbert Evans was convicted of capital murder in
April 1981, for the January 1981 shooting of an Alex-
andria, Virginia Deputy Sheriff. At the sentencing phase
of Evans’ bifurcated trial, the Commonwealth’s evidence
consisted almost exclusively of three Exhibits (Com-
monwealth Exhibits 19-21) that purported to depict
Evans’ prior conviction record. The Exhibits showed
seven separate prior convictions, for offenses in North
Carolina, the state of Evans’ birth. They included a con-
viction for “[a]ssaulting a police officer with a knife
while the officer was in the performance of his duties”
(App. 87a)—an offense strikingly similar to the one for
which Evans had just been convicted.
Evans’ court-appointed counsel, Long and Brown,
raised several technical objections to the Exhibits, but did
not attack their underlying validity. Out of the presence
of the jury, the court reviewed each of the Exhibits,
page-by-page, asking Commonwealth prosecutor John
Kloch whether each of the offenses shown was in fact a
conviction, and whether the convictions were for felonies
or misdemeanors. (App. 3la-40a). The prosecutor said
1The shooting occurred as Evans was being returned to jail
after a court appearance and as he struggled with the deputy in
an attempt to escape. Evans was captured less than one hour after
the shooting. From the outset Evans admitted responsibility for
the shooting. However, Evans has always contended, and still
contends, that he never intended to kill the deputy, but that the gun
fired accidentally as he and the deputy struggled to control it.
4
nothing to indicate that there were any flaws in the Ex-
hibits, which were then admitted into evidence. (App.
31a-40a). ,
In closing argument, prosecutor Kloch repeatedly re-
ferred to Evans’ prior conviction records as shown in the
Exhibits, and twice referred to the offense of assaulting
a police officer with a knife. (App. 41a). On April 17,
1981, the jury recommended the death penalty on the
basis of the statutory aggravating factor of “future
dangerousness,” ? and was discharged.
Sentencing and Appeal
On June 1, 1981, the trial court held a hearing for the
imposition of sentence. At the outset the court reviewed
and received into evidence a “post-sentence report” dated
May 12, 1981, prepared by the Commonwealth’s Probation
Department. (App. 42a-45a). In a section listing Evans’
prior conviction record, the report showed that the most
serious conviction depicted in Commonwealth Exhibit 21
—“Assault on Officer/Affray with a Deadly Weapon”’—
was not a valid conviction, but had been nolle prossed.
(App. 43a). Defense counsel told the court that they had
read the report (App. 47a); but they raised no question
about the contradiction between the report’s account of
Evans’ prior record and the Commonwealth Exhibits that
had been admitted into evidence at the April trial. After
expressly including the report in the trial record (App.
48a-49a), the trial judge sentenced Evans to death.
(App. 49a).
Long and Brown continued to represent Evans through-
out his direct appeal, from June 1981 through March
1982. During that period counsel raised no objection to
any of the seven prior convictions depicted in Common-
*The jury found that there was a “probability that [Evans]
would commit criminal acts of violence that would constitute a
continuing serious threat to society... .”’ Va. Code § 19.2-264.2(1)
(1983).
5
wealth Exhibits 19-21—even though the Commonwealth’s
Brief to the Virginia Supreme Court explicitly recited
each of those convictions (App. 50a-53a), and even though
the Virginia Supreme Court explicitly discussed their
significance in a published opinion affirming Evans’ con-
viction and death sentence. Evans v. Commonwealth, 222
Va. 766, 284 S.E.2d 816, 820, 823 (Dec. 4, 1981), cert.
denied, 455 U.S. 1088 (1982) (“Evans I’). Likewise,
counsel raised no challenge when the Commonwealth, in
opposing Evans’ certiorari petition, filed a brief which
explicitly recited the seven prior convictions. (App. 54a-
57a). This Court denied certiorari on March 22, 1982.
The Commonwealth’s Confession of Error
Days before his scheduled execution, Evans obtained
new counsel (“habeas counsel”), who discovered almost
immediately that Evans’ death sentence rested on false
and unconstitutional evidence. Represented by his new
counsel, Evans filed in April 1982 a petition for a writ
of habeas corpus in the Circuit Court of Alexandria,
Virginia. From April 1982, through January 1983, Evans
filed four separate pleadings * in that court that attacked
explicitly and in exacting detail the validity of the seven
prior “conviction” records presented at Evans’ April 1981
sentencing. Specifically, Evans asserted that there was
no valid conviction for assaulting a police officer; that
three of the supposed convictions were duplicative of each
other; and that the others were inadmissible, because
they had been obtained while Evans was without benefit
of counsel. (App. 58a-74a). For a full year the Com-
monwealth resisted these petitions, filing pleadings in the
state habeas court on July 23, 1982, and March 38, 1983,
that denied each of Evans’ factual allegations. (App.
3 These included Evans’ Petition for Habeas Corpus (filed April
9, 1982) (App. 58a-61a), Amended Petition for Habeas Corpus
(May 5, 1982) (App. 62a-65a), Bill of Particulars (July 6, 1982)
(App. 67a-70a), and Second Amended Petition (December 22, 1982)
(App. 72a-74a).
6
83a-86a). The Commonwealth’s denials were signed by
Assistant Attorney General Jerry P. Slenaker.
As discussed below, these denials had a devastating
impact on Evans’ case because, at the time they were
made, Virginia law prohibited capital resentencing. As
the court below correctly noted, “[p]rior to [March 28,
1983], if the Commonwealth failed to secure a valid death
sentence due to errors in the sentencing process it was
foreclosed from seeking capital resentencing and the de-
fendant received an automatic sentence of life imprison-
ment.” (App. 5a). That point was settled at least as
early as October 1981, when the Virginia Supreme Court
authoritatively construed the state’s capital sentencing
statute in Patterson v. Commonwealth, 222 Va. 653, 283
S.E.2d 212 (Oct. 16, 1981)—a decision issued by the same
court that decided Evans’ direct appeal six weeks later.‘
During the entire year that Evans’ state habeas peti-
tion was pending, representatives of the Virginia Attor-
ney General, including Assistant Attorney General Slo-
naker, lobbied the Virginia legislature to overrule
Patterson and allow capital resentencing. On March 28,
1983, Virginia adopted the amendment proposed by the
Attorney General, which, effective immediately, permitted
capital resentencing. On that same day Slonaker in-
formed Evans’ counsel that the Commonwealth intended
to confess error in the Evans case. The Commonwealth’s
written confession of error, dated April 12, 1983, ad-
*The Patterson decision was based on Virginia’s then-existing
capital sentencing statute, under which only the same jury that
found a capital defendant guilty could fix his punishment. Because
the jury in Patterson had been tainted by constitutional error, it
could not be reconvened to resentence the defendant. And because
Virginia had no statute authorizing resentencing before a dif-
ferent jury, the Virginia Supreme Court concluded that Patter-
son’s death sentence had to be reduced automatically to life im-
prisonment. 283 S.E.2d at 216. See also Evans v. Commonwealth,
228 Va. 468, 323 S.E.2d 114, 117 (1984), cert. denied, 471 U.S.
1025 (1985) (“Evans II’’).
