Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 1 of 384
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
GERALD MARSHALL, No. 4:14-CV-03438 Petitioner, District Judge Kenneth M. Hoyt v.
LORIE DAVIS, Director, CAPITAL CASE Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
Nicole DeBorde JASON D. HAWKINS Federal ID No. 16839 Federal Public Defender TBA No. 00787344 3515 Fannin Street Jeremy Schepers (TX 24084578) Houston, Texas 77004 Supervisor, Capital Habeas Unit Telephone: (713) 526-6300 Facsimile: (713) 808-9444 Jennifer Giddings (TX 24096284) [email protected] Jessica Graf (TX 24080615) Assistant Federal Defenders
Office of the Federal Public Defender Northern District of Texas 525 S. Griffin St., Ste. 629 Dallas, TX 75202 214-767-2746 [email protected]
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AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
Petitioner, Gerald Marshall, through undersigned counsel, pursuant to all rights available under the Constitution, laws, or treaties of the United States, respectfully petitions this Court for a writ of habeas corpus declaring unconstitutional and invalid his conviction for capital murder as well as the resulting death sentence.
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TABLE OF CONTENTS
AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 ...... i TABLE OF CONTENTS ...... ii TABLE OF AUTHORITIES ...... xii PARTIES ...... 1 JURISDICTION AND VENUE ...... 1 PROCEDURAL HISTORY ...... 1 STATEMENT OF FACTS ...... 4 A. The crime...... 5
B. The State’s investigation: A case built on the self- serving statements of co-defendants who lied to police...... 6
1. The crime scene: bystanders find what the police missed...... 6
2. The shooter: Gerald “Tank” Marshall or Ronald “Bo” Worthy? ...... 8
3. Calliham and Worthy place the blame on Marshall after they are alerted to Marshall’s arrest...... 18
4. Calliham and Worthy, improperly housed together at the Harris County Jail, get their stories straight...... 27
C. The defense: Marshall was represented at trial by one attorney overburdened by death penalty cases and one sanctioned by the State Bar for incompetent representation...... 28
1. While representing Marshall, lead counsel Mack Arnold was assigned to two simultaneous death- penalty cases and struggling to keep up...... 29
2. Second-chair counsel Sid Crowley has a history of deficient performance in capital murder cases and was sanctioned by the State Bar for multiple violations of the rules of conduct...... 30
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3. Trial counsel rarely met with Marshall and did not prepare him for trial...... 33
D. The trial: Unreliable snitch testimony points to Marshall as the shooter...... 34
1. Kenny Calliham testifies to get probation for his involvement in the murder...... 35
2. By testifying, Clarence Green wins a sentence of probation despite having assaulted a police officer—an offense for which, under normal circumstances, he would have been sentenced to 25 years-to-life...... 36
3. Wilbert Marsh identifies Marshall as the shooter— something he was unable to do before he saw Marshall sitting at the defense table in trial...... 38
4. The State bolstered all its questionable evidence to convict Marshall as the shooter...... 39
STATEMENT REGARDING PROCEDURAL DEFENSES ...... 41 CLAIMS FOR RELIEF ...... 42 CLAIMS ONE, TWO, AND THREE: A PERVASIVE AND CONTINUING PATTERN OF STATE MISCONDUCT VIOLATED MARSHALL’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT...... 42 RELEVANT FACTS ...... 42 A. A tale of two trials: The State used diametrically opposed evidence to convict both Marshall and Worthy of capital murder...... 42
1. The State manipulated the evidence to convince Marshall’s jury that only Marshall entered the Whataburger and thus had to be the shooter...... 43
2. The same prosecutors that secured Marshall’s conviction and death sentence convinced Worthy’s jury that Worthy also entered the Whataburger...... 49
