Opposition Brief — Stewart v. Carriger

kp & ORIGINAL & Supreme Court, U.S.

aS Ae eS

APR 13 1996

CLERK

ea cum arimoeee cree? oe TE TeETT

IN THE SUPREME COURT OF IHE UNITED STATES

October Term 1997

/ VVC 2 AcCitl, . a 2

ae . amen men

TERRY L. STEWAR' 1rector,

N 5 —— + & ~- 5

Arizona Department of Corrections, et ail

| Dot -+innerec

Petitioners,

RECEIVE

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amen ttm: mando

PARIS HOYT CARRIGER,

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OFFICE OF THE CLERK

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SUPREME COURT, U.S Respondent

sani ah ee ee a =

MOTION FUR LEAVE TO PROCEED IN FORMA PAUPERIS

arriger moves this Court for leave to file

ition To P&tition For

Writ Of Certiorari without payment of costs and to proceed in

*

forma pauperis.

ty

Respondent has previously been granted leave to proceed in

istrict Court for the

o

forma pauperis by the United States

District of Arizona, and counsel was appointed to represent him

in those proceedings, and proceedings in the Court of Appeals

Respectfully submitted this 13th day of April, 1998.

Aouad hus

FelGerc F. KAY/

Federal Pha SS ende

Denise I. Young

97 E. Congress, Suite 130

mn

Tucson, AZ 85701

Attorneys for Respondent

No. 97-1509

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

TERRY L. STEWART, Director,

Arizona Department of Corrections, et al.

Petitioners,

vs.

PARIS HOYT CARRIGER,

Respondent.

On Writ Of Certiorari To The

United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

FREDRIC F. KAY

Federal Public Defender

Denise I. Young

Assistant Federal Public Defender

97 E. Congress

Suite 130

Tucson, AZ 85701-1716

(520) 620-7048

Attorneys for Respondent

1. Whether the Court of Appeals erred in finding that the evidence showing that Respondent

is innocent of the crime for which he was convicted and sentenced to death is insufficient to

preclude his execution under the Eighth Amendment, but sufficient to permit consideration of his

otherwise-barred constitutional claims under Schlup v. Delo, 513 U.S. 298(1995)?

2. Whether, in a criminal case, the State has a duty to disclose to the defense record evidence

in its possession impeaching the credibility of its principal trial witness?

TA F CONTENT

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I. THE COURT OF APPEALS PROPERLY APPLIED THE RULE OF SCHLUP V.

Se Ee PEUES UM Rae ROGEIE GGPOREES «dione se bs weed akce cis avcevesees 10

Il. THE COURT OF APPEALS PROPERLY APPLIES THE RULE OF BRADY V.

Se URE FOP BEE OC EO OE BBR GAS on i ee ediv ane teseeenes 22

Ill. IF REVIEW IS GRANTED, THE COURT SHOULD ALSO CONSIDER

WHETHER THE COURT OF APPEALS PROPERLY APPLIED THE EIGHT

AMENDMENT RULE RECOGNIZED IN HERRERA V. COLLINS ...............-.-. 29

a ER Ee te ree Se py ee ee Tr ewer mere reese ore. ee 32

il

TABLE OF AUTHORITIES

FEDERAL CASES

Ditmas yy Tanne, OF4 575: ATR CUS ons 6k oes Sean ale t ede ck ae ean ep keys 31

Aieatie s Tiseuer, 126 FO 1Loe Clee aes BGI i hn 6 ae URE eae ee mee een 18

Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974) ...20

ian Bil iah S75 C2. SS LEP aos 5 ok ks tS en on 08 eos 5 eae be 5 6 ee ee RE 24

Corinne y Mees, $5 FG Toe Ch CASIO) ois ik vncescadas sashes eoges 9, 10, 13, 20

RR a ERROR 2 ik og | ee eae nn ee RMeni tr) & revert wre vari yee are 20

Giatin ¥. Uinta eis, O05 UB. TICES ea) vic ibs won k eden ees pou s beeen ae den gece eee’ 24

Hampton v. United States, 504 F.2d 600 (10th Cir. 1974) 2.0... ce eee cece eee ee 26

as eS ee OC APPLE PAOD hwo a pe eS ete Sede aha Ree Oe a aes eS Kae 9, 30, 31

Sates eave, 44S CS. FI ESTA). inc kote tho ee COR AS eae h eee Cede eww 31

i I SIE Us SES ETD 3 os aoa pee h Ka eee swe eee Ree EVs te oe a CEC eeE 24

ONES Wee: SU Bie MES 5 55 KS 6 ews vk dR SOS Cas OR eRe OR ERAS NEO, 25

ches wy Tee, SOO FS LLOEGR SOOO) 6 ook Chee eden de ss kes hwanys ev ey eee es 17

Mossel yt colores 499 U5. S22 (U9ES) os oii cc evsniectnomesidadseeeveetnasranes 12

Martinez v. Wainwright, 621 F.2d 184 (Sth Cir.1980) 2.0... ee eee eee 25

O'Dell v. Netherland, 95 F.3d 1214, aff'd on other grounds, 117 S. Ct. 1969 (1997) ........ 22

RTs oO ae tg tS Op rey | Ee ea earner Seu ry pare Thee sy eee e rere ee 20

Recess Seles, 120 F586 59) (OC IIGT) on oie os eRe phe eee bee Rew eae’ 26

ie Vets, B58 FLO OTe CIC, FIGS) neo ias s bos kos We wins wan bois cana ree OR SO o' 26

Roully vy, Singictery, 33. F.3d 1279 (ith Car. 1998) wc cee ees ese ueesctcccesress 26

ill

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A OE 8s ae. SOL SOE ois fo ss ble ae oso ooo dk eVis a0 Od a aes oe woe passim

seen ee So eee, SG Pee Fae 10a. Gt BO) oss ces nab ees tbewrctenr¥iecscvus 26

United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993) .....................04.. 25

United States v. Deutsch, 475 F.2d 55 (Sth Cir. 1973), overruled on other grounds, United States

SS ee © a ee Ee EE ei svc aes ce owe ebeud SETHE LAE CODA RW eo bene oO 25

United States v. Flores-Mireles, 112 F.3d 337 (8th Cir. 1997) .............. 2 cee ee eee 26

NE NF a Se Ge; CO NES) os sk cow ns 8 Ge he pnw N ewes Bees Nea 10, 12

United States y, Meinster, 619 F.2d 1041 (4th Cir. 1980) .. 2... 2. ee cece eee 26

