Reply Brief — Taylor v. Evans-Smith

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IN THE

SUPREME COURT OF THE UNI

FILED

SEP 8 1994

OCTOBER TERM, 1994

i OFFICE OF THE eLERK

JOHN B. TAYLOR, WARDEN;

9 a

STAUNTON CORRECTIONAL CENTER,

Petitioner,

Vv.

WILLIAM EVANS-SMITH,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION TO MOTION

TO FILE AND BRIEF AMICUS

CURIAE

*Gerald T. Zerkin

GERALD T. ZERKIN AND ASSOC.

Linden Tower Professional Centre

Suite 505

2nd & Franklin Streets

Richmond, Virginia 23219

(804) 788-4412

Ann B. Vance

CARR AND VANCE

29 N. King Street

Leesburg, Virginia 22075

(703) 777-3434

*Counsel of Record Counsel for Respondent

(een mnie ene Ae

LANTAGNE DUPLICATING SERVICES

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......... ii

REASONS FOR DENYING THE

MOTION AND ARGUMENT ..........1

I. THE JACKSON v. VIRGINIA

STANDARD IS CLEAR AND WAS

PROPERLY APPLIED BY THE COURT OF

Pree a se ee ee we ee ee ee

II. THE DOCTRINE OF

NONRETROACTIVITY IS NOT

IMPLICATED BY THE DECISION BELOW . 12

III. THIS CASE DOES NOT PROVIDE AN

APPROPRIATE VEHICLE FOR

RECONSIDERATION OF ESTABLISHED

PRINCIPLES OF LAW SIMPLY BECAUSE THE

AMICUS WISHES TO EVISCERATE FEDERAL

HABEAS CORPUS .......... 13

ORG wk tlk ltt lll tl 20

TABLE OF AUTHORITIES

Cages:

Ake v. Oklahoma, 470 U.S. 68

(1985) ee eee ee oy wk me Svs ae

Batson v. Kentucky, 476 U.S. 79

(1986) ee ee OD 18, 19

Coppola v. Warden, 222 Va. 369, 282

S.E.2d 10 (1981) egos et Rr ie OL 16

Estelle v. McGuire, 112 S.Ct. 475,

116 L.Ed.2d 385 (1991) es Revere ae Fee & |

Evans v. Johnson, (Alexandria Cir. i, ar

5/14/85) Prat Tete al a oS 15

Giarratano v. Murray, 492 U.S. 1

(1989) CUE Oei es 6 5 6 se (fe me Ao, 26

Gray v. Commonwealth, 233 Va. 313, 356

mameamee Be? C2067) . . 2c tw tw tw tll ee 19

Jackson v. Virginia, 443 U.S. 307

EE passim

James v. Commonwealth, 247 Va. 459

Mememe wee (1994) ....+2se eee, 19

People v. Smith, 565 N.E.2d 900

ee

Saunders v. Reynolds, 214 Va. 697,

204 S.E. 2d 421 (1974) a a &, re ee 15

Spencer v. Commonwealth, 238 Va. 295,

384 S.E.2G 785 (1989) .....6.... : 19

ii

Stockton v. Commonwealth, 241 Va. 192,

402 S.E.2d 196 (1991)

Townes v. Commonwealth, 234 Va. 307,

362 S.E.2d 650 (1987)

Tuggle v. Virginia, 471 U.S. 1096

(1985)

Tuggle v. Thompson, 854 F.Supp. 1229

(W.D.Va. 1994) ee ee oe ee ee ee ee

Tuggle v. Bair, 112 S.Ct. 1681

(1992)

Virginia Dep’t of Corrections v. Clark,

a2? Va. $25, 318 S.E.2d 399 (1984)

Wright v. West, 112 S.Ct. 2482,

120 L.Ed.2d 225 (1992) Ee ane ‘an @

Articles:

LS

a?

18

ye

16

Graham C. Lilly & Antonin Scalia, Appellate

Justice: A Crisis In Virginia?, 57 Va.

L.Rev. 3 (1971)

1il

17

eo

REASONS FOR DENYING THE MOTION AND ARGUMENT

I. THE JACKSON v. VIRGINIA STANDARD IS

CLEAR AND WAS PROPERLY APPLIED BY THE COURT

OF APPEALS.

The Amicus’

fundamental objection to

the decision below is Simply that it does

not agree with the result. The Amicus

Cites the standard set forth in Jackson v.