7
mitted to each of the errors that Evans had begun alleg-
ing a year earlier: that three of the seven convictions
were duplicative; that there was no valid conviction for
assaulting a police officer; and that the other convictions
were uncounselled. The written confession asserted, how-
ever, that these errors were made “unbeknownst to the
prosecution.” (App. 88a). Subsequent events proved
that assertion false.
By order dated May 2, 1983, the court vacated Evans’
death sentence. Thereafter, the Commonwealth sought
resentencing under Virginia’s newly amended capital sen-
tencing statute. When Evans objected, the state trial
court held an evidentiary hearing, in September 1983, to
determine whether resentencing was permissible.
At the hearing, two Commonwealth prosecutors ad-
mitted under oath to a series of actions that for two
years effectively deceived four courts (including this
Court) about the true facts surrounding Evans’ first
death sentence. Far from claiming ignorance of the
errors in the prior conviction records (as the Com-
monwealth’s confession of error had suggested), the trial
prosecutor (Kloch) admitted that he had known as early
as February 1981—two months before the trial—that
three of the seven convictions were duplicative, and that
there was no valid “conviction” for assault on a police
officer. (App. 92a-95a). Kloch’s sworn admissions were
corroborated by a written report, prepared by Kloch’s
assistant and given to Kloch in February 1981, which
plainly identified the errors in Evans’ supposed conviction
records. (App. 29a-30a). In defending his conduct at
trial, Kloch claimed that in an off-the-record discussion—
held after the bench conference with the judge and after
the tainted evidence had gone to the jury, but before final
arguments—Kloch told defense counsel about the errors,
but that counsel had failed to object.° Kloch had no ex-
5 (App. 95a-96a, 100a-108a). Kloch claimed that he believed
defense counsel had some “tactical” reason for failing to object.
Even if this testimony were plausible, it is irrelevant. By Kloch’s
8
planation, however, for his decision to proffer the false
conviction records in the first place, or for his failure to
inform either the trial court or jury about the known
errors. (App. 96a, 100a).
Although Kloch’s office did not represent the Common-
wealth in the direct appeal, Kloch testified that he had
read an “advance sheet” copy of the Virginia Supreme
Court’s December 1981 opinion—which explicitly recited
and relied on the seven supposed convictions, with par-
ticular emphasis on the one concerning a police officer:
See Evans I, 284 §.E.2d at 820, 823. By his own admis-
sion, Kloch did nothing to correct the court’s unwitting
reliance on that false evidence. (App. 97a-98a).
Slonaker was the other key witness at the September
1983 hearing. Although he denied making any conscious
effort to delay the confession of error to achieve a tac-
tical advantage, he made several crucial admissions that
are nowhere discussed in the opinion below. First, Slo-
naker admitted that on or before January 1983, he and
Kloch had met to discuss Evans’ case. At that meeting,
Kloch told Slonaker that Evans’ death sentence had been
obtained by the knowing use of false evidence.*®
Second, Slonaker acknowledged that in January 1983—
two months before the law was amended, and three
months before the confession of error—he had received
letters directly from the clerk of the court in North
Carolina confirming that the “conviction” records prof-
fered by the Commonwealth at the 1981 trial were false
and misleading. (App. 77a-82a, 117a). It is undisputed
own account, his supposed disclosure to defense counsel occurred
after the tainted Exhibits had gone to the jury and thus, after
the damage had been done. (App. 100a-103a). In any event, both
of Evans’ defense counsel denied under oath that Kloch had ever
made such a disclosure (App. 103a-110a), and no court has ever
resolved that disputed issue of fact. See Evans I], 323 S.E.2d at
120.
® Both Slonaker and Kloch testified about this meeting. (App.
115a-117a (Slonaker), 98a-99a (Kloch) ).
9
that six weeks after receiving these letters, and after
his face-to-face meeting with Kloch, Slonaker filed an
Amended Answer in the state habeas court again denying
the allegations in Evans’ state habeas petitions—allega-
tions which by that point Slonaker knew were true.
(App. 83a-86a).
Finally, Slonaker admitted that throughout this same
period—while Evans was pressing his appeal and state
habeas petition, and Slonaker was receiving reports that
Evans’ allegations were accurate—Slonaker had been
actively involved in lobbying the Virginia legislature to
adopt emergency legislation permitting capital resentenc-
ing. By his own admission, Slonaker had written a
memorandum in September 1982 urging adoption of the
measure (App. 113a); helped draft and revise the actual
language of the proposed amendment (App. 113a); and
appeared twice before legislative committees in support
of it, in January and February 19838. (App. 113a-114a).
At the close of the September 1983 hearing, Judge
Wright ruled from the bench, permitting resentencing
under the amended statute. (App. 117a). That ruling
was followed by a terse order, which the court below
characterized as “findings of fact.” (App. 118a-120a).
1984 Resentencing
A resentencing hearing was held on January 31-Febru-
ary 3, 1984. During the course of its deliberations, the
resentencing jury asked the court whether “a split deci-
sion automatically become[s] life.” (App. 122a). As de-
scribed below, over defense counsel’s objection, the court
responded in a way that deliberately left the question
unanswered. See pp. 26-27, infra. The jury then recom-
mended the death sentence, based on the statutory ag-
gravating factor of “future dangerousness.”* On March
7 Four months later Evans was involved in an event that is flatly
inconsistent with any finding that he poses a “future danger’ to
society or deserves the death penalty. In May 1984, six death row
inmates escaped from Mecklenburg Correctional Center (where
10
7, 1984, the court imposed sentence of death. The Su-
preme Court of Virginia affirmed, and this Court denied
certiorari. Evans 11.8
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD GRANT CERTIORARI TO
CLARIFY THE SCOPE OF DOBBERT v. FLORIDA,
WHICH THE FOURTH CIRCUIT MISCONSTRUED
TO REACH AN UNPRECEDENTED RESULT.
The circuit court’s entire justification for rejecting
Evans’ ex post facto and equal protection claims was a
mistaken construction of this Court’s decision in Dobbert
v. Florida, 432 U.S. 282 (1977). Although Dobbert arose
out of peculiar factual circumstances that have seldom
if ever been repeated, the lower courts have struggled for
more than a decade to apply Dobbert’s principles to a wide
array of other circumstances. The result has been a
series of confusing and inconsistent decisions in both
federal and state courts.® No case more plainly illustrates
Evans was incarcerated), after holding fourteen prison guards
hostage. Despite extreme pressure to join the escape, or simply to
yield to events, Evans prevented violence and helped those who had
been taken hostage. Though unarmed, he placed himself between
the heavily armed escapees and the hostages, intervening on the
hostages’ behalf, urging the escapees to remain calm and non-
violent, and helping the hostages when he could. The fourteen
hostages credit Evans with saving their lives, and one female
hostage credits him with preventing her rape. (App. 124a-129a).
