Petition for Writ of Certiorari — Housler v. Tennessee (No. 06-259)

‘rn. Supreme Court, U.S.

“ > AA FLED

No-_6 6 -25.9 AUG 17 2006

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DAVID G. HOUSLER, JR.,

Petitioner,

Vz.

STATE OF TENNESSEE,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Tennessee

PETITION FOR A WRIT OF CERTIORARI

MICHAEL E. TERRY *

Attorney for Petitioner

TERRY & GORE

1200 16th Avenue South

Nashville, Tennessee 37212

* Counsel of Record (615) 321-2750

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001 ye

— eS

QUESTIONS PRESENTED

1. May the State of Tennessee introduce as evidence a

Defendant’s statement knowing that material components of

the statement are false without redacting or correcting the

false portions?

2. Whether due process guarantees are violated when the

State of Tennessee prosecutes two individuals for the same

crime at separate trials using inconsistent theories that are

mutually exclusive?

(i)

one Ere he AOE iee 7 aw kn Be vemmme, re) mot ot

li

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

TABLE OF CONTENTS

} Page

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CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THE CASE. ....0ccccccccosccvesseosecesecceosene 2

I ascarid chics tdi talpundinicer daenialacadaernibe 2

Baten Ped GNC Rc RIOT Gs POO Oe TET 4

How Housler Got Involved...............cc:cccccesseceeeeeerees 7

A I MI eecheikecesdeeceeducsentadeniecnnesnvsoeapioctinns 10

NE ID Ntecsictasteehicitapisisib dacbsdatieiniceicintichedimenabvantglicanins 12

Supreme Court Of Temessee .....:sccccccccsssssecssosesessrece 14

REASONS FOR GRANTING WRIT ....000000 ccc cece 15

The Decision of the Supreme Court of Tennessee

Directly Conflicts with Decisions by this Court

and the Courts of Appeal on an Important Federal

ES ORES IE SERENE ELLY ECR EEE OT 15

The Decision of the Supreme Court of Tennessee

Has Created a Mooney Exception Which Allows

the Knowing Use of False Evidence.................... 15

Inconsistent Prosecutions for the Same Crime

Present Issues of Due Process Which Are

Important Federal Questions Which this Court

PMI ss fe hiiata tins sissisceehsreidiesicnrcabiientdiztentbatslodsiadee 23

iv

TABLE OF CONTENTS—Continued

Those Important Questions Include:

1. Are due process guarantees implicated by

inconsistent prosecutions of different individuals

SF IIE GI sisieccsciassatstsorisrecizersstcsdansodsincabins

2. If so, what measure of inconsistency is

required to support a due process claim?.................

3. Are the Mooney prohibitions against the

knowing use of false evidence and the standards

for prosecutorial conduct sufficient to quarantee

fundamental fairness in separate prosecutions?.......

a GIT siciscrsniciipusicps sodsouasensdbaeiapaiellananiedeladainiins

APPENDIX A——Opinion, Supreme Court of Tennes-

see, State v. Housler (May 19, 2006) ................. eee

APPENDIX B—Excerpts, State v. Mathews....0.......00++:

APPENDIX C—Excerpts, Cooper Testimony, Exhibit

in Support of Hous/er Pre-Trial Motion....................

APPENDIX D—Excerpts, Agent Puckett Testimony,

Housler Pre-Trial Hearings, 04/21/97 .0....ceecececeeees

APPENDIX E—Excerpts, ADA Bush Testimony,

Housler Pre-Trial Hearings, 04/22/97 000... eseseeeees

APPENDIX F—Excerpts, DA Carney . Testimony,

Housler Pre-Trial Hearings, 04/22/97 .........eeeeeeeeee

APPENDIX G—Excerpts, DA Carney, Housler Trial

FOO, FIG voccvsesierseiedanvinodssrnnanninniee

APPENDIX H—Excerpts, DA Camey, Hous/ler Trial

TORII, FATESIET ices

APPENDIX I—Housler Statement, Excerpts Puckett

Housler Trial Testimony, 11/15/97 00.0.0... eeeeeeeeeeeeese

Page

23

23

Vv

TABLE OF CONTENTS—Continued

APPENDIX J—Chart Regarding Housler Statement....

APPENDIX K—Excerpts, ADA Garrett, Housler

IU NEE, FEF E FEE csinccanicisinacisneivincvsanreneianeeins

APPENDIX L—Trial Court Findings, Hous/ler, Post-

p Bs RR ce eh se nS: MP SEROT Om

APPENDIX M—Trial Court Findings, Hous/er, Post-

IIT scissncuccoctstnesnienscs bichiuancbtnisieicediannnias

APPENDIX N—Witnesses, Housler and Mathews......

APPENDIX O-—Opinion, TN Court of Criminal Ap-

peals, State v. Housler, (02/27/2004) ..........:cccccseeeeeee

APPENDIX P—Trial Court Findings, Housler, Pre-

SR RETO OET cacccicvictentbacsesecinnssindindnsinicibanincebebieis

Page

14la

146a

185Sa

192a

210a

214a

vi

TABLE OF AUTHORITIES

CASES. Page

Alcorta v. Texas,

355 U.S. 28, 78 S.Ct. 103 (1957) ........ hasiadbasteniicaah co

Arizona v. Fulminante,

499 U.S. 279, 111 S.Ct. 1246 (1991) ..... 21

Banks v. Dretke,

FE ee ee sitcviisiccnccagtinaciasasiaditediosia 20

Berger v. United States,

LIP UB. TO, SS S.CU G29 (IGS) vvcccccvsseccensersevs 25

~ Bradshaw v. Stumpf,

125 S. Ct. 2398, 162 L. Ed. 2d 143 (2005)....25, 26, 27

Bruton v. United States,

391 U.S. 123, 88 S.Ct. 1620 (1968) .................. 21

Drake v. Kemp,

162 F.2d 1449 (11th Cir. 1985)..........cccccscoscoseores 26 ‘

Giglio v. United States,

408 U.S. 150, 92 S.Ct. 763 (1972) ...... 17

Green v. Georgia,

ee gi) TNE OSD IS CO RI A 27

Hayes v. Brown, :

399 F.3d 972,988 (9th Cir. 2005)..............00 17, 28

Jacobs v. Scott, ;

Fee rca. SN LINED dca cacacosakcdccensanasamoosemsintiras 25

Lassiter v. Department of Soc. Servs.,

452 US. 36, 161 SAA, JIS IGS) ccccccccscscvenss 25

Miller v. Pate,

2 eR S| 7s een cenr ene. Ciecrrnan! 27

Mooney v. Holohan,

yo BS hf || 14, 16, 17, 18, 26

Nichols v. Scott,

ae Bae EI ER iaideceorrcqicoreceemeceeses 26

Napue v. Illinois,

360 US. 264, 79 SAA. F173 (1959) -c-recccvesnsesses 16, 18

Pyle v. Kansas,

FEF AE: AOE CED vicctekciccpnaiaricawkcammirvpnioniiides 16

Vil

TABLE OF AUTHORITIES—Continued

Smith ». wroose,

205 F.3d 1045 (8th Cir.2000) 0... ceeeeeeees

Stirone v. United States,

361 U.S. 212, 80 S.Ct. 270 (1960) ................000

Stumpf v. Mitchell,

367 F.3d 594 (6th Cir. 2004) .............-csssccseesenes

Thompson v. Calderon,

120 F.3d 1045 (9th Cir. 1997) .........ccccesscsosesoees

Turner v. Louisiana,

379 US. 466, 85 S.Ct. 546 (1965)... eee

United States v. Agurs,

BF EB. Fe, FR EG ian csccscaseescnssscessnpvacaniaotdioe

United States v. Bagley,

TF UE OOF LEE) cbt icsibesinivaiiclainbigiat

OTHER

Barry Tarlow,

RICO Report: More Prosecutorial Double-

Speak, 27 Champion 52, 61 (2004) 0.00.0...

