Prologue — Burks v. United States

& 2 mapa Court, |

93-1491...

IN THE -

Sunrene Court of the United States

OCTOBER TERM, 1993

DONALD R. BURKS,

Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

JAY L. COHEN

Lt. Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

GEORGE F. MAy

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

July 1993 (202) 767-1562

QUESTION PRESENTED

Whether the petitioner was deprived of his due process

right to present a defense when the military trial judge

excluded from evidence a statement in which another

person admitted to committing the murder for which the

petitioner was convicted.

(i)

I ORE INE NR GE REE NR

TABLE OF CONTENTS

Page

RO I a 1

TABLE OF AUTHORITIBS |... 0... iv

“so tosses ec TEE OE 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 2

STATEMENT OF THE CASE |... 2

REASONS FOR GRANTING THE WRIT .............. 3

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TABLE OF AUTHORITIES

CASES: Page

Supreme Court

Chambers v. Mississippi, 410 U.S. 284 (19738) ........ 4,11

Davis v. Alaska, 415 U.S. 308 (1974) ....02.22 10

United States v. Valenzuela-Bernal, 458 U.S. 858

PIII cicsiencisuostnteiannicssciaunieacamiaiimaendaaieaiaia naman 10

Washington v. Texas, 388 U.S. 14 (1967) ............... 4,11

Federal Cases

Ferreira v. Fair, 732 F.2d 245 (1st Cir.), cert. de-

one, GED TEE; SORT CADE wise ciscccsetsvncmictsnsdectoe 4

Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979) ....... 10

Sharlow v. Isreal, 767 F.2d 373 (7th Cir. 1985),

cert. denied, 475 U.S. 1022 (1986) .......0000....20... 4

United States v. Chanya, 723 F.2d 374 (5th Cir.),

cert. denied, 466 U.S. 943 (1984) .....0000000 2... 5

Military Cases

United States v. Burks, ACM 28760 (A.F.C.M.R.,

Be POMS TED ovivcssinisisssccdorcnciosnsshnmsenenedaneasasae

United States v. Clifton, 15 M.J. 26 (C. M.A. 1983)..

CONSTITUTIONAL PROVISIONS

United States Constitution Amendment V .............. 2

FEDERAL STATUTORY PROVISIONS

10 U.S.C.A. § 867(a) (Supp. 1992) -............ sasiciaailee

28 U.S.C.A. § 1259(3) (Supp. 1992) ..........................

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DD TA ID cette consis savecccininicdensccniaiecnsiiesnnaanninien

oom

Own do

MISCELLANEOUS

Edward J. Imwinkelried, Exculpatory Evidence

CRON svniikcctnsmstninctaitteneiniidinmdsameieia 11

Charles T. McCormick, Handbook of the Law of

BUENO CLOG vnicasessniccetes secession 12

EE

In THE

Suprene Court of the United States

OCTOBER TERM, 1993

No.

DONALD R. BurRKS,

. Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

The petitioner, Donald R. Burks, respectfully prays

that a writ of certiorari issue to review the order and

judgment of the United States Court of Military Appeals

entered in his case on April 29, 1993.

OPINIONS BELOW

The order and judgment of the United States Court

of Military Appeals is reported at 36 M.J. 447 (C.M.A.

1993) (Appendix A). The unreported opinion of the

United States Air Force Court of Military Review, issued

on August 26, 1991, is found at Appendix B.

2

JURISDICTION

The final order of the United States Court of Military

Review was entered on April 29, 1993. The jurisdiction

of this Court is invoked under 28 U.S.C.A. § 1259(3)

(Supp. 1992) and 10 U.S.C.A. § 867(a) (Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the

United States provides in relevant part:

‘Tian Rent a

No person shall . . . be deprived of life, liberty,

or property, without due process of law....

STATEMENT OF THE CASE

Sgt. Joseph Handy was brutally murdered during the

early morning hours of 25 September 1989 while he was

at work at George AFB, California. Although the exact

cause of death was not immediately known, it was readily

apparent that Sgt. Handy had suffered massive trauma

to his head and face.

