Reply Brief — Barnabei v. Virginia

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

BLER DH

5 ) |) TPR 18 1997

CLE

No. 96-1378 esi _

IN THE

Supreme Court of the Giited States

OCTOBER TERM, 1996

DEREK ROCCO BARNABEI,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITIONER’S REPLY BRIEF

MICHELE BRACE ROBERT H. KLONOFF

VIRGINIA CAPITAL (Counsel of Record)

REPRESENTATION DANIEL H. BROMBERG

RESOURCE CENTER JONES, DAY, REAVIS &

P.O. Box 506 POGUE

Richmond, VA 23204 1450 G Street, N.W.

(804) 643-6845 Washington, D.C. 20005

(202) 879-3939

BARBARA HARTUNG

1001 E. Main Street Counsel for Petitioner

Suite 410

Richmond, VA 23219

(804) 649-1088

‘0

TABLE OF CONTENTS

Page

See Ge EIEIO oa ee eh ek es li

CIEE Se hg tae «a ow ee Sees ek 1

ENE 6s TRE oe ERS a pe ee

TABLE OF AUTHORITIES

Page

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) .............-. 3

Cardinale v. Louisiana, 394 U.S. 437 (1969) ........ 3,4

Dolan v. City of Tigard, 512 U.S. 374 (1994) ......... 8

Georgia v. McCollum, 505 U.S. 42 (1992) ........... 8

Husske v. Commonwealth, 476 $.E.2d 920 (1996),

cert. denied, 1137 3. Ci. WBS GEST) ww we cc ee ee 3,7

Maggio v. Williams, 464 U.S. 46 (1983) ............ 6

O'Dell v. Netherland, 117 S. Ct. 631 (1996) .......... 7

Rates v. Giie, SER U.S. Mad CGS). ow eh i ce ees 3

Simmons v. South Carolina, 512 U.S. 154 (1994) ...... 7,8

Springfield v. Kibbe, 480 U.S. 257 (1987) ........... 4

United States v. Alvarez-Sanchez, 511 U.S. 350 (1994) ... 4

United States v. Carver, 260 U.S. 482 (1923) ......... 6

Webb v. Webb, 451 U.S. GS CSSD) .. 2. ee es 4

Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) ...... 3

Miscellaneous Authorities

R. Stern & E. Gressman, Supreme Court

Poa CAGE. Tes 6 ik Se Ae oe oe ewe 6

United States Department of Justice/Office of

Inspector General Special Report,

The FBI Laboratory: An Investigation into

Laboratory Practices and Alleged Misconduct

in Explosives-Related and Other Cases (1997) ....... 2

W. Brennan, State Court Decisions and the Supreme Court,

31 Pom. et Ase). Fes Cae nw ee eis 6

REPLY FOR PETITIONER

As the petition demonstrated, this case squarely presents two

significant and recurring issues that have divided the state and

lower federal courts. In its opposition brief, respondent fails to

offer a single valid reason why certiorari should not be granted.

ARGUMENT

As explained in the petition (Pet. 8-14), there is a sharp and

growing conflict among the state and lower federal courts over

the indisputably important issue of when an indigent criminal

defendant, faced with expert testimony for the prosecution, is

entitled to the assistance of an independent expert. Furthermore,

as the petition also showed (Pet. 7-8, 16), this case presents an

excellent vehicle for considering the issue: the question is clearly

presented and arises in the most compelling of circumstances,

i.e., where eligibility for capital sentencing turned upon the

prosecution’s expert testimony. Respondent’s arguments in

Opposition to certiorari are meritless.

1. Respondent’s brief is noteworthy not for what it says, but

for what it does not — and cannot — say. First, respondent does

not deny that the state and lower federal courts are hopelessly

split over the proper standard to apply when an indigent criminal

defendant requests the assistance of a non-psychiatric expert.

Second, respondent does not dispute that this question is a

significant and recurring one. Third, respondent does not make

even a cursory attempt to defend the decision below. As a

consequence, nothing in respondent’s brief undermines

petitioner’s showing that review should be granted.

2. The briefs lodged by amici curiae underscore the

importance of the issue presented here. As the brief of the

National Legal Aid and Defender Association stresses, the

testimony offered by medical examiners and other prosecution

experts is often subjective and unreliable, frequently biased, and

sometimes simply “scientifically unsound.” Brief of Amici Curiae

the National Legal Aid and Defender Association and the New

York State Association of Criminal Defense Lawyers at 6-9

(quotation omitted) [hereinafter, “National Defenders Br.”}.'