Steven F. Shatz & Lazuli M. Whitt,

The California Death Penalty: Prosecutors’

Use of Inconsistent Theories Plays Fast and

Loose with the Courts and the Defendants, 36

Rr Bites Wore (RMI D ecntdccicncsanseventinentastotente

~ Anne Bowen Poulin,

Prosecutorial Inconsistency, Estoppel, and Due

Process: Making the Prosecution Get Its Story

Straight, 89 Cal. L. Rev. 1423 (2001)...............

Michael Q. English,

Note: A Prosecutor’s Use of Inconsistent

Factua! Theories of a Crime in Successive

Trials: Zealous Advocacy or a Due Process

Violation? 68 Fordham L. Rev. 525 (1999)......

25

25

25

25

IN THE

Supreme Court of the Anited States

No.

DAVID G. HOUSLER, JR.,

Petitioner,

Vv.

~—.

STATE OF TENNESSEE,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Tennessee

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

The opinion of the highest state court to review the merits,

The Supreme Court of Tennessee, appears as State v. Hous-

ler, Case No. M2002-00419-SC-R11-CD (May 19, 2006), is

unpublished, and is attached to this petition as Appendix A.

The opinion of Court of Criminal Appeals of Tennessee

appears as State v. Housler, No. M2003 -00419-CCA-R3-CD

(Tenn. Crim 02/27/2004), is unpublished, and is attached to

this petition as Appendix O.

Certain findings of fact and conclusions by the trial judge

are included in the Appendix. These findings were made in

this case at the trial level and in the related case of State v.

2

Mathews, Montgomery County, Tennessee Circuit Court,

Case No. 33791. These findings are attached to this petition

as Appendices B, L, and M.

STATEMENT OF JURISDICTION

The Supreme Court of Tennessee issued an opinion deny-

ing relief on May 19, 2006. No petition for rehearing was

filed. Petitioner invokes this Court’s jurisdiction pursuant to

28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONSTITUTION:

Fourteenth Amendment Rights Guaranteed Privi-

leges and Immunities of Citizenship, Due Process and

Equal Protection - Section. 1.

All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Unless otherwise noted, the statutes and rules cited in this

brief are the versions that were in effect at the time of

Petitioner’s offense.

STATEMENT OF THE CASE

Introduction

This case involves two prosecutions for one crime. In

January, 1994 four employees were killed after closing at the

Taco Bell restaurant in Clarksville, Tennessee. In 1996 a jury”

convicted Courtney Mathews for the murders of the four

—

3

employees. In 1997 a different jury found David Housler

guilty of the four murders. Circuit Judge John Gasaway

presided over both trials. This Petition raises two due process

issues, inextricably related. e

First, Petitioner contends his due process guarantees were

violated when the State of Tennessee used false evidence

before the grand jury and the trial jury. The false evidence

was Petitioner’s statement which was known to be materially

false. There is no issue of fact as to whether the statement

was materiaHy false or whether the falsity was known. Pre-

trial prosecutors and state investigators admitted that material

components of the Housler statement were false.' The trial

court recognized before trial that material components of

the statement were false.? The Supreme Court of Tennessee

found that Housler’s confession contained “many known fac-

tual falsehoods.”* Yet the confession was admitted, unre-

dacted and uncorrected, and was the primary piece of evi-

' dence against Housler. Second, Petitioner contends that his

due process guarantees were violated by irreconcilably in-

consistent prosecutions that were mutually exclusive. There is

no issue of fact as to whether the prosecutions were incon-

sistent. After the Housler trial the trial judge -.pecifically

found that the prosecutions were mutually exclusive.’ This

finding is logically consistent with the admitted falsity of the

statement. Because the Housler statement was maierially false

it naturally contradicted the truthful competent evidence

admitted against Mathews, and thus, resulted in irreconcilable

prosecutions which the trial judge specifically found to be

mutually exclusive.

' Pet. App. D 44a-67a; Pet. App. E 76a; Pet Apo. F 91a-93a,102a-

108a,114a,118a,123a12Sa.

*Pet. App. P.

* Pet. App. A 12a,19a.

* Pet. App. L185a-191a; Pet App. M 204a-208a.

4

The Crime

Early Sunday, January 30, 1994, Courtney Mathews

robbed the Taco Bell restaurant in Clarksville, Tennessee

after closing and killed four co-workers with a 9 mm gun.

A safe in the business office of the restaurant had been

blown open by a shotgun blast and $2967.68 was missing.

Pet. App. A 2a.

The crime garnered local outrage and natioral media

attention, and within days Mathews, a newly-hired part-time

employee of the restaurant, was arrested and charged with the

murders and robbery. Mathews was a soldier stationed at

nearby Fort Campbell, Kentucky. Pet. App. A 2a.

Work records showed that on Saturday, January 29, 1994,

Mathews clocked in to work at Taco Bell at 2:10 p.m.,

clocked out for a break at 7:39 p.m., clocked back in at 8:12

p.m., and ended his shift at 9:11 p.m. Pet. App. A 2a.

Mathews resided on Ryder Avenue in Clarksville, four to

five miles from the Taco Bell. According to Carl Ward,

Mathews’ roommate at the time, Mathews arrived home from

work at 9:30 p.m. on the night of the murders and went into

his room where he placed a shotgun, a 9 mm handgun, either

a .22 or.25 caliber handgun, and shells and ammunition in a

book bag. Mathews also grabbed a bowling-ball bag, black

gloves, white latex gloves, spent some time talking to his

father in New York, and then left the apartment alone. Ward

testified that when Mathews left the house, he was wearing

two layers of clothes, and a black three-quarter length cvat.

Before he left, Mathews told Ward, who had been examining

the guns, to wipe his prints from them. Pet. App. A 2a; Pet.

App. C 35a-43a.

A Taco Bell employee, Jelaine Walker, saw Mathews in-

side the restaurant later’. Walker observed Mathews crouch-

> Walker left soon thereafter, and did not stay to close the restaurant,

probably saving her life.

