Prologue — Thomas v. Tennessee (No. 05-872)

Supreme ‘Court U.S.

Q 5-872 JANy - 2006

No.

: OFFICE OF THE CLERK

4

In The

Supreme Court of the United States

October Term, Year 2005 ci

nl

HOWARD WALTER THOMAS

Petitioner,

¥.

STATE OF TENNESSEE

Respondent.

>

On Petition for Writ of Certiorari to the Tennessee

Court of Criminal Appeals, Eastern Division at

Knoxville

+

Petition for Writ of Certiorari

+

W. THOMAS DILLARD*

STEPHEN ROSS JOHNSON

RITCHIE, DILLARD, & DAVIES, P.C.

606 W. Main St., Suite 300

P.O. Box 1126

Knoxville, TN 37901-1126

(865) 637-0661

Counsel for Petitioner

*Counsel of record

i

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER STATE ACTION IS REQUIRED FOR AN

IDENTIFICATION PROCEDURE TO VIOLATE DUE PROCESS

UNDER NEIL V. BIGGERS, 409 U.S. 188 (1972)

Il. WHETHER A PER SE RULE EXCLUDING EXPERT

TESTIMONY ON THE RELIABILITY OF EYEWITNESS

TESTIMONY VIOLATES THE DUE PROCESS AND

COMPULSORY PROCESS RIGHTS TO PRESENT A DEFENSE

AND CALL FAVORABLE WITNESSES RECOGNIZED IN

CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (1973)

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............... i

pe ge a ee pea o reer a il

CITATIONS OF THE OPINIONS AND ORDERS ........ ii

ENTERED BELOW

py ot Pgs Pigs. fot). rrr er arr iv

STATEMENT OF JURISDICTION... 50 ccc ccevecccevens |

CONSTITUTIONAL PROVISIONS .................006- l

STA TRMGGIES OF TUS SU 5 a Sh ko cucesceesaennes |

REASONS FOR GRANTING THE WRIT ................ 7

I. WHETHER STATE ACTION

1S REQUIRED FOR AN

IDENTIFICATION PROCEDURE

TO VIOLATE DUE PROCESS

UNDER NEIL V. BIGGERS, 409 U:S.

SOC AEE Sut bckbe ue sek Sie oh ete Re ae

If. WHETHER A PER SE RULE

EXCLUDING EXPERT TESTIMONY

ON THE RELIABILITY OF

EYEWITNESS TESTIMONY

VIOLATES THE DUE PROCESS

COMPULSORY PROCESS RIGHTS

TO PRESENT A DEFENSE AND CALL

FAVORABLE WITNESSES

RECOGNIZED IN CHAMBERS VY.

MISSISSIPPI, 410 U.S. 284 (1973) ......... 9

COIR. dan ckbavivereivwiecuscaduwbarintess 13

PRI 5 ATV ERR EFA PER TEOERREO App. |

CITATIONS OF THE OPINIONS AND ORDERS

ENTERED BELOW

(1) ORDER, June 25, 2002, State v. Thomas, Criminal Court

for Knox County, Tennessee, Div. 1 (unpublished, reproduced at

App. 2)

(2) ORDER GRANTING DEFENDANT’S REQUEST FOR

T.R.A.P. 9 INTERLOCUTORY APPEAL, July 10, 2002, State v.

Thomas, Criminal Court for Knox County, Tennessee, Div. }

(unpublished, reproduced at App. 7)

(3) ORDER EXCLUDING TESTIMONY OF EYEWITNESS

IDENTIFICATION EXPERT, November 22, 2002, State v.

Thomas, Criminal Court for Knox County, Tennessee, Div. |

(unpublished, reproduced at App. 9)

(4) State v. Thomas, No. E2003-02090-CCA-R3-CD, 2005

WL 735040 (Tenn. Crim. App., Mar. 30, 2005) (unpublished,

reproduced at App. 11)

(5) JUDGMENT, State v. Thomas, No. E2003-02090-CCA

-R3-CD (Tenn. Crim. App., Mar. 30, 2005) (unpublished,

reproduced at App. 87)

(6) ORDER denying discretionary review, State of Tennessee

v. Thomas, No. E2003-02090-SC-R11-CD (Tenn., Oct. 10, 2005)

(unpublished, reproduced at App. 88)

iV

TABLE OF AUTHORITIES

Cases:

Chambers v. Mississippi, 410 U.S. 284 (1973) ........... 5,9

We CI 399 U.Bi29, 219 FRED 6 ke ae eae 10

Manson v. Brathwaite, 432 U.S. 98, 114 (1977) ............ 7

Neil v. Biggers, 409 U.S. 188 (1972) ................. 5,7,8

Rock v. Arkansas, 483 U.S. 44 (1987) ..............4.. 9,10

_ Simmons v. United States, 390 U.S. 377, 384 (1968) ........ 8

State v. Coley, 32 §.W.3d 831 (Tenn. 2000) ........... 5,6,10

State v. Reid, 91 S.W.2d 247, 271 (Tenn. 2002) ............ a

Thigpen v. Corey, 804 F.2d 893, 895 (6ti Cir. 1986) ........ 7

United States v. Wade, 388 U.S. 218, 228 (1967) .......... 12

Washington v. Texas, 388 U.S. 14, 17-19 (1967) ........ 9,10

Webb v. Texas, 409 U.S. 95 (1972) ....... : eke uae 10

Constitutional and Statutory Provisions:

US: SOON: FR: VE ins Sic CE ee Sa iP t an 1,9,10

U.S. Const. Amend. XIV, Section] ..........:see0e0: 1,10

Other Authorities:

Annotation, “Admissibility, at criminal prosecution, of

expert testimony on reliability of eyewitness

testimony”, 46 A.L.R. 4th 1047 (2005) ............ 9

Annotation, “Admissibility of In-Court Identification

as Affected by Pretrial Encounter That

Was Not Result of Action by Police,

Prosecutors, and the Like”,

86 A.L.R. Sth 463 (2001) .......... (bere keaton 7

Annotation, “Challenge to Eyewitness Identification

Through Expert Testimony”, 35 Am. Jur.

PUOOE OE FOUN 30 EEZOCO) ci vccv ee ccewovcsecs 9,12

Kolar, Barry, Truth From Testing, Tenn. B.J.,

vol.38, no.8, pg. 12 ef seg. (Aug. 2002) ........... 12

Nat’] Institute of Justice, Convicted by Juries, Exonerated

by Science: Case Studies in the Use of

DNA Evidence to Establish Innocence

After Trial, National Institute of Justice,

Dept. of Justice Pub. No. NCJ 161258, 24

CPE oleae chs Sek Reed Reb owas sebes

l

PETITION FOR WRIT OF CERTIORARI

Petitioner, Howard Walter Thomas, respectfully prays that

a writ of certiorari issue to review the Opinion and Judgment of the

Tennessee Court of Criminal Appeals, Eastern Division at

Knoxville.

+

STATEMENT OF JURISDICTION

The Tennessee Court of Criminal Appeals entered an

Opinion and judgment affirming the petitioner’s convictions on

March 30, 2005. [App. 11, 87]. Petitioner timely sought

discretionary review from the Tennessee Supreme Court, but such

review was denied on October 10, 2005. [App. 88).

Petitioner seeks certiorari review of a judgment of a lower

state court, the Tennessee Court of Criminal Appeals, which was

subject to discretionary review by a state court of last resort, the

Tennessee Supreme Court. The jurisdiction of this Court is

pursuant to 28 U.S.C. § 1257(a).

--— ¢

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI [App. 89]

U.S. Const. Amend. XTV, Section | [App. 89]

4

STATEMENT OF THE CASE

This case is a murder case in which the death penalty was

initially sought. However, while the petitioner was convicted at

trial, he did not receive a death sentence.

Mr. John and Mrs. Y vonne Cook were traveling from their

home in Wisconsin to Raleigh, North Carolina on the night of

2

March 23, 1991. -» approaching Knoxville, Mrs. Cook’s

husband exited the in ate and stopped on the side of the road to

look at a map. Soon thereafter, shots were fired into the driver’s

side of the vehicle and Mr. Cook slumped to the passenger side of

the vehicle. The assailant then entered the vehicle and drove away

with both Mr. and Mrs. Cook. |

The assailant stopped the vehicle on a deserted roadside

and ordered Mr. and Mrs. Cook out of the car. By this time, Mr.

Cook was deceased from the wounds he had suffered. When

another vehicle approached, the assailant fled in the Cooks’ vehicle

and left Mrs. Cook and her husband on the roadside. Later that

day, Mrs. Cook gave the Knoxville Police a description of her

assailant, yet no arrest was ever made.

Upon her return to Wisconsin, Mrs. Cook underwent

hypnosis in an effort to refine the image of the assailant so that she

might be better able to assist authorities in apprehending the

assailant. In August of 1991, Mrs. Cook underwent hypnosis with

the assistance of Dale Sternberg, a clinical social worker in

Wisconsin. In October of 1991, Mrs. Cook gave a description of

the assailant to a Wisconsin police sketch artist who prepared a

composite sketch of the assailant.

In May of 2000, Mr. Thomas was arrested and arraigned,

and charged with first degree murder and other offenses related to

the incident involving Mr. and Mrs. Cook. The prosecution

ultimately filed a notice of intent to seek the death penalty.

The Knoxville News-Sentine] published a story on the

arrest, along with a picture of Mr. Cook and a current picture of the

petitioner. This article, and the accompanying picture of Mr.

Thomas, was mailed to Ms. Cook by friends in Knoxville. Upon

seeing the photograph, Ms. Cook was of the belief that the

petitioner was the assailant. This photograph was in a newspaper

article that explicitly stated that Mr. Thomas had been arrested for

3

the murder of Ms. Cook’s husband, and it was viewed by Ms. Cook

some nine years after the events of March 21, 1991 in Knoxville

and subsequent to her undergoing hypnosis, which inflated her

confidence in her ability to make a positive identification of a

suspect.

