# Appendix — Lambert v. Lord

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0644%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1198

## Text

_Bupres.
(Z) Fe
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

70a

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

75a

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

76a

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

82a

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 an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0644%3A2. Public record. Not legal advice.