5

ing behind a trash can in the dining area. Mathews said to

Walker, “I am gone, you don’t see me.” Company policy

prohibited entry of anyone into the restaurant once the dining

area was closed at midnight. The drive-through lane generally

remained open until 1:00 or 1:30 a.m. Pet. App. A 2a-3a.

Investigation of the crime scene revealed a disrupted

ceiling tile in the men’s bathroom that appeared to have been

moved to create an opening « ter someone had been hiding

above. A forensic specialist from the Tennessee Bureau of In-

vestigation (TBI) later confirmed that Mathews’ fingerprints

were on a fan vent near the displaced tile. Pet. App. A 3a.

Witness Frankie Sanford placed an order from the drive-

through lane of Taco Bell at 1:30 a.m. Inside the restaurant

he saw, alive and well, each of the four victims working

as normal; he also saw Mathews, in uniform, working. Pet.

App. A 3a.

When John Ballard, a shift manager at the Taco Bell,

stopped by the drive-through window at approximately 1:45

a.m. the employees were engaged in normal closing activities.

Klopp, the evening manager at Taco Bell on the night of the

killings, told Ballard that they had been very busy and hence

were unable to close the drive-through window until 1:30 a.m.

Ballard left the restaurant around 2:00 a.m. Pet. App. A 3a.

Witness Allen Ceruti, who at the time was employed by the

Tennessee Department of Correction, drove by the Taco Bell

at 4:30 a.m. He testified that he saw an African-American

male partially open the metal rear door of the Taco Bell

restaurant from the inside. Mathews is African-American.

Housler is Caucasian. Pet. App. A 3a.

Investigators searched the interstate for evidence. Under-

neath the Red River Bridge on I-24, they collected several

items of clothing, pieces of a latex glove, and other sundry

items. One of the clothing iterns recovered was a three-

quarter length black jacket. Forensic investigators determined

6

that a stain on the jacket was the blood of victim Kevin

Campbell. Also, plastic fragments lodged in the coat were

determined to be of the same type plastic as the plastic dial

blown off the safe. Pet. App. A Sa.

Ward, Mathews roommate, identified the jacket from under

the bridge as the one that Mathews was wearing on the night

of the murders; and also testified that he had not seen the coat

since that time and that Mathews, when he left their

apartment on the night of the murders, said that no one would

see the clothes he was wearing again. Ward further stated that

on the Tuesday after the murders, Mathews attempted suicide

in their apartment. On that evening, Mathews told Ward,

while crying, “I don’t deserve to live. I killed four people.”

Pet. App. A 5a.

Between the Sunday of the murders and his attempted

suicide, Mathews told Shawntea Hooks, Ward’s girlfriend,

how he believed the perpetrator committed the crime:

Well, he told me that whoever did it, they went into the

Taco Bell before-it closed, they went into the men’s

bathroom and climbed into the ceiling, waited until the

store closed. They,came down .. . and he said they killed

two people in the ffont of the store and two in the back.

Pet. App. A 5a.

Shawn Peghee worked with Mathews at Fort Campbell in

the mailroom. On the Friday before the murders, Mathews

asked Peghee questions about the safe in the mailroom and

whether one would be able to open the safe by shooting it.

According to Pehgee, as Mathews left the mailroom, “he sort

of looked back at me with a smile on his face, sort of a

smirk, and he said something big was going to happen that

weekend.” Pet. App. A Sa-6a.

Fitz Dickson, who had known Mathews for eleven years,

testified that he purchased a 9 millimeter gun for Mathews in

late 1993. Dickson also testified that he saw Mathews buy

7

ammunition for the gun on the same day that he purchased it

from him. Pet. App. A 6a.

During a search of Mathews’ residence, investigators

recovered several bullet fragments that Mathews had fired

into the floor of this bedroom during an argument before the

murders. A TBI forensic scientist testified that a cart-

ridge case and numerous bullet fragments recovered from

Mathews’ apartment came from the same 9 millimeter

weapon as the cartridges and bullets recovered from the crime

scene and the victims’ bodies. Pet. App. A 6a.

A plastic bag containing a disassembled Winchester shot-

gun was later found hidden behind Mathews’ residence.

Shawn Depto, Mathew’s friend, informed investigators that

he loaned Mathews the shotgun and shells before the

murders. Forensic examiners determined that the lead slug

used to shoot open the Taco Bell safe was fired from this

shotgun. Shells, provided by Depto, matched the slug and

shells collected from Taco Bell. Pet. App. A 6a.°

How Housler Got Involved

On January 23, 1994 (a week before the Taco Bell mur-

ders), Petitioner David Housler committed a street robbery in

Clarksvillé near Grandpa’s restaurant. On March 7, 1994,

TBI Agent Jeff Puckett and Detective George Elliott of the

Clarksville Police Department interviewed Housler at Fort

Campbell, Kentucky. Housler was a 19 year old soldier

stationed at Fort Campbell; and at the time, he had been

detained by military authorities for being absent without

leave. Detective Elliott suspected Housler of the Grandpa’s

® Sanford, Ceruti, Peghee, Dickson, Depto, Shawntea Ward, (Hooks),

and several other witnesses (Antaya, Maurizzio, and Tansil) were called

by the State in the Mathews trial. The State did not cal] them in the

Housler trial. See discussion below @ pp. 21-22; see also Pet. App. N

(witness lists).

8

robbery, and the investigators also asked about Taco Bell.

During the course of the interview, Housler denied involve-

ment in the Taco Bell murders and stated that on that night he

attended a party at Kevin Tween’s mobile-home in Oak

Grove, Kentucky. His best recollection was that he stayed

there all night with his girlfriend, Sulyn Ulangca. He also

stated that on January 21, a week and a day before the

murders, he and Sulyn may have attended a party at the same

trailer; and that he did not know Mathews. Housler was

arrested for the Grandpa’s robbery on March 9, 1994. Pet.

App. A 7a.

In the Montgomery County Jail, David Housler heard

much talk about the Taco Bell murder/robberies and believed

he could help himself by providing information to assist the

Mathews prosecution. When Housler first met with his ap-

pointed counsel, they discussed providing information regard-

ing Taco Bell in exchange for some consideration. Housler

began to provide statements incriminating Mathews in the

Taco Bell crimes, even though he had never met Mathews.

None of these statements were true. However, Housler’s

purpose was not to tell the truth, or even to help convict

Mathews; but simply to get out of jail. Pet. App. A 7a.

Housler first concocted a simple story about Mathews.

Housler told his lawyer that he met Courtney Mathews at the

Kentucky trailer party on Friday, January 21, 1994; and they

had discussed the idea of robbing the place where Mathews

worked. Housler’s counsel communicated this information to

District Attorney Carney, his former law partner, and nego-

tiated bond reduction in exchange for a statement. Housler

gave a statement on March 21, 1994, outlining the following:

He met Mathews during a party at the Kentucky trailer

on January 21, 1994.’ Mathews said in the presence of

” Housler’s first statement implicating Mathews states “on Friday,

January 21, 1994” he met Mathews. Later, versions changed to “a Friday

9

several people, including Housler, that he had a place to

rob—his place of work—and that when he did it, he

wouid not leave any witnesses. He also stated that once

he committed the robbery, they could read about it in the

newspapers. Housler said that’s all he knew.

