Appendix — Lambert v. Lord

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Bd 108 7 vce 2 ¢ 1999,

NO. ___Q00EE 5 Ive cumex

IN THE SUPREME COURT

OF THE UNITED STATES

JOHN LAMBERT, Superintendent,

Washington State Penitentiary,

Petitioner,

v.

BRIAN KEITH LORD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

CHRISTINE 0. GREGOIRE

Attorney General

State of Washington

JOHN SCOTT BLONIEN

WILLIAM BERGGREN COLLINS

JOHN J. SAMSON*

PAUL D. WEISSER

DONNA H. MULLEN

Assistant Attorneys General

*Counsel of Record

Counsel for Petitioner

P.O. Box 40116

Olympia, Washington 98504-0116

(360) 586-1445 December 1999

i

INDEX TO APPENDICES

Description Page

Opinion, Lord v. Wood, 184 F.3d 1083

(F”Cir, 1999) s.cceccssscsceoscsscosnccctcesnevecsossees la

Order Denying Rehearing, Lord v. Wood,

Ninth Circuit Cause Nos. 97-99025/97-99026,

filed September 23, 1999 .........ssceeeeeereeeeeceeeeees 3la

Order Granting in Part and Denying in Part

Petition for Writ of Habeas Corpus, Lord v.

Wood, USDC W.D. Wash. Cause No. C94-464R,

filed August 20, 1997 ........:.seseeeeereeeerereeeeeneens 33a

Opinion, State v. Lord, 117 Wn.2d 829, 822

P.2d 177 (1991) .....cescececeerecsersceseeeeeceeeeceeess 122a

Excerpt, Evidentiary Hearing Testimony — Volume

Il, Lord v. Wood, et al., USDC W.D. Wash.

Cause No. C94-464R held May 20, 1997 (Ness)... 325a

Excerpt, Evidentiary Hearing Testimony —Volume

Il, Lord v. Wood, et al., USDC W.D. Wash. Cause

No. C94-464R held May 20, 1997 (Mandel) ....... 340a

Investigator’s Report, Monday,

January 19, 1987 (Robert Huff, Jr.) ........-+-+e++ 343a

Investigator’s Report by Scott O’Neal

dated October 13, 1986 (telephone interview

with Paul Holden) ..........:.seeeeeeeeeeeereseeseeseees 346a

Investigator’s Report, Tuesday, January 6,

1987 (Paul Joseph Holden and Greg Ayers) ........ 348a

i

i

la

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Tao )

Brian Keith Lord, ) :

Petitioner-Appellee, No. 97-99025

Wi ) D.C. No.

) CV-94-00464-R

Tana Wood, Superintendent, )

Respondent-Appellant.)

oe

bcc shit )

Brian Keith Lord, )

Petitioner-Appellant, ) No. 97-99026

)

v. )- = eRe

) CV-94-00464-R

Tana Wood, Superintendent, ) :

Respondent-Appellee. ) OPINION

33

Appeals from the United States District Court

For the Western District of Washington

Barbara J. Rothstein, Chief Judge, Presiding

Argued and Submitted

November 19, 1998—San Francisco, California

Filed July 14, 1999

Before: James R. Browning, Alex Kozinski and

Thomas G. Nelson, Circuit Judges.

Opinion by Judge Kozinski

2a

SUMMARY

Criminal Law and Procedure/Right to Counsel

The court of appeals reversed a judgment of conviction.

The court held that trial counsel’s failure to call, or personally

interview, three witnesses who claim to have seen the victim

alive after the defendant is supposed to have killed her

constitutes ineffective assistance of counsel

Appellee Brian Lord was charged with the murder of

Tracy Parker. Parker disappeared on September 16, 1986.

Tracy’s body was discovered on September 30th. She

had been killed by a number of blows to the head from a blunt

object and she had been raped.

Lord was arrested.

At trial, the prosecution theorized that Lord had taken

Tracy to his brother’s workshop where he struck her several

times with a hammer or similar tool. He raped her in his

pickup, then drove off with her body in the back. According to

the prosecution, all of this occurred before 8:30. Before

returning to his brother’s house at 8:45, Lord dumped Tracy’s

body and took off his bloodstained shirt.

The State’s case against Lord was strong, but it was

largely circumstantial. The prosecution had no DNA evidence

or witnesses to the murder, no one had seen Tracy and Lord

together on the day she disappeared, none of the trace physical

evidence presented at trial conclusively tied Lord to the crime,

and much of the blood related evidence was tainted by the

forensic investigator’s mishandling of the tests and his

subsequent attempts to cover up his mistakes. Nor was the

State able to pinpoint the exact time of the murder.

Lord’s defense attacked the reliability of the

prosecution’s evidence. He had no alibi and no alternative

theory of how the murder might have been committed.

cnet IS CT UADN eT No te!

on cn AN NC —

3a

Paul Holden and Robert Huff, Jr. told a police

investigator that they had been driving together with a third

boy, Greg Ayers and had seen Tracy walking down the

highway on September 17, a day after Lord allegedly murdered

her. The boys remained adamant that they were correct and

were sure that the girl they saw was Tracy and not her sister.

They confirmed their stories when interviewed by police three

days later. The most important elements of their stories

remained consistent with each interview with police and

defense investigators during the four-month period following

pues murder. The boys did not know or have any ties to

Lord.

Lord’s counsel did not personally interview the boys,

and did not call them as witnesses at trial.

A jury found Lord guilty of aggravated first-degree

murder. The judge sentenced him to death.

The Washington Supreme Court affirmed and the U.S.

Supreme Court denied certiorari. After exhausting his state

remedies, Lord filed a federal habeas petition. The district

court granted the petition.

Lord argued that his trial counsel rendered ineffective

assistance when they failed to call Holden, Huff, and Ayers as

witnesses.

[1] The Sixth Amendment right to counsel guaranteed

to criminal defendants is the right to the effective assistance of

counsel. In an ineffective assistance of counsel claim, the

petitioner must first establish that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment. A fair

assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the

time. Such an assessment is highly deferential to defense

counsel’s decisions at trial, with the attorney presumed to have

rendered professionally adequate assistance. A petitioner may

overcome this presumption only by demonstrating that the

4a

identified acts or omissions were outside the wide range of

professionally competent assistance.

[2] Even if petitioner shows that his lawyer's

errors, the result of the proceeding would have been different.

A reasonable probability is defined as a probability sufficient

to undermine confidence in the outcome.

[3] A lawyer who fails adequately to investigate, and to

introduce into evidence, information that demonstrates his

that question to undermine confidence in the verdict, renders

deficient performance. Lord’s counsel’s cursory investigation

of the three possible alibi witnesses, and counsel’s subsequent

failure to put them on the stand, constituted deficient

performance that was prejudicial to Lord’s defense.

[4] Police and investigative reports on which trial

counsel relied did not support their claim that the statements of

Holden, Huff and Ayers were vague and/or inaccurate. Holden

and Huff spoke to the police the day after they saw the girl they

thought was Tracy, and again a few days later. The most

important elements of the boys’ statements remained consistent

the four-month period following Tracy’s disappearance and

murder: On September 17, 1986, they saw a girl they believed

was Tracy, and were certain the girl was not Tracy’s sister.

Nor did any of the police or defense investigators conclude that

the boys’ statements were inaccurate. [5] The boys never

expressed any significant doubt about the sighting.

[6] Trial counsel’s failure to present their testimony

was all the more questionable in light of the weaknesses in the

prosecution’s case against Lord. [7] The boys’ mutually

reinforcing statements were probably the strongest evidence of

Lord’s innocence that trial counsel could have offered. Three

young men with no ties to Lord and with no reason to lie could

have given Lord a formidable defense: The victim was seen

ree around well after the time Lord was supposed to have

er.

5a

[8] Presenting the testimony of the boys would not

have entailed significant costs in the defense strategy. Nor

would the proffer of three witnesses, who were unrelated in

any fashion to the defendant or the victim, have tainted Lord’s

attorneys.

[9] Counsel’s judgment might have been shown

deference if they had made the decision not to present the three

witnesses after interviewing them in person. [10] However,

counsel appeared to have made their decision to exclude the

witnesses based on a misimpression that the police and

investigators who spoke to the witnesses did not find them

credible. A competent attorney would not have failed to put

them on the stand.

[11] The possibility that their testimony would have

led to Lord’s acquittal was sufficient to undermine confidence

in the outcome of the trial. Trial counsel’s omission of this

evidence prejudiced Lord’s defense.

[12] Lord’s trial counsel’s performance fell outside the

wide range of professionally competent assistance and there

was a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.

COUNSEL

John J. Samson, Assistant Attorney General, Olympia,

Washington, for the respondent-appellant-cross-appellee.

Peter A. Camiel, Mair, Camiel & Kovach, Seattle, Washington,

for the petitioner-appellee-cross-appellant.

Sheryl G. McCloud, Law Offices of Sheryl Gordon McCloud,

Seattle, Washington, for the petitioner-appellee-cross-appellant.

OPINION

KOZINSKI, Circuit Judge:

6a

In this capital case we consider whether counsel’s failure

to call, or personally interview, three witnesses who claim to

have seen the victim alive after petitioner 1s supposed to have

killed her, constitutes ineffective assistance of counsel under

Stickland v. Washington, 466 U.S. 668 (1984).

Background

On the afternoon of September 16, 1986, 16-year old

Tracy Parker went out riding a horse belonging to her

neighbors Wayne and Sharon Frye. Tracy visited some friends

early that evening and, as she was leaving, informed one of

them that she planned to return the horse to the Fryes' stable

and then "go straight home." At about 8 p.m., Tracy called a ~

friend from the Fryes' residence. When Sharon Frye came

home between 8:20 and 8:30, she found the house empty.

Brian Keith Lord was a carpenter who was helping the

Fryes remodel their house. The Fryes had told Lord where they

kept an extra set of keys, so he could enter the house as he

pleased. Lord had met Tracy through the Fryes and had on

occasion given her rides home in his brother Kirk's pickup. At

7:44 on the evening of Tracy's disappearance, Lord called his

ent from the Fryes'’ residence to tell his girlfriend he

would be late for a dinner party they were hosting that evening.

"smoking and steaming." Don also noticed that Lord was

shirtless even though it was only 58 degrees outside. From

inside the house, Don saw Lord wash out the back of the

pickup with a hose and remove from it an orange Or beige

blanket. When Don came out to speak to him, Lord said he

was building a stereo cabinet in Kirk's workshop. Don asked

to see it, but Lord said that he wanted his brother to see it

before anyone else. Don did not enter the workshop that

evening. Kirk arrived home at about 9 o'clock and talked to

Lord in front of the workshop for a while, but Lord did not

show him the cabinet and Kirk did not enter the workshop.

aaa

ARIAL AALS OD

7a

Lord arrived at his apartment at 10:15, several hours

late for the dinner party. He was to have brought a dining table

he was making, but showed up empty-handed. Lord went to

the bathroom soon after his arrival and stayed there for some

time, prompting some of his guests to leave. When Lord

emerged from the bathroom, he acted somewhat strangely and

two guests noticed that there was a fresh wound on his arm.

Lord did not tell anyone where he had been that evening, but

did say that he had been working late.

Tracy's clothing and a red towel were found near a dirt

road during the weekend of September 20th, and an orange

U-Haul blanket resembling the one Don Carroll had seen Lord

remove from the truck turned up in a nearby construction area

on September 22nd. Tracy's semi-nude body was discovered

on September 30th, a fortnight after her disappearance. Lord

was arrested that evening. The medical examiner subsequently

determined that Tracy had been killed by a number of blows to

the head from a blunt object. There was also evidence that she

had been raped after being knocked unconscious.

The State's theory was that Lord offered Tracy a ride

home from the Fryes' place sometime around 8 o'clock, but had

taken her instead to Kirk's nearby home. No one was there

when Lord and Tracy arrived a few minutes after 8, and Lord

forced or lured Tracy into Kirk's workshop where he struck her

several times about the head with a hammer or similar tool. He

proceeded to rape her in his pickup, then drove off with her

body in the back. According to the prosecution, all of this

occurred before the Carrolls arrived at Kirk's home at 8:30.

Before returning to Kirk's at 8:45, Lord dumped Tracy's body

where it was subsequently found (about 3 miles from Kirk's

home), and took off his bloodstained shirt.

The jury found Lord guilty of aggravated first-degree

murder. After a special sentencing hearing (where the State

was permitted to cross-examine Lord after his allocution), the

jury determined that there were no mitigating circumstances

sufficient to warrant leniency and, based on that determination,

the judge sentenced Lord to death.

The Washington Supreme Court affirmed and the U.S.

Supreme Court denied certiorari. After exhausting his state

remedies by filing an unsuccessful personal restraint petition

with the Washington Supreme Court, Lord filed this federal

allocution, which ruling the State now appeals. Lord

cross-appeals the district court's denial of his three dozen

guilt-phase challenges, but we need consider only one.

I

[1] The right to counsel guaranteed to criminal

defendants by the Sixth Amendment "is the right to the

effective assistance of counsel." McMann v. Richardson, 397

US. 759, 771 n. 14 (1970); see also Strickland, 466 U.S. at

686. The Supreme Court in Strickland set the bar high for

ineffective assistance claims. Petitioner must first establish

that "counsel made errors SO serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment." Strickland, 466 U.S. at 687. Recognizing

that "it is all too easy for a court, examining counsel's defense

effort be made to-eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's challenged

attorney presumed to have rendered professionally adequate

assistance. See id. at 690. A petitioner may overcome this

presumption only by demonstrating that "the identified acts or

omissions were outside the wide range of professionally

competent assistance," id., meaning that the challenged action

cannot reasonably be considered sound trial strategy under the

circumstances of the case, see id. at 689.

[2] Even if petitioner shows that his lawyer's

performance was deficient, he must still prove that this

prejudiced his defense. See id. at 687, 693. Though it is not

enough for petitioner to establish merely that "the errors had

9a

some conceivable effect on the outcome of the proceeding," he

is not required to "show that counsel's deficient conduct more

likely than not altered the outcome in the case." Jd. at 693. To

prove prejudice, petitioner must demonstrate only that "there is

a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different,"

with a reasonable probability defined as "a probability

sufficient to undermine confidence in the outcome." Jd. at 694.

Lord's claim of ineffective assistance turns on counsel's

failure to call to the stand three witnesses who, if believed,

would have cleared Lord of the murder. However, it is

impossible to judge any one piece of evidence without

understanding the rest of the case. Omission of an item of

proof may seem foolish until one understands the tradeoffs

counsel would have had to make to include it. Did the item

contradict other defense evidence? Was it so inherently

implausible as to undermine defense counsel's credibility?

Such questions cannot be answered without a thorough

understanding of the case as presented to the jury. We

therefore describe what happened at trial before considering the

three absent witnesses.

II

The Case Against Lord

Physical Evidence

To tie Lord to the murder, the State presented physical

evidence taken from Tracy's body, her clothing, the red towel,

the orange blanket and Kirk Lord's pickup and workshop. The

State linked fragments of wood and paint chips, washed sand,

sawdust and fibers found on Tracy's body and clothing to

similar items found in the pickup and the workshop. Type O

human blood, Tracy's blood type, was found on her clothing,

the towel and the orange blanket. The bloodstain on the

blanket contained an enzyme found in only 9% cf the

caucasian population, but which was present in Tracy's blood.

The State also introduced a matchbook taken from the pickup

that was similar to one found under Tracy's clothing.

Most of the State's blood-related evidence came from

Kirk Lord's worksho ; Donald —s a state-employes

but merely a “presumptive” one because it also reacts to rust,

some one juices and certain metals. Phillips testified that

oor after the murder, presumably to cover traces of blood. On

the inside of the workshop's garage door there were drops of

Type blood, which appeared 1 have it he deos w=

velocity.

However, Phillips was not the ideal witness. He

admitted that he had mishandled the testing of a claw hammer

the supposed murder weapon, by spraying it with an excessive

amount of leuco-malachite green. He also admitted that he

had tried to cover up his mistakes by lying both in an official

report and to a superior about the method he used to apply the

leuco-malachite green, and that he had been forced to resi

because of an internal affairs inquiry into his misconduct in

Lord investigation.