PL OD NEND BODE SEE a ONSEN TT

Approximately three weeks after the murder, the peti-

tioner, a Master Sergeant (E-7) in the United States Air

Force, after failing a polygraph test, became the primary

suspect in the murder. The petitioner was arrested and

placed in pre-trial confinement. While the petitioner was

in pre-trial confinement a letter in which another person

confessed to committing the murder was found in a prison :

van. The letter was a hand-written statement from a third

party known only as “Michael” who claimed that it was

he and several others that killed Joe Handy. Investigators

found no evidence indicating that the petitioner authored

the letter. The petitioner’s handwriting and that in the

letter are very different. (App.Ex. XXVIII, Atch 2 and

Atch 3). The tests of the questioned documents examiner

were inconclusive. (App.Ex. XXVI, paragraph 8). The

only identifiable fingerprints on the letter were those of

Tey

ee

3

law enforcement agents. (/d., paragraph 5). At the

time of trial Michael had not been located.

On various dates in February and April 1990, the

petitioner was tried by a general court-martial composed

of officer members at George Air Force Base, California.

The military judge who presided over petitioner’s trial

refused to admit into evidence the exculpatory letter

written by Michael. Thus, contrary to the petitioner’s

pleas, he was convicted of murder in violation of Article

118 [10 U.S.C. § 918] and assault with intent to inflict

grievous bodily harm in violation of Article 128 [10

U.S.C. § 928].’ He was sentenced to a dishonorable dis-

charge. confinement for the rest of his natural life and

reduction to airman basic (E-1).

On appeal, inter alia, the appellant raised the issue of

whether he was deprived of his due process right to pre-

sent a defense when the military trial judge excluded

from evidence the letter in which another person admitted

to committing the murder for which the appellant was

convicted. The Air Force Court of Military Review de-

nied the request for relief in their opinion dated 26 Au-

gust 1991. (Appendix B).

The Court of Military Appeals granted review of that

decision on 22 May 1992. The Court subsequently, on

further consideration affirmed the decision of the United

States Air Force Court of Military Review. (Appendix

A.)

REASONS FOR GRANTING THE WRIT

The petitioner was denied a fundamental constitutional

right of due process when the military judge who pre-

sided over his trial denied the admission of what amounted

to exculpatory and exonerating evidence. Even if the

letter in this case did not fit squarely into a traditional

1 The petitioner was charged with premeditated murder but the

court members found him guilty of murder without premeditation.

4

hearsay exception dance the author of the letter was never

located, fundamental constitutional principles dictate that

the evidence be available for the fact finder to weigh

with all the other evidence in the case:

[Where consiitutional rights directly affecting the

ascertaining 0! guilt are implicated the hearsay rule

may not be applied mechanistically to defeat the

ends of justice.

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

rights are implicated here.

In Washington v. Texas, 388 U.S. 14 (1967), this

Honorable Court held that the right to present a defense

is a fundamental element of due process of law. In that

case two Texas statutes prohibited the testimony of wit-

nesses who were involved in the same crime as that

charged against the accused. This Court found that the

statutes at issue unconstitutionally impeded the right to

present a defense. /d., at 18-19.

ee ae

In Chambers this Court expanded the right to present

a defense to include the presentation of hearsay which

has sufficient indicia of reliability but does not technically

fall within a hearsay exception. The hearsay exception

involved was the declaration against interest. This Court

concluded that no reason exists to exclude exculpatory

hearsay evidence having indicia of reliability simply be-

cause it does not fit within a recognized exception to the

hearsay rules.

A review of the applicable case law demonstrates that

three primary reasons are cited in those cases where resid-

ual hearsay offered by an accused has been excluded.

First, the hearsay is not reliable. See Ferreira v. Fair,

732 F.2d 245, 248 (1st Cir.), cert. denied, 469 U.S.

1017 (1984) (statement not against interest when made

and not corroborated). Second, the evidence is not vital

to the defense theory. See Sharlow vy. Isreal, 767 F.2d

373, 376-80 (7th Cir. 1985), cert. denied, 475 USS.

ee

5

1022 (1986). Third, the hearsay declarant is available

to testify. See United States v. Chanya, 723 F.2d 374

(5th Cir.), cert. denied, 466 U.S. 943 (1984). None

of these conditions exist in the case sub judice.