Pet. App. A 7a-8a

Housler was released on bond, and he returned to his home

in Kentucky for more than a year. In October 1995, the

District Attorney’s office informed that Housler would be

interviewed, and ordered him -to Clarksville. The District

Attorney, his staff, and several involved police agencies were

actively preparing for the Mathews trial. On or about Octo-

ber 11, 1995, Housler returned to Clarksville, and met with

his lawyer, McMillan.® Again Housler said that he heard

Mathews talking about robbing the Taco Bell and leaving no

witness, and “that’s all I know.” McMillan and Housler met

with Assistant DA Garrett, Assistant DA Bush, TBI Agent

Puckett, Detective Charvis, and others. Housler was told that

others had made statements about him.’ Prosecutors used

these statements to suggest Housler’s involvement, showed

Housler pictures of the dead victims, and talked about the

night . . . approximately a week prior to the murders at Taco Bell.”

(10/20/95 statement.) Both versions are impossible, and not true. Taco

Bell time records show that Mathews was at work in Clarksville on both

nights, not in Kentucky. Mathews began employment at Taco Bell on

January 20, and worked at Taco Bell every weekend night from his

employmer: until the murders. Pet. App. A 12a.; See also Pet. App. J

141a-1454.

* The Opinion of the Supreme Court of Tennessee states this meeting

occurted in 1994. The Opinion is not correct. The meeting occurred in

Ociober 1995. Pet. App. E 71a; Pet. App. F #1a-89a.

* The other statements were Michael Miller and Charlie Brown, both

inmates trying to also benefit from Taco Bell. Both gave statements

implicating Housler. Both later rec ~ -d and acknowledged their state-

ments were totally false. Miller and Hover had gotten into a fight in jail,

and Miller was exacting some revenge.

10 ;

death penalty. Several other confrontational meetings oc-

curred. Pet. App. D 61a-67a; Pet. App. E 72a.

The District Attorney and McMillan then negotiated a deal.

If Housler was not the actual shooter, the District Attorney

agreed to reduced charges and a sentence of 15 years in

exchange for “complete cooperation.” The deal required

Housler to provide a complete proffer or statement detailing

the Taco Bell crime. On October 20, 1995, Housler provided

his proffer wherein he implicated himself, Sulyn Ulangca,

Melanie Darwish, Kevin Tween, and Courtney Mathews.

Housler gave great detail about the planning and execution

of the crime. None of which was true. Housler placed

himself, Sulyn Ulangca, Melanie Darwish, Kevin Tween, and

Mathews at Taco Bell, and indicated that Mathews and

Tween were the shooters. Pet. App. D 61a-67a; Pet. App. E

72a; Pet. App. I. After doing so, Housler was again released,

free again, but not for long.

The Deal Goes Bad

The problem with Housler’s proffer or final statement is

that it is not true. Less than three weeks later, the District

Attorney and the investigating officers had determined that

Housler’s statement was not true. Kevin Tween, who Housler

had described as a shooter, had an alibi. Melanie Darwish had

an alibi. Sulyn Ulangca had passed a lie detector test. Nothing

else had been corroborated, and the State believed Housler

had implicated three innocent people and provided a false

statement. McMillan was ordered to bring Housler back to

Clarksville. Pet. App. A Ila; Pet. App. E 76a, ADA Bush

[“To the best of my recollection, that agreement was based

upon Mr. Housler telling the truth and not implicating

any innocent individuals. And as I said before, Mr. Housler

changed his story so many times that we—I came to a point

where | didn’t know whether what the truth was? He just—at

one point said he was there. Then he came back and said he

wasn’t there, he had made it all up.”] Pet. App. J 141 a-145a.

11

On November 7, 1995, Housler and McMillan met again

with the same prosecuting attorneys and - investigating

officers. Housler was confronted by an angry prosecution

team, and told that Sulyn Ulangca had discredited his

statement, and the police believed Ulangca, who was brought

to Clarksville to confront him. Housler was arrested. That

day, the District Attorney took the false statement, Detective

Charvis, and Agent Puckett to the Grand Jury and secured an

indictment. The State of Tennessee knew that the Housler

statement was bogus, and in fact, Housler was indicted be-

cause his statement was false. Pet. App. F 90a-93a.; Pet. App.

G 94a-98a, 118a DA Carney [“I indicted him because he had

breached that agreement.”]

Q. Were those statements [Housler’s statements]

before the Grand Jury? Did Agent Puckett take the

statements to the Grand Jury?

A. [D.A. John Camey] Yes.

Q. The Grand Jury was shown the statements that you

had determined by 1:00 were false, is that correct?

A. There were certain things in the statements that

were false.

Q. Did you or anybody else in your presence before

the Grand Jury describe those differences to the

Grand Jury?

A. Ididn’t.’°

Pet. App. F 9a.

On the same day that Housler was indicted based solely on

the statement, the District Attorney brought Melanie Darwish

'° By the time General Carey presented Housler’s statement to the

Grand Jury he knew that several material aspects of the statement were

false, including the involvement of Sulyn Ulangca and Kevin Tween, and

the purchase by Housler of a 9 mm. General Carney’s agents had already

interviewed the alleged seller of the 9 mm and Ulangca and knew that the

Housler statement was materially false. General Carney also knew that

Housler had again denied being at Taco Bell. Pet. App. F 90a-93a.; Pet.

App. G 94a-98a, 118a; Pet. App. H 123a-125a.

12

and Kevin Tween to the D.A.’s office, interviewed them, and

heard their denial of any involvement at Taco Bell. Darwish

and Tween were released after questioning, and neither

Ulangca, Darwish nor Tween were ever indicted and/or

otherwise charged. David Housler has been in jail ever since.

Pet. App. D 60a-61a; Pet. App. E 76a; Pet. App. G 95a.

Trial Court

In pretrial proceedings, after the Mathews’ conviction, the

Housler defense'' sought to exclude the Housler false. state

ment and evidentiary hearings were held in the trial court.

The defense took the position that because the Housler

statement was false it could not be used by the State of

Tennessee for any purpose, either to obtain an indictment or

to obtain a conviction. Pretrial, the Housler defense called

DA Carney, ADA Garrett, the grand jury foreman, and the

State’s only grand jury witnesses (Puckett and Charvis) who

had also testified in the Mathews trial.'* During their

respective testimonies, both DA Camey and TBI Agent

Puckett, who took Housler’s statement, admitted that sig-

nificant portions of Housler’s statement were false.'* The trial

court also recognized this predicament pretrial. [“It is unusual

in the sense that based on what the lawyers tell me, the State

readily admits that a portion of the defendant’s statement is

untrue, and may well be untrue in large measure.”] Pet. App.

P. Despite this finding, the trial court allowed the false state-

ment to be admitted at trial, without correction or redaction.

'' The undersigned lawyers were appointed to represent Housler after

the murder indictment.