Le eee Senos DOG Foe ee Coe ee BOE ED 25s eee nish bees Cubana sd oe bas veuns 26

ited OT ade BEET LG: COE? oc Salat hese ty cedcdiervathwdns 25

eas © Fee, BAT F208 20S Ce, EFF noc ke bk oe a chen tes eh cunne Conse 26

STATE CASES

Orteus vy. Totnes, 118 Ariz. 435, 577 P.20 741 (CLAgm. 1978)... cc recess cane csns 26

ee Se ee, ARE nn Oe CORES hs aks one eo ok % Rs ee Hae Cen ea? he we 14, 26

FEDERAL STATUTES

Ren RAE ob bs whe oe ea ee aa ane ek ook eee eV See op ed Ree vw CLAS 12

STATE STATUTES

PK, SA es FE OPES 6 Ee Hae Oe Pe ee Pee LOC ETERS as OU ke cle 26

I. COUNTER STATEMENT OF THE CASE

Petitioners' Statement of the Case sets forth a version of the facts which accepts every detail

of the trial testimony of the prosecution's key trial witness, Robert Dunbar. Pet. at 1-2. This is

both procedurally inappropriate (because Respondent's Habeas Corpus Petition, which alleged a

quite different set of facts, was summarily dismissed by the District Court below) and

disingenuous: for the one thing in this case on which there is no longer any serious dispute is that

Mr. Dunbar cannot be believed. Robert Dunbar, the prosecution's key witness, turns out to have

been a big liar. Had the jurors seen Dunbar as we now see him, they would not have believed a

thing he said. Pet. App. at B-2 (dissenting opinion); accord id. at A-8 (majority opinion)

("Dunbar was a known habitual liar accustomed to blaming others for his own crimes."); Pet.

App. at D-5 (state postconviction judge) (“... Dunbar is a liar ....’’).

The decision below was framed by a careful recitation of the facts and state court proceedings

which did not rely on any of Dunbar's various versions of the truth. There was no dispute

between the majority and dissenting judges below about these basic facts, which we repeat here |

for the Court's convenience:

A. The Robbery and Murder

In December 1977, Paris Carriger was released from prison, and soon

contacted Robert Dunbar, a prison acquaintance. Carriger acquired a van and

some tools, and began doing construction work. When he needed a place to stay,

Dunbar agreed that Carriger could park his van on Dunbar's property and live in

it. On March 12, 1978, Carriger parked his van next to the house Dunbar shared

with his wife, Joyce Stevens, and her children.

The next morning, March 13, Carriger called in sick at work. He then

spent the day with Dunbar. The two visited a number of gun shops, and Dunbar

eventually purchased a .22 caliber Luger pistol. Because it was illegal for

]

—

Dunbar, a convicted felon, to purchase a gun, Dunbar lied on the federal gun

purchase form, falsely claiming to have no felony convictions. Later in the day,

the two visited Shaw's jewelry store, where Dunbar had his watch repaired. After

leaving the store, one remarked to the other that the store would be an easy place

to "hit." Dunbar testified at trial that Carriger made this remark, though Dunbar

later testified in postconviction proceedings that he said it himself.

The men returned to Dunbar's house from Shaw's store between 3:00 and

3:30 p.m., and then went their separate ways. They met again at Dunbar's house

between 5:30 and 6:30 that evening. In the interim, the robbery and murder were

committed at Shaw's jewelry store.

In their later testimony, Dunbar and Carriger each accused the other of

committing the crime. Carriger testified at his 1982 postconviction hearing that

upon returning to Dunbar's house shortly after 3:00, Dunbar got into an argument

with his wife, at which point Carriger left in his van and went to a nearby

restaurant. Carriger testified he then went shopping for jeans, browsed briefly in

an adult bookstore, and returned to Dunbar's house. Parking his van, he walked to

a nearby convenience store and back, finally returning at about 6:00. Carriger

testified that shortly after his return, as he sat in his van listening to the radio,

Dunbar showed up. According to Carriger, Dunbar had a guilty look, and was

holding a pair of Carriger's boots. Dunbar allegedly told Carriger that Carriger

should replace the boots because they were "hot," suggesting Dunbar had worn

them during the commission of a crime. Carriger testified that Dunbar then

showed Carriger a bag containing a half dozen watches, and offered the watches

to satisfy a debt Dunbar owed Carriger. Carriger refused the offer.

Dunbar, on the other hand, testified at trial that upon returning home

sometime after 3:15, he retired for a nap with his wife. He said he was awakened

_ sometime between 5:30 and 6:30 by Carriger, who summoned Dunbar outside.

According to Dunbar, Carriger said he had robbed Shaw's jewelry store, and asked

for Dunbar's help in getting rid of "this stuff.". Dunbar said Carriger took Dunbar

outside to his van, where he showed Dunbar an attache case containing jewelry

and watches, and asked for Dunbar's help in removing the tags. Dunbar testified

that together they removed the tags from the jewelry, and placed the tags in a

paper bag. Dunbar also testified that Carriger described how he had tied up Shaw

and killed him by beating him with a skillet and then choking him with his own

necktie.

Dunbar's and Carriger's stories agree that after they rejoined at Dunbar's

house, both knew that at least a robbery had been committed. Shortly afterward,

Dunbar and Carriger went out together. Their first stop was the home of Jackie

White, Dunbar's stepdaughter, who had recently moved out of Dunbar's house and

2

who had a friendly relationship with Carriger. Carriger gave White two small

cases, asking her to hold onto them. One of the cases turned out to be the case for

the gun Dunbar had purchased that morning and contained only a gun cleaning

kit, holster, and manual. The other case, an attache case, contained most of the

stolen jewelry, the gun itself, and ammunition. The gun case and the cleaning kit

inside it bore Carriger's fingerprints. The jewelry inside the attache case,

however, bore only Dunbar's fingerprints, not Carriger's. The gun yielded no

fingerprints.

Carriger and Dunbar then went to a massage parlor. While there, Dunbar

produced a loose diamond taken from Shaw's and tried to sell it to a massage

parlor employee. Dunbar and Carriger continued on to a shopping mall, where

Dunbar again tried several times to sell pieces of the stolen jewelry that he had

with him. While Dunbar showed the jewelry to a number of mall jewelers,

Carriger bought new boots. The two then returned to Dunbar's house.

B. Dunbar's Role in the Investigation

The following morning, Dunbar contacted detectives of the Phoenix Police

Department and told them he had information regarding the murder and robbery.