Indeed, as amicus curiae the Virginia College of Criminal

Defense Attorneys points out, one state supreme court found the

testimony of a medical examiner so unreliable that it ordered a

special prosecutor to investigate whether to bring charges against

the examiner. See Brief of Amicus Curiae the Virginia College

of Defendant Attorneys at 8 n.1 [hereinafter, “Virginia College

Br.”]. Nevertheless, due to the “aura of infallibility” that experts

enjoy, jurors often place an inordinate amount of trust in the

testimony of prosecution experts — especially where, as here,

there is no defense expert to answer their testimony. See National

Defenders Br. at 10-12.

The danger of the jury improperly crediting biased and

unsound testimony was especially great in this case. As petitioner

pointed out (Pet. 5), the prosecution’s expert testified that the

victim was unlikely to have engaged in normal, consensual sexual

activities based upon vaginal bruising and an anal tear. As amici

point out, however, there is an “overwhelming and longstanding

consensus” among medical experts that “forensic testimony

regarding the physical trauma resulting from an act of intercourse

does not establish that the intercourse was non-conserisual.”

National Defenders Br. at 4 (citations omitted). Thus, as amici

demonstrate, this case addresses the very heart of the problem

often raised by the prosecutor’s expert testimony.

' Amici rely in part upon a draft report from the Department of Justice

Office of the Inspector General on the Federal Bureau of Investigation’s

laboratories, the most respected forensic laboratory in the country. See

National Defenders Br. at 8-9. The final report, issued April 15, 1997,

found “significant instances of testimonial errors, substandard analytical

work, and deficient practices,” including scientifically flawed testimony

in a number of major cases. United States Department of Justice/Office

of Inspector General Special Report, The FBI Laboratory: An

Investigation into Laboratory Practices and Alleged Misconduct in

Explosives-Related and Other Cases 2 (1997).

3. Unable to dispute that the traditional criteria for certiorari

are satisfied here, respondent asserts (Opp. 8-10) that petitioner’s

argument before this Court is inconsistent with the argument

advanced before the Virginia Supreme Court. This assertion is

frivolous. Before the Virginia Supreme Court, petitioner argued

that under Ake v. Oklahoma, 470 U.S. 68 (1985), courts have

required the appointment of a defense experi “[w]Jhere the State’s

case involves important expert testimony.” App. Br. at 19

(citations omitted).? Petitioner also argued that his case was

indistinguishable from Williams v. Martin, 618 F.2d 1021 (4th

Cir. 1980), which specifically rejected the suggestion that

criminal defendants, faced with expert testimony presented by the

prosecution, must show that a defense expert would provide

favorable testimony in order to obtain independent expert

assistance. App. Br. at 19-22. The Virginia Supreme Court

therefore understood petitioner to be arguing there, as here, that

he v as entitled to expert assistance under Ake “because the only

evidence of rape adduced at trial was the medical examiner’s

testimony.” Pet. App. 9a. As the Virginia Supreme Court both

considered and ruled on this claim, Pet. App. 9a-10a, there can

be no doubt that petitioner’s claim was properly raised below.

See, e.g., Cardinale v. Louisiana, 394 U.S. 437, 438 (1969); see

also Raley v. Ohio, 360 U.S. 423, 436-37 (1959) (“There can be

no question as to the proper presentation of a federal claim when

the highest state court passes on it.”).

Nonetheless, respondent contends (Opp. 8-9) that petitioner

waived this claim by arguing in his petition for rehearing that he

should prevail under the standard applied below and in Husske v.

Commonwealth, 476 S.E.2d 920 (1996), cert. denied, 117 S. Ct.

1092 (1997). Plainly, however, petitioner did not seek to apply

Husske on appeal: indeed, as respondent acknowledges (Opp. 8),

Husske was not handed down until the day of the decision below.

More fundamentally, a party does not waive properly raised

? Relevant excerpts from petitioner’s brief before the Virginia Supreme

Court, and from his petition for rehearing before that court, have been

lodged with the clerk of this Court.

arguments challenging a rule simply by arguing on rehearing that

he also prevails under that rule. Respondent offers no rationale

for this absurd proposition, and none of the cases that he cites

even remotely supports it.’

