# Reply Brief — Taylor v. Evans-Smith

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0088%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 919

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0088%3A4. Public record. Not legal advice.