'? By this time Mathews had been tried and convicted. The transcript of

his trial was’ available and the testimony presented by the State against

Mathews could be compared to the Housler statement to prove its falsity.

Since DA Carney and ADA Garrett were witnesses to the falsity issue,

new prosecutors were appointed to try Housler.

° Pet. App.D 44a-67a; Pet. App. F 78a-93a.

13

In November 1997, the State introduced and used Hous-

ler’s false statement against him. In fact, Housler’s false

statement became the only evidence against him, except for

persistent efforts by the State to corroborate falsehood with

incompetent and false evidence.'* Housler was convicted of

the four murders and sentenced to life on each count. Pet.

App. A, | la-12a.

Throughout the trial the State, relying upon the false

statement and perjured testimony, introduced evidence

completely inconsistent with their position in the Mathews’

prosecution (a sole perpetrator theory) and insisted upon their

right to do so. [DA .Radford—‘Well, first of all, let me

address Mr. Terry? 1 am not bound by any theory that any

other attorney had and Mr. Terry has kept saying that’s the

State’s theory. Your honor, I am not bound by that theory. |

am entitled to my own theories, in my own prosecution and to

think otherwise is ridiculous.} Nothing could be more

incorrect. In fact, the State of Tennessee is bound to a truthful

theory and obligated to present only truthful facts.

Mathews was called as a witness at the Housler trial.

Mathews refused to testify. A motion for new trial was filed

and extensive post trial proceedings were conducted,

concluding in July of 2000. Post trial, Judge Gasaway made

numerous findings, including:

The Court recognizes that the prosecution of Courtney .

Mathews and the prosecution David Housler by the State

was on different theories

Pet. App. L 185a

'* The best example is Larry Underhill, a career criminal who testified

that Housler confessed to him in jail that he killed the victims execution

style, a rendition that contradicted all crime scene evidence. Underhill had

a history of drug and alcohol abuse, and mental health problems. Post-trial

Underhill recanted and said he never met Housler, and the information

had come from a hallucination. Pet. App. A 28a-29a.

ie

But Mr. Radford (State prosecutor), the only conclusion

that anyone could draw from the prosecution of Mr.

Mathews was that the State’s theory in the Mathews’

trial was more than he was the lone shooter, it was that

he was the lone actor.

Pet. App. L 190a

Supreme Court of Tennessee

The Supreme Court of Tennessee granted petitioner’s

application for appeal and heard this case with both the

Mathews’ record and the Housler record before it.'” The court

recognized the Housler statement had many known factual

falsehoods and that Mooney'® and Napue'’ prohibited the use

of false evidence. '® Rather than order relief based on Mooney,

the court created an exception becausc the false evidence was

the defendant’s statement. The Supreme Court of Tennessee

concluded that Mooney and Napue were not applicable, that

the State could introduce the many known factual false-

hoods if one component of the statement was minimally

corroborated. '”

'° The Court of Criminal Appeals first heard the appeal but refused to

consider the Mathews’ record, so a comparison of the prosecutions was

impossible. The Supreme Court granted review and heard the case with

both records. Pet. App. O.

'® Mooney v, Holohan, 294 US 103 (1935).

” Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959).

'* The Supreme Court of Tennessee specifically acknowledges some of

the known false facts in its opinion. Pet. App. A 12a.

” Pet, App. A 19a, 21a.

15

REASONS FOR GRANTING THE WRIT

The Decision of the Supreme Court of Tennessee

Directly.Conflicts with Decisions by this Court and the

Courts of Appeal on an Important Federal Question.

The Decision of the Supreme Court of Tennessee Has

Created a Mooney Exception Which Allows the

Knowing Use of False Evidence.

Evidence known to be false by the prosecution was

admitted in the trial of David Housler. The falsity was not

corrected or redacted. These facts are true and undisputed.

Prosecutors and police agents admitted before trial that

material components of the final Housler statement were

false.”° The Housler statement was originally a proffer as part

of his agreement to plead guilty and testify against Mathews.

When the State determined the proffer or statement was

materially false, the State revoked the- plea agreement, and

then used the false statement against Housler. The trial

recognized found that material components of the statement

were false.”' The Supreme Court of Tennessee specifically

found that the Housler statement contained “many known

factual falsehoods.”’* Yet, unredacted and uncorrected, the

statement was admitted as evidence before the jury even

though both parties and the trial judge knew that material

components of the statement were false. Rather than stipulate,

correct, or redact known falsity, the buck was passed to the

jury to filter out the truth, even though all participants knew

the truth. This process corrupted the truth seeking function of

the trial and deeply_offends the purpose for and decisions in

support of the Fourteenth Amendment Due Process Clause.

° Pet. App. D 44a-67a; Pet. App. E 76a; Pet App. F 91a-93a,102a-

108a,114a,118a,123a125a.

*) Pet. App. P.

*? Pet. App. A 12a,19a.

16

This Court need answer only one question . . - . May the

State of Tennessee admit as evidence in a criminal pro-

ceeding a defendant’s statement knowing that material com-

ponents of the statement are false without redacting or

correcting the false portions? This record is ideal for resolv-

ing this issue because the known factual falsehoods are

admitted by both parties and the Supreme Court of Tennes-

see. There is no issue about whether the State of Tennessee

knowingly admitted false facts. The only issue is whether

or not this knowing use of-false evidence violates due proc-

ess guarantees.

In 1935, this Court in Mooney v. Holohan, 294 US 103

(1935) issued a powerful opinion from which there has been

no retreat. In Mooney, this Court established the clear

constitutional principle that the Due Process Clause of the

Fourteenth Amendment prohibits the knowing use by the

government of evidence which is false. Mooney involved the

knowing use of perjured testimony and the suppression of

exculpatory impeachment evidence. id. at 110,111. See Pyle

v. Kansas, 317 U.S. 213 (1942).

In Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103 (1957) the

prosecutor had advised a witness not to volunteer specific

informatign favorable to the defendant. The witness testified

falsely to the fact and the prosecutor did not correct. id. at 30,

31. This Court cited Mooney and Pyle and found that duc

process of law was not accorded when a prosecutor elicited

known false testimony and did not correct it. Alcorta estab-

lished an unqualified duty to correct known falsity which has

now been erroneously qualified by the Supreme Court of

Tennessee.

The Mooney principle was restated in Napue v. Illinois,

360 U.S. 264, 79 S.Ct. 1173 (1959). In Napue, the State had

allowed a witness to testify falsely about consideration re-

ceived for cooperation. This Court found that the false testi-

mony which only affected credibility, and was not substan-

17

tive, still violated the Due Process Clause, and required

reversal. [“The principle that a State may not knowingly use

false evidence, including false testimony, to obtain a tainted

conviction, implicit in any concept of ordered liberty, does

not cease to apply merely because the false testimony goes

only to credibility to the witness.” id. at 269.] See Giglio v.