In any event, the arguments made by petitioner below in his

petition for rehearing were in no way inconsistent with the

arguments advanced here and in his original brief before the

Virginia Supreme Court. While petitioner contended that he

should have received expert assistance under Husske, he continued

to rely upon Ake and Williams. Pet. Reh. at 5-8. Moreover, he

specifically criticized Husske’s requirement that criminal

defendants make a “particularized showing” of the testimony that

a defense expert would present as being without basis “under the

very federal law which the Husske Rule claims to invoke.” Id. at

7-8 (quotation omitted). In short, contrary to respondent’s

desperate suggestion, petitioner made the same basic arguments

in his petition for rehearing that he now urges this Court to

consider.*

>In each of the cases cited by respondent, the petitioner failed to raise

the claim in question at amy point in the courts below. See United States

v. Alvarez-Sanchez, 511 U.S. 350, 360 n.5 (1994) ("Respondent,

however, did not raise a Fourth Amendment claim in the District Court

or the Court of Appeals. . . ."); Springfield v. Kibbe, 480 U.S. 257, 258

(1987); Webb v. Webb, 451 U.S. 493, 498 (1981) ("We cannot conclude

on this record that petitioner raised the federal claim that she now

presents to this Court at any point in the state-court proceedings.”);

Cardinale, 394 U.S. at 438 (noting that "the sole federal question argued

here had never been raised, preserved, or passed upon in the state courts

below"). Thus, none of these cases can be read to support respondent’s

suggestion that an argument properly raised on direct appeal can be

waived by making a narrower (or even different) argument on rehearing.

* Because petitioner did not rely upon the standard applied by the court

below in either his brief on appeal or his petition for rehearing,

respondent’s contention that this petition presents a “fact-specific”

application of that standard (Opp. 9-10) is specious.

= —?>

4. Respondent also argues (Opp. 12) that petitioner was not

prejudiced by the denial of expert assistance because his counsel

“was well-equipped to cross-examine” the medical examiner.°

This argument is without merit. As respondent observes (Opp.

12), trial counsel was able to force the medical examiner to

concede that the bruising he observed on the victim might have

been caused by “generic rough sex.” 5 Tr. 1832-33. Trial

counsel was not, however, able effectively to challenge the

medical examiner’s testimony that the bruising was caused by a

“violent penetration” and was “very unlikely” to have occurred

during “normal sexual intercourse.” 5 Tr. 1804-05. Moreover,

because trial counsel was apparently unaware of the skepticism

with which most medical experts view this type of forensic

testimony, see National Defenders Br. at 4-5, he was unable to

demonstrate the fundamentally unscientific and unsound nature of

the medical examiner’s conclusions. Thus, far from

demonstrating that no expert assistance was necessary, trial

counsel’s vigorous but medically unsophisticated cross-

examination underscores that lay cross-examination is a poor

substitute for expert assistance.®

The Commonwealth also attempts to divert attention from the

medical examiner’s testimony by asserting (Opp. 11-12) that the

medical examiner “never remotely opined as to whether any

sexual intercourse had been consensual” and that the prosecutor

relied upon the brutality of the victim’s murder as proof that the

sexual relations were not consensual. This contention is

* Although respondent also points out (Opp. 10-11) that petitioner moved

to exclude the testimony of the medical examiner, it does not explain the

relevance of this fact. As demonstrated in the petition and the briefs of

amici curiae, having lost on that motion, petitioner’s only hope of

receiving a fair trial was to secure the appointment of his own expert.

*The prejudice that petitioner suffered as a result of the medical

examiner’s testimony goes beyond the rape conviction and death

sentence: had the jury understood the flaws in the testimony of the

prosecution’s expert, it may have concluded that petitioner did not

commit the rape or the murder of the victim.

disingenuous. Given petitioners’ prior history of consensual sex

with the victim,’ evidence that the victim was brutally murdered

is hardly proof that petitioner engaged in nonconsensual sexual

relations with the victim. Moreover, as petitioner pointed out

(Pet. 5), the Commonwealth specifically argued to the jury that, |

because the medical examiner testified that the victim’s bruises

“cannot occur without some force,” “we know that the sex that

the defendant had wasn’t voluntary consensual sex.” 9 Tr. 3296-

97. Thus, having relied heavily at trial on the medical examiner’s

testimony, the Commonwealth cannot now claim in good faith

that the testimony was inconsequential.