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B. To secure Marshall’s conviction and death sentence as the principal in Dean’s murder, the State withheld and otherwise misrepresented the evidence...... 56
1. The State failed to introduce evidence at Marshall’s trial tying Worthy to the murder weapon...... 56
2. The State withheld and untimely disclosed material evidence that was favorable to Marshall’s defense...... 57
C. Widespread evidence that the State lacks credibility should inform how this Court treats Marshall’s claims of misconduct...... 68
1. The prosecutors in this case have a pattern of withholding evidence...... 70
2. The prosecutors in this case have demonstrated that they do not understand Brady...... 74
Claim 1 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights to due process and to be free from cruel and unusual punishment were violated by the State’s knowing use of false testimony at the guilt and penalty phases of his trial...... 77
A. The governing law...... 78
B. The State knowingly presented, and failed to correct, false and misleading evidence at the guilt phase...... 79
C. The State knowingly presented, and failed to correct, false and misleading testimony at the penalty phase of Marshall’s trial...... 86
D. This claim is unexhausted...... 86
Claim 2 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the state’s deployment of fundamentally inconsistent theories of the crime...... 87
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A. The governing law...... 87
B. The State presented inconsistent and irreconcilable theories of the offense in its prosecutions of Marshall and his co-defendant Worthy...... 91
C. The State’s use of inconsistent and irreconcilable theories violated Marshall’s due process rights and entitles him to relief from his conviction...... 100
D. This claim is unexhausted...... 102
Claim 3 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the State’s suppression of exculpatory and impeachment evidence...... 102
A. The governing law...... 104
B. The State engaged in a pattern of suppression and delayed disclosure in this case, validating concerns that to this day, the State is continuing to suppress evidence favorable to Marshall...... 106
C. This claim is unexhausted...... 110
Claim 4 Marshall’s Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel’s ineffective investigation and preparation for the guilt phase of trial...... 110
A. Because trial counsel failed to conduct an adequate investigation into the allegations against Marshall, they were unprepared to competently challenge the State’s claim that he entered the Whataburger alone and shot Dean...... 111
1. Prevailing professional norms required that the defense perform a basic, independent pre-trial investigation ...... 112
2. Trial counsel failed to develop critical evidence that Marshall was not the shooter...... 114
3. Counsel failed to take basic investigative steps, including reviewing the State’s file and interviewing witnesses...... 123
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B. Trial counsel failed to adequately attack the weaknesses in the State’s case or to adequately develop their own theory of the case...... 132
1. Trial counsel failed to challenge the State’s eyewitness identification...... 133
2. Trial counsel failed to challenge the State’s ballistics expert...... 137
3. Wilbert Marsh’s shifting stories went largely unchallenged...... 140
4. Trial counsel was unable to adequately impeach the State’s jailhouse snitch because counsel had become a witness...... 141
5. Counsel failed to adequately impeach co-defendant Calliham and jailhouse snitches Green and Meyer. ... 142
C. There is a reasonable probability that this very close case would have ended differently absent counsel’s errors...... 144
1. Effective counsel could have presented significant evidence that Marshall was not the shooter...... 146
2. Effective counsel could have significantly undermined the State’s witnesses and evidence...... 148