The evidence in this case establishing the indicia of

relability mandated admission of the exculpatory letter

under the residual hearsay exception especially when

viewed in the context of the petitioner’s fundamental con-

stitutional right to present a defense. The trial judge, the

Air Force Court of Review and the United States Court

of Military Appeals erred by finding the indicia of re-

liability insufficient to allow submission of the letter to

the fact finder.

First, statements in the letter were factually correct.

The letter states that the victim’s father was deceased;

this is true. The letter states that the victim’s brother was

killed; the victim’s brother died in a fire in 1988. The

letter states that the victim was under investigation for

child molestation; this was true. (App.Ex. XXVIII, Atch

2; App.Ex. XXIX).

Second, the events described in the letter are corro-

borated by other evidence. The letter describes a weapon

with a star on the shaft as being used in the killing of

Sgt Handy. Only the baseball bat was recovered. Dr.

Root, the forensic pathologist, called by the prosecution,

testified that he did not believe that a baseball bat alone

caused the injuries and that definitely more than one

weapon was used. (R. 880, 883). Dr. Root had per-

formed over 20,000 autopsies in his career and stated he

had never seen anything quite like the injuries in this case

from blunt force alone. (R. 867). The prosecution’s case

was solely based upon a theory of a blunt force mecha-

nism caused by the petitioner acting alone.

Dr. Root also testified that the injuries could have

been caused by more than one person. (R. 884). The

letter states that persons other than the petitioner killed

6

Sgt Handy. A criminalist with the U.S. Army Crime

Laboratory compared a bloody shoe-print found on the

victim’s shirt with the prints of shoes taken from the pe-

titioner; he found no similarities. (App.Ex. XXVI, para-

graph 9). The letter says the killers wore some type of

star on the cheek. The petitioner testified that the killers

wore star-shaped earrings. (R. 1122). An earring back

was found at the crime scene. (R. 687). The floor where

the earring was found had been thoroughly cleaned the

night of the murder, prior to the murder. The janitor

who cleaned the floor testified that his cleaning would

have picked up the earring if it was there when he cleaned.

(R. 1018).

Third, investigation of the letter’s source disclosed no

evidence of fabrication. Investigators took handwriting

exemplars from all persons who were told about the kill-

ing by the petitioner. A questioned documents examiner

was unable to determine the author of the letter. (App.

Ex. XXVI, paragraphs 7 and 8).

Fourth, investigators found no evidence indicating that

the petitioner authored the letter. The petitioner’s hand-

writing and that in the letter are very different. (App.Ex.

XVIII, Atch 2 and Atch 3). The tests of the questioned

documents examiner were inconclusive. (App.Ex. XXVI,

paragraph 8). The only identifiable fingerprints on the

letter were those of law enforcement agents. (/d., para-

graph 5). The Air Force Court of Review not only en-

gaged in fanciful speculation but totally ignored the evi-

dence when it held that “the timing and location of its

discovery suggests one plausible theory which is that the

appellant placed the letter in the military van, perhaps

under the rear of the driver’s seat of the vehicle, and it

finally worked its way forward on the day of its discovery.”

United States v. Burks, ACM 28760 (A.F.C.M.R., 26

August 1991), at 5. (Appendix B).

The fact of the matter is that the appellant had abso-

lutely no opportunity to plant the letter. The prosecution

——

Stipulated that the individual in charge of the confinement

facility would tesify to this fact. (App. Ex. XXVI, para-

graph 3). The appellant was in handcuffs and in the

company of a guard and other prisoners at all times on

the morning the letter was found. It also is quite in-

credible that a letter can “work its way forward” the en-

tire distance under the seat of a van, across the front

floorboard and lodge itself under a brake pedal. It is

particularly incredible considering on base driving speeds

and the fair presumption that the confinement officer was

not driving a government van full of prisoners in an

erratic manner.

Fifth, the letter talked extensively about Sgi Handy’s

homosexuality. Special Agent (SA) Filipiak testified that

in his investigation several people told him that Sgt Handy

had feminine characteristics (R. 686) and an Electronic

Mail message found on Sgt Handy’s computer did lend

some credence to the fact that he may have been a

homosexual.