' Phillips disregarded a supervisor's instruction that he apply *e

leuco-malachite green using the single drop method. This is the preferred

oad of testing because the reagent is dabbed onto discrete areas, raibet

than covering the entire surface. By spraying the entire claw-hammer,

Phillips made it impossible to retest the hammer under laboratory

conditions.

lla

The State's medical examiner testified that Tracy had

been killed ten to twenty days before the October 2nd autopsy

by numerous blows to the head with a blunt instrument. A

wound on Tracy's genitals and the absence of any defensive

wounds on her body suggested that she had been raped after

being knocked unconscious. The medical examiner concluded

that all of Tracy's injuries could have been caused by a hammer

similar to the one found in Kirk Lord's workshop.

The State also showed the jury a photograph of the

injury on Lord's arm that his guests had noticed on September

16th.

Lord's Statements

In his first interview with police on September 24th, a

little over a week after Tracy's disappearance, Lord said that he

had last seen Tracy about two weeks earlier. When asked

whether he had visited the Fryes' house on September 16th, he

said he had been there for about five minutes to make a phone

call to his brother between 6 and 7 p.m. He claimed to have

then driven to his brother's house where he "partied" for about

an hour. Lord said that no one was at his brother's house while

he was there and that he returned to his apartment between 9

and 10 o'clock.

On September 27th, Lord told two detectives that he

hoped Tracy was only a missing person. Later that same day,

and before Tracy's body was discovered, Lord commented to a

friend that he was probably the last person to have seen her

alive.

Lord had his second full interview with police three

days later. He provided a similar account of his whereabouts

and activities on September 16th, but this time he said that he

had arrived at Kirk's house between 8 and 9 p.m. and that the

Carrolls were there the entire time. According to police, Lord

appeared nervous and told them that "he becomes a different

person and he loses control" after smoking marijuana and

drinking beer. He claimed not to have had any marijuana or

beer for about three weeks.

Testimony from Machinski and DeMars

12a

Robert Machinski, a co-worker of Lord's, testified that

he and Lord had used an orange U-Haul blanket at Kirk Lord's

workshop on the day before Tracy disap . He further

testified that, a few days later, Lord had rubbed grease into the

floor of the workshop for no reason Machi i could discern.

bike to anyone who would claim to have been driving Kirk's

blue pickup between 7:30 and 8 p.m. on the 16th. DeMars

testified that Lord asked him to do it himself or find someone

else who would.

Testimony of Harvey and Belgard

Rex Harvey, an inmate assigned to Lord as a "trusty"

while Lord was in jail awaiting trial, and Sonny Belgard, an

inmate occupying a cell near Lord's, testified that Lord had

him the following: "! asked her to go cruising around with me

at the house I was remodeling, that's where she kept her horse.

| hit her in the head with a hammer, raped her in the back of

my truck, threw her in a ditch." According to Harvey, Lord

also said he "got blood on a U-Haul blanket." Belgard

recounted a similar confession with the added detail that Lord

had wrapped Tracy's body in a blanket and threw it in the back

Other Testimony

The State also presented testimony from the

investigating detectives to flesh out its theory of the case.

Notable was the testimony of Detective Reichert who

examined the scene where Tracy's body was found. Reichert

testified that the murderer had probably gotten Tracy's blood

on him because the body had been carried, not dragged. This

supported the State's theory that Lord had removed, and soon

thereafter destroyed, his shirt and other blood-stained clothing.

Detective Reichert also testified that the murderer had not tried

to hide Tracy's body, which was consistent with the State's

13a

argument that Lord had hurriedly dumped the body before

rushing back to Kirk's house to clean up.

Lord's Defense

Defense counsel's strategy was to attack the reliability

of the State's physical evidence. In particular, they exploited

Phillips's admissions of incompetence and misconduct in an

effort to cast doubt on the physical evidence he claimed to have

gathered at the workshop. They also elicited testimony from

an officer who was with Phillips that he had not witnessed any

reaction by the leuco-malachite green to the grease spot on the

workshop floor. The defense also highlighted subsequent tests

of the claw hammer by state forensic experts which had

revealed no evidence of bloodstains or other bodily fluids. See

note 1 supra. The defense presented testimony from its own

forensic expert and offered other evidence as to the

unreliability of the forensic testing methods employed by the

Washington State Crime Laboratory.

As for the two inmates, trial counsel tried to impeach

Harvey with certain inconsistencies in his testimony and by

presenting evidence of his prior convictions for fraud-related

crimes. Lord's attorneys also offered testimony from another

inmate who claimed that Belgard had admitted to fabricating

the confession in exchange for certain prison privileges,

including a five-day furlough with his pregnant wife. Trial

counsel also suggested that Harvey and Belgard had come up

with the details of the alleged confessions by reading

newspaper stories about Tracy's murder. Similarly, they tried

to raise doubts about the veracity of Machinski and DeMars's

testimony by arguing that the two men were either lying or had

misinterpreted Lord's comments.

* * *

The State's case against Lord was strong but not

ironclad. It was marred by the misconduct and deception of

one of its key investigators, a serious problem for a case that

was largely circumstantial. While the evidence of other

witnesses was helpful, no witness had seen Tracy and Lord

together on the day of the murder. Nor was the State able to

pinpoint the exact time of the murder, except by suggesting

14a

il

The Three Alibi Witnesses

Two days after Tracy disappeared, a police investigator,

Officer Avery, contacted two of Tracy's classmates, Paul

Holden and Robert Huff, Jr. They told Avery that they had

seen Tracy walking along @ local road on the previous day,

September 17th. Holden, Huff and a third boy, Greg Ayers,

oct been driving together when they passed a young Yemine

they believed was Tracy. According to Avery's report, after he

"questioned them several times about the jocation, day and

time," Holden and Huff remained "adamant that they were

correct and said they are familiar with Tracy and know her well

enough to recognize ” A few days later, on September

2st, another policeman, Officer Lewis, spoke with Holden,

MMII three confirmed that they had seen Tracy that day, which

was a day after Lord is supposed to have killed her.

In October 1986 and again in January 1987, the three

boys told essentially the same story to defense investigators

hired by Lord's first attorney, Mark Yelish, and his trial

counsel, Ron Ness and Judith Mandel. Though there were

some inconsistencies in their recollections of what the young

woman was wearing, and Huff was somewhat less certain

about the exact day than he had been during his September

18th police interview, none of the boys backed down from the

assertion that it was Tracy they saw walking along the road on

September 17, 19862 Huff and Holden also firmly discounted

2 Though Huff could not recall the exact date or day of the week he

saw Tracy when he was interviewed in January 1987, he sensibly told the

investigator that his police statement of September 18, 1986, would have

lSa

any suggestion that the young woman might have been Tracy's

older sister, Shannon, whom they both knew.?

None of the boys had any connection to Lord. Though

they knew Tracy from high school, they were not her former

boyfriends or schoolyard enemies, but mere acquaintances. All

three were willing to testify; mone had anything to fear or -

anything to gain. If the jury had accepted Holden, Huff and

Ayers's story that they had seen Tracy that evening, the State's

case would have suffered a serious blow, ndent as it was

on Lord's mysterious whereabouts and activities between 8 and

8:45 on the evening of September 16th. The State presented no

evidence that Lord could have killed Tracy after the time these

boys supposedly saw her on September 17th.

What did defense counsel do with these witnesses?

Nothing at all. Lord's trial attorneys testified at an evidentiary

hearing in district court that they simply did not believe

Holden, Huff and Ayers, and had been concerned that putting

them on the stand would have harmed their own credibility

with the jury. None of the lawyers ever talked to the boys;

rather, they relied on the reports of police and investigators.

But the first investigator's October 1986 reports merely

described the boys’ accounts, which were substantially

identical to the ones they had given the police in September.

The second investigator's January 1987 reports did refer in very

general terms to some wavering on which day the boys had

seen Tracy, and mentioned the absence of a temporal landmark

that would have indelibly fixed that day in their minds.

However, nowhere did these reports, or those of police

nthe ica suggest that the boys’ stories were unworthy of

belief.

been more accurate as it was given only two days after Tracy disappeared

and only a day after he claimed to have seen her alive.

> Shannon testified at Lord's trial that she had been out searching

for her sister on September 17th.

Te

|

)

16a

Police Reports of September 18 and 21, 1986 |

On September 18, 1986, two days after Tracy's

disappearance, Officer Avery reported that Holden and Huff

had told him the following:

[T]hey saw Tracy yesterday (9-17-86) at around

noon near the Scandia ‘dip’ (Virginia Loop &

Viking Way intersection). They said she was

wearing blue jeans and some description of

sweat shirt, which they were unsure of. They :

said she was walking towards Hwy 308 and

looked like she was depressed (hanging head,

were adamant that they were correct and said

they are familiar with Tracy and know her well

enough to recognize her.

Three days later on September 21st, Officer Lewis

spoke to Huff who repeated the story he had told Officer

Avery:

face as they drove by. .- - HUFF said that

TRACY was walking alone, and seemed

depressed, but did not appear to have anything

else wrong with her.

Officer Lewis spoke to Ayers and Holden that same

day. Ayers reported that "he also saw TRACY walking

towards Keyport from Viking Way on Wednesday, and thought

she was wearing something yellow, possibly a jacket. AYERS

stated that there did not seem to be anything wrong with

TRACY, and she was alone." Holden provided Officer Lewis

with a more detailed description of what he remem

though he told Lewis that he and his friends had driven by

17a

Tracy between 5:30 and 6 p.m. on the 17th whereas Officer

Avery's report had put the time at noon:

I... asked Paul [Holden] when the last time he

had seen Tracy PARKER was and he stated

Wednesday, 09-17-86, at approximately 5:30 to

6:00 PM. I asked him if he was sure on the date

and tume and he stated yes, he was positive. I

asked where he had seen her and he stated it was

just prior to the intersection of Silverdale Way

and Viking Way and 308 and Bangor Road

which is Luoto Road. Paul stated she was

walking on the north side of Highway 308

toward Keyport/Scandia area which was located

on the north side of the road. ... I asked him if

he got a real good look at her and he stated yes,

all three in the vehicle did get a look at her

because they mentioned to themselves of who

she was when they had seen her... . I asked

him if he knew what she was wearing and he

stated blue jeans and a plaid button-up shirt. I

asked if any jacket was seen and he said no.

Holden also explained why he was certain he saw Tracy on

September 17th:

I... asked [Holden] if he was sure on the date

he had seen Tracy PARKER and he stated he

was positive because of AYERS. I had him

explain and he stated on Wednesday he wouldn't

have gone down that way or come back and he

had checked and all three of them were in the

vehicle on Wednesday (meaning AYERS, him

and HUFF) and they went down to pick up

AYERS and they were driving back up away

from AYERS residence on 308 when they saw

Tracy.

Though there were some discrepancies in the boys'

statements about what the young woman was wearing and the

time of day they saw her, there is no indication from the police

reports that Holden, Huff and Ayers wavered in their belief that

—————————— TET

18a

they saw Tracy walking alone near Highway 308 and Viking

Way on September 17th. -

Defense Investigators' Reports of October 1986 and

January 1987

. ey

told O'Neal that he, Huff and Ayers had seen "a girl whom they

believed to be Tracy Parker on Wednesday, the day after her

disappearance between the hours of 5:30 p.m., and 6:00 p.m."

second glance at the girl. He indicated that the girl looked like

Tracy Parker to him as well as Bob Huff and Greg Airs [sic].

The three of them agreed that it was Tracy Parker." O'Neal

reported that Holden “indicates that he is familiar with

Shannon Parker, Tracy's sister. He is certain that the girl that

they saw was not Shannon Parker." Holden also reiterated

day of the week was Wednesday [September 17, 1986] because

[Ayers] was in the car. [Ayers] was not with him on Tuesday."

Finally, O'Neal noted Holden's claim that "none of the boys

were drinking that day and none had been smoking any pot on

that day. They had spent the day clam digging on Virginia

Point Road."

On October 27th, O'Neal interviewed Hufi «lo

elaborated on the story he had told to Officers Avery and

Lewis:

After finishing with clam digging Huff, Holden

and Ayers] went to Hadlock and then returned

to the Poulsbo area where they pick up Greg at

his parent's house. They then headed to

[Holden's] house. At the intersection in front of

the subbase at Keyport they saw Tracy Parker.

uff] described her as being dressed in a

flannel top wearing blue jeans. He could not

recall the color of the flannel shirt.

Huff also claimed to have gotten a good look at the girl: "He

indicated also that the car was slowing to a stop at the time that

19a

they saw Tracy. He indicated that Tracy looked at the car."

Huff was no less certain than Holden that the girl they saw was

not Tracy's sister and that the date was September 17th:

He knows Tracy's older sister, Shannon. He had

two classes with Shannon during his senior year.

He has talked with Shannon on numerous

occasions. There is no doubt in his mind that the

girl that they saw walking along the road was

not Shannon Parker. He is also absolutely

certain that it was Wednesday evening

[September 17, 1986] that they saw Tracy

walking on the road. He has no specific recall

of what they did on Tuesday. On that following

Thursday they played pickleball.

On October 21st, Ayers gave O'Neal a similar account

of what happened that day:

[Ayers, Holden and Huff] were heading to [Holden's]

house after clam digging on Virginia Point.... [They]

all saw Tracy walking on the side of the road at the

intersection just prior to entering the base at Keyport on

Highway 308. . . . He is certain that it was Wednesday

[September 17, 1986} that they saw Tracy and believes

it was between 4:00 and 6:00 p.m. He indicates that he |

is reasonably certain that he was not at that location on |

Tuesday [September 16, 1986]. He could not tell me |

what it was that he did on Tuesday. He indicates that

he does recall what he did on Wednesday of that week.

He described the weather as being overcast and

somewhat drizzlly on Wednesday.

Unlike Holden and Huff, however, Ayers had "no recall of how

Tracy was dressed."

EEE °° °°.

Bob Zornes, a second investigator hired by Lord's trial

counsel, interviewed Holden and Ayers on January 6, 1987,

about three and a half months after the boys gave their first

statements to police. Zornes concluded that "their report that

they had seen Tracy Parker on September 17th remained

unchanged." He commented, however, that "when pressed

about the exact day they would at times waver. Holden said

either Monday or Tuesday of the week beginning September

15, 1986, and that Greg Ayers joined them on the second day,

which would have been either Tuesday oF Wednesday."

Zornes also re

incident but about all that they could come up with was that

they thought that they were told by Huff's father about Tracy's

disappearance the next day, which they said was Thursday.

Otherwise their activities were not unusual.

- Zomes interviewed Huff by telephone two weeks later

on January 19th. Huff "recalled the day that he saw Tracy

Parker walking alongside the highway. However, he could not

recall the exact date of the sighting, nor the day of the week."

Huff then qualified his uncertainty: "He said that the report

reference, Zornes reported that "(Huff] was not able to

reference the date any better than previously, saying that he

would have to stand by his earlier statement to the police in

which he said that he observed her on Wednesday."

Though the reports prepared by O'Neal and Zornes

reveal some haziness in the boys’ memories, none offers any

conciusions as to the accuracy and credibility of their story, OF

suggests that the boys expressed any significant doubt that they

saw Tracy alive on Wednesday, September 17, 1986.

Affidavits and Testimony of Holden, Huff and Ayers

In support of his federal habeas petition, Lord presented

4 Indeed, Huff had been interviewed by police on September 18th,

only a day after the sighting, and again a few days later on the 21st.

———————————— TT

2la

Holden's affidavit reaffirmed the story he had told police and

defense investigators in 1986:

On September 17, 1986, I went clam digging

with Greg Ayers and Bob Huff at the private

beach near Keyport.... As we were returning .

at about 5:30 that afternoon, we saw a girl that

we recognized as Tracy Parker walking east

along the north shoulder of Highway 308 about

100 yards east of the intersection with Viking

Way.... I was driving the car and got only a

brief look at her. But we all agreed that it was

Tracy Parker we saw. The location was within a

mile or two of Tracy's home, and we assumed at

the time that she was walking home.

Holden also stated that,

[t]here was no question in our minds that this

was on Wednesday, September 17... . Greg

Ayers and I have talked about this recently and

we still agree that Tracy Parker was the girl we

saw walking along the highway that afternoon. .

_. After being interviewed by a police officer

and the defense investigator, I was somewhat

surprised that I was not asked to testify in the

murder trial. If I had known at the time that

Tracy allegedly was killed the day before we

saw her, I really would have been surprised.

Holden's testimony at the evidentiary hearing confirmed the -

contents of his affidavit:

| - QUESTION: At the time that you related that

information [about seeing Tracy on Wednesday,

September 17th] to the police, were you

confident about the information you were giving

police? .

ANSWER: I was confident.