D. Marshall is entitled to federal habeas corpus review of, and relief on, his substantial ineffective-assistance-of- counsel claims because any applicable procedural default was caused by state habeas counsel’s deficient performance...... 149
1. Adequately investigating any potential claims available through the exercise of due diligence is the most fundamental duty of capital habeas counsel...... 151
2. Marshall’s initial state habeas counsel failed to “investigate . . . the factual . . . grounds for the filing of an application for a writ of habeas corpus” and instead filed a record-based pleading comprised entirely of non-cognizable and unsupported claims. ... 161
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Claim 5 Marshall’s Sixth, Eighth, and Fourteenth Amendment rights were violated by counsel’s ineffective investigation and preparation for the penalty phase...... 168
A. Trial counsel rendered deficient performance by failing to reasonably investigate Marshall’s background...... 169
1. Prevailing professional standards at the time of Marshall’s trial required that trial counsel conduct a thorough background investigation...... 170
2. Trial counsel did not conduct a background investigation that met prevailing professional norms...... 171
3. Trial counsel failed to timely retain or prepare defense expert Dr. Carmen Petzold...... 177
4. Trial counsel failed to prepare testifying lay witnesses...... 181
5. Trial counsel failed to investigate numerous “red flags” signaling the need for further investigation. .... 184
B. There is a reasonable probability that, had trial counsel conducted an adequate mitigation investigation commensurate with then-prevailing norms in capital cases, Marshall would have received a life sentence...... 185
1. Before and at the time of Gerald’s birth, Gerald Sr. and Johni fought violently, abused alcohol and drugs, and beat their children...... 187
2. After being abandoned by his father, Gerald was not cared for by his mother...... 190
3. Just shy of his sixth birthday, Gerald was placed in protective custody after being abandoned by his mother...... 192
4. At age 11, Gerald was placed in protective custody after his father physically abused him...... 198
5. From ages 12 to 18, Gerald was physically and emotionally abused by his foster mother...... 201
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6. Upon ageing out of foster care, Gerald obtained employment, enrolled in college, and reunited his mother and siblings...... 205
7. Gerald never recovered...... 206
8. Had this evidence been made available to trial defense expert Dr. Petzold and to a trauma expert, they would have concluded that Gerald suffers from longstanding adverse consequences related to significant childhood trauma...... 207
9. Had the jury heard this evidence, there is a reasonable probability that at least one juror would have answered the mitigation special issue in the affirmative, resulting in a life sentence...... 209
C. Marshall is entitled to federal habeas corpus review of, and relief on, his substantial ineffective-assistance-of- counsel claims because any applicable procedural default was caused by state habeas counsel’s deficient performance...... 211
Claim 6 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the cumulative effect of the ineffective assistance of his counsel and the State’s due process violations...... 212
Claim 7 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment Rights were violated by the trial court’s admission of his second statement into evidence because he did not validly waive his right to remain silent...... 216
A. Marshall’s right to remain silent was violated...... 216
B. 28 U.S.C. § 2254(d) does not preclude relitigation...... 222
Claim 8 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the trial court’s admission of his second statement into evidence because the statement was made in response to a false promise by Officer Scales...... 225