5. Respondent’s final argument (Opp. 9 n.3) is that certiorari

should be denied in this case because this Court denied certiorari

in the Husske case. This argument is also without merit. First,

it is well-settled that “[t]he denial of a writ of certiorari imports

no expression of opinion upon the merits of the case.” United

States v. Carver, 260 U.S. 482, 490 (1923). As Justice Brennan

has noted, this Court may deny certiorari in one case and then

“take the very next case raising the same question.” R. Stern &

E. Gressman, Supreme Court Practice 240 n.56 (7th ed. 1993)

(quoting W. Brennan, State Court Decisions and the Supreme

Court, 31 Penn. Bar Ass’n Q. 393, 402-3 (1960)).* Second,

there was an obvious reason why certiorari was not granted in

’ While the Commonwealth appears at one point (Opp. 3) to suggest that

petitioner did not engage in sexual relations with the victim, as the

petition demonstrated (Pet. 4 & n.1), the testimony of the

Commonwealth’s own witnesses overwhelmingly established such

relations.

Re a et le EO St NN ee

* Maggio v. Williams, 464 U.S. 46 (1983) (per curiam), does not suggest

otherwise. In Maggio, the Court considered a stay of execution and, in

so doing, looked to prior denials of certiorari because the standard for

granting a stay of execution is whether there is “a reasonable probability

that four members of the Court would consider the [issues in the case]

sufficiently meritorious for the grant of certiorari.” 464 U.S. at 48

(quotation omitted). This Court has never extended Maggio beyond this

narrow context.

ila laa

Husske: the defendant in that case “confessed to the crimes” for

which he was convicted. Husske, 476 S.E.2d at 926. Indeed,

Husske was such an obviously poor vehicle for addressing the

right of indigent criminal defendants to expert assistance that the

Commonwealth waived its right to respond to the petition in that

case. This case, by contrast, presents a perfect vehicle for

considering this issue. Review by this Court should be granted.

The second question presented by this case is whether a state

may prevent 2 defendant threatened with the death penalty from

informing a capital sentencing jury that he or she will be

ineligible for parole for a substantial period of time. As the

petition demonstrates (Pet. 20-21), this important and recurring

question, which was left open in Simmons v. South Carolina, 512

U.S. 154 (1994), has divided the state and lower federal courts.

1. Once again, respondent’s brief is most notable for what it

omits. Here, too, respondent does not deny that there is a

conflict among the lower courts or that the issue left open in

Simmons is both important and recurring. The Commonwealth

also does not dispute that this Court’s decision in O'Dell v.

Netherland, see 117 S. Ct. 631 (1996) (No. 96-6867) (granting

certiorari), may shed light on the issues raised in this petition and

that it would therefore be worthwhile to hold this case pending

disposition of O’Dell.

2. Instead, respondent asserts (Opp. 13-14) that petitioner

advanced a “narrow, case-specific argument” based upon three

facts: trial counsel asked to provide the jury with accurate parole

information; the Commonwealth asserted that petitioner posed a

future danger to society; and the jury asked about petitioner’s

parole eligibility. In every Simmons case, however, the state

argues that the defendant presents a future danger and the

defendant asks to provide the jury with accurate parole

information. Moreover, while petitioner pointed out that the jury

asked about his parole eligibility, his argument did not turn upon

that fact. See App. Br. at 48-54. It should come as no surprise

then that the Virginia Supreme Court did not treat petitioner’s

argument as narrow and fact-specific. See Pet. App. 16a.

3. Respondent’s assertion (Opp. 15) that Simmons somehow

rejected petitioner’s due process argument is groundless. The

lower courts would not be in conflict over this question if this

Court had definitely resolved it. Moreover, contrary to

respondent’s suggestion (Opp. 15), the plurality and concurring

opinions in Simmons did not limit their application of the due

process right to rebut claims of future dangerousness to instances

of parole ineligibility; those opinions simply limited their holdings

to the facts before the Court. Indeed, Justice Scalia took the

position that the reasoning in Simmons could not be limited to

defendants permanently ineligible for parole. In his view, the

decision was “at least as sweeping as this: that the Due Process

Clause overrides state law limiting the admissibility of

information concerning parole whenever the prosecution argues

future dangerousness.” 512 U.S. at 183 (Scalia, J., dissenting)

(emphasis in original).

4. Respondent’s suggestion (Opp. 16) that this Court should

not review petitioner’s Eighth Amendment argument because the

plurality in Simmons left the question open is specious. That this

Court has left a question unresolved is a reason for granting

certiorari, not denying it. See, e.g. Dolan v. City of Tigard, 512

U.S. 374, 374 (1994), Georgia v. McCollum, 505 U.S. 42, 46

(1992).

5. Respondent also argues (Opp. 14) that these questions are

not worthy of certiorari because this Court has previously denied

other petitions raising the same issue. As demonstrated above,

see supra p. 6, that argument is without merit.

CONCLUSION

For the foregoing reasons and those stated in the petition, the

petition for writ of certiorari should be granted.

Respectfully submitted,