He also told them he had committed a recent (unrelated) burglary, and wanted

immunity in exchange for his information and testimony. Detectives met Dunbar

at a mall coffee shop, where Dunbar gave them pieces of jewelry taken during the

robbery. He told the detectives that Carriger had committed the robbery and

murder, and had asked for Dunbar's help in selling the stolen jewelry and getting

rid of the evidence.

Dunbar told the detectives that Carriger might be armed with the handgun

Dunbar had purchased the previous day, and that Dunbar considered Carriger to

be extremely dangerous. Dunbar said that Carriger would kill police officers if he

saw them approaching the residence. At the detectives' request, Dunbar called

Carriger with a lie designed to get Carriger out of the house. Once Carriger left

Dunbar's house, police pulled his van over and arrested him. Carriger was

unarmed and did not resist arrest.

Dunbar also told the detectives he and Carriger had gone driving north of

Phoenix the previous evening to dispose of the evidence. According to Dunbar,

Carriger threw evidence out the window as Dunbar drove. After arranging the

ruse leading to Carriger's arrest, Dunbar retraced his drive of the previous evening

accompanied by a homicide detective, and led the detective to evidence discarded

along the roadside, including a jacket, gloves, and boots allegedly worn by

Carriger during the robbery, business cards from Shaw Jewelers, Robert Shaw's

wallet and driver's license, and the cut-up pieces of Shaw's credit cards. Dunbar

3

also directed police to the home of Ms. White, where they recovered the two cases

Carriger had left the previous evening. Finally, Dunbar led police to a pair of

jeans in the canal behind Dunbar's house, where he said Carriger had discarded

them. The canal was nearly dry and the jeans were partially submerged in a

shallow puddle. The jeans had a piece of one inside pocket cut out in a place

where Carriger customarily marked his jeans with his name or initials.

One of the detectives who met Dunbar at the mall testified at trial that the

detectives took the story Dunbar told them at face value. The same detective

stated in a 1994 affidavit that one reason he took Dunbar's word was that he knew

at the time that Dunbar was a longtime informant for the Phoenix Police burglary

unit. That status was not made known to the defense or brought out at trial.

Dunbar's history as an informant, as will be discussed, turned out to be somewhat

less than reliable, and the detective who knew of Dunbar's informant status and

took his story at face value in 1978 stated in his 1994 affidavit that he now

believes Dunbar participated in Shaw's murder. Dunbar was never taken into

custody, and neither his person nor his house was ever searched.

C. The Evidence and Arguments at Trial

At trial, Dunbar, granted the immunity he requested, was the state's chief

witness. He testified that he had been home asleep at the time of the robbery, and

that Carriger had awakened him and confessed the crime. Dunbar's wife

corroborated Dunbar's testimony that the two had been asleep together between

4:00 and 6:00 that afternoon.

In closing argument, the prosecutor vouched for Dunbar's credibility,

stating repeatedly that Dunbar was not a liar. The prosecutor assured the jury that

"{i]f there was any indication of his [Dunbar's] guilt or complicity in this, he

would be on trial with him [Carriger]."

In addition to Dunbar's testimony and the physical evidence Dunbar had

provided to the police, the state presented two additional pieces of physical

evidence against Carriger. The first was a key to the attache case containing the

stolen jewelry, which the arresting officer testified was found in Carriger's wallet

when he was arrested. The second was a single fingerprint of Carriger's, which

was found on the adhesive tape used to bind the wrists of the victim. The tape

was the same type as Carriger kept in a first-aid kit in his van.

Because Carriger did not testify at trial, he offered no direct explanation of

the key. Defense counsel did introduce evidence showing it was possible to plant

a key in Carriger's prison property locker, and suggesting that the only keys in

Carriger's possession when he was arrested were keys to his van and Dunbar's

4

ne defense explanation of the fingerprint was that the tape was

wnigers, and his fingerprint was already on the end of the roll when Dunbar

« the tape from Carriger's van and used it to commit the crime.

‘-tria! Discovery of Dunbe ‘s Corrections File

As a result of court-ordered discovery in the 1982 state postconviction

seedings, Carriger’s counsel for the first time obtained Dunbar'’s corrections

« The file revealed that Dunbar was well known by state authorities to be a

« ‘sing Dunbar’s file, Carriger's 1982 postconviction counsel located prison

sermtendents, guards and fellow prisoners who testified that Dunbar was a

gical liar, with a reputation for manipulation and deceit well beyond even

expected in the generally dishonest prison environment.

(unbar's file showed him to be a prolific career burglar, whose career

-tuded commiutting ninety-two burglaries in one six-month period. Most

‘portant, the file revealed a pattern of lying to police and shifting blame to

sers. After one commercial burglary, Dunbar falsely accused police officers of

seeping money they recovered from him after his arrest. After another, Dunbar

aisely accused the police of lifting his fingerprints from a water glass and then

og about it. Following a third commercial burglary, Dunbar claimed to have

und the money lying in the street, and further claimed to have sought and

«ved legal advice before deciding to keep it. Dunbar's pattern when caught

og was to seek a deal with the police as soon as possible. Following a 1976

»urglary, Dunbar displayed behavior strikingly similar to his behavior following

- |978 Shaw robbery/murder: immediately after committing the burglary,

anbar, on his own initiative, approached a police officer with a story to shift the

» ame for his burglary. Dunbar claimed that he had been robbed, and tried to

saint the supposed robber as the one who committed the burglary.

Dunbar's corrections file revealed other facts inconsistent with Dunbar's

“al testemonmy. Although Dunbar had testified that he was "not a robber" and had

ever used force, violence, or a gun in a burglary, his file contained admissions

‘hat he had committed armed robberies of savings and loans, that he had aided and

netted armed robberies of convenience stores, and that he had used a gun in at

east one burglary. The file also contained a claim by Dunbar that he had been

nvolved in a shootout with Phoenix police.

Finally, Dunbar’'s file revealed a long history of violence. Dunbar had

‘een committed to the Arizona State Hospital because of violent rages and threats

against his family, including an incident in which he wielded a knife against his

earents, threatening to kill them. Dunbar was also dishonorably discharged from

the Army for uncontrolled aggressive behavior and physical assaults. A

5

presentence report in the corrections file noted that Dunbar had been found

manipulative toward other people, and that he reacted violently when he didn't get

what he wanted. Another report stated that Dunbar had been diagnosed as having

a sociopathic personality.