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A. Marshall’s rights were violated by Officer Scales...... 225
B. 28 U.S.C. § 2254(d) does not preclude relitigation...... 227
Claim 9 Marshall’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel’s failure to move to suppress Marshall’s statements on the ground that his arrest was illegal...... 228
A. Trial counsel were ineffective when they failed to move to suppressed Marshall’s statements on the basis that his arrest was illegal...... 228
B. Marshall is entitled to relief regardless of whether 28 U.S.C. § 2254(d) applies...... 236
Claim 10 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment Rights were violated because he was denied the right to confront the State’s evidence regarding the autopsy...... 237
A. Marshall’s right to confront witnesses was violated...... 237
B. 28 U.S.C. § 2254(d) does not preclude relitigation...... 240
Claim 11 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the grand jury did not allege the aggravating factor that exposed him to a death sentence...... 242
A. Marshall’s indictment was improper...... 242
B. This claim is reviewed de novo...... 244
Claim 12 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the State did not bear the burden of proving insufficient mitigating circumstances beyond a reasonable doubt, and because the defense was burdened with proving the existence of mitigating circumstances sufficient to warrant the default sentence of life without the possibility of parole for forty years...... 245
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A. Marshall’s rights were violated...... 245
B. Marshall is entitled to relief regardless of whether 28 U.S.C. § 2254(d) applies...... 247
Claim 13 Marshall’s death sentence violates the Equal Protection and Due Process Clauses of the United States Constitution and the Eighth Amendment...... 248
A. Marshall’s death sentence is unconstitutional because it was sought and imposed on the basis of race...... 248
1. The Harris County DA’s Office racially biased exercise of prosecutorial discretion violated Marshall’s rights to due process and equal protection under the law...... 249
2. The racial bias that infected Marshall’s death sentence violates the Eighth Amendment’s ban on cruel and unusual punishment...... 281
B. This claim is unexhausted...... 282
Claim 14 Marshall’s prolonged stay on death row violates his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution...... 282
A. Marshall’s prolonged stay on death row, for a crime he did not commit, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution...... 286
1. The British Privy Council’s Landmark Decision in Pratt & Morgan...... 288
2. Eighth Amendment authority supporting Marshall’s claim...... 290
3. The unconstitutional conditions at TDCJ-ID’s Polunsky Unit further Marshall’s argument...... 294
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B. Marshall’s execution after so many years on death row would have no deterrent or retributive effect and would therefore serve no penological purpose, thus constituting a breach of the Eighth Amendment...... 295
Claim 15 Marshall is actually innocent and his execution would constitute cruel and unusual punishment and violate due process...... 296
Claim 16 Marshall is entitled to habeas relief due to the failure of having an unbiased judge sit over his trial. Judge Stricklin was biased against Marshall, rendering his conviction and sentence unconstitutional...... 298
PRAYER FOR RELIEF ...... 352 VERIFICATION BY ATTORNEY ...... 354 CERTIFICATE OF SERVICE ...... 355
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TABLE OF AUTHORITIES
Page(s)
Federal Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 242, 243, 244, 246
Arizona v. Fulminante, 499 U.S. 279 (1991) ...... 225
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ...... 267, 269
Banks v. Dretke, 540 U.S. 668 (2004) ...... 104, 106
Batson v. Kentucky, 476 U.S. 79 (1986) ...... passim