QUESTION: You were confident about the

dates you were relaying to the police?

22a

ANSWER: I was confident.

QUESTION: And you were positive that it was

Tracy Parker that you had seen?

ANSWER: I'm absolutely positive it was Tracy

Parker.

The affidavits and testimony of Ayers and Huff closely

correspond to Holden's, with both men representing that they

were sure of the date and the girl's identity when they spoke to

police and investigators in the months following Tracy's

because "[Holden, Huff and Ayers's] observations, based on

our investigation, probably were not helpful to what our

defense was. Taking into consideration everything.” Ness

further explained that "[w]e did not believe that [Holden, Huff

and Ayers] were acc . And we were concerned about our

credibility with the jury in presenting testimony that may not

have been beneficial." However, when asked whether the boys’

statements were consistent with their defense that Lord had not

murdered Tracy, Ness responded that " ajs far as whether or

not Mr. Lord had committed the crime, they were consistent

with that, yeah." |

On cross-examination, Ness had this to say of Zornes's

report:

$ Obviously, Lord's lawyers would not have been aware of these

affidavits and testimony, as they did not exist at the time of trial. We

consider these materials as an indication. of what the lawyers likely could

have elicited from the witnesses had they put them on the stand.

LLL TT

23a

If I recall, the gist [of Zornes's report] was that

the three individuals were not very positive in

either identification or timing. ... We felt that

[calling Holden, Huff and Ayers as witnesses]

would affect our credibility with the jury

because of the nature of what we had discovered

in terms of their interviews with our investigator

and, I believe, with the police.

The court tried, but failed, to elicit more specifics about Ness's

concerns:

COURT: What was it about [Holden, Huff and

Ayers's] anticipated testimony that made you

think it would damage the defense credibility?

Was it what Zornes said, something Zornes

said?

ANSWER: That they were not positive that

the-that, like I said, the identification and/or the

timing was not real strong. And there was such

a—if I recall, such a large amount of evidence

ry the last time she'd been seen was on

the 16th....

Ness conceded that his judgment of the boys’ credibility was

based entirely on the police and defense investigators’ reports,

as neither he nor his co-counsel ever spoke to the boys

themselves.

When asked why Holden, Huff and Ayers were not

called as witnesses, Mandel gave an even vaguer answer:

If there were three young men who said they

saw her and—said they saw her and knew it was

that date and knew it was that time, when we

went back through and evaluated that testimony,

we decided not to present it.

I mean, I don't know how else to explain that to

you. Other than it did not appear to us to be

testimony as you're characterizing it. That is,

o One know how it would have opened any door that

would have harmed him."

IV

{3} "A lawyer who fails adequately to investigate, and

to introduce into evidence, {information that {s]

1 es lient’s factual innocence, or that raise[s] sufficich! as

to that question to undermine confidence verdict,

deficient performance." Hart v. Gomez, No. 9815932, 1999

WL 387247, at *3 (9th Cir. June 15, 1999). Mindful of the

deference we owe counsel's trial strategy, We nevertheless

possibié ‘the stand, constitute deficient performance that was

prejudicial to Lord's defense.

again

and again ae to Tracy's disappearance and, not surprising};

contain the fewest discrepancies. The most important

———————

ne

25a

elements of the boys’ statements remained consistent in each

interview with police and defense investigators during the

four-month period following Tracy's disappearance and

murder: After going clam digging together on Wednesday,

September 17, 1986, they saw a girl they believed was Tracy

walking near Highway 308, and were certain the girl was not

Tracy's sister, Shannon. Nor did any of the police or defense

investigators conclude that the boys’ statements were

inaccurate. Zornes, for example, merely reported that the boys

could not come up with a compelling temporal landmark to fix

the day they saw Tracy.

[5] Contrary to trial counsel's impressions, Holden,

Huff and Ayers never expressed any significant doubt about

the sighting. In 1986 and 1987, they steadfastly told the police

and defense investigators that they were sure about their story.

To this day, none of the three has wavered from his belief that

it was Tracy Parker whom they saw on September 17, 1986. In

fact, Ayers maintained in his affidavit that "I have never

suggested to anyone that there was doubt [about seeing Tracy

on September 17]," a statement echoed by Huff who said in his

affidavit that "I have never expressed doubt about the

identification or the date." :

Though the boys had slightly inconsistent recollections

of the sighting, all of the discrepancies were minor and turned

’ Officer Avery's report: “I questioned [Holden and Huff] several

times about the location, day and time. [They] were adamant that they were

correct and said they are familiar with Tracy and know her well enough to

recognize her." Officer Lewis's report: "I... asked [Holden] if he was sure

on the date he had seen Tracy PARKER and he stated he was positive. . . ."

Defense investigator O'Neal's reports: "[Holden] was certain that the day of

the week [that they saw Tracy] was Wednesday [September 17, 1986]";

"{t}here is no doubt in [Huff's] mind that the girl that they saw walking

along the road was not Shannon Parker. He is also absolutely certain that it

was Wednesday evening [September 17, 1986] that they saw Tracy walking

on the road"; "[Ayers] is certain that it was Wednesday [September 17,

1986] that they saw Tracy." Defense investigator Zornes's report: "[Holden

and Ayers's] report that they had seen Tracy Parker on September 17th

remained unchanged."

26a

on the kind of highly ‘fic details that eyewitnesses often

remember differently. f, United States v. Ginn, 87 F.3d 367,

conviction). After carefully reviewing the various statements

by the monotonous consistency of their stories and the

[6] Trial counsel's failure to present their testimony

was all the more questionable in light of the weaknesses in the

prosecution's case against Lord. The prosecution had no DNA

evidence or witnesses to the murder; no one had seen Tracy

and Lord together on the day she disappeared; none of the

trace physical evidence introduced at trial conclusively tied

Lord to the crime; and much of the blood-related evidence was

tainted by Phillips's mishandling of the leuco-malachite green

pen sn to mention his subsequent attempts to cover up his

mistakes.

[7] Holden, Huff and Ayers's mutually reinforcing

statements were probably the strongest evidence of Lord's

‘nnocence that trial counsel could have offered. The case they

actually presented consisted solely of attacks on the reliability

of the State's physical evidence and the credibility of its

witnesses; they presented no contrary physical proof, no

satisfactory explanation of the inconsistencies in Lord's

statements about his whereabouts on the evening of Tracy's

disappearance and, perhaps most importantly, no alibi.

Holden, Huff and Ayers, three young men with no ties to Lord

and with no reason to lie, could have given Lord a formidable

defense: The victim was seen walking around well after the

time Lord was supposed to have killed her.

alibi. This would have left Lord's jail-house confessions to

witnesses who had been partially impeached and, in any event,

_

27a

were subject to doubt because of their evident self-interest in

pleasing the prosecution. Presenting the testimony of the boys

would not have entailed significant costs in terms of the

defense strategy. Ness and Mandel conceded that the boys’

statements dovetailed with their defense and would not have

opened the door to any damaging evidence. Nor would the

proffer of three witnesses, who were unrelated in any fashion

to the defendant or the victim, have tainted Lord's attorneys.

The jury might have believed the boys were mistaken, but

certainly would not have thought that counsel was presenting

manufactured testimony.

[9] We would nevertheless be inclined to defer to

counsel's judgment if they had made the decision not to present

the three witnesses after interviewing them in person. Few

decisions a lawyer makes draw so heavily on professional

judgment as whether or not to proffer a witness at trial. A -

witness's testimony consists not only of the words he speaks or

the story he tells, but of his demeanor and reputation. A

witness who appears shifty or biased and testifies to X may

persuade the jury that not-X is true, and along the way cast

doubt on every other piece of evidence proffered by the lawyer

who puts him on the stand. But counsel cannot make such

judgments about a witness without looking him in the eye and

hearing him tell his story.

[10] Here, counsel appear to have made their decision

to exclude the three witnesses based on a vague impression—

apparently a misimpression—that the police and investigators

who spoke to the witnesses did not find them credible. We find

no such suggestion in the various reports, and this impression

may have been dispelled had counsel talked to the boys.

* Counsel is not obligated to interview every witness personally in

order to be adjudged to have performed effectively, see LaGrand v. Stewart,

133 F.3d 1253, 1274 (9th Cir.), cert. denied, 119 S.Ct. 422 (1998);

Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986). However,

where (as here) a lawyer does not put a witness on the stand, his decision

will be entitled to less deference than if he interviews the witness. The

reason for this is simple: A lawyer who interviews the witness can rely on

his assessment of their articulateness and demeanor—factors we are not in a

position to second-guess.

28a

confidence in the outcome." Strickland, 466 U.S. at 694. If .

Holden, Huff and Ayers had testified, the State might still have

won a conviction by exp ‘tino the inconsistencies in their

accounts or convincing the jury that it was Tracy's sister they

saw that day. That, however, would be a very different case.

As it is, we find ourselves "in grave doubt as to the

harmlessness of an error that affects substantial rights," and

must conclude that counsel's omission of this evidence

prejudiced Lord's defense. O'Neal v. McAninch, 513 U.S. 432

(1995).

> Of course, had Lord's attorneys been certain that Holden, Huff

and Ayers's statements were false, the rules of professional conduct would

have precluded them from putting the witnesses on the stand See

Restatement (Third) of the Law Governing Lawyers § 180(1)(c) (Tentative

Draft No. 8, 1997) ("A lawyer may not . . . offer testimony or other

evidence as to a material issue of fact known by the lawyer to be false.").

Counsel also were under no obligation "to offer testimony or other evidence

the lawyer or the client's own statements indicate to the lawyer that the

testimony or other evidence is false.” Id. § 180 cmt. c. Lord's attorneys

shot they were in possession of any facts beyond those contained in The

police and investigator reports. Based on that evidence, Lord's lawyers

certainly could have concluded that their client was guilty, and that the boys

must therefore have been mistaken. But counsel's belief in their client's

guilt certainly cannot create an ethical bar against introduction of

exculpatory evidence.

_————————— Te

29a

We have found similar omissions of potentially

exculpatory evidence to constitute deficient, and prejudicial,

performance by counsel. We held in Brown v. Myers, 137 F.3d

1154, 1158 (9th Cir.1998), that trial counsel's failure to

investigate and put on the stand possible alibi witnesses

constituted ineffective assistance which "prejudiced [petitioner]

to the extent that it undermines confidence in the outcome of

his trial." In Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th

Cir.1994), Sanders's brother made out-of-court confessions to

the murder for which Sanders was convicted. We determined

that counsel's failure to call the brother to testify at trial or, if

he invoked the Fifth Amendment, to introduce the brother's

extra-judicial statements, was professionally deficient

performance. See id. at 1457-60. Such evidence would clearly

have provided a strong defense and "[counsel's] failure to

investigate [was] inexplicable, as [was] his failure to utilize

[the brother's] confession, except as the result of incompetence

and indifference." Jd. at 1459. In Hart v. Gomez, 1999 WL

387247, Hart was convicted of molesting his daughter during

visits to a camping resort. His daughter had testified that "Hart

never molested her during visits on which he was accompanied

by another adult." Jd. at *1. Hart's girlfriend testified at trial

that she had been with him during all of the trips alleged in the

information, and had witnessed no molestation. See id. Hart's

trial counsel, however, did not introduce grocery receipts and

the girlfriend's personal calendars, which would have

corroborated her testimony that she was present at all of the

trips and, thereby, "demonstrate[d] [Hart's] factual innocence

[.]" Id. at *3. We concluded that "[the girlfriend's] evidence, if

believed by the jury, would have demonstrated the truthfulness

of her testimony and established that . . . no molestation

occurred during the time period set forth in the information—

or at the least that the molestation as charged in the information

had noi been proved beyond a reasonable doubt." Jd.

[12] As in Brown, Sanders and Hart, Lord's trial

counsel had at their fingertips information that could have

undermined the prosecution's case, yet chose not to develop

this evidence and use it at trial. When questioned about their

reasons, they have offered no persuasive justification. Their

performance therefore fell "outside the wide range of

professionally competent assistance" that Strickland requires,

ae

30a

466 U.S. at 690, and we conclude that "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different," id. at 694.

Conclusion

The district court's order denying Lord's petition for a

writ of habeas corpus as to the guilt phase of his trial is

REVERSED. The state's appeal is dismissed as moot. We

eweon to the district court for proceedings consistent with our

g.

3la

[FILED]

[September 23, 1999]

Not for Publication

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN KEITH LORD,

: No. 97-99025

D.C. No. CV-94-00464-R

Petitioner-Appellee,

v.

TANA WOOD,

Superintendent,

Respondent-Appellant.

BRIAN KEITH LORD,

No. 97-99026

D.C. No. CV-94-00464-R

Petitioner-Appellant,

v.

TANA WOOD,

Superintendent,

ORDER

Respondent-Appellee.

a ee

Before: BROWNING, KOZINSKI- and. T.G.

NELSON, Circuit Judges.

32a

The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a

vote thereon. Fed. R. App. P. 35(b).

The petition for rehearing, and the petition for rehearing —

en banc, are DENIED.

33a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BRIAN KEITH LORD, )

)

Petitioner, NO. C94-464R

v. ) ORDER GRANTING

) IN PART AND

TANA WOOD, Superintendent ) DENYINGIN PART

of Washington State Penitentiary ) PETITION FOR WRIT

at Walla Walla, ) OF HABEAS CORPUS

) :

Respondent. )

THIS MATTER comes before the court on a petition

for writ of habeas corpus by petitioner Brian Keith Lord.

Having reviewed the petition together with all documents filed

in support and in opposition, having heard oral argument and

held an evidentiary hearing, and being fully advised, the court

finds and rules as follows:

I. FACTUAL BACKGROUND

On July 18, 1987, petitioner Brian Keith Lord was

convicted by a jury in the Kitsap County Superior Court of

aggravated first degree murder and felony murder stemming

from the death of 16-year-old Tracy Parker. After a penalty

hearing before the same jury, petitioner was sentenced to death

34a

pursuant to the jury's finding that there were not sufficient

mitigating circumstances to merit leniency.

According to the state, Lord had encountered Tracy

Parker, with whom he was previously.acquainted, at the home

of Wayne and Sharon Frye, driven her to his brother Kirk

Lord's workshop, struck her with a hammer found in the

workshop, and raped and killed her. According to the state's

theory, Lord then wrapped her body in an orange U-Haul

blanket, dumped it a short distance from the edge of a road

about three miles from the workshop and discarded her clothes

at another location.’

The state's case was built on circumstantial evidence

including information about Lord's whereabouts on the night in

question which indicated that he had the opportunity to kill her

as well as more than 100 pieces of trace evidence linking Lord

to the crime. The state also relied on testimony as to

confessions which Lord made to two prison trusties while Lord

was incarcerated awaiting trial, and as to efforts which Lord

made to convince witnesses to alter their testimony in his

'4 detailed description of the evidence presented to the jury by the

state can be found in the majority opinion deciding Lord's direct appeal.

State v. Lord, 117 Wn.2d 829, 838-848, 822 P.2d 177 (1991).

35a

favor. Lord's defense at trial was that he had not committed the

crime.

Lord's conviction was affirmed on direct appeal. State

v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991). A motion for

reconsideration was denied on March 17, 1992. The United

States Supreme Court denied Lord's petition for a writ of

certiorari on October 5, 1992. Lord v. Washington, 506 U.S.

856 (1992). Lord's personal restraint petition was denied. In

the Matter of the Personal Restraint of Brian Keith Lord, 123

Wn.2d 296, 868 P.2d 835 (1994). The United States Supreme

Court denied Lord's petition for writ of certiorari on October 3,

1994. Lord v. Washington, 513 U.S. 849 (1994).

Lord's habeas corpus petition raising numerous issues

about both the guilt and the penalty phases of his trial is now

pending before this court.

II. LEGAL DISCUSSION

A. Applicable Legal Standards

In order to show that he is entitled to a writ of federal

habeas corpus, Lord must establish that “he is in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254 (a). State court findings of f act

36a

made after a full, fair and adequate hearing are entitled to a

presumption of correctness under 28 U.S.C. § 2254(d) and are

reviewed for clear error. Jeffries v. Blodgett, 5 F.3d 1180,

1187 (9th Cir. 1993). Once a petitioner has demonstrated the

existence of constitutional trial error, he or she must then show

that the error "had substantial and injurious effect or influence

in determining the jury's verdict.” Brecht v. Abrahamson, 507

US. 619, 623 (1993), quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946).