E. Dunbar's Confessions

In 1987, at an evidentiary hearing on Carriger's postconviction petition,

Dunbar confessed under oath in open court that he had robbed Shaw's jewelry

store and murdered Robert Shaw. He testified that he had committed the crime

along with his wife, Joyce Stevens, and that he had framed Carriger to avoid

prosecution. At the hearing, Dunbar described the crime in detail, including the

layout of the store and the back room where Shaw's body was found. Dunbar

accurately described the method of Shaw's death, and the position in which his

body was left. He stated that his wife had first struck Shaw with the skillet, but

that he then finished Shaw off with the skillet and the necktie. Dunbar stated that

he and his wife had worn gloves during the crime, and that he had bound Shaw's

wrists using adhesive tape from the first-aid kit in Carriger's van.

Dunbar testified that in the past he had often shifted the blame to others

for his own crimes. He said that consistent with his past practice, his thoughts

after committing the crime immediately turned to finding someone on whom to

pin the blame. That someone, he testified, happened to be Carriger.

Dunbar also confessed the crime in a four-page letter to a woman with

whom he corresponded through a prison ministry program. Dunbar's letter

described the crime in sufficiently vivid detail that it frightened the ministry

correspondent, who stopped her correspondence with Dunbar. The correspondent

has declared in an affidavit that she reported the letter to the Arizona Attorney

General's office, and was asked to forward the letter to them by mail, which she

did. The Attorney General's office never stated whether it received the letter or

knows of its whereabouts; the letter itself has never been produced.

Joyce Stevens testified at the 1987 postconviction hearing that Dunbar had

confessed the crime to her. Several witnesses testified that after a 1981 television

special on capital prisoners had included a profile of Carriger, Dunbar boasted

that he had set Carriger up. Larry White, Joyce Stevens' oldest son, also testified

that Dunbar once later described to him what it was like to see someone's head

crushed with a skillet.

Shortly before his death in 1991, Dunbar again confessed, this time to his

cellmate. He told the cellmate that he had killed Robert Shaw so that Shaw could

not identify him, and that he had blamed Carriger to avoid taking the "fall."

6

F. Other Postconviction Evidence Implicating Dunbar

Joyce Stevens testified in 1987 that she had lied at trial when she

corroborated Dunbar's alibi that he was napping with her at the time of the

robbery. Stevens testified that Dunbar had a common practice of telling the

children he was going to take a nap, and then slipping out of the house through a

bedroom door leading outside, and committing burglaries while he was

supposedly asleep. She stated that Dunbar did just that on the afternoon of March

13, 1978, leaving the house from the bedroom shortly after calling her into the

bedroom to join him for a "nap." According to Stevens, Dunbar later told her he

had committed the crime. Stevens explained that she had lied at trial out of fear

of Dunbar, who had threatened her life and those of her children if she told the

truth.’

Several of Stevens’ children testified that Dunbar was an abusive and

controlling figure, who regularly beat them and instructed them to lie to the

prosecution concerning his involvement in this case. Stevens also testified that

the day after the robbery, while she was doing the family laundry, she found the

clothes Dunbar had worn the previous day, and that there was blood on the pants

that she could not get out. She testified that when Dunbar saw the blood-stained

pants drying on the porch, he became angry that Stevens had found them, and told

her to leave his things alone He took the pants, and she never saw them again.

Richard Fein, a close friend of Dunbar's, testified in July 1987 that Dunbar

had told him several different times that his favored method of getting rid of

evidence was to cut it up into pieces and then drive around the desert, disposing of

it a little at a time, so it couldn't be connected up. Fein also testified that Dunbar

described his technique for maintaining a consistent lie when he was shifting

blame for his crimes to others.

Finally, both Stevens and her mother testified that Dunbar had often stated

that he would never leave a witness to a crime he had committed.

G. Dunbar's Recantation of His Confession

Dunbar recanted his October 1987 sworn confession in a letter to the judge

three weeks later. Recalled to the stand, Dunbar claimed he had falsely confessed

'The dissent seizes upon an inconsistency betweea Dunbar’s confession, which stated that he and Joyce

committed the murder, and Joyce's recantation, which stated that Dunbar left the house alone. The dissent

concludes that Joyce's recantation does not exonerate Carriger but supports the inference that Dunbar and Carriger

acted together. There is no basis for this conclusion; the inference that Dunbar acted alone is at least equally

plausible. There is no evidence that Dunbar and Carriger acted together to commit the murder.

7

\"

PUBLISHER’S NOTE:

THE FOLLOWING PAGES WERE UNAVAILABLE FOR FILMING:

ee =z

212254(d)(8)(1994); Marshall v. Lonberger, 459 U.S. 422-432-35, 103 S.Ct. 843,

849-51 (1983).

Pet. App. at A-25 (footnote omitted).

The Court of Appeals meticulously read and analyzed the record to determine whether the

bases for the state court finding--that Dunbar’s confession was inconsistent with the physical

evidence and that Dunbar had a motive to lie--were fairly supported. Id. at A-26-30. Only then

did it conclude that they were not. Id. at 30. |

C. The Court of Appeals Applied These Rules Properly.

Although this Court does not usually review facts, United States v. Johnston, 368 U.S. at

227, if it did in this case, it would affirm the Court of Appeals decision. The Court below

properly applied the facts to the law, and concluded that in light of all the evidence, no

reasonable juror would convict Respondent beyond a reasonable doubt on the testimony of

Dunbar, an admitted perjurer. Pet. App. at A-36.

ae: W Vv

The state court postconviction judge, who did not hear the trial testimony, found that

Dunbar was a liar and perjurer, but credited his testimony at Respondent’s trial when he was

testifying under grant of immunity; and when, also under grant of immunity, he recanted the

numerous sworn in and out-of-court confessions to the murder.’ This credibility determination

was not based on Dunbar’s demeanor, but on the judge’s analysis of the physical evidence, and

‘In stark contrast, Dunbar’s admission under oath that he murdered the victim and framed Respondent was

given without immunity of any kind.

12

Dunbar’s motives to lie.* Pet. App. at A-25-26.

After exhaustively reviewing the facts, however, the Court of Appeals concluded that the

record did not fairly support that finding.® The physical evidence the state court pointed to--

Respondent’s fingerprint on the gun case and tape binding the victim’s hand, an attache key

found in Respondent’s property, discarded clothes and boots--is not more consistent with

Dunbar‘s trial testimony and his recanted confession. Id. at A-26-38. That is because all this

evidence was tied to Dunbar.’

