Opposition Brief — Behrens v. Louisiana

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Siprome Comt, v5,

FILED

¢ DEC 29 i997

No. 97-482 CLERK

: en ~

In The

Supreme Court of the United States

October Term, 1997

GARY K. BEHRENS,

Petitioner,

STATE OF LOUISIANA,

Respondent.

On Petition For Writ Of Certiorari To The

Louisiana Court Of Appeal, First Circuit

BRIEF IN OPPOSITION

Terry BoupREAUXx

Counsel of Record

Office of the District Attorney

2200 Hancock Street

Gretna, Louisiana 70053

(504) 365-2064

Attorney for Respondent

<KLE LAW GRIEF PRINTING CO. (800) 225-4964

« ALL COLLECT (402) 342-283)

TABLE OF CONTENTS

Page

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Bs FR Be ncn des he ceeickcee cies 1

B. Facts Pertinent to the Offense.............. 2

ae Sk RE ee Peer ee ee 6

1. The Conduct of the Prosecution ........ 6

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3. Post Trial Proceedings.................. 8

RES ST Oe a LT ee Eee 9

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B. Mr. Behrens was Not Deprived of Brady/Kyles

RAE REE ey Se my ae 4

C. Contamination of the Interview ............ 15

D. The Exclusion of Testimony Concerning

Annulment of Mrs. Behrens Marriage Did

Not Violate Mr. Behrens Right To Confronta-

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TABLE OF AUTHORITIES

Page

Cases

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

36 &. Bd. 2d 25 (OSGR.... 06220005008 6, 9, 10, 12, 19

Kyles v. Whitley, __ U.S. __, 115 S. Ct. 1555,

Ft ee SF RR ee 6, 9, 10, 12, 19

United States v. Bagley, 473 U.S. 667, 105 S. Ct.

Sve, GF ©. Te Ae Ge Cinkn cine cain sdicen. 10

CONSTITUTIONAL PROVISIONS

US.C.A. Const. Agnemdl. NEV Gow. B .. ..cccccccscesece 1

STATUTES

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STATEMENT OF THE CASE

A. NATURE OF THE CASE

This is a Louisiana state criminal prosecution brought

against Gary Behrens (Mr. Behrens) for sexually molest-

ing his then four year old daughter, Megan Behrens

(Megan) on a single occasion between January 1, 1992

and April 17, 1992.

A jury returned a verdict of guilty as charged against

Mr. Behrens for the single count of violation of La. R.S.

14:81.2 alleged in the bill of information filed against him.

Mr. Behrens now contends that his conviction resulted

from deprivation of his rights pursuant to section 1 of the

14th amendment to the United States Constitution.

However, although Mr. Behrens has attempted to

couch his argument to this court in constitutional terms,

his conviction, in reality, resulted from adverse credibility

determinations made by the jury in a prosecution which

was carried out with scrupulous regard for the very

rights Mr. Behrens contends he was deprived of. Quite

simply, the jury believed Megan and did not believe Mr.

Behrens who elected to testify on his own behalf.

The sequence of events leading up to Mr. Behrens’

arrest, prosecution and conviction are extensively set

forth in the Louisiana First Circuit Court of Appeals

opinion in this case. That opinion is reproduced as

Appendix A to Mr. Behrens’ Petition for Writ of Certiorari

(The Petition). Accordingly, only those facts most ger-

maine to the arguments raised in The Petition are dis-

cussed below.

B. FACTS PERTINENT TO THE OFFENSE

Megan is the younger of two daughters resulting

from Mr. Behrens’ marriage to his now ex-wife, Kathy

Behrens (Mrs. Behrens). The record establishes that the

dissolution of Mr. and Mrs. Behrens’ marriage left them

with a poor relationship. The record further establishes

that Mr. Behrens had been previously charged with sexu-

ally molesting his older daughter. That charge resulted in

a verdict of not guilty in his favor. The jury in this case

was informed of the prior verdict.?

On April 17, 1992 Mrs. Behrens appeared at the St.

Tammany Parish Louisiana Sheriff’s Office (STPSO) in

order to report an incident of sexual abuse of Megan by

Mr. Behrens.