8 Thereafter, Evans exhausted the remaining claims in his state
habeas petition; the Virginia Supreme Court denied review of
those claims in a two-sentence order, Evans v. Bair, No. 860831
(Feb. 26, 1987), and this Court denied certiorari. 483 U.S. 1010
(1987).
®The decision below squarely conflicts with the result, if not
the reasoning, of another federal circuit on the same issue. See
Coleman v. McCormick, 874 F.2d 1280, 1286 & n.7 (9th Cir. 1989)
(en banc) (distinguishing Dobbert; due process violated by retro-
active application of new capital sentencing statute to defendant
whose sentence under earlier statute had been set aside as uncon-
stitutional). But cf. Coleman v. Saffle, 869 F.2d 1377, 1385-87
11
that confusion than this one, or more clearly demon-
strates the need for this Court to revisit and clarify the
law of ex post facto. Until this case, no federal court
had extended Dobbert to authorize the retroactive applica-
tion of a statute enacted years after the defendant’s
crime, sentencing, and direct appeal had become final, and
thereby retroactively deprive him of a complete statutory
defense to a capital sentencing. Under the banner of en-
couraging state legislatures to reform their criminal laws
(see App. 8a), the lower court made a wholesale revision
of the ex post facto and equal protection clauses, which
plainly misconstrues Dobbert and ignores other applicable
authority.
(10th Cir. 1989) (due process not violated by retroactive applica-
tion of new capital sentencing principles governing weighing of
aggravating and mitigating factors; due process analysis should be
identical to ex post facto analysis in Dobbert). The state courts
have cited Dobbert as both prohibiting retroactive application of new
sentencing statutes, and as authorizing it. Compare Thigpen v. Thig-
pen, 541 So. 2d 465, 467 (Ala. 1989) (resentencing under new capital
statute violates ex post facto; Dobbert distinguished), State v.
Rodgers, 242 S.E.2d 215, 217-18 (S.C. 1978) (distinguishing Dob-
bert; resentencing even under ameliorative statute barred, where
defendant had already been tried and convicted under earlier law),
and Meller v. State, 581 P.2d 3, 4 n.3 (Nev. 1978) (per curiam)
(same); with Klasing v. State, 771 S.W.2d 684, 686-87 (Tex. Ct.
App. 1989) (no ex pest facto violation from retroactive applica-
tion of new law permitting resentencing) and State v. Norton,
675 P.2d 577, 585-88 (Utah 1983), cert. denied, 466 U.S. 942
(1984) (same). Even within the same jurisdiction, there has been
repeated, sharp disagreement over the proper construction of Dob-
bert. Compare Dutton v. Dixon, 757 P.2d 376, 380 (Okla. Crim.
App. 1988) (distinguishing Dobberi; ex post facto clause prohibits
resentencing) with Cartwright v. State, 1989 Okla. Crim. App.
LEXIS 45 (July 31, 1989) (citing Dobbert as basis for overruling
Dutton v. Dizon). Compare State v. Creekpaum, 732 P.2d 557,
561-68 (Alaska App. 1987) (distinguishing Dobbert; ex post facto
clause violated by retroactive extension of statute of limitations
before prosecution had become time-barred) with State v. Creek-
paum, 753 P.2d 1139, 1141-42 (Alaska 1988) (taking contrary
view of Dobbert and reversing lower court).
12
A. Resentencing Evans to Death Under Virginia’s
Amended Capitai Statute Violated the Ex Post
Facto Clause.
As the court below explicitly conceded, “[p]rior to
th[e] amendment [of March 28, 1983], if the Common-
wealth failed to secure a valid death sentence due to
errors in the sentencing process it was foreclosed from
seeking capital resentencing and the defendant received
an automatic sentence of life imprisonment.” (App. 5a).
The only death sentence that the Commonwealth secured
against Evans prior to March 1983 was, by the Common-
wealth’s own admission, unconstitutional and could not
“be sustained.” (App. 87a). Thus, as the lower court’s
opinion explicitly recognizes, if Evans’ death sentence
had been vacated at any time prior to March 1983, he
would have been entitled to an automatic sentence of life
imprisonment, and could have successfully asserted an
absolute defense against any effort by the state to re-
sentence him to death. The issue presented here is
whether Virginia violated the ew post facto clause when it
retroactively applied its amended capital sentencing stat-
ute—enacted more than two years after the offense, and
a fuli year after Evans’ appeal was final—to deprive
Evans of the automatic sentence of life imprisonment
provided by the earlier law.
The lower court’s effort to squeeze this case into the
Dobbert mold ignores Dobbert’s facts, holding, and ex-
press language. The facts in Dobbert bear no resemblance
to the ones here. The defendant in Dobbert committed
his offense at a time when Florida had in place a capital
sentencing statute which was manifestly unconstitu-
tional, because it provided an automatic presumption in
favor of death unless a majority of the sentencing jury
recommended mercy. By the time of Dobbert’s trial,
Florida had replaced its unconstitutional sentencing stat-
ute with a new statute that provided the defendant with
a full panoply of procedural rights. Dobbert was tried
and sentenced to death under the new, ameliorative, con-
stitutional sentencing statute. His ex post facto chal-
13
lenge to that sentence stood both the law and common
sense on its head: though sentenced to death under the
constitutional law, he claimed that the result would have
been different had he been tried under its unconstitu-
tional and draconian predecesscr. In rejecting that claim,
the Court did no more than recognize that a defendant
has no constitutional right to be sentenced under an un-
constitutional statute. Moreover, since Dobbert had never
been tried under the old statute, his prediction about how
the jury might have voted if that law had been in place
was rank “speculation.” 432 U.S. at 294.
Evans’ case is manifestly distinguishable from Dobbert
in ways that the lower court did not address. Evans was
tried under a law that is conceded to be constitutional;
that was in place at every phase of his criminal pro-
ceeding, from indictment through direct appeal and be-
yond; and that plainly prohibited resentencing if the
Commonwealth committed error, as indeed it did. More-
over, Virginia’s new statute, unlike the one in Dobbert,
was anything but ameliorative, as the district court
recognized. (App. 20a (n.1)). Its sole purpose was to
provide the state additional, repetitive opportunities,
foreclosed under the earlier law, to secure death sen-
tences against capital defendants.