After calling the police, claiming to know who killed the victim (but first demanding

immunity for recent burglaries he had committed and a gun he had illegally purchased), Dunbar

*The state postconviction judge also stated that Dunbar’s confession conflicted with the trial testimony of

Jackie McCullar and Dennis Stevens, Pet. App. at D-3, but that, too, is not supported by the record. McCullar,

Dunbar’s step-daughter, testified that Dunbar and Respondent came to her house and Respondent asked her to hold

two attache cases, one of which held the loot from the jewelry store that contained Dunbar’s fingerprints, not

Respondent's. At the postconviction hearing, Dunbar testified that he asked Respondent to ask McCullar to hold the

cases. Dennis Stevens, Dunbar’s eleven-year-old step-son at the time of trial, had supported his mother’s much-

needed alibi for Dunbar at Respondent’s trial. Dennis, however, recanted that testimony in the state postconviction

proceedings, admitting that everything he said was scripted by Dunbar.

°As noted, the author of the dissent also agrees that this finding by the state court is not fairly supported by

the record. Carriger v. Stewart, 95 F.3d at 759 (“the record does not support the state court’s finding that Dunbar’s

October 1987 testimony is less consistent with the physical evidence and witness testimony than his testimony at

trial and in December 1987").

"Former Chief Justice Feldman of the Arizona Supreme Court recognized long ago that the case against

Respondent rested exclusively on the credibility of Dunbar:

There was no direct evidence of Carriger's guilt. The case was tried, therefore, on a simple basic

issue: Did Dunbar tell the truth when he blamed the robbery and murder on Carriger, or was

Carriger’s contention that the robbery and murder were committed by Dunbar to be believed?

State v. Carriger, 692 P.2d 991, 1012 (1982)(Feldman, J., dissenting). Justice Feldman was alone in his conclusion

that Petitioner's conviction should be reversed (for ineffective assistance of counsel), but the rest of the Arizona

Supreme Court Justices agreed on this point: "There is no doubt that Dunbar's testimony was important to the state

...." [d., 692 P.2d at 1007. The State also “candidly concede[d] that ... the key to the case lay in Dunbar’s

credibility.” Id., 692 P.2d at 1014.

13

gave police jewelry (a ring, a diamond stone, a watch) stolen from the homicide scene.* He then

took police to the attaché cases containing more stolen jewelry, with his, but not Respondent's,

fingerprints on it. Respondent’s fingerprint was found on a gun cleaning kit inside the second

attaché case. That was not surprising or condemning because it was never disputed that

Respondent was with Dunbar when Dunbar purchased the gun and the gun cleaning kit. Pet.

App. at A-28.

Dunbar also lead police to clothes and shoes allegedly worn by Respondent during the

bloody crime. Although trial testimony revealed a bloody crime scene with blood spattered five

feet up the surrounding walls, the clothes Dunbar showed police, including a pair of jeans, had

no blood on them. One shoe contained droplets of blood so minuscule it could not be determined

whether the blood was even human, much less the victim's. In his sworn confession, Dunbar

admitted planting the pair of jeans and having worn the boots.?

The state repeatedly trumpeted the fact that a single fingerprint linked to Respondent was

found on adhesive tape binding the victim's hands. Like every other item of evidence, however,

that tape, too, was linked to Dunbar. Dunbar had access to the roll of used adhesive tape stored

in a first aid kit in Respondent's van which would have had Respondent’s fingerprint on it.'° In

*Dunbar also openly attempted to sell the stolen jewelry all over town shortly after the crime.

*Dunbar tried on the boots during the postconviction proceedings and they fit him.

At the 1978 trial, the prosecution experts testified that they could not identify the location of the

fingerprint on the wadded tape binding the victim’s hands, and the fingerprint could have been present on the roll of

tape before it was used to bind the victim’s hands. As explained below, in 1987, without notice to anyone, the State

removed the trial exhibits containing the wadded tape and the latent fingerprint identified as belonging to

Respondent from the court exhibit room. After destroying the wadded configuration of the tape, the State later tried

to introduce testimony that the location of the fingerprint could now be identified at a place where Respondent could

not have left it prior to the crime. The state court refused to admit this testimony, and did not rely on it in making

his credibility determination. |

14

o ®

his 1987 confession, Dunbar admitted taking this roll of tape from Respondent’s van to the crime

scene and using it to bind the victim’s hands.

The only other evidence the state court pointed to was a key that opened the attaché case

containing the stolen jewelry. This mysterious "second" key'! was allegedly found on

Respondent when he was arrested--but the property envelope prepared by jail personnel at the

time Respondent was booked into jail, as well as the testimony of the officer who booked

Respondent into jail, established that Respondent had only one key."

Thus, as the Court of Appeals found, every item of evidence fit with the conclusion that

Dunbar committed the crime and then used evidence taken from Respondent to frame him for it.

A determination that evidence is “as consistent” with one scenario as another, is tantamount to a

conclusion that neither of those scenarios has been proved beyond a reasonable doubt.”

The Court of Appeals also found record evidence not considered by the state court that

11]t is undisputed that Respondent had a house key to Dunbar's residence at the time of his arrest.

'?Given Dunbar’s long-time history as an informant for the police and the ease with which he handled and

handed over at his pleasure stolen property from the robbery-murder, and was never once personally searched by

police, or had his home searched, the appearance of the second key in Respondent’s jail property shortly before the

trial began is not at all surprising. The evidence showed that property for an inmate, including a key, can be sent to

the jail through the mail, and that property will be stored by the jail in the inmate’s property. Moreover, as the

Court of Appeals recognized, what was incriminating was not possession of the key to the attache case containing

the stolen jewelry, but the fact that Dunbar’s fingerprints were on the jewelry inside the case, not Respondent’s.

Pet. App. at A-27.

Petitioners contend that because the Court of Appeals concluded that the physical evidence was “as

consistent” with Dunbar’s confession as with his trial testimony, the state court’s finding that Dunbar was credible

when he testified at Respondent’s trial, but not when he recanted that testimony, is “fairly” supported by the record.

Pet. at 12. Ordinarily, that would be true. If Dunbar were believable, a factfinder could have decided to accept his

explanations for his possession and knowledge of the physical evidence and conclude beyond a reasonable doubt

that Respondent had committed the crime. But the critical point Petitioners miss is this: the record is indisputable,

and all the state and federal courts are in agreement, that Dunbar is not believable but "a liar". That is why the state

court did not, and could not, rely on his Dunbar’s testimony to support his finding, but turned instead to analyzing

the physical evidence.

15

supported Dunbar’s confession. Pet. App. at A-28-29. At Respondent’s trial, Dunbar testified

that he had never been in the back of the jewelry store where the crime occurred. In 1987 when

he confessed to murdering the viction and framing Respondent, Dunbar accurately diagramed the

back of the jewelry store, the location of the safe, and the location and position of the victim's,

body when it was found in the bathroom of the store in a way that only a participant in the crime

could have done. When Dunbar later recanted his confession, he attempted to explain away his

earlier testimony by claiming that Respondent’s counsel had earlier shown him diagrams of the

store and trial testimony about the crime scene. That testimony was proven false. Pet. App. at

A-29.