Mrs. Behrens spoke with officer Robert Cardinale

(Officer Cardinale) of the STPSO. Officer Cardinale then

interviewed Megan, in a separate room, for approxi-

mately one hour. This interview was not tape recorded

nor was anyone else present when it occurred. Subse-

quently Officer Cardinale contacted the Office of Com-

munity Services (OCS) in order to set up an interview

between Megan and that agency. According to Officer

Cardinale it was very common for the STPSO and OCS to

work together on cases involving child abuse.

1 Although Mr. Behrens has attempted to portray the trial

of this matter as an oppressive and largely unconstitutional

prosecution the record reflects, to the contrary, that his counsel

was afforded a great deal of latitude in his presentation both at

trial and in post-trial motions.

On April 20, 1992 Megan was interviewed by Officer

Cardinale and Susan Vaught (Ms. Vaught) of OCS. A

contemporaneous audio recording was made of Megan’s

April 20, 1992 interview.”

Subsequent to the April 20, 1992 interview Megan

was examined by Dr. Joan Curtis (Dr. Curtis) a medical

doctor practicing in the fields of Family Practice and

Emergency Medicine with a sub-specialty in the medical

examination of children for evidence of sexual abuse. Dr.

Curtis’ examination took place on April 27, 1992. Megan

was accompanied to the examination by Mrs. Behrens

and Ms. Vaught. Dr. Curtis spoke to Ms. Vaught concern-

ing the case prior to speaking with Megan and her

mother.

Dr. Curtis’ physical examination revealed that Megan

had a 6 mm hymenal opening. This was contrasted with

the normally expected 4 mm opening in a child of her

age. Dr. Curtis also found that the posterior rim of the

hymen appeared somewhat thickened and shortened.

However, Dr. Curtis stated that these findings were non-

specific because they could result from either sexual

abuse or non-abuse pathologies such as severe infection,

irritation from allergies or chicken pox. Dr. Curtis

reviewed Megan’s pediatric records and found that she

had been treated only for an external yeast infection and

2 Megan’s audio taped interview was made available to Mr.

Behrens. His counsel played the entirety of the interview to the

jury at trial.

3 The substance of Dr. Curtis’ discussion with Ms. Vaught

was not disclosed to the jury at trial.

that Megan had the chicken pox. However, there was no

notation in the pediatric records of any genital lesions.

Accordingly, Dr. Curtis characterized her findings as

being in “Category 2” - consistent with either sexual

abuse or non-abusive pathology.*

Dr. Curtis testified that in cases involving digital

penetration (the type of abuse perpetrated on Megan) the

majority of cases would yield no physical findings, how-

ever, in those digital penetration cases where physical

findings exist she would expect them to be in Category 2.

In addition to taking Megan to be examined by Dr.

Curtis Ms. Vaught interviewed a number of individuals

in connection with her investigation. She also made

arrangements to have Mrs. Behrens evaluated by a psy-

chologist.5

Megan’s account of her abuse by Mr. Behrens is

detailed in the Appellate Court decision:

* Dr. Curtis testified that she grades examination results in

four categories. Category 1 represents a normal examination;

Category 2 consists of findings which are both consistent with

sexual abuse and non-abusive medical etiologies; Category 3

consist: of highly suspicious findings (discharges associated

with venereal disease, teethmarks, tears or scars in the hymen),

and Category 4 consists of findings of definite evidence of

sexual abuse including pregnancy or evidence of sperm.

5 Although Ms. Vaught performed a significant

investigation her trial testimony was extremely limited. She did

not reveal the results of her investigation to the jury, nor did she

testify és to any opinion which she may have formed concerning

Mr. Benrens guilt or innocence. This point is more fully

addressed below.

“The victim testified that at the time of trial she

was five years old and lived with her mother

and her sister. She remembered visiting the

defendant when he touched her bottom with his

finger. She indicated that her bottom was the

area between her legs. She thought that he was

“[llooking for boogers” when he touched her

bottom. The victim stated that the incident

occurred during the day while she and the

defendant were in the living room watching

television and everyone else was outside. She

was sitting on the couch and her father was

standing beside her. Afterwards the defendant

told her not to tell anyone. Another incident

occurred when she and the defendant were in

the backyard, and everyone else was inside the

house, and the defendant again touched the

place between her legs with his hand. He did

not say anything to her. The victim subsequently

told her mother because she “thought maybe

she [could] do something about it”. She told her

mother that he did “something bad”. The victim

stated that she has two private parts which she

calls her bottom. She indicated that one of her

private parts was in the front of her body and

one was in the back. She indicated that the

defendant touched her front private and that no

one else had touched her front private”®

The testimony of Officer Cardinale, Mrs. Behrens, Dr.