Ignoring these factua) distinctions, the lower court
claims that in this case, as in Dobbert, “ex post facto
concerns were satisfied because the applicable statute
when [the defendant] committed murder warned him of
the penalty ... prescribed for first-degree murder.” (App.
6a). Once that warning had been given, the court asserts,
the state had free rein to make any retroactive changes
it wished, as long as they did not increase the quantum
of punishment or change the proof necessary to convict.
(App. 6a-8a). Though supposedly based on Dobbert, these
conclusions go far beyond the narrow facts of that case
and virtually read the ex post facto clause out of existence
—particularly for capital crimes where, by definition, the
state can do nothing to increase the quantum of punish-
ment.
14
The lower court’s construction of Dobbert also un-
necessarily pits that case against numerous decisions of
this and other courts which have struck down as ex post
facto laws that neither increased the quantum of punish-
ment associated with the offense, nor altered any of the
statutory elements of proof."° These include laws retro-
actively reducing the size of the petit jury in criminal
cases;'' permitting criminal proceedings to commence
by information, rather than indictment; * and altering
the standard for the admission of impeachment evidence
in criminal trials."* Moreover, in a particularly relevant
line of cases dealing with extensions of statutes of limita-
tion for criminal offenses, courts have uniformly recog-
10 The circuit court’s construction of Dobbert is plainly at odds
with this Court’s decision in Kring v. Missouri, 107 U.S. 221
(1883). The circuit court is inexplicably mistaken in suggesting
that Kring’s case can be distinguished from Evans’ because Kring
was “on notice” at the time of the offense that “he [could] never
be subjected to a death sentence... .” (App. 7a). To the contrary,
Kring had been charged from the outset with capital murder, and
indeed, had earlier been sentenced to hang. 107 U.S. at 221-22,
236. When that sentence was set aside, Kring pled guilty to a
lesser offense; and when the plea was set aside, the State sought
to amend its law to strip Kring of his absolute defense to another
capital sentencing. Jd. at 229, 234. This Court held that Missouri's
effort retroactively to abrogate Kring’s defense violated the ex
post facto clause, just as it does here.
Unlike the circuit court, the district court correctly recognized
that respondent’s construction of Dobbert cannot be reconciled
with Kring. The district court’s solution, however, was to declare
that Kring had been “modified or overruled” by Dobbert. (App.
22a (n.4)). That is plainly wrong: this Court cited Kring with
approval in a case decided four years after Dobbert. See Weaver v.
Graham, 450 U.S. 24, 29 n.12 (1981).
11 Thompson v. Utah, 170 U.S. 348, 355 (1898). See United
States v. Juvenile Male, 819 F.2d 468, 471 (4th Cir. 1987) (citing
Thompson with approval).
12 Mafnas v. Government of Guam, 228 F.2d 283, 285-86 (9th
Cir. 1955).
13 United States v. Henson, 486 F.2d 1292, 1308 (D.C. Cir.
1973) (en banc).
15
nized that once a statutory period has lapsed, the state
may not prosecute a potential defendant for the offense
under a new, longer statutory period. In those cases,
like this one, the state has sought not to change the ele-
ments of the crime or increase the quantum of punish-
ment associated with it, but rather to enlarge the class
of potential defendants to include those for whom prose-
cution would otherwise be time-barred. The cases stand
for the precise proposition at issue here: a state violates
the federal ex post facto clause when it retroactively seeks
to strip from the defendant a complete statutory defense
to the crime (or in this case, the resentencing). The
lower court’s unprecedented construction of the ex post
facto clause casts doubt on the continued validity of these
cases and adds significantly to the confusion in this al-
ready difficult area of the law. This Court should grant
certiorari to clarify and resolve the uncertainty created
by the lower court’s opinion.
B. Resentencing Fvans to Death Under Virginia’s
Amended Capital Statute Violated the Equal Pro-
tection Clause.
Because “death is different,” this Court has long in-
sisted that the procedures used to impose it produce re-
liable results, and that the state courts “ensure that
4 That principle was articulated by Judge Learned Hand in
Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.), cert. denied,
277 U.S. 590 (1928), in which the court permitted prosecution under
the amended statute because it had been adopted before the initial
statutory period had expired. Accord United States ex rel. Mas-
sarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982), cert. denied,
460 U.S. 1037 (1983); Clements v. United States, 266 F.2d 397,
399 & n.4 (9th Cir.), cert. denied, 359 U.S. 985 (1959); United
States v. Fraidin, 68 F. Supp. 271, 279 (D. Md. 1945). However.
once a defense to prosecution exists because the statutory period
has lapsed, the state may not prosecute the potential defendant
for the offense under a new, longer statutory period. See, e.g.,
Sobiek v. Superior Court, 28 Cal. App. 3d 846, 106 Cal. Rptr. 516,
518 (1972); State v. hdwards, 701 P.2d 508 (Wash. 1985) (en
banc). Although those cases were extensively discussed in the
briefs below, the circuit court did not mention them.
16
similar results are reached in similar cases.” Precisely
the opposite happened here: two strikingly similar cases
produced dramatically different results. Although Pat-
terson and Evans both received flawed death sentences
under the same law in 1981, and their cases moved vir-
tually in tandem through the Virginia courts, the results
could not have been more different: Patterson was sen-
tenced to an automatic term of life, while Evans was
forced to face the renewed prospect of death. See note 4,
supra. The sole reason for this disparate result was one
illegitimate circumstance: each of the four courts (in-
cluding this Court) that reviewed Evans’ case in the two
years after his trial was materially misled by the Com-
monwealth’s failure to disciose that Evans’ death sentence
rested on false and uncons-itutional evidence. Although
the prosecution knew of ihe false evidence from the
moment it was offered, and Evans squarely challenged
that evidence in the state habeas proceeding a full year
before Virginia’s capital sentencing amendment was
adopted, the courts were denied the truth about Evans’
sentence until the new amendment was in place. No ra-
tional or legitimate purpose is served by a legislative
classification that distinguishes two otherwise identical
cases solely on that basis.
The lower court’s cryptic rejection of Evans’ equal
protection claim is premised, once again, on a misreading
of Dobbert. Contrary to the Fourth Circuit’s claim (App.
9a), the line-drawing authorized by Dobbert provides no
justification for what occurred here. In Dobbert, the Court
upheld a death sentence obtained under a constitutional
penalty statute enacted after commission of the crime
but before trial. Although permitting the line to be
drawn at that point because “the new statute... was in
effect at the time of {Dobbert’s] trial’ and _ sentencing,
432 U.S. at 301, the Court stated: “Florida obviously
had to draw the line at some point between those whose
cases had progressed sufficiently far in the legal process
15 Proffitt v. Florida, 428 U.S. 242, 258 (1976) (citation omitted)
17
as to be governed solely by the old statute . . . and those
whose cases involved acts which could properly subject
them to punishment under the new statute.” Jd.