Also, Dunbar’s testimony about the reasons he “falsely” confessed were shown to be

untrue. Dunbar testified that his lawyer knew he was testifying falsely when he admitted to

being the killer, but that his lawyer had conspired with him to create this fabrication to sell this

story and obtain proceeds from the resulting book and movie deals. That, too, turned out to be

untrue. Id.

In analyzing Dunbar’s other motives to confess, the Court of Appeals concluded that

although Dunbar did have some motive to lie because he was angry at his ex-wife and the State,

the state court failed to consider the significance of Dunbar confessing under oath without

immunity. This was the first, and only, time Dunbar testified without immunity. His confession

was based on his belief that he was dying; he said he couldn't face his maker with this sin on his

conscience.'* When Dunbar was later asked to explain why he was recanting his confession, he

4 Although Dunbar was in fact quite ill at the time, he lingered for another three years. He died in 1991.

16

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maintaining a lie when he was framing someone else for his criminal acts. It considered

Dunbar’s history of violence and blaming others for his crimes. Pet. App. at A-37.

Without Dunbar, the circumstantial evidence is not sufficient to support a reasonable

juror finding beyond a reasonable doubt that Respondent committed this crime. This is

especially so in light of Dunbar’s numerous statements to friends, family, and others, as well as

his court testimony.

Petitioners contend, however, that the Court of Appeals erred by not considering the

testimony they proffered in the 1987 state postconviction proceedings in an attempt to

demonstrate that the location of Respondent’s fingerprint on the wadded tape binding the

victim’s hands was at a spot where it could have only been placed after the tape was unrolled.

Unlike the state court (and the previous Court of Appeals’ panel decision), the Court of Appeals

did consider that proffer. But for a number of reasons, it gave it “little weight.” Pet. App. at A-

26-27.'°

One reason is that Respondent has been unable to examine the tape “in either

reconstructed or unreconstructed form, or to have its own expert test the state’s criminalist’s

conclusions.” Pet. App. at A-27. Although a court reviewing a claim of miscarriage of justice

can consider “the probative force of relevant evidence that was either excluded or unavailable at

'°Although the author of the dissent makes much of this proffered evidence, he did not do so in the Court

of Appeals’ panel decision which he also wrote. There, the proffered evidence was given no weight. Carriger y.

Stewart, 95 F.3d at 761 n.13. In now deciding to give weight to the proffer, the author states that he has “trouble

imagining” how a preexisting fingerprint on tape could be exposed when “[t}he usual way of applying tape” to bind

an object like “a package” is to overlap the tape as it is being wrapped so that the “second layer of tape [is] on the

top of the first.” Pet. App. at B-17. Perhaps that perfection is common when one is wrapping packages, but that is

not what was achieved when the victim’s hands were bound in this messy robbery-murder. The wad of tape

revealed anything but perfect binding. Many areas of the layers of tape were exposed in the zigzagging, haphazard

binding. That is likely why the state’s expert at trial stated that he could not determine the location of the latent on

the roll of tape.

19

trial,” due process requires that the evidence at least be reliable. Schlup v. Delo, 513 U.S. at 327-

328. The most basic tenet of due process is the right to examine and challenge adverse evidence.

See Gardner v, Florida, 430 U.S. 349, 358 (1977); In re Oliver, 333 U.S. 257, 273 (1948). A

habeas petitioner "is entitled to know the factual material on which the [decision maker] ... relies

for decision so that he may rebut it.". Bowman Transportation, Inc. v. Arkansas-Best Freight

System, Inc., 419 U.S. 281, 288 n.4 (1974); see also In re Ruffalo, 390 U.S. 544 (1968),

Despite repeated requests made since Petitioners removed this trial exhibit without notice

to, or permission from, the court, or Respondent’s counsel, Respondent has not been given a

chance to have this handiwork examined by an independent, or defense, expert.'’? When the State

first attempted to present this testimony, and Respondent objected to it, the state court excluded it

as "irrelevant" and placed no reliance on it.'* In later state and federal postconviction proceedings

when Petitioners tried once again to rely on this “evidence,” Respondent again requested, and

was denied, permission to test the validity of this experiment."

Another reason the Court of Appeals gave this evidence little weight was the

inconsistency of the expert’s testimony as to the location of the latent to the end of the roll of

tape. While Petitioners complain that the Court of Appeals misread the record, Pet. at 19, the

'’Respondent also objected to the State’s expert’s destruction of the original configuration of the tape in

attempting to “reconstruct” it. The State's expert did this when he tore the wad of tape apart and attempted to piece

the strips back together--a task he admitted he had never done before.

"This proffered evidence was inconsistent with other evidence as well, including the fact that this was the

only latent print found on the wadded tape or roil of tape, and the State’s theory at trial was that the robber-murderer

wore gloves.

"Unlike the state court, however, the District Court, despite inexplicably denying Respondent's request to

have that evidence released for independent examination, relied on it in denying Respondent relief. Respondent

challenged that action on appeal.

20

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2/- a4

prison records of key witnesses showing drug use during time they were testifying constituted

Brady violation).

This duty to disclose is especially applicable here where Dunbar was known by the

prosecution to be a convict, was known by the lead detective to be a long-time informant, was

given complete immunity in exchange for his testimony despite the fact that he was tied to all the

evidence and the police believed he was involved in the crime. In fact, based on these facts, it is

surprising that the prosecution would have offered Dunbar complete immunity without

investigating his records.

Petitioners’ alternative claim that it should have been excused from the duty of disclosure

because Respondent asked his trial counsel to obtain Dunbar’s prison file is more plausible

legally, but untenable on the record of this case. In fact, it is a reversal of the position taken by

the Arizona Attorney General’s office in state court, where it argued vociferously that

Respondent’s counsel could not have obtained Dunbar’s prison file if he had tried to:

Ariz.Rev.Stat.Ann. § 31-221 prohibits the Department from disclosing [prison]

files to the public, including inmates and defense attorneys. That statute was in

effect at the time of petitioner’s arrest and trial, between March and July 1978. In

April, 1978, the court of Appeals held that inmates’ files were not to be disclosed

to him. Ortega v. Holmes, 118 Ariz. 433, 577 P.2d. 741 (Ct.App. 1978).