B. Guilt Phase Issues

1. Claims concerning scientific evidence

a. Donald Phillips

Donald Phillips was a forensic scientist with the

Washington State Patrol (WSP) Crime Laboratory at the time

of the murder of Tracy Parker. On September 29, 1986, before

the discovery of Parker's body, Phillips accompanied

Detectives Douglas Wright and Douglas Hudson of the Kitsap

County Sheriff's Department to the workshop of Kirk Lord,

petitioner's brother, in order to examine it for possible evidence

related to Parker's disappearance.

ET

37a

In particular, Phillips and the detectives were looking

for evidence of blood stains. To this end, Phillips had brought

with him a substance called leuco-malachite green, which is a

presumptive test for blood. In the presence of blood, leuco-

malachite green turns an intense blue-green color. However,

the test is only presumptive because other substances can also

cause the leuco-malachite green solution to experience a color

change. Moreover, leuco-malachite green does not distinguish

between human and animal blood. Thus, additional testing is

necessary to confirm the presence of human blood in any given

location.

Testing with leuco-malachite green can be

accomplished by several methods including the use of

eyedroppers or a spray bottle. Before Phillips left the crime

laboratory for the Kirk Lord workshop, he was specifically

instructed by the laboratory director, Kay Sweeney, to use the

eyedropper method in applying the leuco-malachite green to

sites of interest rather than spraying an area.

While he did use the eyedropper method during

numerous tests, Phillips thereafter sprayed leuco-malachite

green on an area of the workshop. Detective Hudson was not

38a

present when Phillips sprayed the area, but he testified at the

evidentiary hearing before this court that at some point after the

spraying had occurred, Phillips called him into the garage and

brought his attention to a hammer which Phillips was holding

by the tip of the handle with the head hanging down. Hudson

indicated that leuco-malachite green covered the hammer from

the head to midway down the handle and that it was dripping

off the hammer.

According to Hudson's testimony at the evidentiary

hearing, Phillips indicated that he had found the hammer in a

pile of cords or hoses after he had sprayed the pile and

acknowledged that he had made a mistake by applying an

excessive amount of leuco-malachite green to the hammer.”

Phillips concluded that the reaction of the leuco-malachite

green was consistent with the presence of blood on the hammer

and Hudson concurred. Hudson testified that he placed the

2 while there is considerable dispute among the experts about

some aspects of the chemistry and preferred method of using leuco-

malachite green, there is no dispute that applying too much solution to the

sample being tested lessens and may totally eliminate the ability to do

further testing because the leuco-malachite green consumes the sample and

disturbs any other trace evidence which may be on the sample. It was this

realization which caused Phillips to acknowledge having made a mistake in

spraying the hammer.

39a

hammer in a paper bag in the back of his car and later

transported it to his laboratory at the sheriff's office. It was this

hammer which the state sought to prove was the murder

While in Kirk Lord's workshop, Phillips also sprayed

leuco-malachite green on and around a grease spot on the floor

and concluded that the reaction around the area of the grease

Spot was consistent with the presence of blood. No one else

saw evidence of this reaction at the time.

On October 2, 1986, the hammer was submitted to the

WSP Crime Laboratory for further analysis. Criminalist

Michael Nolan examined the hammer and found no evidence

of bloodstains. WSP Seattle crime laboratory director Kay

Sweeney thereafter asked Phillips how he had tested the

hammer on September 29, 1986. Phillips stated that he had

applied one d:op of leuco-malachite green on the outside of the

hammer headat the notch of the claw and that this drop had

reacted positively for the presence of blood.?

® At the evidentiary hearing before this court, Sweeney testified

that Phillips told 1im three different versions of how he had tested the

hammer, all of tem false.

40a

After talking with Nolan on October 23, 1986 and being

informed that Nolan had conducted an exhaustive second

examination of the hammer, Sweeney himself examined the

hammer for any indication of bodily fluids. He found rone.

He also asked another criminalist in the office, Chesterene

Cwiklik, to examine the hammer for evidence of leuco-

malachite green. Her examination revealed no proof of its

presence on the hammer.

On November 3, 1986, Phillips submitted a written

report with diagrams to Sweeney detailing his activities at the

Kirk Lord workshop on September 29, 1986. This report was

false in that it indicated he had used the drop method of testing

the hammer rather than the spray method. Upon Sweeney's

discovery that the report was false, an internal investigation of

Phillips ensued which was conducted by the WSP Internal

Affairs Section. Phillips resigned from his position effective

December 26, 1986.

Defense counsel did not receive any information about

Phillips and the internal investigation before the beginning of

trial. Although defense counsel sought over a period of several

months prior to trial to schedule Phillips’ deposition, they did

4la

not succeed in talking to him until May 20, 1986 during jury

selection nor did they receive any report from him about his

work on the case until that date. Phillips did not mention

during his deposition that he had been the subject of an internal

investigation.

Defense counsel only became aware of the internal

investigation after Phillips' deposition when one of the Kitsap

County detectives working on the case commented in a casual

conversation with defense counsel in the hallway outside the

courtroom that he had been interviewed during the

investigation. On June 1, 1986, defense counsel brought the

issue before the court and asked for discovery. The prosecutor

denied having any reports or discoverable information on the

subject.

On June 2, 1986, the court held a hearing regarding the

admissibility of the leuco-malachite testing which Phillips had

done in the Kirk Lord workshop. The defense position was

that the spraying technique employed by Phillips was not —

generally accepted in the scientific community. Phillips

himself did not testify at that hearing.

42a

After the hearing, defense counsel Ron Ness moved for

an order requiring the production of any information regarding

the internal investigation of Phillips which related to the case.

In an effort to speed the process, the trial judge agreed to act as

an intermediary by contacting the attorney for the WSP and

asking for the release of any relevant documents regarding the

internal investigation of Phillips. On June 4, 1986, she

indicated to counsel that she had received several documents,

had reviewed them in camera and would release them to

counsel with two minor deletions not relevant to Lord's case.

Included in the information received by defense counsel at that

time was a report dated February 4, 1987 and prepared by

Detective Sergeant Cary C. Matthews of the WSP Internal

Affairs Section which summarized the allegations against

Phillips. This report did not contain any conclusions.

Again through the judge's intercession, defense counsel

also received the transcripts of several interviews of crime

laboratory personnel taken during the investigation. The judge

indicated to defense counsel and they accepted her assurance

that they had received all relevant documents.

43a

In fact, not all of the available, relevant information

associated with the internal investigation was provided to

defense counsel. An inquiry several years later by Lord's

current counsel into Phillips' personnel records revealed several

reports and other documents directly pertaining to Phillips'

credibility and qualifications as a criminalist as well as findings

about the lack of trace evidence on the hammer which were not

disclosed to defense counsel at trial.

These documents included a report dated November 6,

1986 by Kay Sweeney to his superior, John Anderson, in which

he outlined in great detail the same violations by Phillips of

crime laboratory regulations contained in the reports given to

defense counsel. These included lying to a supervisor about

the processing of evidence, insubordination in not following

directions from a supervisor about how to test evidence, using

a method which contaminated evidence in a homicide

investigation, and falsifying an official crime laboratory

report.’ At the end of this report, Sweeney concluded that

Phillips should be terminated from his employment.

* Detective Sergeant Matthew's report, which defense counsel

received on June 4, 1987 during trial, contained a summary of these

allegations.

44a

Other documents which Lord's trial counsel did not

receive included two WSP internal memoranda indicating that

although the investigation of Phillips was never completed

because of his resignation, the evidence was consistent with

findings that he disobeyed a supervisor's instructions, lied to a

supervisor and filed a false report. The memoranda further

recommended dismissal on the basis of the false report.

Lord points out that his trial attorneys were told and

there was testimony before the jury that while an internal

investigation of Phillips had been commenced, no conclusions

were reached or recommendations made because of Phillips’

resignation. |

Another type of evidence not made available to defense

counsel at trial involved an examination of the hammer

performed by Chesterene Cwiklik in the fall of 1986 at

Sweeney's request to determine whether the hammer had been

sprayed with leuco-malachite green. According to an affidavit

dated May 12, 1995, she averred that her test was non-

45a

conclusive in that she could find no conclusive signs that the

hammer had ever been sprayed with leuco-malachite green.5

By the time Phillips testified for the prosecution on

June 17, 1986 about his activities at the Kirk Lord workshop,

defense counsel were aware that Phillips had beer dismissed

from his job at the WSP crime laboratory in 1985 and

reinstated pursuant to a successful appeal in late 1985. The

immediate reason for the dismissal was not relevant to the

issues of Phillips' credibility and reliability of his test results in

Lord’s case.° However, other information which defense

counsel did not have included the fact that Phillips had also

been investigated in 1985 for falsification of his employee

applications.’ Furthermore, when he was reinstated in late

1985, he was assigned to a drug analysis unit and told that he

would no longer be permitted to go to crime scenes. The Kirk

* Current counsel for Lord argued that this result might indicate

that Phillips had wiped the hammer off in an effort to conceal his spraying

of the object. |

* The incident which precipitated Phillips’ dismissal involved

showing evidence in a case to an unauthorized person.

” When Phillips applied to work at the WSP Crime Laboratory in

1970, he claimed to have a Bachelor of Science degree although he had not

in fact completed a college degree.

46a

Lord workshop was the first crime scene to which he had been

sent since his reinstatement.

The last documentary evidence which Lord alleges his

counsel should have been provided before trial is an employee

performance evaluation of Phillips for the period from

December 9, 1985 to October 5, 1986. That evaluation

indicated that in some areas, Phillips failed to meet minimum

requirements.

i. Brady violation

Lord now contends that the failure to disclose all

exculpatory evidence and impeachment information constituted

a violation of his constitutional rights under Brady v.

Maryland, 373 U.S. 83 (1963), and requires reversal of his

conviction. He argues thatPhillips was the key witness in

support of the admissibility of the hammer as murder weapon.

Phillips was the only witness who testified to seeing a reaction

consistent with the presence of blood around a grease spot on

the workshop floor.

The state concedes that nc . all of the available

information was turned over, but has two arguments in

response. First the state asserts that because the prosecutor did

47a

not have physical possession of the documents in question, he

had no responsibility to turn them Over to defense counsel.

This argument has no merit. As the United States

Supreme Court made very clear in Kyles v. Whitley, 514 U.S.

419, 438 (1995), the prosecution's obligations under Brady

extend to any exculpatory or impeaching information not only

in its possession but also in the Possession of any affiliated

agency working on the investigation. In this case, the WSP

Crime Laboratory was working very closely with Kitsap

County debectives and was the agency in charge of examining

all of the trace evidence thought to be linked to Tracy Parker's

murder. 3

The state's attempt to argue that the prosecutor was not

aware of the undisclosed information is unavailing. For one

thing, Brady applies even when the prosecutor has no

knowledge of the existence of the information if it is known to

police investigators. Kyles, 514 U.S. at 438. Moreover, it is

clear that the prosecutor in this case was warned by crime

laboratory personnel in November of 1986 that there was a

potential problem with Phillips' performance at the Kirk Lord

48a

workshop and his analysis of the hammer. The prosecutor was

also warned that an internal investigation was likely to ensue.

The state's second argument is that even if.defense

counsel did not receive all of the documents and impeaching

information available, they received a sufficient amount of

information in sufficient time to use it in attacking Phillips'

credibility with regard to his work at the Kirk Lord workshop.

The state insists that Lord was accordingly not prejudiced by

any failure to disclose information and that he has no basis for

maintaining the existence of a Brady viokitton prejudicing his

right to a fair trial.

In order to establish a Brady violation, Lord must show

that the prosecution failed to disclose evidence material to guilt

or punishment. United States v. Bagley, 473 U.S. 667, 674

(1985). Evidence is material ‘only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different." Id, at 682. However, a showing of materiality does

not require proof by a preponderance that defendant would

more likely than not have received a different verdict with the

undisclosed evidence, “but whether in its absence he received a

49a

fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles, 514 U.S. at 434.

The court has examined the documents that were

provided to defense counsel during trial. They included

information about Phillips spraying the hammer contrary to

Sweeney's instructions. The documents also made it clear that

Phillips had lied to Sweeney and had presented more than one

inaccurate version of how he conducted his test of the hammer.

Defense counsel was apprised of the fact that Phillips had

falsified his report to Sweeney and that he had lost his job.

With the information in the documents provided, defense

counsel was able to explore Phillips’ credibility and the

reliability of his test results. The additional documents were

essentially duplicative of information that defense counsel

already had. Hence, the court finds that the failure to tum over

the additional documents does not constitute a Brady violation.

li. Hearings on admissibility

of tests

At trial, Lord challenged the admissibility of much of

the evidence about leuco-malachite testing in the Kirk Lord

workshop on the grounds that spraying a premixed solution on

samples was not a generally accepted technique in the

50a

scientific community and any tests conducted in that manner

should be excluded. The trial court held a hearing on this

issue, applied the standard set forth in Frye v. United States,

293 F. 1013 (D.C. Cir. 1923), and denied the motion.

The trial court then held a second hearing at which she

considered evidence relating to the admissibility of the

particular tests which Phillips performed. Lord argues that the

prosecution's failure to disclose information about Phillips and

the internal investigation infected the trial court's rulings with

error.

As to the first determination about the general

acceptability of the spraying technique following a hearing

held on June 2, 1987, this court rejects the argument that the

| undisclosed information would have made any difference. The

Frye hearing was concerned with the acceptability of the

technique. All of the internal investigation evidence went to

the reliability of Phillips’ results and not to the broader question

about the technique. As the state argues, alleged infirmities in

the performance of a particular test usually go to the weight of

the evidence and not to its admissibility. State v. Kalakosky,

121 Wn.2d 525, 543, 852 P.2d 1064 (1993).

5la

As for the second determination about the reliability of

Phillips’ testing in particular, the court finds that as of the date

of the second hearing, June 8, 1987, defense counsel had

sufficient information about Phillips to examine witnesses at

the hearing.

iii. Cross-examination

curtailed

Lord contends that the trial court deprived him of his

Sixth and Fourteenth Amendment rights to confrontation and

cross-examination by not allowing defense counsel to question

Phillips about his violation of the codes of ethics of

organizations to which he belonged, his use of anti-depressants,

his psychiatric care and his vision from God about the hammer

‘ as the murder weapon.

The court finds no error of constitutional magnitude.

Regarding Phillips' alleged breaches of the code of ethics

governing forensic scientists, there was no evidence that any

organization to which he belonged had sought to apply its

ethical precepts to Phillips or dismissed him from its ranks for

a breach of ethics. The trial court also properly disallowed any

questioning on the general issue of whether Phillips had been

under psychiatric care.

52a

As for the more specific issue of whether Phillips had

been taking medication at the time he went to the Kirk Lord

workshop, the trial court allowed defense counsel to inquire

about it. Phillips denied being on any medication, thus ending

that line of questioning.* Therefore, it was Phillips’ response

and not the trial court's curtailment of cross-examination that

ended the inquiry.

Lord argues that the prosecutor wrongfully failed to

disclose information about Phillips' use of medication, but

there is no showing that the prosecutor or the WSP knew about

it in more than a general sense. Certainly, there is no evidence

that anyone knew he was taking medication on the day of the

tests performed in the Kirk Lord workshop.

Regarding Phillips' "vision from God" about the

hammer as murder weapon, the trial court found that this

evidence would be more prejudicial than probative. While the

basis for this ruling is not entirely clear since the trial court did

not specify what sort of prejudice would be suffered and to

* However, in a deposition given in connection with this habeas

corpus proceeding, Phillips testified that he was taking antidepressant

medication on the day he went to the Kirk Lord workshop. This

inconsistency does not make any difference to the outcome since Phillips

also testified that the medications did not have any effect on his behavior.

Pe ae ae ed eo ae

53a

whom, this court finds that even assuming the questioning

should have been allowed, the fact that it was disallowed did

not result in a fundamentally unfair trial.

iv. Deliberate destruction of

evidence

Lord contends that he is entitled to a reversal of his

conviction because of Phillips' deliberate destruction of

evidence by spraying the hammer and other areas of the Kirk

Lord workshop. Lord points to language in Sweeney's report

and in documents coming out of the internal investigation

indicating that Phillips deliberately sprayed the hammer. Lord

argues that Phillips knew this would felt in loss of evidence

in that spraying consumes the sample being tested as well as

often dislodging other trace evidence previously adhering to

the sprayed surface.