Here, by contrast, Virginia did not apply the law in
effect at the time of Evans’ trial and sentence, or even
in effect at the time of Evans’ direct appeal and state
habeas petition. Rather, it applied a law passed two
years after Evans’ trial, and more than a year after his
death sentence had become final. By that time, Evans’
case had not only “progressed sufficiently far in the legal
process as to be governed solely by the old statute,” id., it
could not possibly have progressed any farther. Pushing
Dobbert’s line to that point makes any line-drawing irra-
tional and meaningless; a line drawn there includes every-
thing and excludes nothing.
The lower court’s “line-drawing” ignored two other
crucial distinctions between this case and Dobbert. First,
not onlv had Dobbert never been sentenced under the old
law, but he could not have been sentenced under it, be-
‘ause it was unconstitutional. By contrast, Virginia’s
earlier law was plainly constitutional and had actually
been applied to Evans’ case as it progressed through
every stage of the judicial system, from trial, through
direct appeal, through certiorari, and through the state
habeas system.
Finally, although the timing of events in Dobbert’s case
was completely fortuitous, here it was not. Whatever
the state’s motives in waiting twenty-three months before
confessing error, two things are certain: the state knew
that its own sentencing evidence was false from the mo-
ment that evidence was offered; and the state exercised
exclusive control over when and how those errors would
be disclosed. Under those circumstances, it is unconscion-
able to conclude that Patterson and Evans should be
treated differently under the equal protection clause.'*
16 The highest courts of at least two other states have held that
the equal protection clause prohibits the sort of “line-drawine” that
occurred here. See Lee v. State, 340 So. 2d 474 (Fla. 1976 per
|
18
II. THE LOWER COURT’S REJECTION OF EVANS’
DUE PROCESS €LAIM RESTS ON A FUNDA-
MENTAL MISCONCEPTION, WHICH THIS COURT
SHOULD CORRECT, ABOUT THE LEVEL OF
SCRUTINY REQUIRED IN FEDERAL HABEAS
CORPUS REVIEW.
As this Court has observed, for more than a century
federal habeas corpus review “has been a source of fric-
tion between state and federal courts... .”'’ In recent
years, the Court has repeatedly revisited the thorny issues
of federalism raised by the federal habeas statute, which
requires the courts of one sovereign to review the deci-
sions of another. The Court has on occasion found it
necessary to admonish the lower federal courts against
substituting their own view of the merits for that of the
state judge whe heard the evidence and saw the wit-
nesses firsthand."*
That salutary principle has been utterly misunderstood
and misapplied in this case. Here, the lower federal
courts did more than defer to the state factfinder: they
abdicated their statutory responsibility to provide any
meaningful review of the state court’s decision. This
case vividly illustrates that the lower courts still do not
know how to strike the appropriate balance between
deference to state factfinding and the federal mandate to
curiam) (no legitimate state objective advanced by sentencing to
death one defendant who exercised his appellate rights while per-
mitting all other similarly situated defendants to live). Common-
wealth v. Story, 440 A.2d 488, 491-92 (Pa. 1981) (same). See also
Commonwealth v. Crenshaw, 470 A.2d 451, 454-55 (Pa. 1983)
(death sentence vacated where, but for extraordinary delay of
almost three years in bringing defendant to trial, defendant would
have been tried under old law and received life sentence). Those
decisions were discussed extensively in the briefs below, but are
unmentioned in the lower court’s opinion.
17 Sumner v. Mata, 449 U.S. 539, 550 (1981) (“Sumner I’’).
18 See, e.g., Marshall v. Lonberger, 459 U.S. 422, 432-34 (1983
Sumner v. Mata, 455 U.S. 591, 596-98 (1982) (per curiam) (“Sum-
ner II’); Sumner I, 449 U.S. at 446-51.
19
review. This Court should grant certiorari both to pro-
vide further guidance on that important issue and to
correct a result that is demonstrably unjust.
The lower court is plainly and completely wrong in
asserting—without citing a shred of the record evidence—
that “the state habeas courts found the Commonwealth
acted in good faith.” (App. 12a (n.1); see also App.
10a). Equally groundless, and even more inexplicable,
is the suggestion that there are findings of fact concern-
ing the “ ‘credibility of witnesses whose demeanor has
been observed by the state trial court... .’” ' In truth,
the state habeas judge who heard two Commonwealth
prosecutors admit under oath to the knowing use of false
evidence in a capital case, and other actions that effec-
tively concealed that wrongdoing for two years, made no
findings of fact at all. Rather, his entire explanation for
rejecting Evans’ due process claim is confined to two sen-
tences of an order drafted by the Commonwealth:
'Evans] failed to prove by a preponderance of the
evidence that the prosecution engaged in such mis-
conduct or tactics of a nature which should preclude
the Commonwealth from again seeking the death
penalty in this case;
and....
(T]he evidence fails to prove by a preponderance of
the evidence that the Commonwealth purposefully
and wrongfully delayed resolution of [Evans’] peti-
tion for a writ of habeas corpus in order to achieve
a tactical advantage as alleged by the defendant....
(App. 118a-119a) .”
19 (App. lla) (quoting Marshall v. Lonberger, 459 U.S. at 434).
2° That order was based on the court’s oral ruling from the
bench, made immediately at the close of the evidence and without
benefit of post-trial briefs. (App. 117a).
To be sure, the Virginia Supreme Court provided some of the
missing analysis in Evans II. But that opinion was based on a
cold review of the written record and is no substitute for the fact-
finding that should have been made by the judge who heard the
live testimony of the witnesses. But cf. Sumner I, 449 U.S. at 541-
eran etenreteninii eee
20
However “elusive” the distinction may sometimes be
between findings of fact and legal conclusions,”' the state
court order at issue here is at the far end of the spec-
trum. It bears no resemblance to the findings of “ ‘basic,
primary, or historical facts’” to which the presumption
of correctness was intended to apply.’ It tells nothing
whatsoever about the court’s view of what happened,
when, or under what circumstances; which witnesses were
credible, and which were not; what other evidence was
probative, and what was not; and what other factors or
events were considered and why. Indeed, the order sheds
no light even on the /egal standards that the court applied
in reaching the result. On its face the order is nothing
more than a cryptic summary ruling, which is certainly
not a finding of fact, and may not even be a conclusion
of law. The lower court’s deference to this supposed “‘find-
ing’ fundamentally misconceives the mandate of federal
courts in habeas review.”
12, 546-47 (presumption cf correctness applies to state appellate
court findings where issue was never presented to trial judge and
thus, the only state findings were necessarily made by appellate
court). In any event, far from finding good faith, the Virginia
Supreme Court castigated the prosecutor for the “indifferent,
careless manner’ in which he had handled the evidence, and par-
ticularly, for proffering evidence that he knew was false. Evans II,
323 So. 2d at 120.
21 See Miller v. Fenton, 474 U.S. 104, 113 (1985).
22 Cuyler v. Sullivan, 446 U.S. 335, 341-42 (1980) (citations
omitted). See also Sumner II, 455 U.S. at 597.