Sixth, the letter states that a group of homosexuals

which had formed somewhat of a cult had killed Sgt

Handy. SA Filipiak testified that through his training and

experience homosexual murders are often associated with

violent deaths in which they frequently mutilate the face.

(R. 685). No one could dispute that Sgt Handy’s face

was severely mutilated.

Lastly, the author of the letter regrets that his “broth-

ers” threatened the petitioner and his family. (App.Ex.

XXVIII, Atch 1 at page 4). Major Merijeanne Moore,

an Air Force psychiatrist, conducted extensive clinical

evaluation and testing of the petitioner. She concluded

that the petitioner’s personality is such that he would

falsely confess to a crime if he were protecting someone

whom he felt an obligation to protect. She also con-

cluded that the petitioner is unlikely to commit a crime

of violence such as that in this case. (R. 1068). The

8

petitioner testified that the killers threatened to injure

his children if he said anything about them within four

weeks of the murder. (R. 1104, 1115, 1125, 1133-34).

These facts combined with the fact that there was an

extremely psychologically coercive environment leading

up to and surrounding the petitioner’s confession explain

why petitioner may have admitted to committing a crime

he did not commit. More pertinently, these factors estab-

lish why another explanation for the murder should have

gone to the jury.

Thus, all the indicia of reliability mentioned above

mandated the admission of the letter under the residual

hearsay exceptions. Mil. R. Evid. 803(24) and 804(b)

(5).

In addition to having indicia of trustworthiness, for

admissibility under the residual hearsay exception the evi-

dence must also satisfy three additional criteria. First, the

evidence must be relevant. Second, the evidence must be

more probative on the point than other evidence avail-

able to the proponent. Third, the general purposes of

the rules and the interests of justice support admission

of the evidence. Mil. R. Evid. 803(24). The relevance

of the letter is undisputed. The second and third criteria

compel admission of this letter.

The military judge found that another form of evidence

available to the petitioner was just as probative as the

letter: the petitioner could testify. (R. 63). The reason-

ing of this conclusion fails for several factual and legal

reasons.

The alternative given the petitioner by the military

judge violates the petitioner’s constitutional right not to

testify. A servicemember may assert his right not to

testify “‘without fear of exploitation.’ United States v.

Clifton, 15 M.J. 26, 30 (C.M.A. 1983). The petition-

er’s testimony was the only alternative mentioned by the

military judge in deciding that other forms of proof

9

equally as probative of the letter were available to the

petitioner. Even assuming that the petitioner had the

same substantive knowledge of the facts as the author

of the letter, the military judge in effect forced the pe-

titioner to either testify or forego presentation of the evi-

dence. This dilemma “exploits” and renders meaningless

the right not to testify.

Furthermore, no evidence exists to show that the pe-

titioner could competently testify about the matters ref-

erenced in the letter. The author of the letter was pur-

portedly the victim’s homosexual lover who knew why the

other members of the homosexual group wanted to kill

the victim. The petitioner certainly does not have such

firsthand knowledge.

The military judge’s exclusion of the letter because

other equally probative evidence was available to the pe-

titioner is legally and factually erroneous. The letter

corroborates the petitioner’s retraction of his confession.

The military judge’s conclusion that the petitioner’s testi-

mony would be equally as probative as the letter places

the petitioner in the untenable position of corroborating

himself. This defies reason. In addition, a letter written

by a third party exonerating the accused will almost al-

ways be more probative on the point than the accused’s

own testimony. This is true because, as prosecutors are

always quick to point out, the accused has a greater mo-

tive to lie than anyone else. Thus, the letter was critical

to corroborating the petitioner’s retraction of his confes-

sion. Finding that the petitioner could testify as an alter-

native to admission of the letter impermissibly compelled

the petitioner to either testify or forego presentation of

evidence contained in the letter. On both grounds the

finding is incorrect.