Curtis, Ms. Vaught and Megan constituted the prosecu-

tion’s case-in-chief at trial. Each of these witnesses was

vigorously cross-examined by Mr. Behrens’ counsel

6 See The Petition at App. 9.

although their testimony was obviously accepted by the

jury notwithstanding that cross-examination.

C. THE TRIAL

1. THE CONDUCT OF THE PROSECUTION

Notwithstanding the allegations contained in The

Petition Mr. Behrens’ prosecution was conducted with

scrupulous regard for his constitutional rights. This was

true both during and subsequent to the trial. The follow-

ing examples are illustrative of the steps taken to safe-

guard Mr. Behrens’ rights and are directly pertinent to

the allegations raised in The Petition:

1) Officer Cardinale prepared a resume report

containing information obtained from

Megan in her April 17, 1992 interview.

Although this resume was not a part of Offi-

cer Cardinale’s initial report (and therefore

not discoverable pursuant to Louisiana

law)” and the prosecution did not believe

that it contained any exculpatory informa-

tion within the meaning of Brady v. Mary-

land, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed 2d

215 (1963) or Kyles v. Whitley, __ U.S. __,

115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). It

was nonetheless submitted to the trial judge

for in camera inspection immediately prior

to trial. The trial judge reviewed the resume

report and agreed it did not contain any

Brady/Kyles material;

7 See the Court of Appeals opinion at App. 21.

2) When Megan was being interviewed by the

prosecution team during the trial, in prepa-

ration for her testimony, she made inconsis-

tent statements to them. The prosecution

immediately notified the trial judge and Mr.

Behrens counsel of these inconsistencies.®;

3) Subsequent to the trial the prosecution

became aware of information which signifi-

cantly impacted Ms. Vaught’s credibility.

The prosecution immediately notified the

trial judge that this information had been

obtained so that Mr. Behrens counsel could

in turn be informed.

2. THE TRIAL EVIDENCE

In addition to the evidence presented by the state, as

outlined above, the jury also heard testimony from Drs.

Richard Cicinelli and Steven David Thurber, the former a

psychiatrist and the latter a clinical and pediatric psy-

chologist with a specialty in the investigation of child

sexual abuse.?®

Dr. Cicinelli testified that, Mrs. Behrens saw her ex-

husband in an overwhelmingly bad light which might

8 This resulted in Mr. Behrens calling one of the prosecutors

to testify before the jury concerning the inconsistencies in

Megan’s testimony.

9 In addition to Drs. Cicinelli and Thurber the defense also

presented several lay witnesses. Their testimony was entirely

factual and is not urged by Mr. Behrens as being relevant to the

issues this Court is being asked to decide.

Officer Cardinale was also recalled to testify as a defense

witness. His testimony is discussed infra.

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have possibly impacted the children. Dr. Thurber testi-

fied extensively concerning possible “contaminants” in

Megan’s April 20, 1992 interview such as coercion and

leading questions and also noted the possibility of a

“carryover” effect of the contaminated interview to sub-

sequent interviews and evaluations of Megan.

Officer Cardinale was recalled to testify by Mr.

Behrens. At that time Megan’s entire recorded interview

of April 20, 1992 was played for the jury. Thus, in addi-

tion to “expert” opinions concerning the manner in which

Officer Cardinale and Ms. Vaught conducted their inter-

view the jury had the benefit of hearing the entire pro-

ceeding including any voice inflections and pauses which

it might determine to be relevant in deciding whether

Megan was subjected to undue coercion and pressure in

stating that her father had molested-her.?0————________-

3. POST TRIAL PROCEEDINGS

As noted above, subsequent to trial the prosecution

became aware of information significantly impacting Ms.