23 Citing Marshall v. Lonberger, 459 U.S. at 433-34, the Com-
monwealth argued below that the state habeas judge’s order re-
jecting Evans’ due process claim was an “implicit” finding that the
Commonwealth had acted in good faith. There is nothing in the
opinion below to suggest that the circuit court accepted that argu-
ment, which in any event, is mistaken. In Marshall the issue re-
solved by the state trial court was a simple, narrow question of
fact that turned entirely on whether the court believed, or dis-
believed, the defendant’s story; thus, the trial court’s rejection
of the defendant’s claim necessarily implied a finding against the
defendant’s credibility. Here the factual record is complex, and
:
.
'
}
:
21
Even if this record did include some “findings of fact,”
the lower court completely failed to exercise its statutory
responsibility to determine whether they were “fairly sup-
port[ed]” by the record “considered as a whole.” 28 U.S.C.
§ 2254(d) (1982). The circuit court’s examination of the
record begins and ends with the prosecutors’ self-serving
declarations that they acted in good faith. Whether sin-
cere or not, those statements are irrelevant to the issues
presented.** What the circuit court failed to consider, or
even mention, is the conduct that the prosecutors ad-
mitted occurred. Thus, prosecutor Kloch acknowledged
that he knew the conviction records were false two
months before trial; that he knowingly proffered them
into evidence without mentioning their flaws to judge or
jury; and that when he learned in December 1981 that
the Virginia Supreme Court had explicitly relied on the
false evidence, he did nothing to correct the court’s un-
witting error. (App. 92a-100a).
Likewise, the undisputed record evidence is that by
January 1983—two months before the new sentencing
law came into effect—Assistant Attorney General Slon-
aker had proof positive that Evans’ claims of error in
the state habeas petitions were accurate. Slonaker and
Kloch both testified without contradiction that by Janu-
ary 1983 Kloch had told Slonaker in a face-to-face meet-
ing that he knew prior to the trial that several of the
seven convictions were duplicative, and that another was
non-existent.** Moreover, the undisputed evidence estab-
lished that by January 24, 1983, Slonaker had received
written confirmation directly from the clerk of the court
the state trial judge gave no clue about his reasons for rejecting
Evans’ claims.
24 Cf. Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988) (“[Tlhe
good or bad faith of the State [is] irrelevant when the State fails
to disclose to the defendant material exculpatory evidence.”).
25 See note 6, supra. At that meeting the two men even dis-
cussed whether it would be “easier” to seek resentencing of Evans
if the capital sentencing amendment then pending in the Virginia
legislature were adopted. (App. 99a).
22
in North Carolina that each of Evans’ assertions was ac-
curate. (App. 77a-82a). Whatever Slonaker’s subjective
estimate of his own good intentions, one thing is certain:
he was obligated promptly to disclose the known errors
and to correct the state’s July 1982 Answer, which was
materially inaccurate. What Slonaker did instead was to
perpetuate the wrongdoing by filing, two months later
(on March 8, 1983), an Amended Answer that continued
to deny the factual allegations in Evans’ petition. (App.
S3a-86a).
Finally, the lower court erred in concluding that the
“traditional remedy” of capital resentencing removed the
prejudice Evans had suffered from the Commonwealth’s
two-year delay in confessing error. The plain fact is that
if the Commonwealth had disclosed the known errors and
misconduct at any time prior to March 1983, as it was
obligated to do, Evans would not now be facing death.
Thus, in the circumstances of this case, resentencing
could not remove the prejudice, because resentencing
itself was the prejudice. But for the Commonwealth’s
two-year delay in disclosing the truth, there would have
been no resentencing, and hence, no death sentence. Under
these circumstances, Evans was entitled to a more “drastic
remedy” than resentencing.** His sentence should be com-
muted to life imprisonment, as the earlier law required.
Ill. THE DECISION BELOW EVISCERATES THE IM-
PORTANT CONSTITUTIONAL RIGHT TO EFFEC-
TIVE ASSISTANCE OF COUNSEL ON APPEAL.
In Evitts v. Lucey, 469 U.S. 387, 389 (1985), this
Court held that “the Due Process Clause of the Fourteenth
Amendment guarantees the criminal defendant effective
assistance of counsel on [his] appeal.” Since Evitts the
26 See United States v. Morrison, 449 U.S. 361, 365-66 & n.2
(1981) (“drastic remedy” appropriate where there is “continuing
prejudice which . . . could not be remedied by a new trial,” or
where there has been a “pattern of recurring violations” or “law-
lessness” by the state).
23
Court has made plain that claims of ineffective assistance
of counsel on appeal should be judged by the criteria set
forth in Strickland v. Washington, 466 U.S. €68 (1984),
and has recognized that this right “may in a particular
case, be violated by even an isolated error... if that
error is sufficiently egregious and prejudicial.” 2" The
circuit court recognized these standards in principle, but
not in practice. (See App. 14a-15a). This Court should
grant certiorari to provide needed guidance concerning
the proper application of this important constitutional
right.
The circuit court’s recitation of the record evidence
concerning Evans’ appeal ignores the single most striking
fact, which is uncontested: although defense counsel rep-
resented Evans continuously from the moment of his
arrest (January 1981) through the denial of certiorari
on his direct appeal (March 1982), counsel somehow
failed to do the cardinal task of any lawyer representing
the defendant in a capital sentencing—they failed ac-
curately to determine their client’s prior conviction record.
That failure is particularly egregious in light of the Vir-
ginia capital sentencing statute’s prominent emphasis on
the prior conviction record of the accused,?* counsel’s
lengthy representation of Evans, the ease with which the
prosecution accurately determined the same information,”
27 See Smith v. Murray, 477 U.S. 527, 535-36 (1986) (citations
omitted).
*8 Virginia’s sentencing statute explicitly identifies “the past
criminal record of convictions of the defendant” as the principal
factor to be considered by the capital sentencing jury. Va. Code
§ 19.2-264.2(1) (1983).
29 It is undisputed that two months before trial, a junior lawyer
from the prosecutor’s office correctly discovered Evans’ true record
after a brief trip to North Carolina. (See App. 29a-30a). Evans’
habeas counsel, Mr. Shapiro, discovered the same information al-
most immediately after beginning the representation and without
leaving Virginia.
24
and Evans’ own efforts to alert counsel to the errors in
the Commonwealth’s Exhibits.*°
The circuit court’s rejection of Evans’ claim rests on
three crucial errors. First, the court errs in suggesting
that because counsel traveled to North Carolina to in-
vestigate Evans’ prior conviction record, “counsel’s per-
formance was reasonable.” (App. 14a). Under Strick-
land counsel must do more than perform; they must per-
form effectively. In a capital case, counsel’s utter failure
to ascertain their client’s conviction record cannot pos-
sibly be deemed “effective” assistance.