The court finds no merit in this argument. There is no

indication in the passages to which Lord refers that Phillips

intentionally sought to destroy evidence. Instead the quoted

passages refer to his intentional use of the spray as opposed to

the dropper method of applying leuco-malachite green. Lord

54a

has failed to make any showing of bad faith destruction of

evidence.”

v. Phillips' educational

background

Phillips testified at trial that he had a degree in

chemistry, when his degree was actually.in agriculture with a

major in natural resources. Lord argues that this was an

important issue because the type of forensic testing performed

by Phillips required a sound knowledge of chemistry. Lord

asserts that the prosecutor's failure to disclose Phillips’ perjury

is reversible error. |

There is no evidence that the prosecution team itself

knew of Phillips' misrepresentation of his degree. However,

the WSP had reason to be aware of Phillips' educational

background because it had conducted an investigation the year

before of Phillips’ falsification of his educational credentials

when he applied to the WSP in 1970. Nevertheless, the court

* Lord points to a statement in Sweeney's report concerning

someone's third hand report that Phillips picked up the hammer and sprayed

it at the Kirk Lord workshop. Aside from the problem of multiple levels of

hearsay, the evidence before this court does not support this story.

Detective Hudson testified at the evidentiary hearing that he did not see

Phillips spray the hammer and that his knowledge of what happened came

from Phillips, who said he sprayed the hammer by mistake as it was lying

among some extension cords on the floor of the workshop.

55a

finds that, even if this information had been disclosed to

defense counsel, it would not have made any difference at trial.

While Phillips did not have a chemistry degree, he had taken

some college courses in chemistry and had 17 years of

experience as a criminalist together with extensive experience

in the use of leuco-malachite green.

b. Denial of trial continuance

On several occasions during the first few days of trial,

defense counsel requested trial continuances because of new

information about the results of laboratory testing on trace

evidence and, in one case, the need to wait for additional test

results based on the re-examination of certain evidence. These

continuances were denied. Lord contends that he suffered

prejudice because defense counsel were not able to prepare

adequately for trial in the time allotted and because they had to

Saas lp RT i seen 1a a Ci. i Sot etd WALA be tio A aa SN het iia ies isnt re ie

delay opening statement until three days after the beginning of

trial to wait for a test result.

The court finds that the record does not support Lord's

contention that defense counsel were unable to adequately

present his case to the jury because of insufficient time to

investigate the lab results disclosed after the start of trial, or .

56a

because they had to delay opening argument until three days

after the beginning of trial, or because they had insufficient

time to conduct discovery about the internal investigation of

Phillips. |

| c. Summary chart

During closing argument, the prosecution used an

illustrative chart summarizing the physical evidence introduced

in the case. Lord agrees that this chart was an appropriate aid

when shown for demonstrative purposes during argument.

However, the trial court went on to admit the chart as a trial

exhibit and to allow its use by the jury during deliberations.

Lord argues that this constitutes reversible error.

The chart in question featured a large grid which

matched various locations key to the state's case with the types

of physical evidence found there. Lord contends that the chart

was extremely prejudicial because it was inaccurate,

misleading, misrepresentative of the scientific testimony at trial

and unduly emphasized the state's version of the case. The

Washington Supreme Court found that the trial court erred in

allowing the chart to go to the jury room, but went on to hold it

was harmless error. 117 Wn.2d at 855-863.

57a

Having reviewed Lord’s claim about the summary

chart, the court finds no basis for reversing the Washington

-Supreme Court's ruling. The Court's ruling on the chart was a

determination by a state court on an evidentiary matter. Such a

ruling is not reviewable by this court unless it rendered the trial

so unfair as to have deprived the defendant of his constitutional

right to a fair trial. The court finds that this was not the case.

As the Court pointed out, the trial court gave an instruction to

the jury limiting the use of the chart. The jury was permitted to

take notes and had also heard extensive cross-examination of

the experts whose testimony was summarized on the chart.

Thus, defense counsel had an opportunity to explore the

shortcomings in that testimony. Furthermore, the trial judge

offered the defense an opportunity to make changes and

corrections to the state's chart, which they did, and to offer a

| chart of their own.'° Thus, although the chart should not have

been allowed into the jury room during deliberations, it did not

prejudice Lord's ability to present his case to the jury or to

receive a fair trial.

'° Defense counsel on appeal did present a chart illustrating the

differences between the state's version of the evidence and the defense

version.

58a

d. Admission of evidence

Lord challenges as erroneous the admission of several

pieces of evidence including photographs of Tracy Parker's

decomposed body, evidence of Lord's marijuana and alcohol

use, and a photograph of Lord's arm showing a wound. The .

court finds no error. |

According to the medical examiner who testified at

trial, the photographs of Tracy Parker's body were helpful in

explaining the depth and nature of the injuries leading to her

death as well as illustrating the difficulties in assessing the

injuries posed by the advanced state of decomposition of the

body. Although the photographs were very unpleasant, they

were also probative of elements which the prosecution had to

prove and did not render the trial fundamentally unfair. See,

Kealohapauole v. Shimoda, 800 F.2d 1463, 1465-66 (9th Cir.

1986).

As for the evidence that Lord smoked marijuana and

beer, it was relevant and probative in view of testimony that

Lord had been drinking beer on September 16, the evening of

Tracy Parker's disappearance, and Lord's own later statement to

a Kitsap County sheriff's detective that when he smoked

59a

marijuana and drank beer, he became a different person and

lost control. ,

Finally, with regard to the photograph of Lord's arm

| injury, there was testimony at trial that Lord had a wound on

| his arm on September 16. Even though the photograph was

taken a month later, it was still relevant to that testimony and

properly admitted.

Bs Mihi. Wntal 9 ice.

2: Claims concerning informant testimony

a. Rex Harvey

i. Undisclosed deal

Rex Harvey was an inmate in the Kitsap County Jail at

the time Lord was incarcerated there prior to Lord's trial, had

access to Lord when he was appointed Lord's personal trustee,

and testified at trial that Lord had made incriminating

statements to him about his involvement in the murder of Tracy

Parker. Lord contends that the prosecutor failed to disclose

evidence of a deal between prosecutor Danny Clem and Rex

Harvey for favorable consideration in return for his testimony

at Lord's trial.

Harvey was questioned at the evidentiary hearing

before this court, but did not reveal the existence of any deal.

60a

He stated that he met with Clem once while he was still in jail

and on several other occasions after he was released from jail

in December of 1986 and was still on probation. Harvey

testified that he told Clem of his unwillingness to testify and

that Clem reminded him during each meeting of his

probationary status. However, there was no evidence that

Clem ever discussed or made any specific deal with Harvey in

connection with Harvey's testimony at trial. Harvey averred

that, after his testimony at Lord's trial, he was punished for his

probation violations.

Based on the evidence adduced at the evidentiary

hearing, the court finds no basis for Lord's claim that there was

a deal with Harvey that the prosecutor failed to disclose.

ii. Massiah claim

Lord argues that the state violated the proscription set

forth in Massiah v. United States, 377 U.S. 201 (1964), against

intentional government solicitation of incriminating statements

from a defendant in the absence of counsel. Lord contends that

the state violated his right to counsel by giving Harvey the job

of listening to Lord and reporting anything he said to jail

authorities.

6la —

In Kuhimann v. Wilson, 477 U.S. 436, 459 (1986), the

United States Supreme Court held that “a defendant does not

make out a [Sixth Amendment violation] simply by showing

that an informant, either through prior arrangement or

voluntarily, reported his incriminating statements to the

police.” Id. The Court held that “the defendant must

demonstrate that the police and their informant took some

action, beyond merely listening, that was designed deliberately

to elicit incriminating remarks.” Id.

At the evidentiary hearing before this court, Harvey

denied having ever questioned Lord or talked to him about the

Tracy Parker murder. Harvey testified that Lord's statements

were volunteered comments and that he did not solicit, respond

to or encourage them in any way. The court finds no basis for

a Massiah violation.

iii. Conflict of interest

Lord contends that he received ineffective assistance of

counsel because of the existence of a conflict of interest on the

part of co-counsel Ronald Ness.

Lord was charged with murder in the first degree on

October 3, 1986. His original counsel, Mark Yelish and

eased

62a

Richard Peterson, were disqualified from representing him by

order of the trial court on November 24, 1986 on the grounds

that their law firm had previously represented Sonny Belgard.

Because the prosecutor was planning to call Belgard as a

witness against Lord, the court found a conflict of interest.

Ron Ness was appointed in place of Yelish and Peterson; CO

counsel Judith Mandel later joined Ness in representing Lord.

On February 24, 1987, Ness received notice that the

prosecutor had decided to call Rex Harvey to testify against

Lord. Shortly thereafter, Ness filed a motion asking for court

permission to continue representing Lord even though he

personally had represented Rex Harvey recently in connection

with some theft charges. Ness indicated that Rex Harvey had

signed a written waiver of the attorney-client privilege as to

any communications he had made to Ness or any advice Ness

had given to him in the course of representing him.

The trial court held a hearing and granted Ness’ motion.

Although the court was aware of Rex Harvey's waiver, the

court nevertheless ordered Ness to turn over all of his files to

either Harvey's new attorney or to the clerk of court. The court

also ordered co-counsel Judith Mandel to handle Harvey's

63a

cross-examination at trial and barred Ness from consulting with

Mandel about Harvey or disclosing any information which he

had received in the course of representing him.

Lord was not consulted during this hearing nor is there

any mention in the record that he was apprised of the issue. At

his deposition taken in this matter, Ness confirmed that there

was no verbal waiver of any conflict of interest by Lord

because Ness and Mandel “didn’t feel that it was necessary for

Mr. Lord to waive any, so we never even addressed the issue.”

In a declaration to this court, Lord averred that his attorneys

never explained to him the nature of Ness' conflict or asked

him whether he wished to waive his right to representation by a

lawyer without conflicts. He further averred that his attorneys

never checked with him to determine his position before,

during or after the time Ness filed his request to remain in the

case.

In keeping with the trial judge's order, Mandel

interviewed Harvey and conducted his cross-examination

during the guilt phase of the trial. However, Ron Ness gave the

closing argument during that phase and discussed Harvey's

testimony briefly.

64a

Lord contends that Ness' conflict of interest resulted in

ineffective assistance of counsel. Lord points out that between

February 24, 1986 and October 24, 1986, Ness made numerous

appearances on behalf of Harvey as well as filing omnibus

motions and a sentence reduction motion.

Based on Harvey's deposition testimony given in 1995

in conjunction with this habeas proceeding, Lord also

emphasize s that sometime between September 30 and

December 12, 1986, Harvey met with Ness in the Kitsap

County jail for 15 or 20 minutes at Harvey's request to discuss

being a personal trustee to Lord. Harvey averred in his

deposition that he had been asked to do so by jail personnel and

wanted Ness' counsel on how he should handle the situation.

According to Harvey, Ness told him he should do what the

jailers told him to do. Harvey further indicated that he told

Ness during a conversation with Ness at the jail that he, |

Harvey, knew Tracy Parker and her family.

Conflicts of interest can arise both in cases of

Simultaneous and successive representation. Although the time

line in this case is a little hazy because of Harvey's uncertainty

ee eevee ac anima oeeantiataunesucmadhattnthveuerarannnvunsacensaunonanwnnammneanmmearacecan

65a

about when he met with Ness in the Kitsap County jail,!! the

court will assume that this is a case of successive

j representation.

| The Sixth Amendment guarantees a criminal defendant

the right to assistance of counsel unimpaired by a conflict of

interest. United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.

1987), aff'd on other grounds, 486 U.S. 153 (1988). In order to

establish a Sixth Amendment violation based on conflict of

interest, a criminal defendant must show 1) that counsel

: actively represented conflicting interests, and 2) that an actual

conflict of interest adversely affected his lawyer's performance.

Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994). Once

an actual conflict is established, prejudice is presumed because

| the harm may not only consist of what counsel does, but of

what counsel refrains from doing. Id. (citing Holloway v.

Arkansas, 435 U.S. 475, 490 (1978).

In cases of successive representation such as this one,

“conflicts of interest may arise if [the] cases are substantially

related or if the attorney reveals privileged communications of

'' Ness was appointed to represent Lord on November 24, 1986,

while Harvey averred that he met with Ness in the Kitsap County Jail

sometime between September 30 and December 12, 1986.

66a

the former client or otherwise divides his loyalties." Thomas

California, 878 F.2d 285, 288 (9th Cir. 1989) (quoting

Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.), cert. denied,

488 U.S. 908 (1988).

A substantial relationship exists if the factual contexts

of the two representations are similar or related. Thomas, 878

F.2d at 288. If there is a reasonable probability that

confidences were disclosed which could be used against the

former client in the later proceeding, a substantial relationship

will be presumed. Id.

In this case, a substantial relationship did exist between

Ness' representation of Harvey regarding criminal charges and

convictions which could later serve as impeachment material

during cross-examination of his testimony against Lord. The

same must be said for Harvey's disclosures to Ness about being

asked to serve as a personal trustee for Lord and Harvey's

relationship to the Parker family.

The state responds that there was no prejudice to Lord

because Harvey signed a waiver of the attorney-client

privilege, thus freeing Ness from the conflict of interest arising

67a

out of his divided loyalties to Harvey and to Lord. The court

finds that the state is correct.

Moreover, the court finds no prejudice to Lord resulting

from Ness’ representation of him. If Ness had been removed

from the case, his successor would not have been privy to the

information about Harvey which Ness allegedly had as a result

of representing Harvey in the past and thus could not have used

it to Lord's benefit. Lord was also represented by co-counsel

Mandel, who had no prior attorney-client relationship with

Harvey and suffered from no impediment to vigorous

representation of Lord's interests. Furthermore, during his

testimony before this court, Ness failed to present any

information which he could have offered at the trial that the

trial court's ruling prevented him from using.

iv. imit on cross-

examination and

impeachment

Lord contends that the trial court wrongfully denied

defense counsel additional time to cure the prosecutor's failure

to disclose that in addition to various prior theft convictions, —

Rex Harvey had several misdemeanor convictions for unlawful

issuance of bank checks. Lord was not able to cross-examine

68a

Harvey about those additional convictions nor was he

permitted to introduce the testimony of Ronald Heeney as to

Harvey's reputation for truthfulness.

The court finds no error. The jury was made aware that

Harvey had eight prior theft convictions accomplished by color

or aid of deception; cross-examination as to some additional

misdemeanor bad check convictions would have added nothing

important to the jury's knowledge of Harvey's propensity for

dishonesty.

As for Ronald Heeney's proposed testimony, the trial

court was correct in excluding it. Heeney was one of Harvey's

theft victim who testified that he spoke to three other people in

1985 about Harvey’s business dealings. Defense counsel's

offer of proof revealed that Heeney was not aware of Harvey's

reputation for truthfulness in the general community.

Furthermore, given the testimony already before the jury about

Harvey's dishonesty leading to numerous criminal convictions,

Heeney’s testimony would have been merely cumulative.

b. Robert Machinski

Robert Machinski was an acquaintance and co-worker

of Lord's who testified at trial that he and Lord had used an

4

IoC Tact

: :

orange U-Haul blanket at the Kirk Lord workshop the day

before Tracy Parker's disappearance, that Lord had rubbed

grease into the workshop floor a few days later, and that Lord

had offered him inducements to change his statement to the

police about the U-Haul blanket.

Machinski had been convicted in Texas in 1983 of a

felony burglary charge. However, at trial he contended that his

probation had been dismissed and that he had received a

certificate of rehabilitation at the end of his four-year

probationary period. Defense counsel apparently accepted

Machinski’s contention that his conviction had been in some

manner pardoned or annulled and did not cross-examine him

about it.

Lord argued in his motion for evidentiary hearing that

there was no proof of any certificate of rehabilitation and that

the only documentation available implied that the Texas

probation had been dismissed because Machinski was a witness

in the Lord murder trial. Lord requested an evidentiary hearing

on the issues of whether Machinski still had a conviction of

record in Texas and on whether the prosecutor in Lord's case

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had any influence on the disposition of Machiniski’s case by

the Texas court.

The court has not been presented with any further

evidence or argument about Machinski’s Texas conviction.

Lacking any basis to conclude that Machinski’s representation

at trial about the status of his criminal record in Texas was

incorrect or that the prosecutor was involved, the court finds no

merit in Lord's argument.

C. Gerald Belgard

i. Exclusion of character

evidence

Gerald Lee “Sonny” Belgard was imprisoned in the

same jail with Lord during the period preceding Lord's trial and

testified at Lord’s trial that Lord had confessed to him on

several occasions in "hypothetical" terms that Lord had hit

Tracy Parker on the head with a hammer or mallet, panicked, |

left, came back and wrapped her body in a blanket, threw it in

the back of his truck and dumped it.