United States, 408 U.S. 150, 92 S.Ct. 763 (1972). [One

prosecutor promised immunity for testimony. Another prose-

cutor tried the case not knowing of the promise. The witness

denied the deal. Reversal required under Mooney.|

Mooney and its progeny unequivocally hold that the State

cannot knowingly use false evidence or allow false testimony

to go uncorrected. This standard does not change when the

uncorrected false evidence is the defendant’s statement.’

Writing for the Court in Napue, Chief Justice Warren stated.

the proposition simply and clearly: “A lie is a lie, no matter

what its subject, and, if in any way relevant to the case, the

district attorney has the responsibility and duty to correct

what he knows to be false and elicit the truth . . .” Napue,

at, 269, 270.

The scenario in this case ts unusual. Usually, when the

State uses a defendant’s statement over his objection, the

State believes the information therein to be correct. It is rare,

and perhaps only in multiple litigations, where the record

demonstrates clearly that the State has used a statement which

the State knows is false. Petitioner contends strongly that no

party, in any type of litigation, criminal or civil, can use any

form of evidence knowing that the information therein is

false. To do so is a constitutional violation resulting in the

a : , : : }

There is nothing in Napue, its predecessors, or its progeny, to

suggest that the Constitution protects defendants only against the knowing

use of perjured testimony. Due process protects defendants against the

knowing use of any false evidence by the State, whether it be by docu-

ment, testimony, or any other form of admissible evidence.” Hayes v.

Brown, 399 F.3d 972 (9th Cir. 2005).

_

18

deprivation of fundamental fairness. To do so corrupts the

truth finding process. For purposes of constitutional law, it

makes no difference whether the evidence tendered to the

jury is false physical evidence or the knowing use of a false

statement.

The Supreme Court of Tennessee found that the Housler

Statement contained many known factual falsehoods. The

court recognized that Mooney and Napue, prohibit a prose-

cutor’s knowing use of false evidence. However, the Supreme

Court of Tennessee qualified Mooney and Napue by con-

cluding the prohibitions did not apply to the knowing use of a

defendant’s false statement. The court concluded: (1) A

defendant’s statement with many known factual falsehoods

may be admitted as evidence against the defendant if one

minimal fact is corroborated; and (2) It is the jury’s role to

resolve what is true and what is not.** This determination by

the Supreme Court of Tennessee not only conflicts with the

strict prohibitions of Mooney and its progeny, but promotes

corruption of the truth finding process that is the fundamental

purpose of trial.

The important federal question here is whether or not the

Supreme Court of Tennessee is correct in carving an

exception tu Mooney? Should Mooney’s prohibition against

the knowing use of false evidence be qualified when the false

evidence is the defendant’s statement? If Mooney is so

qualified, then the Supreme Court of Tennessee is correct and

prosecutors may knowingly admit false statements by the

defendant. If this Mooney exception does not exist, then the

Supreme Court of Tennessee is wrong and this Court should

grant the Writ of Certiorari to correct and resolve this

important federal question.

Any analysis of whether or not the Mooney prohibition

against the knowing use of false evidence should be qualified

** Pet. App. A 21a.

19

in this circumstance should begin with a clear understanding

of the simple but important reason for excluding the use of

false evidence. False evidence is excluded because it corrupts

the truth seeking function of the trial process. United States v.

Agurs, 47 U.S. 97, 104 (1976). Certainly, there should be no

argument about the common obligation to protect the truth

seeking function of the trial process against any avoidable

threat. Perhaps, of the various roles of this Court none is more

important than using due process guarantees to assure that the

American trial process is best calibrated to determine the

truth. In view of this purpose, and common goal, the Su-

preme Court of Tennessee’s qualification of the prohibition

against the knowing use of false evidence becomes illogical

and dangerous.

It is elementary and universally accepted that the role of

the jury is factfinder. This means that the jury is expected to

resolve disputed issues of fact. When the parties agree upon a

fact, the fact is not disputed. If the parties agree that a fact is

true, and the fact is relevant, then the parties may stipulate or

otherwise indicate that the fact is true and not disputed. Ifthe

parties agree that a fact is false, then the fact is also not

disputed, and it becomes illogical to put the fact before the ~

jury without informing the jury that the fact is false.”° This

Court should examine these questions:

1. Should a trier of fact, jury or otherwise, be

allowed to consider a fact which both parties know is

false without being so informed?

2. Does it make any difference if the known false

fact is the sworn testimony of a witness or the statement

of the defendant?

3. If the purpose of the jury is to resolve disputed

facts, is this purpose corrupted or frustrated by pre-

25 eee Mere . : :

In most circumstances it is illogical and inefficient to put a false fact

before the jury at all.

20

senting the jury with facts that both partics know are

false?

In Banks v. Dretke, 540 U.S. 668 (2004) this Court held

that when prosecutors conceal significant exculpatory or

impeaching material, it is ordinarily incumbent on the State to

set the record straight. This Court rejected several arguments

by the State of Texas designed to shift the burden of

correcting the record to the defendant. [“‘A rule thus declaring

‘prosecutor may hide, defendant must seek,’ is not tenable in

a system constitutionally bound to accord defendant’s due

process.” ] id. In the case sub judice the Mooney exception,

suggested by the Supreme Court of Tennessee, is the same

burden shifting proposition which would require a defendant

to prove falsity when both parties know and admit the falsity.

It is both illogical and inefficient, in view of the truth seeking

function, to ask the jury to wander through a maze of cross

examination and contradictory testimony to determine that a

fact is false, when both parties know the fact is false.*° Since

Mooney this Court has always placed the burden to correct

known falsity squarely on the prosecution. The Supreme

Court of Tennessee’s Mooney exception places the burden to

correct on the defendant and requires the defendant to do it

through the adversarial trial process.

In United States v. Bagley, 473 U.S. 667 (1985) this Court

stated that if the defendant established that the prosecution

presented and did not correct false testimony, the falsity will

be “considered material unless failure to disclose it would be

harmless beyond a reasonable doubt.” id. ‘t 680. There can be

little doubt that the admission of the Housler statement “with

many known factual falsehoods’”’ was material. and preju-

*° “It was not incumbent on Banks to prove these representations false;

rather, Banks was entitled to treat the prosecutor’s submission as truth-

ful.” Banks v. Dretke, 540 U. S. 668 (2004).

7 Pet. App. A 12a, 19a.

21

dicial error. This Court has observed that “A confession is

like no other evidence. Indeed the defendant’s own confes-

sion is probably the most probative and damaging evidence

that can be admitted against him.” Arizona v. Fulminante, 499

U.S. 279, 296, 111 S.Ct. 1246 (1991).”8

A brief look at some of the particular known false facts in

the Housler statement demonstrates with clarity the

materiality, prejudice, and impact upon the truth secking

function.” For example, in the Mathews’ trial the State of

Tennessee established on the night of the murder Mathews

worked at Taco Bell until after 9:00 p.m., went home to his

apartment four miles away in Clarksville, Tennessee, and

prepared for the crime in front of his roommates. The State

used eye witnesses Antaya, Tansil, and Maurizzio to prove

that Mathews went back to Taco Bell alone in his own car

where he was seen both outside and inside. Later, the State

used eye witnesses Sanford and Ceruti to prove that Mathews

was inside the Taco Bell, first working with the victims and

then alone at 4:30 a.m. The State used witnesses Depto and

Dickson to prove where and when Mathews got the weapons.