Second, the lower court inexplicably errs in asserting
that “[t]he errors in the certified conviction records in-
troduced at trial could only be shown by going outside
the trial record.” (App. 15a). That conclusion is flatly
at odds with the court’s own statements, in an earlier
portion of the opinion, that defense counsel “had been
given pretrial access to the discovery materials which
showed the conviction records were questionable,” and
that “during the sentencing proceeding, the prosecutor
advised defense counsel of the discrepancies regarding
the convictions... .” (App. 10a-lla).*
More importantly, the Commonwealth’s post-sentence
report, dated May 12, 1981, unmistakably stated that
the most serious of the supposed “convictions” presented
at trial—‘‘Assault on Officer/Affray with a Deadly
Weapon”—had been nolle prossed. (App. 48a). Without
30 The record includes a handwritten letter from Evans to his
lawyer, dated March 2, 1982, stating in part: “I never assaulted
a police officer. If you still think I did? please send me his name.”
[sic]
81 If the prosecutor’s highly improbable testimony on this matter
(which defense counsel contradicted under oath) is to be credited
as a basis for rejecting Evans’ due process claim (see App. 10a-
lla), it also establishes that defense counsel utterly failed to pro-
tect Evans’ interest by failing to challenge the errors on appeal.
25
question that report was part of the trial record.” If
Evans’ counsel had read the report, as counsel claimed
to have done (see App. 47a), he should have known—
without investigating any matters “outside the record”—
that Evans’ death sentence was invalid.*
Moreover, contrary to the lower court’s assertion
(App. 15a), Evans suffered drastic prejudice from his
counsel’s errors. The plain fact is that if Evans’ counsel
had discovered the essential facts about their client’s prior
record at any time during the year-long appeal, Evans’
sentence would have been voided, the Commonwealth
would have been “foreclosed from seeking capital resen-
tencing,” and Evans would have “received an automatic
sentence of life imprisonment.” (See App. 5a).
IV. THIS COURT SHOULD GRANT CERTIORARI TO
RESOLVE THE CONFLICT BETWEEN STATE
AND FEDERAL COURTS OVER WHETHER DUE
PROCESS REQUIRES A CAPITAL SENTENCING
JURY TO BE TOLD, IN RESPONSE TO THEIR
SPECIFIC QUESTION, THAT A SPLIT DECISION
WILL AUTOMATICALLY RESULT IN A _ SEN-
TENCE OF LIFE IMPRISONMENT.
Even if Virginia’s amended sentencing statute could
be applied to Evans, his 1984 resentencing proceeding
was fatally flawed by the trial court’s erroneous in-
struction, in response to a specific jury question, about
the effect of a split decision. The court’s instruction
substantially increased the likelihood of a death sen-
32 See App. 49a (“Tie report of the probation officer is hereby
filed as part of the record of this case.’’).
33 At the September 21, 1983 hearing, counsel acknowledged that
the portion of the post-sentence report indicating that the charge
of assaulting a police officer had been nollied “should have” raised,
but did not “raise a red flag to me.” He stated: “I should have
been more diligent. I should have read everything I got in the dis-
covery, but I didn’t, plain and simple.” (App. 109a).
26
tence because it erroneously suggested that each juror
had far less power to influence the outcome than
was actually the case. The Fourth Circuit’s opinion re-
jecting Evans’ challenge to the jury instruction is a novel
ruling that squarely conflicts with the decisions of the
highest courts of two other states.** This Court should
grant certiorari to resolve the conflict on this crucial
issue.
Though scarcely mentioned in the opinion below, the
relevant facts are neither complex nor contested. In the
middle of its deliberations in the 1984 resentencing pro-
ceeding, the jury asked:
The decision must be unanimous for death, must the
decision also be unanimous for life, or does a split
decision automatically become life?
(App. 122a) (emphasis added). Defense counsel then
requested a response, based on the language of Virginia
Code § 19.2-264.4(E), which would inform the jury that
“if they cannot be unanimous on death, then it is life.”
(App. 122a). The court rejected that request, explain-
ing:
I will tell you what the flaw in that is, Mr. Howard
[defense counsel], that encourages a single person
34 See State v. Loyd, 459 So. 2d 498, 502-03 (La. 1984); id. at
509 (separate opinions of Dennis, J., and Lemmon, J., concurring) ;
State v. Williams, 392 So. 2d 619 (La. 1980). See also State v.
Ramseur, 524 A.2d 188, 282-86 (N.J. 1987) (in a capital case, due
process requires judge to inform jury about the effect of a split
decision even if jury has not asked). The Fourth Circuit’s deci-
sion also conflicts with the reasoning, if not express hoiding, of a
decision of a panel of the United States Court of Appeals for the
Eighth Circuit in a non-capital case. See United States v. Arpan,
861 F.2d 1073 (8th Cir. 1988), vacated for rehearing en banc, 867
F.2d 1188 (8th Cir. 1989). Although the panel decision in Arpan
is now under review, its existence underscores that the lower courts
are divided on how to answer jury questions concerning the effect
of a split decision.
27
to hold out, and tells a single person that they have
the ability to dictate the outcome.
(App. 122a) (emphasis added).
The trial judge then answered the jury’s question as
follows: “You are instructed that your verdict must be
unanimous as to either life imprisonment or death.”
(App. 123a). Although that response was technically
accurate—a “verdict” by definition is a unanimous deci-
sion—it was both unresponsive and misleading. The jury
had asked what would happen if it failed to reach unani-
mous agreement. The answer to that question could not
be clearer: under Virginia law a split decision by a
capital sentencing jury doe “automatically become
life.” ** The trial court’s response to the jury’s specific
request for guidance not only withheld important infor-
mation about the true state of Virginia law, but also
could not have failed to leave the misleading and inac-
curate impression that Evans would nut receive a life
sentence unless the jury’s verdict was unanimous. This
violated due process.
The circuit court’s rejection of Evans’ claim simply
sidesteps the issue. In paraphrasing the jury’s question,
the court subtly distorts its meaning and misses its essen-
tial thrust. The jury did not simply inquire “whether
a life sentence must be unanimous” (App. 13a); rather,
in the heat of its deliberations it asked the trial judge
33 The Virginia Code explicitly provides that if a capita] sen-
tencing jury cannot reach a unanimous verdict, “the court shall
dismiss the jury, and impose a sentence of imprisonment for life.”