Bazemore v. Friday, 478 U.S. 385 (1986) ...... 267
Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005) ...... 269
Beltran v. Cockrell, 294 F.3d 730 (5th Cir. 2002) ...... 134
Berger v. United States, 295 U.S. 78 (1935) ...... passim
Blackmon v. Scott, 22 F.3d 560 (5th Cir. 1994) ...... 105
Bolling v. Sharpe, 347 U.S. 497 (1954) ...... 248
Bradshaw v. Stumpf, 545 U.S. 175 (2005) ...... 91
Brady v. Maryland, 373 U.S. 83 (1963) ...... passim
Bram v. United States, 168 U.S. 532 (1897) ...... 225
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Brown v. Board of Education, 347 U.S. 483 (1954) ...... 270
Brown v. Illinois, 422 U.S. 590 (1975) ...... 231, 232
Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994) ...... 114, 122
Campbell v. Wood, 18 F.3d 662 (9th Cir. 1993) ...... 290
Canales v. Stephens, 765 F.3d 551 (5th Cir. 2014) ...... 78, 147
Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003) ...... 214, 215
Chambers v. Florida, 309 U.S. 227 (1940) ...... 225
Chambers v. Mississippi, 410 U.S. 284 (1973) ...... 212, 213
Chapman v. California, 386 U.S. 18 (1967) ...... 79, 225, 242
Charles v. Smith, 894 F.2d 718 (5th Cir. 1990) ...... 223
Charles v. Stephens, 736 F.3d 380 (5th Cir. 2013) ...... 167
Coker v. Georgia, 433 U.S. 584 (1977) ...... 291
Coleman v. Balkcom, 451 U.S. 949 (1981) ...... 285
Crawford v. Washington, 541 US 36 (2004) ...... 237, 238, 240
Davis v. United States, 512 U.S. 452 (1994) ...... 218, 224
Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) ...... 88, 91
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Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005) ...... 112
Dunaway v. New York, 442 U.S. 200 (1979) ...... 233
Elledge v. Florida, 525 U.S. 944 (1998) ...... 285, 289
Enmund v. Florida, 458 U.S. 782 (1982) ...... 291
Escamilla v. Stephens, 749 F.3d 380 (5th Cir. 2014) ...... 167
Estelle v. Gamble, 429 U.S. 97 (1976) ...... 291
Fisher v. United States, 328 U.S. 463 (1946) ...... 288
Ford v. Wainwright, 477 U.S. 399 (1986) ...... 289, 290, 291
Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947) ...... 292
Free v. Peters, 50 F.3d 1362 (7th Cir. 1995) ...... 285
Furman v. Georgia, 408 U.S. 238 (1972) ...... 278, 285, 293, 294
Gentry v. Sinclair, 576 F.Supp.2d 1130 (W.D. Wash. 2008) ...... 214
Giglio v. United States, 405 U.S. 150 (1972) ...... 78, 105, 106
Giles v. Maryland, 386 U.S. 66 (1967) ...... 88
Glossip v. Gross, 135 S. Ct. 2726 (2015) ...... passim
Godfrey v. Georgia, 446 U.S. 420 (1980) ...... 280
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Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006) ...... 107
Green v. Stephens, No. 4:13-CV-1899, 2017 WL 1929358 (S.D. Tex. May 10, 2017) ...... 147
Harmelin v. Michigan, 501 U.S. 957 (1991) ...... 288
Harris v. Texas, 467 U.S. 1261 (1984) ...... 256, 257
Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999) ...... 113
Hernandez v. Thaler, 2011 WL 3567488 (S.D. Tex. 2011) ...... 102
Herrera v. Collins, 506 U.S. 390 (1993) ...... 295, 296
Ho v. Thaler, 495 F. App’x 488 (5th Cir. 2012) ...... 81, 82
House v. Bell, 547 U.S. 518 (2006) ...... 296
Hudson v. McMillian, 503 U.S. 1 (1992) ...... 293
Hunter v. Underwood, 471 U.S. 222 (1985) ...... 280
Jones v. United States, 526 U.S. 227 (1999) ...... 242, 243, 244
Jurek v. Texas, 428 U.S. 262 (1976) ...... 278
Kilbourn v. Thompson, 103 U.S. 168 (1881) ...... 288
Kyles v. Whitley, 514 U.S. 419 (1995) ...... 104, 105, 106
LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728 (5th Cir. 2011) ...... 85
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Lackey v. Texas, 514 U.S. 1045 (1995) ...... passim
Lassiter v. Department of Social Services, 452 U.S. 18 (1981) ...... 88
Leyra v. Denno, 347 U.S. 556 (1954) ...... 225
Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985) ...... 106
Lynumn v. Illinois, 372 U.S. 528 (1963) ...... 225, 226, 228
Martinez v. Ryan, 566 U.S. 1 (2012) ...... 147, 148, 211
McCleskey v. Kemp, 481 U.S. 279 (1987) ...... passim