Virginia, 443 U.S. 307 (1979) that the

habeas court is

e€@vidence in the

to consider all the

light most favorable to the

Commonwealth, but in fact it urges upon the

Court only the latter part of that

principle. Like Petitioner, the Amicus

would interpret

habeas court to

portions of the

Both Petitioner

that the habeas

Jackson to require the

consider only selective

Commonwealth’s evidence.

and the Amicus seek a rule

court should ignore

uncontradicted evidence produced by the

Commonwealth’s own witnesses in analyzing

4

+

the sufficiency of the evidence. Both

because it is contrary to the intent of

Jackson and would defy all logic, the Court

of Appeals refused to adopt such a

Standard. (28A n.29).

The Amicus makes much of Evans-Smith’s

alleged "lies." It requires a formidable

stretch, however, to compare Evans-Smith’s

alleged misstatements with the testimony of

the petitioner in Wright v. West, 112 S.Ct.

2482, 120 L.Ed.2d 225 (1992), as the Amicus

attempts to do. In Wright, the defendant

was found in possession of "over 15 of the

items stolen" in a single home burglary, a

mere two to four weeks after the crime. 120

L.Ed.2d at 240. Of course, that fact was

critical, since it tied him directly to the

crime. His explanation, which was thus

equally critical, was incomplete and

internally inconsistent. 120 L.Ed.2d at 231

2

& n.1. Thus, the <ury was "entitled to

disbelieve West’s uncorroborated and

confused testimony...." (Cites omitted).

120 L.Ed.2d at 241. The factual question

for the jury, therefore, was whether, in

light of West’s prior felony conviction,

his testimony plausibly explained his

possession of a large number of items taken

in a single burglary or, by its

implausibility and confusion, Simply

provided more evidence of guilt. Id.

By contrast, the alleged "lie" of

Evans-Smith discussed by the Amicus was an

inconsistent statement concerning from

which window his wife waved when he

departed for work. Amidst the numerous

facts as to which Evans-Smith provided

information to the police during several

- interviews, this was indeed a terribly

minor point.* It stands in sharp contrast

to West’s pervasively inconsistent

testimony as to the most basic factual

issue in his case: why was he in possession

of this cache of stolen goods?’

In addition, unlike West, Colonel

Evans-Smith had no prior felony conviction.

*The Amicus references other

“contradictory statements, some of which he

states, without explanation, "must

certainly be false." Brief Amicus Curiae,

p.5. The Court of Appeals addressed those

statements in detail.

The Amicus also perpetuates the myth

that Respondent "attempt [ed] to get a co-

worker to change his story about

defendant’s arrival time at work." Brief

Amicus Curiae, p.2. As the Court of Appeals

noted, no such attempt was made. (25A).

The Amicus raises the jewelry box

discovered in the field. Brief Amicus

Curiae, p.2. The trial court noted that the

box "showed remarkably little wear after

being recovered approximately two weeks

after the offense." (A39). It is entirely

unclear why a jewelry box would "wear"

sitting in a field for two weeks; on its

face, the suggestion that such "wear"

should be observable after such a brief

period is inexplicable. There is no

suggestion that the box was not dirty, nor

was there any testimony as to what "wear"

4

The significance of mary of the items

to which the Amicus does point as

subjective indicia of guilt remains

elusive. For example, he points to Evans-

Smith’s "demeanor" and the "unusual

questions" he asked when informed of his

wife’s death. Brief Amicus Curiae, p.2.

Neither Petitioner nor the Amicus have

Suggested what factual basis existed by

which the jury could determine that his

demeanor was inculpating, or what was

"unusual," and thus, presumably,

inculpating, about the questions he asked.

Rather, both argue for the proposition that

a jury is free to speculate as to the

Significance of such subjective evidence,

even in the absence of evidence that his

one would expect given the moisture,

mineral or acid content of the soil and the

composition (plastic) of the box. The trial

judge’s comment is thus factually baseless.

2

alleged demeanor,’ or the questions he

asked, were unusual for him.

To be at all probative, such evidence

must relate to the defendant’s own

personality or background. Thus, for

example, questions concerning the crime

scene might be unusual coming from a

housewife, but not from a suspect trained

in crime scene investigation. Similarly,

the demeanor of a psychologist when advised

of his spouse’s death might be very

different than that of, say, a Special

Forces Colonel under similar circumstances.

