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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0697%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2005

## Text

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for Knox County, Tennessee, Div. 1 (unpublished, reproduced at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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0697%3A0. Public record. Not legal advice.