In re Medley, 134 U.S. 160 (1890) ...... 282, 293
Michigan v. Mosley, 423 U.S. 96 (1975) ...... passim
Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) ...... 68
Miller–El v. Cockrell, 537 U.S. 322 (2003) ...... 148, 269
Miller-El v. Dretke, 545 U.S. 231 (2005) ...... 270
Miranda v. Arizona, 348 U.S. 436 (1966) ...... passim
Mooney v. Holohan, 294 U.S. 103 (1935) ...... 78
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) ...... 112
Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006) ...... 75
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Mullaney v. Wilbur, 421 U.S. 684 (1975) ...... 245, 246
Napue v. Illinois, 360 U.S. 264 (1959) ...... 78, 79
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) ...... 113
Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) ...... 90
Norris v. Alabama, 294 U.S. 587 (1935) ...... 263
North Carolina v. Butler, 441 U.S. 369 (1979) ...... 218
Oyler v. Boles, 368 U.S. 448 (1962) ...... 248
Padilla v. Kentucky, 599 U.S. 356 (2010) ...... 149
Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001) ...... 214
Pointer v. Texas, 380 U.S. 400 (1965) ...... 238
Prible v. Davis, No. 4:09-01896 (S.D. Tex.) (2017) ...... 75, 76, 224, 225
Ramey v. Davis, 942 F.3d 241 (5th Cir. 2019) ...... 122
Rhines v. Weber, 544 U.S. 269 (2005) ...... 86, 103, 110, 281
Richards v. Quarterman, 566 F.3d 553 (5th Cir. 2009) ...... 112
Ring v. Arizona, 536 U.S. 584 (2002) ...... 242, 243, 244, 247
Robinson v. California, 370 U.S. 660 (1962) ...... 291
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Rompilla v. Beard, 545 U.S. 374 (2005) ...... 167
Rosales v. Quarterman, 4:03-cv-01016 (S.D. Tex.) (2008) ...... 261
Ross v. Hous. Indep. Sch. Dist., 699 F.2d 218 (5th Cir. 1983) ...... 271
Schlup v. Delo, 513 U.S. 289 (1995) ...... 296
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ...... 221
Smith v. Aldingers, 999 F.2d 109 (5th Cir. 1993) ...... 293
Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000) ...... passim
Smith v. Phillips, 455 U.S. 209 (1982) ...... 89
Solesbee v. Balkcom, 339 U.S. 9 (1950) ...... 285
Stanford v. Kentucky, 109 S. Ct. 2969 (1989) ...... 289, 291
Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006) ...... 114, 117, 118, 119
Strauder v. West Virginia, 100 U.S. 303 (1880) ...... 263
Strickland v. Washington, 466 U.S. 668 (1984) ...... passim
Strickler v. Greene, 527 U.S. 263 (1999) ...... 104
Taylor v. Alabama, 457 U.S. 687 (1982) ...... 233
Taylor v. Kentucky, 436 U.S. 478 (1978) ...... 212, 213
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Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) ...... 88, 101, 102
Trevino v. Thaler, 569 U.S. 413 (2013) ...... 147, 149
Trop v. Dulles, 356 U.S. 86 (1958) ...... 290, 291, 293
United States v. Armstrong, 517 U.S. 456 (1996) ...... 248, 279
United States v. Bagley, 473 U.S. 667 (1985) ...... 78, 79, 105, 106
United States v. Barham, 595 F.2d 231 (5th Cir. 1979) ...... 79
United States v. Bass, 536 U.S. 862 (2002) ...... 269, 279
United States v. Batchelder, 442 U.S. 114 (1979) ...... 248
United States v. Collins, 799 F.3d 554 (6th Cir. 2015) ...... 90
United States v. Delgado, 631 F.3d 685 (5th Cir. 2011) ...... 213, 214
United States v. Diharce-Estrada, 526 F.3d 637 (5th Cir. 1976) ...... 214
United States v. Dvorin, 817 F.3d 438 (5th Cir. 2016) ...... 78
United States v. Frye, 489 F.3d 201 (5th Cir. 2007) ...... 102
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ...... 211
United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) ...... 87, 90
United States v. Labarbera, 581 F.3d 107 (5th Cir. 1978) ...... 214
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United States v. Nixon, 881 F.2d 1305 (5th Cir. 1989) ...... 75
United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997) ...... 85
United States v. Raddatz, 447 U.S. 667 (1980) ...... 288
United States v. Reedy, 304 F.3d 358 (5th Cir. 2002) ...... 214
United States v. Riddle, 103 F.3d 423 (5th Cir. 1997) ...... 213