The State used Shawn Depto to prove that Mathews used the

shotgun to- blow up the Taco Bell safe. As the trial court

‘found and as the District Attorney argued at closing, the

Mathews prosecution was not only sole perpetrator but lone

actor.’ [Q. “Did you state to that jury in 1996 General

Carney, “The State of Tennessee says at this point in

answering that the evidence in this case is overwhelming, that

the evidence in this case points to one person, and that is the

8 See also Bruton y. United States, 391 U. S. 123, 139-40, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting).

*” See also Pet. App. J 141a-145a, which is a chart comparing known

false facts in the Housler statement with competent proof.

° The trial court found that the Mathews prosecution a sole perpetrator

both at the Mathews trial and before, during, and after the Housler trial.

Pet. App. B 31a-32a; Pet. App. L 190a.

22

defendant (Mathews) right here’ and then you indicated with

your finger. “No one else’, you said. Did you say that word, in

this room to a jury in the Courtney Mathews’ case in 1996?

A. Yes, I did.” Pet. App. G 101a-102a.]

In the Housler trial the State ignored these witnesses. The

State did not call Ceruti, Tansil, Sanford, Depto, Peghce,

Dickson, Maurizzio or Antaya. Pet. App. 210a-213a.*' Each

of these eye witnesses offered testimony that supported the

lone actor theory in Mathews, but debunked the false Housler

statement.** So the State left these eye witnesses on the

sidelines and admitted the false Housler statement. Housler

was then required to call each of: these witnesses in an effort

to prove his statement false, a fact known by both parties.

Nothing better demonstrates the manipulation of the truth that

always accompanies the admission of false evidence.

The Housler statement falsely claims that Mathews, his

girlfriend Kendra Corley, Sulyn Ulangca, Kevin Tween,

Melanie Darwish, and Housler were at the Kentucky trailer

that afternoon and evening. The statement claims that

Housler, Mathews, Ulangca, Tween, and Darwish, all left the

Kentucky trailer at about 11:00 p.m., stopped at a market, and

then went to Taco Bell, where Tween and Mathews went

inside and killed the employees during a robbery. The crime

would have happened at about midnight.*” The State admitted

before trial that Mathews was at work at Taco Bell on the day

of the murders, and was not in Kentucky, that Corley was

3! The substance of each of these witness testimony is accurately de-

scribed in the opinion of the Supreme Court of Tennessee.

*2 This Court should review the testimony of ADA Garrett who tried

the Mathews’ case and testified as a witness in Housler. Garrett testified

that each of these witnesses who were called in Mathews by the State to

prove that Mathews acted alone were truthful and that he believed their

testimony. Pet. App. K 146a-184a.

‘3 Pet. App. I 127a-140a.

*4 Pet. App. D 45a-65a; Pet. App. E 76a.; Pet. App. F 91a-93a.

23

not in Kentucky,*° that Mathews went from his home in

Clarksville to Taco Bell to commit the murders,” that

Mathews not Housler secured the shotgun and ammunition,”

that no one stopped that night at the convenience store, and

that Darwish, Ulangca, and Tween were not involved”.

Although each of these admissions was made before trial

establishing these facts as false, the facts were presented to

the jury in the statement without correction or redaction. If

the State had presented these known false facts through a

witness, other than Housler, then the result is clearly re-

versible error. The result should be the same in this case.

Inconsistent Prosecutions for the Same Crime Present

Issues of Due Process Which Are Important Federal

Questions Which this Court Should Settle.

Those Important Questions Include:

1. Are due process guarantees implicated by

inconsistent prosecutions of different individuals

for the same crime?

2. If so, what measure of inconsistency is

required to support a due process claim?

3. Are the Mooney prohibitions against the

: knowing use of false evidence and the standards

for prosecutorial conduct sufficient to guarantee

fundamental fairness in separate prosecutions?

One judge tried both the Mathews and the Housler case.

After the Housler trial Judge Gasaway made two findings that —

bear directly on the second reason for granting a Writ of

Certiorari in this case. First, Judge Gasaway found specific-

* Pet. App. D 45a-65a; Pet. App. E 76a ; Pet. App. F 91a-93a.

*° Pet. App. D 45a-65a; Pet. App. E 76a ; Pet. App. F 91a-93a.

*” Pet. App. D 45a-65a; Pet. App. E 76a ; Pet. App. F 91a-93a.

* Pet. App. D 45a-6Sa; Pet. App. E 76a ; Pet. App. F 91a-93a.

24

ally that the Mathews’ prosecution and the Housler’ prose-

cution were inconsistent prosecutions, and in fact, he found

that the prosecutions were mutually exclusive.” Second,

Judge Gasaway specifically appealed for appellate instruction

on whether or not prosecutions at this level of inconsistency

are legally appropriate.” Thus, this case presents the record

*” “This Court has said—and I don’t think that it has really been

objected to by the State, perhaps it—perhaps, but this Court has said

repeatedly, and still now believes, that you cannot read the

Matthews (sic) transcription, you could not have sat through the trial

and believed any other thing than the State of Tennessee believed

that Courtney B. Matthews (sic) acted alone in the robbery and the

killing of the people employed at the Taco Bell Restaurant.’

“That was the theory of the State before the trial; it was the theory

of the State at the trial; it was the only conclusion that a reasonable

mind could draw: That the State of Tennessee believed that Court-

ney B. Matthews (sic) acted alone in the robbery and the killing of

the victims of the Taco Bell Restaurant.”

“Thereafter the State indicted and prosecuted David Housler. And

the State offered a theory that David Housler acted in consort with

Courtney Matthews; that he was in part—that he helped plan it; that

he participated in it and that he engaged in the robbery in some sort

of supporting role.”

“And the Defendant, Housler, has always said and always main-

tained that the State of Tennessee should not be able to with a

straight face in front of two different juries argue two different theo-

ries that cannot be—that are mutually exclusive of one another.”

Pet. App.M 207a-208a. See also Pet. App. L190a.

*° “And it has always been this Court’s desire for this Court—for this

State through its appellate courts to address the issue: Can the State do

that? Is that legal?”

“] most respectfully believe that the issue of the—of whether or not

the State can prosecute two different people at two different trials on

mutually exclusive theories must be addressed by the Appellate

Court.”

Pet. App. M 208a.

25

of two trials with a common judge and a finding by the trial

judge that the prosecutions are irreconcilable and mutually

exclusive. This is an appropriate record for this Court to

address this important federal question and related issues in

an ‘area of constitutional law which is obviously unsettled.

More than ten years ago Justice Stevens observed that

“Serious questions are raised when the sovereign itself takes

inconsistent positions in two separate criminal proceedings

against two of its citizens. . . .” Jacobs v. Scott, 513. U.S.

1067, 1070 (1995); quoted in Bradshaw v. Stumpf, 125 S. Ct.