Nor is there even any reason to believe

that all psychologists or all military

officers would respond in the same manner.

"Here, unlike in West, the jury had no

opportunity to observe the defendant’s

demeanor while testifying. The Amicus has

demonstrated remarkable restraint in not

citing Evans-Smith’s failure to testify as

evidence of guilt.

The Commonwealth made no attempt to

demonstrate that Evans-Smith’s demeanor, or

the questions he asked, were unusual for

him.

The Amicus suggests that, somehow, the

jury’s observations of Evans-Smith during

the trial would have enabled it to assess

his lack of tears, which, according to the

Amicus, "rais[ed] an inference that his

4

grief was feigned."* Brief Amicus Curiae,

*The Commonwealth, for example, could

have introduced evidence that Colonel

Evans-Smith tended to wear his emotions on

his sleeve or even that someone had seen

him cry in the face of death. Given Evans-

Smith’s Special Forces background, it is

hardly surprising that the Commonwealth

could not produce such evidence. However,

its inability to do so does not provide the

jury or state courts license to speculate

as to the vagaries of human conduct. This

is but one instance among several (e.g.,

the Commonwealth’s failure to prove how

long it took Evans-Smith to drive to work

during rush hour, or to prove when he

arrived at work) in which the Amicus and

Petitioner rely on the absence of evidence

to support the finding of guilt, and invoke

7

p.10 n.3. In the final analysis, it would

prefer to let the jury simply guess as to

what is unusual for Evans-Smith. Such

speculation, however, has no part in the

criminal justice system. E.g., People v.

Smith, 565 N.E.2d 900, 908-09 (Ill. 1991)

(prosecutor may not argue inferences not

supported by evidence). This Court should

reject the concept of guilt by jury

speculation, which is urged upon it.

The Amicus simplifies this Court’s

decision in Estelle v. McGuire, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991) beyond

recognition, quoting language to the effect

that the evidence there was probative

because it "narrowed the class of possible

perpetrators to McGuire and his wife."

Brief Amicus Curiae, p.6, quoting, McGuire,

the talisman "inference" to disguise that

lack of evidence.

116 L.Ed.2d at 400. In fact, McGuire

demonstrates the weakness of the evidence

cited here.

In McGuire, this Court noted that the

purpose of the contested evidence was not

to identify the perpetrator, but to

establish that the injuries suffered by the

child were not accidental.

. [E] vidence demonstrating battered

child syndrome helps to prove that the

child died at the hands of another

-; it also tends to establish that

the "other," whoever it may be,

inflicted the injuries intentionally.

When offered to show that certain

injuries are a product of child abuse,

rather than accident, evidence of

prior injuries is relevant even though

it does not purport to prove the

identity of the person who might have

inflicted those injuries. (Cites

omitted) (Emphasis added).

116 L.Ed.2d at 396. The evidence,

therefore, was relevant because it helped

prove that the child did not die

accidentally. 116 L.Ed.2d at 396-97.

In upholding the jury instruction in

that case, this Court did make the

observation noted by the Amicus. However,

the Amicus omits any reference to the

substantial additional evidence which

established the nexus between McGuire and

the "intentional act," evidence which did

not merely narrow the class to McGuire and

his wife, but to McGuire alone. 116 L.Ed.2d

at 400. Under the jury instructions, the

battered child syndrome evidence was

relevant to the question of guilt only

after the jury had found that McGuire had

committed those other acts.

Here, on the other hand, the Amicus

argues that the jury should have been able

to consider, and the federal courts were

compelled to consider, evidence as to which

no such nexus was established, based upon

the speculative answer to the inquiry

10

"fw)ith whom is a married woman, with no

children at home, likely to argue at six in

the morning?"*® (Emphasis added). Brief

Amicus Curiae, p.6. Contrary to the

rationale in McGuire, the Amicus would

allow identification of the perpetrator to

be based on evidence not independently tied

to the defendant. The suggestion that the

evidence here was "Similarly probative"

(id.) to that in McGuire is thus absurd and

the analogy fails miserably.°

“The Amicus invokes "six in the

morning" as if that was the proven time of

death -- it was not. As Respondent has

demonstrated, the time of death could have

been as late as 8:00. Brief in Opposition,

pp. 20-21. Thus, the speculative question

it posits is itself based on its further

speculation that (1) the killing must have

been the result of an argument and (2) the

time of death was at "six in the morning."