Va. Code § 19.2-264.4(E) (1983) (emphasis added). See, e..,
Virginia Dept. of Corrections v. Clark, 227 Va. 525, 318 S.E.2d 399,
406 n3 (1984) (“a single juror can prevent imposition of the
death penalty”); Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d
784, 791 (1979), cert. denicd, 444 U.S. 1049 (1980) (“[A] dis-
agreement by one or more of the jurors as to the proper sentence
would, by statute, result in life imprisonment.”).
28
“does a split decision automatically become life?” That is
a different question, and it demanded a candid response.*®
The precise federal question presented here was ex-
haustively addressed in two decisions of the Louisiana
Supreme Court that directly contradict the Fourth Cir-
cuit’s reasoning and result. In those cases, the court held
that federal due process is violated by an instruction that
leaves the individual jurors “free to speculate as to what
the outcome would be in the event there was not una-
nimity” and creates the “false impression” that “a new
trial, before another jury would be required.” ** Such
errors are highly prejudicial because “[i]f only one of
the twelve jurors was swayed by the failure to inform
him fully of the consequences of his sentence recommenda-
tion, then, in the absence of that error, the death penalty
would not have been imposed.” **
The Louisiana decisions correctly apply principles of
this Court articulated in other contexts. Thus, in Cald-
*6 The due process issue presented here is not even addressed,
let alone resolved, by the decision in Barfield v. Harris, 540 F. Supp
451-472 (E.D.N.C. 1982), aff'd. 719 F.2d 58 (4th Cir. 1983), cert.
denied, 467 U.S. 1210 (1984), cited and relied upon by the court
below. In Barfield the petitioner challenged the effectiveness of her
trial counsel because he had not requested an instruction concerning
the effect of a split decision in the penalty phase of her capital
trial. See 540 F. Supp. at 461. The court held that petitioner was
not denied due process either by counsel’s failure to make the
request, id. at 461-62, or by the trial judge’s failure to give such an
instruction on his own initiative, id. at 472. Unlike here, there
was no defense request for an instruction on unanimity, no jury
question at all, and no misleading response from the court.
37 State v. Williams, 392 So. 2d at 631. See also State v. Loyd
459 So. 2d 498 (La. 1984).
38 State v. Williams, 392 So. 2d at 631. See also State v. Loyd,
459 So. 2d at 503 (capital sentencing presents a “unique” situation
in which “a single juror, by persisting in a sentencing recommenda-
tion at variance with all of his fellow jurors, may alone cause
imposition of a life sentence.” )
At Cas we
29
well v. Mississippi, 472 U.S. 320 (1985), the Court voided
a death sentence because the prosecutor’s summation had
created an “intolerable danger” that the jurors would
underestimate the importance of their role in the sen-
tencing process. Jd. at 333. More recently, the Court
ordered resentencing because an “ambiguity” in the state
verdict form made it possible that the jurors “misunder-
st{oo}/d the previous instructions as to unanimity. .. .”
Mills v. Maryland, 108 S. Ct. 1860, 1869-70 (1988). The
danger here was far greater than in either Caldwell or
Mills. Each individual juror in the Evans case was in
effect told—by the trial court, not the prosecutor **—that
without the unanimous concurrence of his eleven peers,
he was powerless to effect a life sentence, when in fact
the precise opposite was true.
This Court has already imposed a “high requirement
of reliability on the determination that death is the appro-
priate penalty in a particular case.” Mills, 108 S. Ct. at
1870. Because the Fourth Circuit’s decision endorses a
sentencing instruction that falls far short of that stand-
ard, and conflicts with the express decisions in two other
jurisdictions, this Court should grant certiorari to re
) +} — . 4
solve the issue.*
: "4 — , 2s —es | T : 1< 72° 0° » 7 1ORe
a ¢ Darden v. Wainwright, 477 U.S. 168 185-84 n.15 (1986
erroneous statements to the jury are more serious when they are
approved by the judge).
* The question whether Evans is entitled to another resentencing
takes on additional importance in light of the events that oc urred
after his 1984 sentencing. See n-te 7, supra. The } iry that sen-
tenced Evans to death did not know and could not have known that
ive months later Evans would risk his life to save the guards held
hostage in the 1984 uprising at Mecklenburg prison. In any re
sentencing that evidence will be highly probative of whether there
is still a “probability that [Evans] would commit criminal acts of
violence that would constitute a continuing serious threat to so-
‘iety Va. Code § 19.2-264.2/1 1983
30
CONCLUSION
For the foregoing reasons, Petitioner prays that a
writ of certiorari issue to review the order and opinion
of the United States Court of Appeals for the Fourth
Circuit.
Respectfully submitted,
ARTHUR F. MATHEWS *
THOMAS F. CONNELL
MARK D. CAHN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
JONATHAN SHAPIRO
1013 Princess Street
Alexandria, Virginia 22314
(703) 684-1700
Counsel for Petitioner
September 27, 1989 * Counsel of Record
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
United States Constitution
Amendment VI provides:
In all criminal prosecutions, the accused shal] en-
joy the right .. . to have the Assistance of Counsel
for his defence.
Amendment XIV, § 1 provides:
No State shall . . . deprive any person of life,
liberty, or property, without due process of law: nor
deny to any person within its jurisdiction the equal
protection of the laws.
Virginia Code § 19.2-264.2 provides:
s 19.2-264.2. Conditions for imposition of death
j
sentence.
In assessing the penalty of any person con-
victed of an offense for which the death penalty
may be imposed, a sentence of death shal] not
be imposed unless the court or jury shall (1)
after consideration of the past criminal record
of convictions of the defendant, find that there
is a probability that the defendant would com-
mit criminal acts of violence that would consti-
tute a continuing serious threat to society .
Virginia Code § 19.2-264.3 provides:
19.2-264.3. Procedure for trial by jury.
A. In any case in which the offense may be
punishable by death which is tried before a jury
the court shall first submit to the jury the issue
of guilt or innocence....
C. If the jury finds the defendant guilty of an
offense which may be punishable by death, then
stein enema neeien eee
SA-2
a separate proceeding before the same jury shall
be held as soon as is practicable on the issue of
the penalty....
(If the sentence of death is subsequently set
aside or found invalid, and the defendant or the
Commonwealth requests a jury for purposes of
resentencing, the court shall impanel a different
jury on the issue of penalty.] [Bracketed por-
tion added by amendment of March 28, 1983).
Virginia Code § 19.2-264.4 provides:
§ 19.2-264.4. Sentence proceeding—A. Upon a finding
that the defendant is guilty of an offense which may be
punishable by death, a proceeding shall be held which
shall be limited to a determination as to whether the de-
fendant shall be sentenced to death or life imprisonment.
In case of trial by jury, where a sentence of death is not
recommended, the defendant shall be sentenced to im-
prisonment for life... .
E. In the event the jury cannot agree as to the pen-
alty, the court shall dismiss the jury, and impose a sen-
tence of imprisonment for life.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.