In response, defense counsel offered the testimony of

three witnesses regarding Belgard's poor reputation for

truthfulness. All three proposed witnesses were community

corrections officers with the Washington Department of

et

Tila

wi ac oe

Corrections who knew Belgard only as a result of his criminal

behavior. After hearing offers of proof, the trial court excluded

their testimony on the grounds that none of them had any

knowledge of Belgard's reputation for honesty and veracity in

the general community as opposed to the criminal justice

system.

Lord argues that the trial court erred in excluding the

officers’ testimony because evidence about Belgard's reputation

in the community of other criminal offenders, law enforcement

and corrections officers is competent reputation testimony

within the meaning of State v. Land, 121 Wn.2d 494, 851 P.2d

678 (1993). In Land, the Washington Supreme Court

substituted a flexible, functional approach to determining a

relevant community for the previous more restrictive adherence

to the community of residence approach set forth in State v.

Swenson, 62 Wn.2d 259, 382 P.2d 614 (1963).

Having reviewed the offers of proof, the court

concludes that the trial court exercised its discretion

appropriately in excluding the evidence. As the trial court

noted, one proposed witness's contacts were remote and

limited, another had no opinion about Belgard's reputation for

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truth and honesty among the people she had contacted, and the

third only cited specific, limited instances and had no general

knowledge about his reputation. Even assuming that the

criminal justice system might form a relevant community,

these witnesses had insufficient knowledge to satisfy the

standard for admissible testimony. Certainly, the failure to

admit their testimony did not constitute a denial of due process.

il. Failure to call

impeachment witnesses

Prior to Lord's trial, a defense investigator interviewed

Robert Aldrich, who stated that Sonny Belgard had admitted to

him that he, Belgard, had made up the story about Lord's

confessional statements so that he could keep from going to

prison. Lord challenges as erroneous defense counsel's

decision not to call Aldrich to testify at trial. In addition, Lord

names three other potential witnesses who allegedly would

have discredited testimony offered by jailhouse informants

Sonny Belgard, Rex Harvey and Tom Demars.

The court agrees with the state that Lord's claim about

the three additional witnesses is procedurally barred. While

Lord may have briefly mentioned the issue in a pro se brief

filed on direct appeal, he did not provide any details which

73a

would have permitted the Washington Supreme Court to assess

the merits of his contention. Even assuming that the claim

were not barred, this court has no idea what the witnesses

would say and no basis for ruling on the claim.

Likewise, Lord has not pursued his contention about

Robert Aldrich. Because Aldrich did not testify at the

evidentiary hearing, the contention that he could have provided

valuable evidence is merely hearsay.'”

iii, Fai disclose deal

Lord alleges that the prosecution made a deal with

Belgard in exchange for his testimony which it failed to

disclose to Lord's counsel. Having held a hearing on this

claim, the court finds that Lord failed to substantiate it.

Belgard himself denied the existence of any deal. The only

evidence of a deal came from the testimony of his wife at the

time, who stated that he told her he had a deal with the

prosecutor. However, she did not know what this alleged deal

'? The state also points out that defense counsel called another

prison inmate, Blaine Whitehead, at trial. He testified that Belgard had told

him that Belgard was testifying against Lord to try to get some special

privileges. Thus, Belgard's motivation for testifying against Lord did not go

entirely unchallenged or unexamined at trial.

74a

involved. Vague hearsay is not a sufficient basis for finding

that the prosecutor failed to disclose a deal with Belgard.

a Other claims from quilt phase :

a. Jury instructions

First, Lord contends that Instruction 13 was fatally

flawed because it allowed the jury to convict him of aggravated

murder if it found as an aggravating factor crimes which are

not valid aggravating factors under RCW 10.95.020(9).

Lord's contention is unfounded. Instruction 13

provided that, if the jury found Lord guilty of premeditated

first degree murder, then the jury must consider whether the

state had proved the existence of one or more aggravating

circumstances beyond a reasonable doubt. The instruction

went on to list five separate circumstances, including murder

committed to conceal the commission of the crimes of second

degree kidnapping or attempted kidnapping or to protect or

conceal the identity of a person committing those crimes. It is

true that these crimes are not among those listed in RCW

10.95.020(9), but they are included under RCW 10.95.020(7).

That section provides that a person is guilty of aggravated first

degree murder if he or she commits first degree murder to

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conceal the commission of a crime or to protect or conceal the

identity of any person committing a crime.

As the state emphasizes, RCW 10.95.020(7) does not

specify the type of crime. Thus, Instruction 13 is actually more

specific than required by that statutory provision without being

erroneous.

Second, Lord argues that Instruction 13 concerning

aggravating factors erroneously fails to insure jury unanimity

as to which underlying crime was committed. Lord concedes

that jury unanimity about the specific crime is not required for

purposes of RCW 10.95.020(9). State v. Jeffries, 105 Wn.2d

398, 419-20, 717 P.2d 722 (1986); See also Jeffries v.

Blodgett, 5 F.3d 1180, 1195 (9th Cir. 1993). However, he

insists that it is required under RCW 10.95.020(9). Lord cites

no authority for this contention. The court finds no merit in

this argument.

Third, Lord asserts that the jury instructions allowed the

jury to double count the fact that the murder occurred in the

course of a felony as both an element of the crime of

conviction and an aggravating factor weighing in favor of

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death, thus failing to narrow sufficiently the class of criminals

subject to the death penalty.

The express language of Instructions 12 and 13 fails to

bear out Lord's contention. Instruction 12 asks the jury to

decide whether defendant is guilty of premeditated first degree

murder and two alternative formulations of first degree felony

murder. Instruction 13 then specifically provides that only if

the jury finds defendant guilty of premeditated first degree

murder is it to go on to consider the existence of aggravating

circumstances. Thus, if the jury found defendant guilty only of

felony murder, it would not reach the issue of aggravating

circumstances presented in Instruction 13. The double

counting alleged by Lord is accordingly not a problem.

b. Insufficiency of evidence

Lord contends that there was insufficient evidence of

premeditation and of the aggravating factors of witness-killing

and first degree kidnapping to support his conviction. Having

reviewed the evidence presented at Lord's trial, the court finds

no merit in these contentions.

As the state points out, the standard is whether any

rational trier of fact could have found the essential elements of

77a

the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979). Viewing the evidence in the light most

favorable to the prosecution, as the court must, it is clear that a

rational trier of fact could have found premeditation, a witness-

killing factor and first degree kidnapping based on evidence

that Lord took Tracy Parker to Kirk Lord's workshop so that he

could engage in criminal activity undisturbed, that he rendered

her unconscious with a blow from behind, that he then raped

her, and finally killed her in order to prevent her from reporting

his criminal behavior in kidnapping and raping her. Contrary

to Lord's argument, it is not necessary for kidnapping to be

accomplished by force in order to constitute kidnapping in the

first degree. Pursuant to RCW 9A.40.010(1), deception is

sufficient. Moreover, the evidence preferred by the state was

that Tracy Parker was kept in Kirk Lord's workshop by force.

Lord also asserts that the record contains insufficient

evidence of the reliability of the scientific tests used by state

criminalists to link him to the charged crimes.'? The court

'? The state argues that this claim is procedurally barred because

Lord did not present it to the Washington Supreme Court on the same

factual and legal grounds as it is now presented. In his personal restraint

petition, Lord alleged that there was insufficient evidence to establish the ;

reliability of the scientific results presented at trial. Although he did not

78a

finds no merit in this claim. Viewing the evidence in the light

most favorable to the prosecution, there was sufficient

evidence for a reasonable jury to have concluded that Lord was

guilty of the crimes charged.

Cc. A of Lord from hearin

and sidebars

Lord was absent from a pretrial hearing an April 28,

1987 and from a day of pretrial motions on May 20, 1987 after

the jury had been sworn. According to Lord, he was also not

present during numerous meetings between the trial judge and

counsel in chambers, at numerous side bars during trial and

during the trial judge's phone conferences with WSP counsel

John Vercimak. Except for the May 20 hearing, Lord was

never asked whether he wished to waive his presence at these

hearings, side bars and conferences. Although he did waive his

presence on the record as to the May 20 hearing, Lord argues

that it was insufficient because he was not adequately advised

of his rights.

The state does not dispute Lord's constitutional right to

be present at every stage of his trial. United States v. Gagnon,

specifically argue that the evidence was insufficient to prove his identity,

the court finds that he sufficiently raised the issue in state court.

79a

470 US. 522, 526 (1985). Nevertheless, a defendant does not

suffer a deprivation of due process unless defendant's presence

“has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge.” Id, at 526 (quoting

Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108 (1934)).

Only if defendant's absence would deprave him or her of a fair

and just hearing does a due process right apply. Id.; Siivones

v. Calderon, 35 F.3d 1303, 1321 (9th Cir. 1994). In addition, a

defendant can waive his or her right to be present by voluntary

absence.

While Lord appears to have been absent from numerous

proceedings before and during trial, he does not demonstrate

how any of these absences were prejudicial to his defense. The

court's review of the record indicates that the hearings,

conferences and side bars in question involved legal,

procedural or administrative matters. Lord does not provide

any evidence or argument to the contrary. As Gagnon

indicates, Lord must make a showing that his absence

somehow deprived him of a fair and just hearing. Lord has not

shown any such prejudice.

80a

d. Exclusion of alternate suspect

evidence

Lord asserts that he was wrongly denied the opportunity

to introduce evidence tending tc implicate alternate suspects.

For example, he preferred testimony that Tracy Parker's

neighbor owned a blue pickup truck, * that Tracy Parker had

told a friend she was concerned about being followed by

someone in a car, and that other witnesses had access to the

key, the U-Haul blanket and the residence where the victim

was seen. Lord further contends that he was not allowed to

challenge the alibis of these other witnesses. |

The court finds that Lord failed to establish an adequate

foundation for the alternate suspect evidence. In order to be

admissible, the evidence must do more than simply raise a

vague suspicion about the possible culpability of someone

other than the defendant. Instead, “it must he coupled with

OStalitia d 1% NGS tO Uist PONNCCt Ullal VEIsVvi

Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993)

Lord argues that this was significant because the pickup truck

which Lord was alleged to have used during the course of the crime was

blue and, at trial, the state introduced blue car paint found on clothes and

sites associated with the victim.

Rsietnd denn od

8la

(quoting Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983),

cert. denied, 469 U.S. 838 (1984) (emphasis in original). None

of the evidence preferred by Lord does more than raise

suspicion.

e. Jury selectionissues

i. Change of venue to

Pierce County

Before trial, defense counsel moved for a change of

venue from Kitsap County based on extensive pretrial

publicity. The trial court granted the motion in part, holding

that the jury should be selected from Pierce County. Lord now

asks the court to make an independent review of the record in |

order to determine whether the prejudice against defendant was

So great that he could not receive a fair trial. Bashor v. Risley,

730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838

(1984).

The court finds no indication that pretrial publicity so

infected the potential jury pool in Pierce County with prejudice

against defendant that it was impossible for him to be fairly

tried. As is usually the case, most of the media attention

occurred in the immediate aftermath of the crime and Lord's

arrest in September of 1986. Jury selection did not occur until

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May of 1987. The voir dire process did not reveal any

deepseated, enduring prejudice. Indeed, few of the prospective

jurors remembered any details about the case. Lord does not

point to any actual prejudice, and the court finds no basis for

presuming prejudice.

ii. Inquiry into jurors’

attitudes

Lord alleges in his petition for writ of habeas corpus

that the trial court improperly limited inquiry into jurors'

attitudes about the presumption favoring a life sentence. Lord

has not filed any additional briefing or otherwise pursued this

contention. The court finds no merit in it.

ili. Failure to grant challenge

for cause

During voir dire, one of the prospective jurors indicated

that a person convicted of premeditated murder deserves the

death penalty. Lord takes issue with the fact that the trial court

denied a challenge for cause, contending that this denial was

constitutional error. Wainwright v. Witt, 469 U.S. 412 (1985).

As the state points out, Lord removed that juror with a

peremptory challenge.'° Thus, even if the trial court

'S The court notes that Lord did not use all of his peremptory

challenges nor did he later request a second change of venue.

83a

committed error, it did not prejudice Lord during his trial.

Ross v. Oklahoma, 487 U.S. 81, 88 (1988).

2 iv. Defense failure to

challenge jurors

Lord contends that defense counsel committed error by

failing to challenge for cause two jurors committed to voting

for the death penalty.

Having reviewed the voir dire examination of the two

jurors, the court finds no merit in Lord's claim. While the

jurors both stated that they believed individuals convicted of

committing certain types of crimes should receive the death

penalty, they also averred that they could listen to the court's

instructions on the law, put aside personal feelings which

conflicted with the law, and be fair and impartial jurors.

Challenges for cause against these two jurors would not have

been successful.

Vv. ' rempt

challenge

During jury selection, the prosecutor used peremptory

challenges to remove any Prospective jurors who expressed

opposition to the death penalty. Lord argues that this denied

84a

him his right to a jury representing a fair cross-section of the

population.

Discriminatory exercise of peremptory challenges to

exclude jurors based on race and gender is prohibited by the

Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79

(1986); Powers v. Ohio, 499 U.S. 400 (1991); Georgia v.

McCollum, 505 U.S. 42 (1992); J.E.B. v. Alabama ex rel, T.B.,

511 U.S. 127 (1994). However, Lord does not cite any

authority, nor is the court aware of any, holding that persons

opposed to the death penalty constitute a cognizable group for

purposes of an equal protection challenge to jury composition.

To the contrary, Brown v. Dixon, 991 F.2d 490 (4th Cir. 1989),

cert. denied, 495 U.S. 953 (1990), rejected a similar argument.

The court finds no basis for Lord's contention.

vi. | Juror Misconduct

One juror was-asked three times, twice through direct

oral questions and once in the jury questionnaire, whether he

~ had read any news account of the Tracy Parker murder. Each

time he responded no. After the trial, however, he indicated to

a defense investigator that he had read accounts of the murder

in the Tacoma News Tribune for which he worked as a

85a

pressman at the time. Lord contends that defense counsel

would have had a basis for a challenge for cause if the juror

had answered truthfully during the voir dire process.

The state responds that there is no proof of the juror's

untruthfulness at the time he made the statements because all

he said during voir dire was that he did not remember having

read anything about the case. Moreover, he told the

investigator that he had not formed any opinion about the case

before trial because he had no in-depth information. The state

argues that an individual does not become ineligible to serve as

a juror simply because he or she has heard or read something

about a case. Murphy v. Florida, 421 U.S. 794 799 -800

(1975). Only if a person cannot set aside any opinion or

prejudgment of the case must he or she be disqualified. Irvin v.

Dowd, 366 U.S. 717, 723 (1961).

In this case, the juror’s limited exposure to media

reports and sketchy knowledge of the case would not have been

a basis for a challenge for cause. There is no merit in Lord's

claim.

86a

f. Prosecutorial misconduct

In his petition for writ of habeas corpus, Lord alleged

certain instances of prosecutorial misconduct in closing

argument and concerning certain motions in limine. However,

he has not pursued them in any subsequent briefing. The court

finds no merit in them.

Lord also alleges that prosecutor Danny Clem engaged

in improper contact with Lord in the courtroom during trial by

engaging in certain vulgar exchanges with him.'® Even

assuming that some exchange of words occurred, there is no

evidence that the jury ever witnessed anything and thus no

evidence of any prejudice to Lord.

g. Duplicity of amended information

The amended information in this case contained a

single count charging Lord with two separate crimes,

aggravated first degree murder and first degree felony murder.

The state concedes that the information suffered from

duplicity.

'6 This allegation is based on a local newspaper article reporting on

a speech given by Clem at a Rotarian meeting in which he claimed to have

exchanged vulgar remarks with Lord on several occasions after court

rulings.

87a

However, duplicity does not constitute reversible error

unless Lord was prejudiced by lack of clear notice about the

crimes with which he was charged which prevented him from

preparing his defense or by the jury's failure to reach a

unanimous verdict on the commission of a particular offense.

See United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir.

1985).