Vaught’s credibility. This information was brought to the

attention of the trial judge and was the subject of a

Motion for a New Trial filed by Mr. Behrens. An evidenti-

ary hearing was held at which time Mr. Behrens counsel

was afforded ample opportunity to impeach Ms. Vaught’s

10 Importantly, the jury also heard a member of the

prosecution team testify concerning the inconsistent statements

made to her during trial preparation. Mr. Behrens therefore had

ample opportunity to impugn Megan’s credibility during the

presentation of his case.

credibility through the use of misrepresentations she had

made concerning her academic qualifications. Ac:

tionally, Mr. Behrens was afforded the opportunity to

show bias on Ms. Vaught’s part as a result of her having

been a victim of sexual abuse in her own past. The

District Court and the Appellate Court both found the

impairment of Ms. Vaught’s credibility to be an insuffi-

cient basis for granting a new trial in these proceedings.

2. DISCUSSION

A. PREFACE

The federal questions raised by Mr. Behrens in his

petition are not novel. Nor do they require this Court to

clarify differing constitutional standards applied by infe-

__Tior courts to the issues being raised. Rather, The Petition

requires that this Court undertake a fact sensitive deter-

mination as to whether or not well settled principles of

constitutional law have resulted in an abridgment of Mr.

Behrens rights as a matter of fact. Accordingly, the

emphasis in the State of Louisiana’s discussion of the

issues is on the facts of this case as they apply to funda-

mental principles of constitutional law primarily involv-

ing the Brady/Kyles requirement that exculpatory/

favorable information in the possession of the state be

disclosed to a criminal defendant.

B. MR. BEHRENS WAS NOT DEPRIVED OF

BRADY/KYLES MATERIAL

It is beyond dispute that the suppression of evidence

favorable to a criminal defendant by the prosecution

violates due process rights where the evidence is material

to either guilt or punishment irrespective of the good or

bad faith of the prosecution.!! Evidence is considered to

be favorable to an accused where it is either exculpatory

or can be used to impeach prosecution witnesses.}

Favorable evidence is material and its suppression

results in a constitutional error if there is a reasonable

probability that had the evidence been disclosed to the

defense the result of the proceeding would have been

different.15

Mr. Behrens primary argument with respect to Brady/

Kyles is that disclosure of Officer Cardinale’s resume

report would have made a different outcome to Mr.

Behrens trial reasonably probable. This argument is based

on two primary premises: (1) the resume could have been

used to impeach both Officer Cardinale and Megan and

(2) the resume would have provided a “competing expla-

nation” for Megan’s assertion that Mr. Behrens molested

her.

The impeachment argument is grounded in the fol-

lowing colloquy between Officer Cardinale and defense

counsel at trial:

11 Brady, supra at 373 U.S. 87, 83 S. Ct. 1196-97; 10 L. Ed. 2d

215. Kyles v. Whitley, supra at 115 S. Ct., 1565, 131 L. Ed. 2d 490.

12 United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87

L. Ed. 2d 481 (1985).

13 Bagley, supra at 473 U.S. 682 and 685, 105 S. Ct. at 3383

and 3385. A criminal defendant need only show that disclosure

of the suppressed evidence to competent counsel would have

made a different result reasonably probable. Kyles, supra at 115

S. Ct. 1569.

Q. Did she tell you on April 17 that her

dad had touched you (sic) on her back private

part?

A. No sir, she did not.

Q. Did she tell you that her dad had tou-

ched her on her front private part on April 17?

A. Yes sir.

"14

Officer Cardinale’s resume report in turn states the

following with respect to the April 17, 1992 interview:

“Detective asked Megan why she was scared of

her daddy, and she said that her daddy spanks

her on the private. Detective asked Megan

where was her private and she pointed to her

buttock.”15

The first question which must be resolved is whether

the statements are contradictory and hence would consti-

tute “impeachment”. Mr. Behrens assertion that Officer

Cardinale’s trial testimony and the resume are contradic-

tory/false paints with a broad brush. The Court is

encouraged to review Officer Cardinale’s testimony in its

entirety bearing in mind that Mr. Behrens was charged

with sexual not physical abuse. There is a distinct differ-

ence between “touching” in a sexual context and spank-

ing as an act of correction. To say that the result of Mr.