State v. Carriger, No. CR-101609, States’s Memorandum Regarding Post-Conviction Relief

Issues, at 1-2 (Oct. 27, 1982).

Moreover, the record also shows that trial counsel did not know the information

contained in Dunbar’s prison file. While courts have found that where the defendant has specific

knowledge of the impeachment or exculpatory evidence, the State is relieved of 1... independent

25

ose that information,~ they have never relieved the state from its duty to disclose

»ere, counse! has no such specific knowledge. Counsel did not know that Dunbar was

em! socsopeth and pathological liar who had a reputation for framing others for his crime.

unse. 2d not know that Dunbar was a long-time informant for the Phoenix Police Department,

‘hat was why the police did not search him or his home, or that this was why Dunbar was not

~arged with this crime even though the police considered him a suspect.

The record shows that, although Respondent’s trial counsel did precious little to confront

par. the few attempts he did make to discover information about Dunbar were effectively

i by the State and its agents. For example, during the trial, the prosecutor moved in

mune to preclude defense counsel from “inquiring into past prior bad acts that have not resulted

See Routly y. Singletary, 33 F.3d 1279, 1285 (llth Cir. 1994)(where defense counsel learned during

sepostor that wetness had been given immunity in exchange for her testimony and counsel disclosed that fact to

") © bs Opening statement, and cross-examined witness on immunity agreement, no Brady violation occurred);

Umiond Stenen v. Meinster 619 F.2d 1041, 1045 (4th Cir. 1980)(where witness promised nothing in exchange for

©s=poms @ North Carolina case, but was promised by prosecutor in Florida case that if witness cooperated in

* orede case that fact would be brought to attention of North Carolina judge, and defense counsel was specifically

oc Ghese fects. witmess had no motive for falsifying his testimony in North Carolina case and defense counsel knew

©) these fects) United States vy. Prior, 546 F.2d 1254 (Sth Cir. 1977)(letter sent to defendant and contained in

sefendant s files did not constitute withheld Brady material).

The other cases Petitioners and the dissent rely on for this proposition are equally inapplicable to this case

«ere defense counse! had no knowledge of the contents of the file. See, ¢.g., Rector v. Johnson, 120 F.3d 551,

‘os St Cw |997\ undisclosed statement from clerk at convenience store where defendant was earlier before crime

«ho dé pot testify at defendant's trial was not relevant or material, and witness could have been discovered by

sefendant who knew where he was before the crime); United States v. Flores-Mireles, 112 F.3d 337, 340-341 (8th

997 «no Brady violation where evidence on tape recordings of controlled buys of illegal drugs which were

tc osed © the defense during tria! and unidentified latent fingerprint, also disclosed during trial, were not

‘prorablc to defendant), United Sates v. Iverson, 648 F.2d 737, 738 (D.C. Cir. 1981)(where record is unclear

«ether defense counse! knew true facts of sentencing status of principal prosecution witness, remand required);

Sons » Heyne 638 F 2d 979, 986 (7th Cir. 1980)(where defense counsel knew that co-defendant’s testimony

Sem y img that be was testifying pursuant to a plea agreement was false but did nothing to correct it because of a

com fet of interest, prosecution also knew and also did not correct it, but defendant knew none of this, new trial

eranted) Hampton y. United States, 504 F.2d 600, 601 (10th Cir. 1974)(where defense informed that cashier’s

check bad been examined by lab but defense did not request results of that exam, no Brady violation occurred);

Wallace » Hocker 44! F.2d 219, 220 (9th Cir. 1971)(where defense knew liquor bottle left at scene of crime and

that defendant made statements after crime indicating his state of intoxication, but did not request production of

bottle or statements, no Brady violation).

26

in convictions,” stating:

[Dunbar] has a series of arrests, a reputed burglar in town. He has been around a

long time. The police rap sheet exposed to Mr. Gay that he may or may not have

been involved in a lot of other things, although there is not enough evidence to

charge him with it.

The prosecutor said nothing about the real reason Dunbar was not charged with his involvement

“in a lot of other things”: Dunbar worked as a police informant, providing information about the

alleged criminal activities of others, in exchange for criminal charges being dismissed, or not

pursued, against him.

Later, the prosecutor argued to the court:

The risk [of allowing defense counsel to cross-examine Dunbar about his

nonfelony criminal activity] is this: What they are looking at here is a fellow goes

to the police and volunteers information and gets immunity, who has done a

burglary and who has told the truth about doing that burglary. [Dunbar’s prior bad

acts] doesn’t impeach him at all. But what it does is creates the idea in their

minds that this fellow is going around town doing burglaries. It puts him on [sic]

issue.

Of course, the prosecutor knew that is exactly what Dunbar was doing: going around

town doing burglaries. But instead of being charged, prosecuted and punished for those crimes,

he was “informing” on others and blaming them for his own acts.

In addition, the record at trial reflects the following exchange between defense counsel

and the lead detective for the Phoenix police on the case:

Q. Had you done any investigation as to who Mr. Dunbar might be or what

his background was before you went to the meeting with him?

A. No.

Q. You didn’t know at that time whether he had felony convictions or

outstanding warrants or things of that nature?

A. No, I did not.

Q. Did you ultimately determine what Mr. Dunbar’s background was, in

terms of whether he was a convicted felon and that sort of thing?

27

e & |

A. Yes.

Q. What did you discover in that regard?

A I believe he is a convicted felon, convicted of burglary, as I recall.

Q. And did you not also discover, in addition to the fact he was a convicted

felon, did he not also concede to you that he was committing or had committed

other burglaries in the recent past that he had not been charged with?

A. Yes, he did.

Q. How many additional burglaries did he admit he had committed, other

than those he had been convicted for?

A. One.

Q. Did you determine how many felony convictions Mr. Dunbar had for

burglary, sir? -

A. Convictions, I believe two.

Q. Was Mr. Dunbar arrested or charged with the burglaries that he had admitted to

you that he had committed that he had not been charged for or charged with?

A No, he was not.

Q Why not, sir?

A. I believe he was granted immunity by the County Attorney’s office.

Q. And why?

A As a witness in this investigation.

Q Was that immunity granted at your request or did you play any role in the

request of the County Attorney to give immunity to Mr. Dunbar?

A. I believe the decision was made by Mr. Rizer of the County Attorney’s

Office.

Q. Mr. Rizer, being a prosecutor, ultimately that would be his decision, as

opposed to the officer’s? In other words, you don’t have authority to grant

immunity?

A. That’s true.

Q. Did Mr. Rizer grant immunity to Mr. Dunbar,because you requested that

take place, sir?