Finally, the purposes of the rules and the ends of justice

support admission of the letter. The Military Rules of

Evidence should be construed to secure fairness and pro-

10

mote ascertaining the truth. Mil.R.Evid. 102. This letter

was critical to the petitioner's defense. Once reliability

is indicated the fact-finder should have the opportunity

to evaluate the evidence and either accept or reject it.

In Pettijohn v. Hail, 599 F.2d 476, 481 (1st Cir.

1979), the court stated:

If the Supreme Court cases of Washington v. Texas

. and Chambers v. Mississippi . . . mean any-

thing, it is that a judge cannot keep important yet

possibly unreliable evidence from the jury.

This Honorable Court has long recognized the funda-

mental right of a criminal accused to present evidence

which is relevant, material and favorable to his defense.

See, United States v. Valenzuela-Bernal, 458 U.S. 858

(1982); Davis v. Alaska, 415 U.S. 308 (1974).

Moreover, the exclusion of this critical evidence cannot

be deemed harmless beyond a reasonable doubt. Numer-

ous witnesses testified concerning the petitioner’s peace-

ful character. (R. 991, 995, 1004, 1015). When the

evidence which corroborates the authenticity of the letter

is combined with the factual background leading up to

the confession (which supported a credible argument of

psychological coercion) and the evidence concerning why

the petitioner might have confessed to a crime he did not

commit, admission of the letter could have caused the

members to have a reasonable doubt of the petitioner’s

guilt.

The trial judge’s final conclusion that any possible

probative value of the letter is substantially outweighed

by the danger of confusion of the issues (R. 64) is

puzzling. The letter directly paralleled the petitioner’s

testimony and the defense’s theory of the case. The court

members would have either believed the letter or not

believed it but they certainly would not have been con-

fused by it.

11

Petitioner therefore asks that he be afforded a fair

trial and that this Court demand that the trier of fact be

properly provided with all the relevant evidence so that

the decision at the trial level is made in light of a fair

assessment of all the available evidence. The court-

martial should have had the opportunity to consider the

letter. Due process and fundamental fairness demands it.

CONCLUSION

Most evidentiary issues litigated before courts across

the land involve some aspect of the issue of whether

prosecution evidence was properly admitted against an

accused. This case is unique in that it deals with whether

an accused should have been permitted to present exculp-

atory evidence in his defense. To deny a criminally ac-

cused such a right in a military court runs afoul of the

most basic and fundamental of constitutional principles.

Indeed the right to present a defense is the cornerstone

of Anglo-American jurisprudence. One of the distinguish-

ing features of tyrannical government is the accused’s

lack of a right to present an effective defense.” The peti-

tioner was denied the opportunity to present an effective

defense by the military judge’s exclusion of critical ex-

culpatory evidence. Even accepting the premise that there

may have been a question as to the admissibility of the

evidence, the question should have been resolved in favor

of the petitioner. Chambers v. Mississippi, 410 U.S. 284

(1973); Washington v. Texas, 388 U.S. 14 (1967).

In excluding the exculpatory letter from evidence the

military judge effectively predetermined the petitioner’s

guilt and took the trial out of the jury’s hands. When a

trial judge fears that a jury receives exculpatory evidence

the trial judge has usurped the function of the jury. In-

2 Edward J. Imwinkelried, Exculpatory Evidence (1990).

i

12

deed “the manifest destiny of evidence law is a progressive

lowering of the barriers to truth.” *

The petitioner does not now ask that this Honorable

Court fully exonerate him and wipe the slate clean. The

petitioner only asks that this Honorable Court allow him

a fair trial where exculpatory evidence is not hidden from

the jury. No one except one who has predetermined

guilt should fear that a jury will receive all the relevant

evidence. The petitioner’s final plea therefore, as he faces

incarceration for the rest of his natural life, is only that

this Honorable Court allow a jury to see all the evidence

in this case.

Respectfully submitted,

JAY L. COHEN

Lt. Colonel, United States Air Force

Chief Appellate Defense Division

Counsel of Record

GEORGE F’. MAY

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency |

Appellate Defense Division |

172 Luke Avenue, Suite 208 |

Bolling AFB, DC 20332-5113

July 1993 (202) 767-1562

8 Charles T. McCormick, Handbook of the Law of Evidence

(1954).

ls