The court finds that Lord was subjected to neither form

of prejudice in that he had clear notice of the charges against

him and the jury reached a unanimous verdict on all three

alternative means of committing first degree murder listed in

Instruction 12 and Verdict Form A.”

h. Denial of effective assistance of

counsel during guilt phase

Lord alleges that defense counsel at trial denied him

effective assistance of counsel in several respects. The

applicable test is set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984) :

First, the defendant must show that counsel's

performance was deficient. This requires

Showing that counsel made errors so serious that

'’ These included premeditated first degree murder (Alternative

A), felony murder - rape (Alternative B) and felony murder - kidnapping

(Alternative C).

counsel was not functioning as the “counsel”

teed the defendant by the Sixth :

Amendment. Second, the defendant must show

that the deficient performance prejudiced the

defense. This requires showing that counsel's

errors were SO serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.

With this standard in mind, the court will review Lord's claims

of error.

The contention which Lord argues the most vigorously

is his claim about defense counsel's failure to call as trial

witnesses three young men who claimed to have seen Tracy

Parker alive on September 17, 1986, the day after she was

allegedly killed by Lord. Having carefully reviewed all of the

documentary evidence submitted on this claim and having

heard the testimony of the three witnesses as well as the

opinion of Lord's expert witness, the court concludes that the

decision not to call them was a reasonable strategic choice

which did not amount to ineffective assistance of counsel.

Defense counsel reasonably could have found sufficient

discrepancy among the witnesses’ various accounts, sufficient

uncertainty in their memories and sufficient question about the

accuracy of their identification as well as the date on which the

event happened to decide not to call them as witnesses.

89a

Defense counsel could also reasonably have been concerned

that these discrepancies and inconsistencies together with facts

concerning the witnesses' drinking and drug usage might

reflect poorly on the defense.

As for Lord's other claims, the court has already

considered most of them, at least in part, earlier in this opinion.

The court finds no failure on the part of defense counsel to

adequately investigate and prepare the case for trial. Since the

court found no merit in Lord's claims about informant

testimony from Harvey and Belgard or about the failure to call

witnesses to impeach Belgard, there is no basis for an

ineffective assistance of counsel claim.

Lord criticizes defense counsel's failure to present

demonstrative evidence illustrating the shortcomings of the

State's case in response to the state's summary chart. This

failure does not rise to the level of ineffective assistance of

counsel.

As for delaying opening statement until after several

witnesses had testified, the court finds that defense counsel had

good reason to wait for additional laboratory results before

outlining Lord's case to the jury. Likewise, the court concludes

90a

that the closing argument was a reasonable presentation of

Lord's case and that Ron Ness did not engage in ineffective

assistance of counsel by conceding Lord's contact with the

blanket.

Ness’ absence from the state's rebuttal closing argument

was at Lord's own, clearly expressed request. Moreover, co-

counsel Mandel was present. She had participated in all phases

of trial and was fully familiar with the case, so Lord was not

prejudiced.

The court finds no error in defense counsel's handling

of the evidence concerning matchbooks'® or failure to object to

alleged prosecutorial misconduct during closing argument.

i. New evidence about

blood on wood chips and

hammer

While Lord's case was on appeal before the Washington

Supreme Court in 1992, the Court appointed an expert, Dr.

Blake, to re-examine certain pieces of evidence. In his report,

Dr. Blake indicated that he found no blood on Exhibit 97C,

8 The state introduced evidence that two similar matchbooks were

found, one at the site of Tracy Parker's clothes and one in the blue pickup

iruck which Lord had been driving on the night of September 16, 1997.

Lord argues that defense counsel were remiss in not introducing evidence

that 31 million of these matchbooks had been distributed in Washington.

9la

wood chips from the door of the Kirk Lord workshop which

had earlier been determined by Mike Nolan of the Washington

State Crime Laboratory to have tested Positive for 0-type

blood. Dr. Blake also found no blood on the hammer and

opined that the spraying of the hammer had been wholly

inappropriate. Lord claims that this is newly discovered

evidence which warrants a new trial.

The state first responds that Lord's claim is

procedurally barred because, although he raised the issue

before the Washington Supreme Court as a matter of state law,

he did not allege any federal constitutional violation. The state

contends that in order to exhaust a habeas corpus claim,

petitioner must alert the state court to the existence of a federal

claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995).

The court agrees that Lord failed to exhaust this claim

and is barred from raising it. Even assuming that it was not

barred, the court would find no merit in it because none of Dr.

Blake's findings represent new evidence. Before Lord's trial,

the defense was advised that the blood sample on Exhibit 97C

Was SO small that testing by the WSP Crime Laboratory would

probably use up the sample. The defense was accordingly

92a

invited to have an expert attend the test. Ray Davis observed

Mike Nolan's testing procedure on behalf of the defense and

found no error in it. Thus, Dr. Blake's finding that Exhibit 97C

contained no blood is not a new relevation and was in fact the

expected result.

As for the hammer, the results of every test for blood

except Phillip's initial spraying with leuco-malachite green has

had negative results. Nor is Dr. Blake's opinion about the use

of a spraying technique new. Both Dr. Thornton and Kay

Sweeney testified about the drawbacks of spraying leuco-

malachite green at trial. While their conclusions may not have

been as emphatic as Dr. Blake's, that does not make Dr. Blake's

opinion new evidence.

C. Penalty Phase Claims

1. Jury instructions

a. Improper emphasis on unanimity

In Mak v. Bllodgett, 970 F.2d 614, 624-25 (9th Cir.

1992), the Ninth Circuit held that the trial court's jury

instructions and the verdict form combined to improperly

suggest that unanimous agreement was required not to impose

the death penalty. In particular, the Ninth Circuit singled out

93a

instruction number 6 as an €rroncous statement of the law.

That instruction provided in relevant part:

You must answer one question. All twelve of

you must agree before you answer a question

“yes” or “no”. When all of you have agreed, fill

in the answer to the question in the verdict form

to express your decision. . .

Lord contends that the penalty phase instructions given

in his case were similarly flawed. It is true that instructions 2

and 3 and the verdict", form were identical in all relevant

Portions to those in Mak. However, instruction 6 not only

contains the same language as instruction 6 in Mak, but also

the following additional language: “if you do not unanimously

agree then answer unable to unanimously agree.” Thus, the

impermissible emphasis on unanimity found in instruction 6 of

Mak is eliminated. The court finds that no juror in Lord's case

could have been misled by the jury instructions into concluding

that unanimity was required in order to reject the death penalty.

b. Confusion elicited by jury

instructions

Lord contends that the jury instructions in the penalty

phase were so confusing that the jury could not understand

them and was left to exercise its unchanneled discretion.

Having reviewed the jury instructions and the expert

94a

declaration submitted by Lord in support of this contention, the

court finds no merit in this argument. While the jury

instructions may have been complicated, they were sufficiently

comprehensible to inform and guide the jurors as to the

applicable law.

c. ~ “Any relevant factors”

Penalty phase instruction 3 told the jury that "[in]

deciding the question posed, the jury may consider any relevant

factors.” As Lord points out, this language has been construed

by the Washington Supreme Court to mean that the jury's

liberal consideration is limited to mitigating factors; as to

aggravating factors, the jury can only consider statutory ones.

State v. Bartholomew, 101 Wn.2d 631, 642, 683 P.2d 1079

(1984). Lord argues that the instructions in his case were not

so limited and that the jury may have been misled about its

role.

Having reviewed the penalty phase instructions as a

whole, the court is convinced that the jury understood its role

in deciding the penalty to be imposed on Lord. Cf. Jeffries v.

Blodgett, 5 F.3d 1180, 1196 (9th Cir. 1993), in which the Ninth

Circuit considered a similar challenge and found that the “any

————————

95a

relevant factors” language was not ambiguous when read in

context with the rest of the instructions.

d. Single mitigating circumstance

Penalty phase instruction 3 told the jury to impose

death if it found "that there are not sufficient mitigating

circumstances to merit leniency." Lord argues that this

language prevented the jury from considering a single

mitigating factor as sufficient to merit leniency.

Again viewing the penalty phase instructions as a

whole, the court finds that there is no possibility the jury could

have reached the conclusion suggested by Lord. The jury was

clearly told that the prosecution had the burden of proof.

Moreover, in instruction 5, a mitigating circumstance was

defined as a fact which justifies a sentence of less than death.

e. Statutory presumption of

lenienc

Lord assigns as error the trial court's refusal to give

defense counsel's proposed presumption of leniency

instruction. Washington law does not require such an

instruction. State v. Mak, 105 Wn.2d 692, 756, 718 P.2d 407

(1986). In light of the fact that the jury was adequately

96a

instructed about the state's burden of proof in the penalty

phase, the court concludes that Lord's argument has no merit.

2. Admission of prior California juvenile

adjudication as conviction

When Lord was fourteen years old, he was found guilty

of second degree saneilen arising out of the death of a family

friend and made a ward of the court. There is no dispute that

under California law, this constituted a juvenile adjudication

and not a criminal conviction. United States v. Sanders, 41

F.3d 480, 486 (9th Cir. 1994)."” |

Under Washington state law governing the penalty

phase of capital punishment cases, the prosecution can only

introduce as nonstatutory aggravating factors in its case in

chief, evidence that would have been admissible during the

guilt phase and the defendant's criminal record. RCW

10.95.060; State v. Bartholomew I, 98 Wn.2d 173, 197, 654

P.2d 1170 (1982), aff'd in part, State v. Bartholomew II, 101

Wn.2d 631, 639, 683 P.2d 1079 (1984). The admissible

criminal record is in turn limited to convictions and does not

19 Frowever, as Sanders goes on to say, a juvenile can only be

declared a ward of the court as a “law violator” after the state proves

beyond a reasonable doubt that he or she has violated a criminal law. 41

F.3d at 486.

97a

include evidence of other crimes of which defendant has not

been charged or convicted. Id.

Lord argues that because his juvenile adjudication does

not qualify as a conviction under California law, it was error to

allow its introduction during the penalty phase of his trial.

Respondent contends in turn that this is an issue of state law

not cognizable in this habeas corpus proceeding.

The state emphasizes that the Washington Supreme

Court rejected Lord's claim as a matter of state law in its

decision on his personal restraint petition. The Court

acknowledged the ruling in Bartholomew, but found that the

use of the word a convictions’ was meant to distinguish

between mere allegations of criminal activity and actual

adjudications of guilt, not between adult convictions and

findings of quilt in juvenile proceedings.”” 123 Wn.2d at

310-22. Specifically, the court cited to In re A.B.C.D.E, 121

Wn.2d 80, 87, 847 P.2d 455 (1993), in which juvenile court

adjudications were treated as equivalent to convictions for

”° Lord asserts that the Washington Supreme Court was creating

new law in its ruling on the scope of Bartholomew. The state responds that

it was merely construing the meaning of the Bartholomew decision as

applied to a particular set of facts. The court finds the state's argument

persuasive.

98a

purposes of a statute requiring HIV testing of all persons

convicted of a sexual offense. In reaching its decision in In re

A.B.C.D.E, the Court reviewed a number of manor

provisions in which juvenile court adj udications were equated

with convictions.

In order to establish a habeas corpus claim, Lord must

establish that there has been a violation not just of state law,

but of federal law. 28 U.S.C. § 2254(a). Lord contends that

introducing his juvenile adjudication violated his right to due

process. He stresses that the hearing was closed, there was no

right to jury trial and he apparently was not informed of a right

to appeal at the close of the hearing. On the other hand, Lord

did have a right to counsel, to cross-examine witnesses, to

present evidence on his behalf and to refrain from testifying.

The record does not reveal that Lord was denied any process

due under the law governing California juvenile adjudications.

Thus, his case is easily distinguishable from Johnson v.

Mississippi, 486 U.S. 578 (1988), in which the prosecutor

sought to rely on a conviction which had been reversed, or

People v. Terry, 61 Cal.2d 137, 148, cert. denied, 379 U.S. 866

(1964), in which the conviction in question had been pardoned.

99a

In Johnson and Terry, therefore, no convictions existed on the

record. In this case, by contrast, there is no dispute that Lord

was found guilty of second degree murder in a juvenile

adjudication conducted in keeping with the requirements of

California law.

Lord contends that the state is not honoring the Full

Faith and Credit Clause, U.S. Const., Art. IV § 1, by admitting

Lord's juvenile adjudication in a death penalty proceeding

because it would not be admissible under California law. Lord

is correct that a juvenile adjudication is not admissible as a

prior conviction in California. People v. Frierson, 53 Cal.3d

730, 747 (1991); People v. Burton, 48 Cal.3d 843, 861 (1989).

However, Lord's juvenile adjudication for second degree

murder would be admissible in the penalty phase of a capital

proceeding under California law under the category of criminal

activity involving force or violence. Thus, Lord is not correct

that his prior California adjudication would be inadmissible in

a California capital case.

Finally, Lord points out that the prosecutor referred to

his juvenile adjudication as a conviction before the jury. The

state agrees that this was not a correct description. However,

100a

the jury was aware that the murder was committed while he

was a juvenile and the court concludes that this error was

harmless.

3. Impremissibly broad cross-exami ion

Lord asserts that error occurred as a result of the

prosecutor's impermissibly broad cross-examination of his

father. Whatever the merits of this contention, it raises only

issues of state law which are not cognizable in this federal

habeas corpus proceeding.”

4. Failure to t continuance of

phase

On November 24, 1986, the information charging Lord

with first degree premeditated murder was amended to charge

aggravated first degree murder. Defense counsel Ron Ness

protested at the time that he needed more time to prepare for a

death penalty case. The trial court responded that, if necessary,

there could be a reasonable delay granted between the guilt and

the sentencing phases of the trial.

21 Lord's invocation of Ballard v. Estelle, 937 F.2d 453, 456 (9th

Cir. 1991), is inapposite. While the Ninth circuit did hold that state laws

can give rise to liberty interests protected by the Fourteenth Amendment, all

of the examples given involve state sentencing laws. None of them involve

state evidentiary laws applied during the course of trial.

ji

10la

Sab ens oka ate

The jury returned a verdict of guilty against Lord on

Saturday, July 18, 1987. The penalty phase began on

Thursday, July 23, 1987. Defense counsel requested but were

denied a longer continuance. Lord contends that this denial

prejudiced defense counsel's ability to prepare for the penalty

phase. In particular, Lord argues that defense counsel were

unable to present all of the mitigating evidence available or to

adequately prepare the witnesses whom they did present.

Based on the evidence before it, this court finds that the

reason for defense counsel's decision not to present more

witnesses and evidence at the penalty phase was Lord's own

reluctance to allow them to do so. The court finds no

indication that the witnesses whom defense counsel did present

we-re inadequately prepared.”

5. Prosecutorial misconduct in closing

argument

Lord takes issue with several portions of the

prosecutor's closing argument. First, he contends that the

22 Lord points to the testimony by his father, Leslie Lord, about

Lord being “a good boy,” which led the trial court to allow cross-

examination of Leslie Lord on whether he knew the details about his son's

prior convictions. The court does not believe that this statement by Leslie

Lord was the result of poor witness preparation, but an emotional

declaration of his love for his son.

102a

prosecutor impermissibly shifted the burden of proof from the

state to Lord by telling the jury that it had to decide whether or

not there were sufficient mitigating circumstances to merit

leniency and that "[{s]imply put, . . . . are there sufficient

reasons for why this defendant deserves a break?” Although

the prosecutor might be advised to stay away from this

formulation of the question, the court finds that there was no

unfairness resulting in a denial of due process. The jury was

properly instructed on the burden of proof, and defense counsel

reminded the jury of the question facing it.

Second, Lord alleges that the prosecutor argued all

murderers should be put to death.” while the prosecutor might

again be advised to refrain from such grandiose rhetoric, the

jury was instructed and understood that the decision as to the

appropriate penalty was in its hands and that the state had the

burden of proving that the death penalty was appropriate in this

case. The court cannot conclude that the prosecutor's rhetorical

2 The prosecutor stated in part as follows: "The ancients tell us

unflinchingly that they executed murderers. They realized that it is not

enough to proclaim the sacredness and the inviolability of human life. It

must be secured as well by threatening those with the loss of their own

lives. .... No society can profess that the lives of its members are secure if

those who do not allow innocent others to continue living are themselves

allowed to continue living at the expense of the community.’

103a

flourishes introduced any fundamental unfairness into the

penalty phase.

Lord argues that the prosecutor's comments about the

fact that the jurors were not the first ones asked to make such a

decision, that others had done it, and that their decision was

collective, not individual, erroneously coerced juror unanimity.