‘The evidence here is so weak that the

Amicus is forced to fill in the blanks with

a statistical compilation as to motives for

murder. Brief Amicus Curiae, p.6.

11

oo

The factual analyses of both

Petitioner and the Amicus are replete with

assumptions and inferences of guilt based

upon the absence of evidence. It is thus

abject speculation to which the Amicus

would ask the federal courts to defer.

II. THE DOCTRINE OF NONRETROACTIVITY IS NOT

IMPLICATED BY THE DECISION BELOW.

The argument advanced by both the

Amicus and Petitioner is predicated on the

notion that the government’s burden to

prove guilt beyond a reasonable doubt, a

standard which, incidentally, goes without

mention by the Amicus, is met even where it

requires the court to ignore the

prosecution’s own evidence. It is that

reworking of Jackson, rather than the Court

of Appeals’ consideration of all the

Commonwealth’s evidence, that seeks a "new

rule."

12

As Respondent has discussed this issue

in his Brief In Opposition, and the Amicus

has added little to the debate beyond cute

phrasemaking, Respondent does not address

the question further here.

III. THIS CASE DOES NOT PROVIDE AN

APPROPRIATE VEHICLE FOR RECONSIDERATION OF

ESTABLISHED PRINCIPLES OF LAW SIMPLY

BECAUSE THE AMICUS WISHES TO EVISCERATE

FEDERAL HABEAS CORPUS.

The Amicus seeks to use this case to

promote its own agenda: the elimination of

meaningful habeas corpus review. This case

is in no sense unique for that purpose,

but, as with any successful Jackson claim,

it provides a convenient vehicle for that

agenda.

While paying lip service to the value

of federal habeas review, the Amicus would

plainly not be disappointed by its demise.

It makes the incredible suggestion that

federal review under Jackson should give

13

way to what is not in the record, that the

federal courts should show deference to the

trial judge’s Opportunity to observe non-

evidence, to wit, Evans-Smith’s demeanor at

trial, Brief Amicus Curiae, p.10 n.3, even

in the absence of any reference to that by

the trial court.” Thus, the Amicus’

respect for habeas corpus would extend no

further than an inquiry as to what the

trial court might have observed which is

not of record. Its protestations as to the

importance of habeas review certainly can

not be taken seriously. The last thing it

"While the Amicus argues that

deference is due the trial judge’s findings

because he observed the proceedings, Brief

Amicus Curiae, p.10, it also argues that

deference is due as to matters which the

trial judge observed but made no reference.

id., 2.3. At a minimum, consistency would

demand that the judge’s silence as to such

a circumstance be treated as an implication

that it was not a factor suggesting guilt.

14

wants this Court to do is "put some meat on

Jackson’s bones." Id., p.4. It would

plainly prefer to strip it bare.

Federal habeas corpus remains an

essential safeguard because not all state

courts are committed to the enforcement of

constitutional rights. See, Giarratano v.

Murray, 492 U.S. 1, 23-24 (1989) (Stevens,

J. dissenting) (federal habeas relief

granted in 60% to 70% of capital cases).

In Virginia itself, only one capital habeas

petitioner has been granted relief, and

then only because the Commonwealth conceded

8

error. The Virginia Supreme Court has

granted review as to only two such cases,’

® Evans v. Johnson, (Alexandria Cir.

Ct., 5/14/85).

*Review by the Virginia Supreme Court,

other than the direct appeal of death

verdicts, is obtained by writ of error, the

denial of which is a decision on the

merits. Saunders v. Reynolds, 214 Va. 697,

15

affirming the denial of relief in one,

Coppola v. Warden, 222 Va. 369, 282 S.E.2d

10 (1981), and reversing the granting of

relief in the other. Virginia Dep't of

Corrections v. Clark, 227 Va. 525, 318

S.E.2d 399 (1984).*° Thus, in only one

case out of more than fifty has any such

petitioner obtained relief from the

Virginia courts.** This result should

Surprise no one, given that, even 23 years

ago, the Virginia Supreme Court could not

actually give a merits review to each case

presented, a circumstance which clearly

applied to the consideration of habeas

700-01, 204 S.E.2d 421 (1974).

“Clark ultimately obtained relief in

federal court.

“As Justice Stevens noted in

Giarratano, the success rate in non-capital

habeas cases tends to be dramatically lower

than in capital ones, even in federal

court. 492 U.S. at 23-24.