United States v. Villareal, 324 F.3d 319 (5th Cir. 2003) ...... 214
United States v. Wall, 389 F.3d 457 (5th Cir. 2004) ...... 85
Watts v. Indiana, 338 U.S. 49 (1949) ...... 225
Wayte v. United States, 470 U.S. 598 (1985) ...... 248
Wearry v. Cain, 136 S. Ct. 1002 (2016) ...... 79, 212
Weems v. United States, 217 U.S. 349 (1910) ...... 290
Whitus v. Georgia, 385 U.S. 545 (1967) ...... 248
Wiggins v. Smith, 539 U.S. 510 (2003) ...... 166, 167, 181
Williams v. Taylor, 529 U.S. 362 (2000) ...... 141, 166, 259, 260
In re Winship 397 U.S. 358 (1970) ...... 88, 245
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State Cases
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ...... 105
Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996)...... 231
Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986) ...... 231
Brooks v. State, 802 S.W.2d 692 (Tex. Crim. App. 1991) ...... 262
Butler v. State, 872 S.W.2d 227 (Tex. Crim. App. 1994) ...... 261
Collins v. State, 60 S.W. 42 (Tex. Crim. App. 1900) ...... 273
Commonwealth v. O’Neal, 339 N.E.2d 676 (Mass. 1975) ...... 286
Emerson v. State, 851 S.W.2d 269 (Tex. Crim. App. 1993) ...... 262
Esteves v. State, 859 S.W.2d 613 (Tex. App.—Houston [1st Dist.] 1993) ...... 262
Garcia v. State, 802 S.W.2d 817 (Tex. App.—Houston [1st Dist.] 1990) ...... 262
Ex parte Ghahremani, 332 S.W.3d 370 (Tex. Crim. App. 2011) ...... 75
Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) ...... 152
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004)...... 143
Hall v. State, 283 S.W.3d 137 (Tex. App.—Austin 2009) ...... 90
Ex parte Holberg, 2014 WL 5389907 (Tex. Crim. App. Sept. 17, 2014) ...... 148
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Hopkinson v. Wyoming, 632 P.2d 79 (Wyo. 1981) ...... 286
Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002)...... 148
Lewis v. State, 775 S.W.2d 13 (Tex. App.—Houston [14th Dist.] 1989) ...... 262
Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ...... passim
Ex parte Marshall, 2014 WL 6462907 (Tex. Crim. App. 2014)...... 3, 240
Ex parte McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002)...... 148, 162
Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011) ...... 146, 150, 151, 154
Mendoza v. State, 88 S.W.3d 236 (Tex. Crim. App. 2002)...... 231
Moore v. State, 265 S.W.3d 73 (Tex. App.—Houston [1st Dist.] 2008) ...... 266
People v. Anderson, 493 P.2d 880 (Cal. 1972) ...... 285
Robinson v. State, 756 S.W.2d 62 (Tex. App.—Texarkana 1988) ...... 263
Ross v. Connecticut, 646 A.2d 1318 (Conn. 1994) ...... 286
In re Sakarias, 106 P.3d 931 (Cal. 2005) ...... 91
Self v. State, 709 S.W. 2d 662 (Tex. Crim. App. 1986) ...... 234
Sexton v. State, 93 S.W.3d 96 (Tex. Crim. App. 2002) ...... 137
State v. Richmond, 886 P.2d 1329 (Ariz. 1994) ...... 286
xxii Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 24 of 384
State v. Thomas, 209 S.W.3d 268 (Tex. App.—Houston [1st Dist.] 2006) ...... 266
Stephenson v. State, 226 S.W.3d 622 (Tex. App.—Amarillo 2007) ...... 134, 135
Suffolk County District Attorney v. Watson, 411 N.E.2d 1274 (Mass. 1980) ...... 286
Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987) ...... 257, 258
Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004)...... 148, 162
Ex parte Van Alstyne, 239 S.W.3d 815 (Tex. Crim. App. 2007) ...... 154
Vargas v. State, 859 S.W.2d 534 (Tex. App.—Houston [1st Dist.] 1993) ...... 262
Vigneault v. State, 600 S.W.2d 318 (Tex. Crim. App. 1979) ...... 279
Whitney v. State, 59 S.W. 895 (Tex. Crim. App. 1900) ...... 273, 274
Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1989) ...... 262
Williams v. State, 804 S.W.2d. 95 (Tex. Crim. App. 1991) ...... 259
Worthy v. State, No. 01-06-00134-CR, 2007 WL 624667 (Tex. App.—Houston [1st Dist.] 2007) ...... passim
Wright v. State, 832 S.W.2d 601 (Tex. Crim. App. 1992) ...... 262
Federal Statutes
28 U.S.C. § 1331 ...... 1
28 U.S.C. § 2241 ...... 1
28 U.S.C. § 2254 ...... 1, 41, 86
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28 U.S.C. § 2254(b)(1) ...... 41