Behrens’ trial would probably have been different had he

14 See The Petition at p. 17.

15 Emphasis added.

tis citi

been able to use the resume to “impeach” Officer Cardi-

nale’s testimony is specious. Given the circumstances of

this case it is probable that Officer Cardinale would have

simply called Mr. Behrens’ counsel’s attention to the logi-

cal distinction between sexual “touching” and spank-

ing.16

Mr. Behrens also asserts that Megan’s fear of him

resulting from his spanking her constituted a competing

explanation for her allegation of sexual abuse. However,

as the Appellate Court noted in affirming Mr. Behrens’

conviction:

“It does not appear that it would have changed

the outcome of the trial if the defendant had

presented the spanking statements as the vic-

tims reasons for bringing these charges, or if the

inconsistent statement had been introduced

since other inconsistencies in the victims testi-

mony had been presented to the jury during the

trial.”17

Although Mr. Behrens asserts that the spankings

Megan received would have constituted a “competing

explanation” for her allegations of abuse this position is

inconsistent with his assertion that had he been aware of

16 It is also important to note that the trial judge read the

resume report immediately prior to the commencement of trial.

Obviously, he did not believe that the resume contained Brady/

Kyles material even after Officer Cardinale testified. Mr. Behrens

argument is based entirely upon the characterization of Officer

Cardinale’s testimony as being “false” and further assumes that

Officer Cardinale if confronted with the resume would not

simply have called Mr. Behrens’ counsel’s attention to the

logical distinction between sexual touching and spanking.

17 See The Petition at App. 20.

Ms. Vaught’s misrepresentations concerning her educa-

tional background:

“ ... Mr. Behrens would have been able to

build his entire defense around Ms. Vaught’s

own victimization as the underlying reason for

the allegations and would have been able to

destroy her credibility in the presence of the

jury.”15

It strains credulity to believe that the outcome of Mr.

Behrens trial would have been different utilizing scatter-

shot “competing explanations” so that each would have

formed the fundamental basis for the defense. Plainly

stated, if Mr. Behrens’ spankings were the reason for

Megan’s allegations of abuse, Ms. Vaught’s problems

would have been irrelevant as they would not have been

a reason for them. Conversely, if Ms. Vaught’s misrepre-

sentations and “victimization” would have formed the

basis for the defense then the spankings would have been

irrelevant. The fact that Mr. Behrens contends that each

argument would probably have resulted in a different

verdict belies the strength of both.

There is no doubt however that Ms. Vaught did make

misrepresentations concerning her background at trial.

There is further no doubt that to some extent her testi-

mony would have been impeached had Mr. Behrens’

counsel been aware of these misrepresentations at the

time. The question which this Court must decide is the

impact this impeachment would have had on the verdict.

The best way to gage that impact appears to be to review

the evidence disregarding every assertion of fact which

18 The Petition at p. 22. Emphasis added.

Ms. Vaught made during her testimony. In other words,

assuming that Mr. Behrens was able to impeach Ms.

Vaught to the extent that the jury disbelieved everything

she said would the outcome of the trial probably have

been different? The answer is clearly no. Ms. Vaught’s

participation in the trial was minimal. The primary pur-

pose for her testimony was to serve as a road map for the

investigation which was conducted by the STPSO and

OCS. The record reveals that the prosecution was careful

to insure that Ms. Vaught did not render an opinion as to

the validity of the allegations nor did she testify concern-

ing any other witnesses assertions or opinions.

Ms. Vaught’s role ir: the interview with Megan was

contemporaneously recorded and played for the jury at

Mr. Behrens’ behest. Therefore rather than having to rely

on Ms. Vaught’s credibility concerning the manner in

which the April 20, 1992 interview was conducted the

jury had the opportunity to hear it as it occurred. Her

credibility was therefore rendered irrelevant. The ques-

tions she asked were heard by the jury, the responses

Megan gave were heard by the jury. No amount of

impeachment at trial could alter the jurors perception of

what occurred because they heard it. As the Appellate

Court noted:

“The evidence regarding Vaught was insufficient to

change the outcome of the trial as Vaught’s role in the

trial was minimal.”?9

19 See The Petition at App. 36.

C. CONTAMINATION OF THE INTERVIEW

Mr. Behrens relies on Dr. Thurber’s testimony con-

cerning contamination of the interview with Megan to

support his petition to this Court. The federal question

raised by Dr. Thurber’s testimony is unclear.2° However,

the question of “contamination” of the April 20, 1994

interview was raised at trial and Mr. Behrens had the

opportunity to fully address that issue before the jury. As

the Court of Appeal noted in affirming Mr. Behrens con-

viction:

“ . .. Thurber was qualified as an expert in

clinical and pediatric psychology and child

development with a special emphasis on the

investigation of child sex abuse. After explain-

ing several means by which an interview can be

contaminated, Thurber testified that he had

reviewed the victim’s tape-recorded interview

and felt that there were a number of contami-

nants in the interview. He pointed out some

specific instances of contamination. He also

indicated that, when an interview is contami-

nated, there is a possibility of a carryover effect

from the contaminated interview to subsequent

interviews, evaluation and investigations.”21

The Court of Appeals found no merit in Mr. Behrens’

argument that the Trial Court’s limitations on Dr. Thur-

ber’s testimony prejudiced his defense. Nor does that

20 The Petition at pp. 9-11 details the federal questions it

raises. Dr. Thurber is mentioned only at p. 10e. However this is

in the context of the resume and not in the context of a

constitutional issue raised by Dr. Thurber’s opinions per se.

21 See The Petition at App. 28.

issue appear to have been raised in The Petition.** How-—

ever, out of an abundance of caution, it should be noted

that the Court of Appeal found based upon the record

that:

“The record shows that, in addition to discuss-

ing the contaminants contained in the interview

of the victim, Thurber did testify regarding the

possible carryover effect from a contaminated

interview to subsequent interviews, evaluations,

and investigations. We see no significant differ-

ence in this testimony and the testimony which

the defendant claims should have been allowed.

Any difference had little effect on the overall

probative value of Thurber’s testimony.”

D. THE EXCLUSION OF TESTIMONY CONCERN-

ING ANNULMENT OF MRS. BEHRENS MAR-

RIAGE DID NOT VIOLATE MR. BEHRENS

RIGHT TO CONFRONTATION ST

Mr. Behrens argues that the Trial Court’s allowing

Mrs. Behrens to exercise a testimonial privilege with

respect to steps she had taken to have her marriage

annulled, in the Catholic faith, denied him his right to |

effectively confront her. |

The testimonial privilege at issue was found in the

former La. R.S. 15:477 (at the time the communications

were made) and was found in La. C.E. Art. 511 at the time

of trial.

22 See The Petition at p. 20C1. and 2.

23 See The Petition at App. 29 anc 30.

one ee

~ Mr. Behrens subpoenaed the records of-the-annul-

ment procedure from the Archdiocese of New Orleans.

The Archdiocese filed a Motion to Quash the subpoena

which was denied by the Trial Court. The records were

made available for Mr. Behrens’ counsel’s review.

However, when Mrs. Behrens was questioned, out-

side the presence of the jury, concerning the annulment

procedure she advised the Trial Court that she wished to

exercise her testimonial privilege.

Mr. Behrens argues that:

“By the very nature of her request, Ms. Behrens

was well aware of that any communication

made by her to The Archdiocese would be dis-

closed to the Metropolitan Tribunal in connec-

tion with his participation in the this

investigation of the factual basis of such

decisions rendered in connection with such

requests.”24

However, pretermitting the fact that no evidence was

placed in the record concerning the functions of the Met-

ropolitan Tribunal it seems clear that Mrs. Behrens was

entitled to maintain the confidentiality of her communi-

cations to The Archdiocese and to have that confiden-

tiality respected by it. There is absolutely no evidence in

the record that Mrs. Behrens’ communications to The

Archdiocese/Metropolitan Tribunal would have been

divulged to a third party. Such evidence would clearly be

necessary in order to raise even the inference that she had

24 See The Petition at p. 25.

no expectation of privacy concerning those communica-

tions.

Additionally, assuming arguendo that such evidence

would have been admitted to it is impossible to say that it

probably would have affected the outcome of the trial.