A. No, I don’t believe we requested it. It was justa matter of his deciding that

it would be done.

Q. Do you know why that decision was made to grant immunity to that

individual?

A. No, I really don’t know the total extent, other than the fact that he would

be available as a witness.

R.T. 7-12-84 at 14, 18-19.

Nowhere in this lengthy exchange about Dunbar’s background and his continuing

criminal activity does the detective disclose that Dunbar was a police informant and avoided

28

felony charges by providing information to the police about the alleged activities of others, and

that although the police suspected Dunbar of being involved in this crime, they did not search

him or his house. Exh. 16 to Petitioner's Excerpt of Record; Pet. App. at A-18. This same

detective instead told the jury that he did not consider Dunbar a suspect in this crime. R.T. 7-12-

78 at 16.

We thus submit that the Court of Appeals made no new law, but faithfully applied the

rule of Brady and Kyles, in holding that Respondent was denied due process by the State’s

failure to disclose the information it had which undercut Dunbar’s credibility. However, even if

it were correct, as Petitioners contend, that it was the fault of trial counsel and not the State that

this information was not brought out, Respondent’s trial would be nonetheless unconstitutional.

The Court of Appeals recognized this, noting that the flip side of the Brady issue in this case was

the question of whether Petitioner was denied effective assistance of counsel at trial, an issue that

has never been squarely decided by any court because of the procedural bars that have now been

overcome by Respondent’s showing of actual innocence. See Pet. App. at A-40.”°

ll. JE REVIEW IS GRANTED, THE COURT SHOULD ALSO CONSIDER

For all the reasons given above, this Court should deny Petitioners’ request to grant

certiorari. Should this Court grant certiorari, however, it should also review the Court of Appeals

decision on the standard to be applied in determining a freestanding claim of innocence

precluding execution under the Eighth Amendment, of the type recognized by a majority of the

»Thus, if this Court were to grant certiorari and reverse on this claim, this and other constitutional claims

remain to be resolved.

29

Justices of this Court in Herrera v. Collins, supra.

The Court of Appeals, like most of the lower federal courts, assumed that Herrera forbade

the execution of innocent persons.

Pet. App. at A-31. Several opinions in Herrera made up the majority holding this to be so.

Herrera v. Collins, 506 U.S. at 419 ("the-execution of a legally and factually innocent person

would be a constitutionally intolerable event")(O’Connor, J., joined by Kennedy, J., concurring);

id. at 431 (Blackmun, J., joined by Stevens and Souter, JJ., dissenting)(“[I]t is crystal clear that

the execution of an innocent person is ‘at odds with contemporary standards of fairness and

decency.””); see also id. at 429 (White, J., concurring)("I assume that a persuasive showing of

‘actual innocence’ made after trial, even though made after the expiration of the time provided by

law for the presentation of newly discovered evidence, would render unconstitutional [an] ...

execution").

This Court did not, however, identify in Herrera the showing needed to establish this

claim because it found the petitioner had not made the "extraordinarily high" threshold showing

of innocence required to support such a claim. Id., 506 U.S. at 417. The majority opinion stated

only that the petitioner would need to make “a truly persuasive demonstration of ‘actual

innocence””’. Id.

Respondent argued that he made this showing, and adopted the most demanding of the

standards set out by the separate opinions: “that based on the proffered newly discovered

evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could

[find] proof of guilt beyond a reasonable doubt.’ Jackson v. Virginia, 443 U.S. 307, 324, 99

S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).” Herrera v. Collins, 506 U.S. at 429 (White, J.,

30

'

concurring). This modified Jackson standard strikes the appropriate balance between the

principles of finality and comity and society’s interest in avoiding the execution of an innocent

man. See Addington v. Texas, 441 U.S. 418, 423 (1979). Respondent showed that his guilt

could not be found beyond a reasonable doubt without reliance on the testimony of Dunbar--and

that no rational finder of fact could rest a criminal conviction on the testimony of Dunbar, who,

as the lower state and federal agree, indisputably perjured himself in his testimony in this case

(probably more than once) and who the state and federal courts found was a liar.

The Court of Appeals, however, rejected this standard, and instead held that a habeas

petitioner must show the “more demanding” standard announced by Justice Blackmun in his

dissenting opinion, and offer “affirmative[] pro[of] that he is probably innocent.” Pet. App. at A-

32. Although apparently agreeing that no reasonable juror could convict Respondent based on

this record, the Court of Appeals held this was not enough and that Respondent must present

affirmative proof of innocence, “for example, demonstrating he was elsewhere at the time of the

murder [or] new and reliable physical evidence, such as DNA, that would preclude any

possibility of Carriger’s guilt.” Id. at A-33.

Unlike Herrera, this case thus squarely presents the question of which of the several tests

posited by the opinions in that case governs this important Eighth Amendment question. If the

test formulated by Justice White is the correct one, Respondent’s showing of innocence should

have independently precluded his execution. The utter discrediting of Robert Dunbar now

acknowledged by every court, combined with the ambiguity of the circumstantial evidence in

light of Dunbar’s various confessions and admissions, makes it more than just probable that no

jury would convict Respondent; it makes it clear that no rational juror could convict him under

31

the constitutional test of proof beyond a reasonable doubt.

If the court decides to reexamine that evidence and review the Court of Appeals’

application to it of the test of Schlup v. Delo, it should at the same time consider and define the

proper test to be applied to claims of innocence under the Eighth Amendment, which was

discussed but not resolved by the Court’s various opinions in Herrera.

IV. CONCLUSION.

The Petition for Writ of Certiorari should be denied.

Dated this 13th day of April, 1998.

) SS a

Fredric F. Kay

Federal Public De

Denise I. Young

97 E. Congress, Suite 130

Tucson, AZ 85701

Attorneys for Respondent

32

No. 97-1509

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

TERRY L. STEWART, Director,

Arizona Department of Corrections, et al.

Petitioners,

vs.

PARIS HOYT CARRIGER,

Respondent.

PROOF OF SERVICE

I, Denise I. Young, do declare that on this date, April 13,

1998, as required by Supreme Court Rule 29 I have served the

enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND BRIEF

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI on each party to

the above proceeding or that party’s counsel, and on every other

person required to be served, by depositing an envelope

containing the above documents in the United States mail properly

addressed to each of them and with first-class postage prepaid.

The names and addresses of those served are as follows:

Joseph T. Maziarz

Assistant Attorney General

Office of the Attorney General

1275 W. Washington

Phoenix, AZ 85007-2997

(602) 542-4266

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on April 13, 1998