2398, 162 L. Ed. 2d 143 (2005). Recent law journals have

recognized the importance of this issue on the integrity of

the trial, its unsettled state, and have discussed potential

solutions. *!

The Constitution’s Due Process Clause guarantees every

defendant the right to a fair trial. See Lassiter v. Department

of Soc. Servs., 452 U.S. 18, 24-5, 68 L.Ed.2d 640,101 S.Ct.

2153(1981); Turner v. Louisiana, 379 U.S. 466, 471-72, 13

L.Ed.2d 424, 85 S.Ct. 546 (1965). This Court has emphasized

that “because the prosecutor is in a peculiar and very definite

sense the servant of the law, the twofold aim of which is that

guilt shall not escape or innocence suffer . . ., it is as much his

duty to refrain from improper methods calculated to produce

a wrongful conviction as it is to use every legitimate method

to bring about one.” Berger v. United States, 295 U.S. 78, 88,

*' See, e.g Barry Tarlow, RICO Report: More Prosecutorial Double-

Speak, 27-Cr. apion 52, 61 (2004); Steven F. Shatz & Lazuli M. Whitt,

The California Death Penalty: Prosecutors’ Use of Inconsistent Theories

Plays Fast and Loose with the Courts and the Defendants, 36 U.S.F.

L.Rev. 853 (2002); Anne Bowen Poulin, Prosecutorial Inconsistency,

Estoppel, and Due Process: Making the Prosecution Get Its Story Straight,

89 Cal.L. Rev. 1423 (2001); Michael Q. English, Note: A Prosecutor’s

Use of Inconsistent Factual Theories of a Crime in Successive Trials:

Zealous Advocacy or a Due Process Violation?, 68 Fordham L. Rev.

525 (1999).

26

79 L.Ed. 1314, 55 S.Ct. 629 (1935), overruled on other

grounds; Stirone v. United States, 361 U.S. 212, 4 L.Ed.2d

252, 80 S.Ct. 270 (1960).

Several Circuit Court of Appeal have found, or implied,

that the use of inconsistent, irreconcilable theories to secure

convictions against more than one defendant in prosecutions

for the same crime violates the due process clause. See, e.g.,

Smith v. Groose, 205 F.3d 1045 (8th Cir.2000); Thompson v.

Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), vacated

on other grounds, 523 U. S. 538, 140 L.Ed.2d 728,118 S.Ct.

1489 (1998); Drake v. Kemp, 762 F. 2d 1449 (11th Cir. 1985)

(en banc) (Clark, J., specially concurring); cf Nichols v.

Scott, 69 F.3d 1255 (Sth Cir. 1995); Stumpf v. Mitchell, 367

F.3d 594 (6th Cir. 2004) reversed in part, vacated in part, and

remanded, Bradshaw v. Stumpf, 125 S.Ct. 2398; 162 L.Ed.2d

143 (2005).

In 2005 this Court reviewed the Sixth Circuit’s decision in

Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004). This Court

did not reverse the Sixth Circuit’s finding that the use of

inconsistent irreconcilable theories to convict two defendants

for the same crime is a due process violation. Instead, this

Court vacated and remanded the case for further proceedings

to determine whether the use of inconsistent theories affected

the sentencing panels conclusion. As Justice Souter observed

in concurring, Stumpf did not. present a related Mooney

claim.** The case sub judice is similar to Stumpf because it

presents a claim of irreconcilably inconsistent prosecution

theories. However, this case is different than Stumpf because

this case also presents a related Mooney claim. This case

** “Stumpf’s claim as I understand it is not a challenge to the evi-

dentiary basis for arguing the death penalty in either case; nor is it a

claim that the prosecution deliberately deceived or attempted to deceive

either trial court, as in Mooney v. Holohan, 294 U. S. 103 (1935) (per

curiam)... ;

27

would allow the Court to analyze the relationship between

inconsistent prosecutions and false evidence.

A due process challenge to the use of inconsistent theories

is based on the notion of fundamental fairness; because

inconsistent theories render convictions unreliable. Reliability

of the process should be a paramount concern of all involved.

Prosecutorial inconsistency has many faces. This Court has a

history of consistently disapproving prosecutorial inconsist-

ency which impacts the integrity of the process. See Green v.

Georgia, 442 U.S. 95 (1979) (rejecting prosecutor’s attempt

to use hearsay rules to prevent defendant from presenting

evidence that the prosecutor previously used to convict

another defendant of the same crime.); Miller v. Pate, 386

U.S. 1 (1967) (condemning prosecutor’s use of inconsistent

theories in a case involving prosecutor’s knowing use of

false testimony.)

The Sixth Circuit’s decision in Stumpf and the Supreme

Court of Tennessee’s decision in this case cannot be rec-

onciled. In Stumpf the Sixth Circuit specifically found that

inconsistent prosecutions may present a due process claim.

[“On this issue of first impression in this Court, we now join

our sister circuits in finding that the use of mconsistent,

irreconcilable theories to convict two defendants for the same

crime is a due process violation.” supra at 611.] Further the

Sixth Circuit found that a due process claim is subject to de

novo review and adopted a standard of review. [“The proper

standard of review is whether there is reasonable probability

that the prosecutors use of inconsistent irreconcilable theories

rendered the conviction unreliable.” supra at 616.] The

Supreme Court of Tennessee refused to review this case as a

due process claim, despite the findings of the trial judge that

the Mathews’ prosecution, sole perpetrator/lone actor, and the

Housler prosecution, multiple perpetrators, were irrecon-

cilably inconsistent and mutually exclusive. Tennessee is in

the Sixth Circuit and this Court should issue a Writ of

28

Certiorari to resolve the conflict between the Sixth Circuit

and the Supreme Court of Tennessee, and determine whether

or not a due process claim exists for irreconcilably incon-

sistent prosecutions.

CONCLUSION

The Supreme Court of Tennessee has created an exception

to Mooney and sanctioned the knowing infroduction of false

evidence in criminal trials. This Court has scrupulously

refused to allow false evidence in any guise without

exception. The Ninth Circuit recently observed en banc:

In closing, we must observe that this case is not merely

about a peculiar circumstance. As we have noted, this is

not the first time we have been confronted in recent

years with schemes to place false or distorted evidence

before a jury. Our criminal justice system depends on the

integrity of the attorneys who present their cases to the

jury. When even a single conviction is obtained through

perjurious or deceptive means, the entire foundation of

our system of justice is weakened.

Hayes v. Brown, 399 F.3d 972,988 (9th Cir. 2005).

The threat to fundamental fairness posed in the form of

false evidence exists as much today as when this Court

decided Mooney. False evidence should have no role in the

truth seeking process. No exception should be tolerated. We

respectfully pray that a Writ of Certiorari will issue to the

Supreme Court of Tennessee.

Respectfully submitted,

MICHAEL E. TERRY *

Attorney for Petitioner

TERRY & GORE

1200 16th Avenue South

Nashville, Tennessee 37212

* Counsel of Record (615) 321-2750