Presumably such evidence would have been yet

another “centerpiece” of Mr. Behrens’ defense, in addi-

tion to (1) Impeachment of Officer Cardinale (2) Ms.

Vaught’s bias and (3) the “spanking explanation”. How-

ever, given the testimony of Mr. Behrens, Mrs. Behrens

and Dr. Cicinelli it is difficult to see how this evidence

would have added anything to Mr. Behrens’ defense.

3. CONCLUSION

Mr. Behrens’ arguments are unpersuasive. They are

neither born out by the facts nor persuasive under the

law. For example, he strongly implies prosecutorial mis-

conduct or, at the least, a reckless disregard for his consti-

tutional rights by the prosecution team. However, there is

no satisfactory explanation given for why the prosecution

would divulge inconsistent statements made by Megan to

it, in a setting where no one ever would have been aware

of them, yet intentionally or recklessly failed to divulge

vote statements which had previously been made the

subject, at its behest, of an in-camera inspection by the

Court.25

25 The state does not imply that it should be entitled to any

“extra credit” for doing what it was legally and morally

obligated to do. Rather, it simply seeks to demonstrate that Mr.

Behrens is engaged in a good bit of hyperbole in the use of such

Both Louisiana Courts which heard this matter

arrived at the correct conclusion that the resume report

did not rise to the level of Brady/Kyles material.?6

It is interesting to note that having discovered the

resume, Mr. Behrens never subpoenaed Megan to testify

in connection with his Motion for New Trial. If the “span-

king explanation” would have undermined Megan’s

credibility Mr. Behrens had ample opportunity to make a

proffer of this evidence. Clearly, counsel was aware that

he would have the opportunity to cross-examine wit-

nesses, with respect to their credibility, on his Motion for

New Trial as he did so with Ms. Vaught.

The deficiencies in Ms. Vaught’s testimony, while

regrettable, do not warrant any relief by this Court. While

Ms. Vaught might have been effectively impeached by

the use of the after-acquired information, her impeach-

ment is not tantamount to substantive evidence in Mr.

Behrens’ favor. If the entirety of her testimony is put

aside the results of Mr. Behrens’ trial would have been

phraseology as “Incredibly, counsel for the state failed to take

appropriate remedial measures at the time...” (The

Application at p. 17.)

26 The Louisiana Supreme Court’s denial of Writs has no

precedential value. It is particularly important to note that the

trial judge who had the benefit of not only reviewing the resume

report immediately before trial, but also hearing all of the

examination of Officer Cardinale, in context, never ordered

disclosure of the resume. Further, an independent review by

this Court should lead ineluctably to the same conclusion. The

results of Mr. Behrens trial, quite simply, would not probably

have been different, with the disclosure of the resume.

the same. Accordingly, her credibility could not have

affected the outcome of the trial.

Mr. Behrens’ argument concerning the clergyman/

penitent privilege is also without merit. Even assuming

that there was evidence in the record concerning the

nature and extent of the communications which would

have been made to Mr. Behrens by The Archdiocese of

New Orleans/ Metropolitan Counsel and/or that the out-

come of this case would have had a material effect on the

annulment process (that it would not be granted in the

absence of a criminal conviction) Mr. Behrens relationship

with his wife was more than adequately explored at trial.

A review of the totality of the record can leave little

doubt the jury was more than adequately informed that

Mr. and Mrs. Behrens did not enjoy a good relationship

after the dissolution of their marriage. Further, it is

impossible to say that the “shotgun” approach of simul-

taneously alleging that (1) Megan lied because her father

spanked her; (2) Ms. Vaught put Megan up to the allega-

tions because of her own history of sexual abuse and; (3)

Mrs. Behrens put Megan up to it because of her desire to

have her marriage annulled would have probably

resulted in a different verdict.

Mr. Behrens’ trial was conducted with more than ade-

quate protection of his Fourteenth Amendment rights and

this matter has been reviewed in detail by two separate

Courts each of which found the verdict to be in conformity

with the evidence. Accordingly, the State of Louisiana

respectfully requests that Mr. Behrens’ Petition for a Writ

of Certiorari to this Court be denied.

Respectfully submitted,

Terry BOUDREAUX