The petitioner filed a motion to suppress any

identifications made by Mrs. Cook either before or at trial on the

basis of the hypnosis and the viewing of the single photograph

from the newspaper article. At the hearing on the motion, Yvonne

Cook expressed the belief that she thought Mr. Thomas was the

perpetrator. The trial court denied the suppression motion, finding

that there was no state action involved in either the one photograph

show-up from the newspaper or the hypnosis sessions.

As a result of the rulings of the trial court that allowed the

identification by Yvonne Cook to be admissible, the defense was

faced with Mrs. Cook’s impending trial identification of Mr.

Thomas, an identification made over twelve years after the events

in question, influenced by hypnosis as well as a show-up from a

single newspaper photograph. In order to counter the impact of

this testimony, defense counsel consulted with Dr. Elizabeth

Loftus, a nationally known expert on the issue of eyewitness

identification, and the circumstances which would make such

identification subject to mistake.

After reviewing all of the material related to Mrs. Cook’s

opportunity to initially make an identification, together with the

circumstances surrounding her hypnosis and her receipt of the

newspaper article and photograph, Dr. Loftus was prepared to

testify that any identification of Mr. Thomas by Mrs. Cook was

suspect. On November 12, 2002, defense counsel filed Dr. Loftus’

report with the trial court, which détailed a number of problems

relating to Mrs. Cook’s identification, with the conclusion that,

4

among other reasons, the viewing of a single photograph by Mrs.

Cook undermined her identification.

Specifically, Dr. Loftus’ stated that there were “factors

present in the current case that are known to create problems for

accurate eyewitness testimony,” and she would be prepared to

testify about the “workings of human memory,” the effects of

factors such as suggestions on memory, and the creation and

characteristics of false memories. [App. 56]. She would identify

and explain “factors that are important in the current case,” such as

the nine-year passage of time between the crimes and the

identification, resulting in Mrs. Cook’s memory fading and her

becoming “more vulnerable to suggestive influences,” and the

“highly suggestive” procedure of her “viewing a single photo [of

the defendant] in a news article,” which would increase her

confidence in the identification of the defendant. [App. 57]. Dr.

Loftus described this as “[t]he phenomenon of ‘photo-biased

identification’ [which] has been described in the psychological

literature.” Jd. She said that “[a]nother very important factor is

what is called the confidence factor,” meaning that “even if Mrs.

Cook is expressing confidence in her current account, this does not

mean she is accurate. Her confidence level could be influenced by

many factors, e.g., viewing prior photos, or being hypnotized.” Jd.

Dr. Loftus concluded her opinion, saying, “Many of the factors that

I would discuss are not clearly understood by jurors, and some are

even in conflict with misconceptions that jurors have about the

workings of memory, which is precisely why this sort of testimony

can be helpful to jurors.” Jd.

A hearing was held on November 13, 2002, to determine

if the testimony of Dr. Loftus should be admitted. After the

hearing, the court ruled Dr. Loftus’ testimony inadmissible under

a Tennessee Supreme Court decision, State v. Coley, 32 S.W.3d

5

ree

831 (Tenn. 2000), which held that expert testimony concerning the

reliability of eyewitness testimony is per se inadmissible.

Mr. Thomas’ case proceeded to trial with the prosecution

being able to present hypnotically influenced testimony from an

eyewitness who had been subjected to a one photograph show-up,

while at the same time Mr. Thomas was precluded from presenting

in his defense testimony from an expert to explain the fallibility of

that eyewitness testimony. Mr. Thomas was convicted at trial, but

did not receive the death penalty.

The first question presented concerns whether state action

is required for an identification procedure to violate due process

under Neil v. Biggers, 409 U.S. 188 (1972). The petitioner raised

this federal question with the trial court through a pre-trial motion

to suppress. The trial court entered an order denying suppression,

and the petitioner filed a motion for interlocutory review of the

denial of suppression, which was granted by the trial court yet

denied by the Tennessee Court of Criminal Appeals. The

petitioner raised this issue again with the Tennessee Court of

Criminal Appeals on direct appellate review after conviction.

[App. 2, 7-8, 48-49]. Discretionary review was denied by the

Tennessee Supreme Court. [App. 88]. Accordingly, this federal

question was timely and properly raised, and this Court has

jurisdiction to review the judgment on a writ of certiorari.

: The second question presented is whether a per se rule

excluding expert testimony on the reliability of eyewitness

testimony violates the due proccss and compulsory process rights

to present a defense and call favorable witnesses recognized in

Chambers v. Mississippi, 410 U.S. 284 (1973). The petitioner

raised this federal question with the trial court in response to the

State of Tennessee’s motion for a pretrial hearing on the

admissibility of trial testimony from the defendant’s expert on

eyewitness identification testimony. The trial court held an

6

evidentiary hearing concerning the expert testimony, and

subsequently entered an order precluding the defendant’s expert

from testifying at trial. [App. 9]. The petitioner raised this issue

again with the Tennessee Court of Criminal Appeals on direct

appellate review after conviction. [App. 63]. Discretionary review

was denied by the Tennessee Supreme Court. [App. 88].

Accordingly, this federal question was timely and properly raised,

and this Court has jurisdiction to review the judgment on a writ of

certiorari.