16

corpus petitions. Graham C. Lilly & Antonin

Scalia, Appellate Justice: A Crisis In

Virginia?, 57 Va. L.Rev. 3, 6-8, 14-16

(31973) .”

By way of example, this Court remanded

the case of Tugqgle v. Virginia, 471 U.S.

1096 (1985) for reconsideration in light of

Ake v. Oklahoma, 470 U.S. 68 (1985). The

Virginia Supreme Court reaffirmed, even

though the Commonwealth conceded Tuggle was

entitled to a new sentencing hearing.

Tuggle v. Commonwealth, 230 Va. 99, 384

S.E.2d 838 (1985). Tuggle’s state habeas

corpus petition was dismissed, which was

affirmed by the Virginia Supreme Court.

See, Tuggle v. Bair, 112 S.Ct. 1681 (1992).

‘* As was properly suggested there,

"no man’s ... liberty should be disposed of

by unappealable determination of a single

individual ...," the consequence of a

discretionary review system, even if it is

disguised as a merits review. Id. at 16.

ae

Tuggle’s federal habeas corpus petition was

then granted on six separate constitutional

grounds, including the Ake issue and the

denial of a right to a fair trial, Tuggle

Vv. ompson, 854 F.Supp. 1229 (W.D.Va.

1994), fundamental errors to which the

Virginia courts had turned a deaf ear.

Thus, the suggestion that "changes in the

nation" have "rendered relitigation far

less necessary and much more evil" is

indefensible, even beyond its fantastic

premise that effective habeas corpus review

was necessary only because of "racial

discrimination cases from the South in

1953" and that race discrimination, in the

South or elsewhere, has been effectively

addressed by our judicial system.’

“Claims under Batson v. Kentucky, 476

U.S. 79 (1986) provide an obvious barometer

of a court’s commitment to enforcing race-

based constitutional rights in criminal

18

Respondent is at a disadvantage,

because the Amicus references arguments

contained in a brief not filed in this

cases. The Virginia Supreme Court has

rejected every Batson claim it has

considered. In fact, it has summarily

rejected all but one such claim, James v.

Commonwealth, 247 Va. 459, 463, 442 S.E.2d

396 (1994), its other six published

decisions coming in death penalty cases,

where review is mandatory. See, Gray v.

Commonwealth, 233 Va. 313, 356 S.E.2d 157

(1987); Townes v. Commonwealth, 234 Va. 307

362 S.E.2d 650 (1987); Spencer v.

Commonwealth, 238 Va. 295, 384 S.E.2d 785

(1989); Stockton v. Commonwealth, 241 Va.

192, 402 S.E.2d 196 (1991). The Court’s

failure to even review more than one such

case in the eight years since Batson

demonstrates extraordinary indifference to

race discrimination in the criminal justice

system. In the one case in which it did

grant a writ of error, the Court accepted

the prosecutor’s religiously discriminatory

justification for his racially

discriminatory strike. James, supra. Are we

actually to conclude from this that the

Virginia courts are to be trusted with the

enforcement of federally protected rights?

See, James, 247 Va. at 464, 442 S.E.2d at

399 (Hassell, J. dissenting). If "race

discrimination in the South" did provide

the impetus for the de novo standard of

review, in Virginia at least, a new day has

not yet dawned.

19

case. See, Brief Amicus Curiae, p. 13.

However, Justice O’Connor thoroughly

addressed this identical argument in Wright

v. West, 120 L.Ed.2d at 242-46. Most

relevant to the instant case, Justice

0’ Connor pointed out that this Court

specifically rejected use of a deferential

standard in Jackson itself. 120 L.Ed.2d at

246, citing, Jackson, 443 U.S. at 323, 324.

Respondent, therefore, defers to Justice

O’Connor’s exposition on the @lubject.

CONCLUSION

For the foregoing reasons, the Motion

and Petition should be denied.

Respectfully submitted,

* GERALD T. ZERKIN, ESQ. #16270

ANN B. VANCE, ESQ. #30008

20

GERALD T. ZERKIN, ESQ.

Linden Tower Professional Centre,

2nd & Franklin Streets

Richmond, Virginia 23219

Tel: (804) 788-4412

Fax: (804) 649-8547

Counsel of Record

ANN B. VANCE, ESQ

29 North King Street

Leesburg, Virginia 22075

(703) 777-3434

* Counsel of Record

October, 1994 TERM

Suite 505