The prosecutor's comments were partly truisms which did not

insist on any particular result and partly a recognition of the

jurors’ responsibility to deliberate as a group. The jury

| instructions themselves told the jurors that they were to

deliberate with a view to reaching a unanimous decision, but

only if they could do so without violating their individual

consciences. The court finds no error.

Lord points to the prosecutor's argument that Lord's

family's love is not a mitigating circumstance. As did the court

in Jones v. Butler, 864 F.2d 348, 360 (Sth Cir. 1988) in

response to a similar argument, this court finds that the

prosecutor was simply arguing its insufficiency in this case.

Finally, Lord challenges the prosecutor's reference to

Lord being convicted of murder in the second degree.

Although this reference was not technically accurate, the court

104a

does not find any fundamental unfairness. Also, there is no

merit in Lord's contention that the prosecutor's passing

reference to burglary somehow intimated to the jury that he had

committed one. The jury was perfectly aware of the crimes

with which Lord was charged.”

6. Summary chart in penalty deliberations

Lord challenges the wee of the summary chart during

penalty phase jury deliberations. For the same reasons stated

concerning the use of the chart in guilt phase jury deliberations,

the court finds no reversible error.

i 2 Resubmission of evidence in penalty

phase excited passion and prejudice

Lord contends that allowing the jury to consult the

exhibits from the guilt phase in reaching a decision on the .

appropriate sentence was prejudicial in that it could serve no

purpose but to excite passion and prejudice. As long as the

exhibits were properly admitted at trial, the court finds no merit

in this argument.

24 Given the court's determination that the cross-examination

during the penalty phase raised only issues of state law which are not

cognizable in this federal proceeding, the court will not address the merits

of Lord's contention that the prosecutor erred in referring to that cross-

examination during closing argument.

105a

8. P — .

For each case in which the death penalty is imposed,

the Washington Supreme Court is required by statute to

determine ‘[w]hether the sentence is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” ,RCW

10.95.130 (2)(b). The statute sets forth the pool of cases,

which is comprised of reported appellate cases since 1965 in

which capital punishment was considered, whether or not it

was imposed or executed, and cases in which reports have been

filed with the Washington Supreme Court under the

Washington aggravated murder statute. Id.

Lord contends that he was denied due process during

the proportionality review done by the Washington Supreme

Court in his case. As authority for this proposition, he relies on

Harris by and through Ramseyer v. Blodgett, 853 F. Supp.

1239, 1286-1291 (W.D. Wash. 1994). Harris held that the

petitioner's procedural due process rights were violated because

Washington law does not provide any guidelines or procedures

for carrying out the required proportionality review, and that

106a

this error had a substantial and injurious effect on the result

reached by the Washington Supreme Court in his case.

As set forth in Furman v. Georgia, 408 U.S. 238, 248,

310 (1972), the purpose of doing a proportionality review is to

limit the jury's untrammeled discretion to impose the death

penalty so as to prevent wanton and freakish imposition of the

death penalty. The underlying concern was that the race of the

victim or defendant would be a factor causing the jury to

impose the death penalty in an aberrant manner. The purpose

of appellate review was to prevent arbitrary and capricious jury

decisions. |

In State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995),

the Washington Supreme Court revisited the standards

governing the statutory proportionality review in Washington.

The court in Brett pointed out that the requirement for the jury

to find aggravating factors and no mitigating circumstances in

order to impose the death penalty already channels and limits

jury discretion. Id. at 213. Appellate review only serves as an

additional opportunity to check for the disproportionate or

aberrant case. Id. at 212-13.

107a

There is no unique or distinguishing characteristic of

this defendant or of this crime which makes imposition of the

death penalty wanton or freakish. The fact that juries may

decline to impose the death penalty in some similar cases is not

enough to establish disproportionality.

Lord criticizes the fact that, as illustrated by the various

opinions in Brett, the members of the Washington Supreme

Court have not reached agreement on how to describe or

characterize the standards to be applied in carrying out the

proportionality review. This court finds that while not the most

desirable result, the differences of opinion set forth in Brett do

not rise to the level of a constitutional denial of due process

given the limited purpose of the review. Whether one looks to

“similar case” as stated in the statute or describes the procedure

as looking for “family resemblances,” the pool of cases used

for comparative purposes will be the pool that the legislature

has defined in the statute. The result of the analysis in Harris

would be to render the statute inoperative. If the legislature

chose not to reenact the statute, there would be no

proportionality review at all since none is required, and this

additional safeguard would not exist.

108a

Just as the Ninth Circuit concluded in Campbell v.

Blodgett, 982 F.2d 1321, 1330-31 (9th Cir. 1992), that the

Washington Supreme Court's review of Charles Campbeil's

death sentence for passion and prejudice did not violate his

constitutional right to due process, this court finds that the

Washington Supreme Court's proportionality review in Lord's

case was sufficient to fulfill its essential function of ensuring

the evenhanded, rational and consistent imposition of the death

sentence under the law.

9. Error in admitti ‘ction fi

In 1981, Lord entered a conditional plea of guilty to one

felony count of false imprisonment in California. Evidence of

this conviction was admitted during the penalty phase. Lord

argues that this was error because the conviction was

unconstitutionally obtained in that he was not advised of his

constitutional rights or the elements of the crime and the court

failed to determine whether there was a factual basis for the

plea.

Because the court reporter's notes of the guilty plea

proceeding have apparently not been preserved, it is impossible

to review a transcript. However, the minutes reflect that Lord

was advised of his rights and waived them. There is no reason

to believe that the presiding judge did not fully and completely

state his rights. The minutes also reflect that the district

attorney recited the facts underlying the charge to which Lord

pled, and that Lord made no comment. Based on the available

evidence, this court is satisfied that Lord's guilty plea was

constitutionally obtained and that there was no error in

admitting the conviction during the penalty phase based on the

invalidity of the conviction.

10. | Cross-examination of Lord after

allocution

During the penalty phase, Lord sought and was granted

an opportunity to address the jury personally in an unsworn

allocution. Before he began speaking, he was warned by the

trial court that he could allocute without being subject to cross-

examination if his remarks were restricted to a plea for mercy.

He was told that if he offered evidence or factual statements,

however, he could be cross-examined. During his allocution,

Lord protested his innocence of the murder of Tracy Parker and

of any attempt to encourage others to lie for him, denied

making any statements of guilt to Sonny Belgard and Rex

Harvey, discussed his prior criminal history, and accused

110a -

police officers and prosecutors of lying during trial. Because

the trial court deemed Lord's allocution to be testimony, the

prosecutor was allowed to cross-examine him about whether he

had asked witnesses to lie for him, whether he had committed

the crime charged and the details underlying his prior criminal

record.

Lord contends that he had a constitutional due process

right to address his sentencers directly in an unswom allocution

without cross-examination, and that he was denied this right

when the prosecutor was allowed to cross-examine him at the

close of his allocution. |

| The state concedes that the Ninth Circuit recognizes

allocution as a right guaranteed by the due process clause of

the United States Constitution. Boardman v. Estelle, 957 F.2d

1523, 1530 (9th Cir. 1992). The state contends, however, that

Boardman announced a new constitutional rule of criminal

procedure which is not applicable to Lord's case pursuant to

Teague v. Lane, 489 U.S. 288 (1989).

The state's argument has no merit. The nonretroactivity

rule announced in Teague only takes effect when a conviction

is final. The Boardman decision was issued on January 9,

llla

1992; Lord's conviction did not become final until October 5,

1992 when the United States Supreme Court denied Lord's

petition for writ of certiorari from denial of his direct appeal.

506 U.S. 856 (1992); Saffle v. Parks, 494 U.S. 484, 487, 489

(1990). Turning to the merits of Lord's argument, the state

does not present any authority in support of the trial court's

ruling that an allocution going beyond the bounds of a plea for

mercy thereby becomes testimony which is subject to cross-

examination, nor is there any indication in Boardman that the

right of unsworn allocution without cross-examination is so

restricted. On the contrary, the defendant in Boardman alleged

harmful error resulting from the trial court's refusal to let him |

speak because he had intended to rebut information offered by

the parents of his victims.

In Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir.

1993), the Ninth Circuit specif ically noted that “Washington

state law provides a right of allocution to the defendant to

make a statement during the closing arguments which is not

subject to dirert or cross-examination.” (emphasis supplied)

In Jeffries, a capital case, defendant exercised his right of

allocution by telling the jury that he was innocent and refusing

112a

to beg for mercy for crimes he did not commit. During closing

argument, the prosecutor pointedly reminded the jury that

defendant's statement was unsworm and not subject to cross-

examination. The Ninth Circuit held that the prosecutor's

argument was an appropriate rebuttal to defendant's contention

that he was telling the truth and not an improper comment on

defendant's failure to take the stand.

Similarly, other courts addressing the scope of a

defendant's right to allocution have upheld the principle that a

defendant has a right to allocute without being subject to

cross-examination, while noting that the prosecutor may then

call the jury's attention to the unsworn, unchallenged nature of

defendant's statements. See, ¢.2., McNelton v. State of

Nevada, 111 Nev. 900, 900 P.2d 934, 936 (1995 ); Colvin-El v.

State of Maryland, 332 Md. 144, 173, 630 A.2d 725, 739

(1993), cert. denied,, U.S. 11 114 S.Ct. 2725 (1994); and Jones

v. State of Mississippi, 381 So.2d 983, 993-94 (Miss.), cert.

denied, 449 U.S. 1003 (1980). |

In keeping with the above-cited authorities, the court

concludes that allowing Lord to be cross-examined as to

statements he made during his allocution was error. However,

113a

Boardman cautions that infringing on a defendant's right of

allocution is subject to harmless error analysis. 957 F.2d at

1530. In this case, the error cannot be deemed harmless. The

information which the prosecutor brought out or emphasized

about the topics discussed in Lord's allocution was devastating

to his case, including cross-examination about the polygraph

examination which Lord admitted he failed and about the

factual basis for his prior criminal convictions in California.

#H, Ineffective assistance of counsel during

penalty phase

Lord contends that trial counsel rendered ineffective

assistance of counsel during the penalty phase. The court will

examine Lord's claims in light of the Strickland standard set

forth above in connection with Lord's claim concerning trial

counsel's performance during the guilt phase.

First, Lord argues that trial counsel failed to conduct

proper research and investigation into the nature of his prior

juvenile adjudication and the validity of his false imprisonment

conviction. Since the court found no error in the admission of

Lord's prior record during the penalty phase, his claim hes no

merit.

1l4a

Second, Lord alleges that trial counsel failed to

investigate and present available mitigation evidence and

improperly delegated responsibility to an assistant. Contrary to

Lord's allegation, trial counsel did conduct a wide-ranging

investigation of Lord's background and interviewed numerous

family members and friends. It is not necessary for counsel to

exhaust every conceivable source of information in order to

conduct an adequate investigation. As for delegating

responsibility to an assistant, this decision fell within the

normal range of trial preparation strategy for busy defense

counsel in a complicated case.

Lord's trial counsel did present numerous witnesses on

his behalf during the penalty phase. The court is not convinced

that putting other family members and friends on the stand

would have been anything but duplicative of evidence which

was presented. To the extent that Lord's mother did not testify

during the penalty phase, she herself made that decision after

having been asked to appear. Lord himself told his trial

counsel that he did not want his mother to testify or to put on

other evidence about his family.

’ 115a

The court concludes that trial counsel provided

| effective assistance of counsel during the penalty phase.

| 12. Removal of defense counsel from case

During closing argument in the guilt phase of the trial, a

conflict developed between Lord and defense counsel Ron

Ness which resulted in Ness' absence from the courtroom

during the prosecutor's rebuttal.”> Three days later, Mandel

indicated that Lord had asked that Ness not proceed as his

counsel, but she also said that she thought Lord was not

competent. When the court inquired directly of Lord about

Mandel's statement, Lord indicated that he wanted Ness to

withdraw from the case or to remain handcuffed in Ness' 3

presence, that he did not want Mandel to withdraw, and that he

believed himself competent to assist counsel in his defense.

The next day, the trial court inquired again in a closed

hearing about Lord's wishes. He indicated that he wanted

Mandel to proceed with representation, but that he did not want

Ness to speak to him or to the jury. Because the judge asked a

compound question, it is unclear whether Lord indicated a

5 Lord expressly agreed on the record to Ness’ absence; co-defense

counsel Judith Mandel was present in the courtroom throughout the

proceedings.

116a

desire for Ness’ withdrawal from the case. However, a short

time later in open court, the judge once again asked Lord

whether he was moving to have Ness removed as his attorney.

Lord responded that he was not. In response to another

question from the judge, he answered that he did not wish to

represent himself.

An examination of the record thus clarifies that Lord

never made an unequivocal motion for Ness’ withdrawal from

the case. Given Lord's responses to the judge's direct inquiries

of him, the judge did not commit error in refusing to allow

Ness to withdraw. Nor is there any basis for Lord's contention

that the trial judge failed to conduct a proper inquiry. The

record reveals that the judge made every effort to ascertain

Lord's intention with regard to Ness.

13. Competency hearing

During the same hearing discussed above, Mandel

moved for a competency hearing on the grounds that Lord was

exhibiting signs of incompetence including telling a guard that

the devil asked him to drink a pint of his own blood in order to

prove his innocence; that Lord had told the court he wanted

Ness to withdraw or, alternatively, that he, Lord, be shackled in

117a

the courtroom; and that Lord did not want mitigation evidence

presented. The court initially granted the defense request for

an examination of defendant, but decided not to proceed when

defense counsel failed to locate an expert who could attend.

Ultimately, the trial judge found that there was no need for a

competency hearing because, based on her observations of

Lord doin ten weeks of trial, she saw no indication that he

was incompetent to stand trial. However, she did state that

“Mr. Lord, although competent to stand trial and to participate

in the sentencing phase, is not competent to make trial strategy

decisions and/or determine what should or should not be

presented to the jury.”

Lord challenges this ruling on the grounds that the trial

court erred by applying two different standards to the issues of

competency to stand trial and waiver of counsel. Lord is

correct that the same standard is applicable to both issues.

Godinez v. Moran, 509 U.S. 389, 397-98 (1993). However,

Lord is not correct in contending that these were the issues

facing the court. Instead, the court was dealing with a situation

in which Lord expressly disavowed a desire to waive counsel

and represent himself, but at the same time refused to allow his

118a

counsel to present a case for mitigation on his behalf. Defense

counsel were thus bound to represent Lord, but barred from

exercising their best legal judgment about what his defense

required.”°

Under these circumstances, this court concludes that the

trial judge's decision was eminently reasonable. Although she

found no justification for finding Lord incompetent to stand

trial based on ample opportunity to observe Lord's behavior in

the courtroom and his interaction with defense counsel, she

also declined to allow him to dictate trial strategy which his

own counsel deemed ruinous to his cause and which amounted

to a refusal to contest the prosecutor's penalty phase evidence.

14. Ineffective assistance of counsel on

direct appeal

The court finds no basis for Lord's contention that he

was denied effective assistance of counsel on direct appeal as a

result of claims not raised on direct appeal or on the basis of

unrecorded portions of the trial.

26 Even assuming that Lord expressed a desire to fire Ness as his

defense counsel, he never asked to have Mandel removed from the case.

This distinguishes Lord's situation from that in United States v. Arit, 41

F.3d 516 (9th Cir. 1994), where defendant did seek to represent himself.

15. Hangi cruel and un

Lord argues that execution by hanging would violate

the Eighth Amendment prohibition against cruel and unusual

punishment. Lord acknowledges Campbell v. Wood, 18 F.3d

662 (9th Cir. 1994) cert. denied, 471 U.S. 1094 (1995), in

which the Ninth Circuit ruled that judicial hanging as

conducted in Washington does not wantonly and unnecessarily

inflict pain, and accordingly does not violate the Eighth

Amendment. Lord contends, however, that the protocol used

to conduct hanging is too unreliable to pass muster under the

Eighth Amendment.

In support of this contention, Lord invokes the

testimony of Dr. Donald T. Reay, medical examiner for King

County, in Rupe v. Wood, C91-1635Z (W.D. Wash.)

concerning the state execution by hanging of Charles

Campbell. Although Lord concedes that Dr. Reay found no

evidence that Campbell was near decapitation, Lord

nevertheless insists that Dr. Reay's testimony about the severe

injuries suffered by Campbell supports the conclusion that the

hanging procedure is too unreliable to survive Eighth

Amendment scrutiny.

120a

The court finds no support in the record for Lord's

argument. Moreover, even if judicial hanging contains risks of

accident, the Ninth Circuit has already concluded in Campbell,

that

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