28 U.S.C. § 2254(d) ...... passim
28 U.S.C. § 2254(d)(1) ...... 221
28 U.S.C. § 2254(d)(2) ...... 227, 241
State Statutes
TEX. CODE CRIM. PROC. art. 11.071 ...... 149, 151
TEX. CODE CRIM. PROC. art. 11.071 § 1 ...... 149
TEX. CODE CRIM. PROC. art. 11.071 § 3 ...... 149
TEX. CODE CRIM. PROC. art. 11.071 § 3(a) ...... 157
TEX. CODE CRIM. PROC. art. 11.071 § 4(a) ...... 159
TEX. CODE CRIM. PROC. art. 11.071 § 4(b) ...... 159, 160
TEX. CODE CRIM. PROC. art. 11.071 § 5 ...... 148
TEX. CODE CRIM. PROC. art. 15.25 ...... 230
TEX. CODE CRIM. PROC. art. 28.23 ...... 230
TEX. CODE CRIM. PROC. art. 37.071 ...... 243, 244, 246, 247
TEX. CODE CRIM. PROC. art. 37.071(b), (e) ...... 2
TEX. CODE CRIM. PROC. art. 37.071 § (2)(b)(1) ...... 242
TEX. CODE CRIM. PROC. art. 37.071 § (2)(b)(1) ...... 245
TEX. CODE CRIM. PROC. art. 37.071 § 2(b)(2) ...... 142
TEX. CODE CRIM. PROC. art. 37.071, §§ 2(e) and (f) ...... 244
TEX. CODE CRIM. PROC. art. 38.21 ...... 225
TEX. PENAL CODE §§ 7.01, 7.02 ...... 142
TEX. PENAL CODE § 12.31 ...... 242
TEX. PENAL CODE § 12.31(a) ...... 243
xxiv Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 26 of 384
Constitutional Provisions
U.S. CONST. amend. IV ...... passim
U.S. CONST. amend. V ...... passim
U.S. CONST. amend. VI ...... passim
U.S. CONST. amend. VIII ...... passim
U.S. CONST. amend. XIV...... passim
Other Authorities
A. Camus, Reflections on the Guillotine in RESISTANCE, REBELLION & DEATH (1966) ...... 286
Alan Bernstein, DA candidates view office in different ways; Siegler says she hasn’t seen racism; all vow equal treatment, transparency, Hous. Chron., Feb. 7, 2008, at B1 ...... 261
Alan Bernstein, GOP Runoff Opponents Dispute Status of DA’s Office, Hous. Chron., Mar. 27, 2008, at B5...... 265, 266
Allan Turner, Former DA Ran Powerful Death Penalty Machine, Hous. Chron., July 25, 2007 ...... 255
Bidish Sarma, Using Deterrence Theory to Promote Prosecutorial Accountability, 21 LEWIS & CLARK L. REV. 573 (2017) ...... 68
Bluestone & McGahee, Reaction to Extreme Stress: Impending Death By Execution, 119 AMER. J. PSYCHIATRY 393 (1962) ...... 286
Brent E. Newton, A Case Study in Systemic Unfairness: The Texas Death Penalty, 1973-1994, 1 TEX. F. on C.L. & C.R. 1, 13 (Spring 1994) ...... 278, 279
Catholic Comm’n for Justice & Peace in Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993) (reported in 14 HUM. RTS. l. J. 323 (1993)) ...... 286
Charles Alan Wright, FEDERAL PRACTICE AND PROCEDURE § 254.2 (3d ed. 2000) ...... 74
Chuck Lindell, Attorney Cuts, Pastes Convicted Client’s Letter, AUSTIN AMERICAN-STATESMAN, Oct. 29, 2006 ...... 163
xxv Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 27 of 384
Chuck Lindell, Lawyer’s Writs Come Up Short, AUSTIN AMERICAN- STATESMAN, Oct. 30, 2006 ...... 163
Chuck Lindell, New Appeals, Old Arguments, AUSTIN AMERICAN- STATESMAN, Oct. 30, 2006 ...... 163
Chuck Lindell, Sloppy Lawyers Failing Clients on Death Row, AUSTIN AMERICAN-STATESMAN, Oct. 29, 2006 ...... 31, 32, 33, 163
Chuck Lindell, When $25,000 is the Limit on a Life, AUSTIN AMERICAN- STATESMAN, Oct. 30, 2006 ...... 163
Confinement, 49 CRIME & DELINQUENCY 124 (2003)...... 294
Craig Malisow, Some Judges Want Paintings of ‘Shirtless Black Men Hauling Bales of Cotton’ Removed from Courthouse, Hous. Press Blogs, Feb. 9, 2012 ...... 275
Dennis Spellman, Harris County DA-Elect Ogg Announces Assistant District Attorneys, COVERING KATY (Dec. 30, 2016) ...... 69
Duffy & Hirshberg, EIGHTY-EIGHT MEN AND TWO WOMEN (1962) ...... 286
Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 SETON HALL L. REV. 147 (1998) ...... 289
F. Dostoyevsky, THE IDIOT (D. Magarshack trans. 1955) ...... 286
Gallemore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 AMER. J. PSYCHIATRY 167 (1972) ...... 286
Gottlieb, Testing The Death Penalty, 34 S. CAL. L. REV. 268 (1961) ...... 286
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, American Bar Association 31 Hofstra L. Rev. 913 (2003) ...... 124
Guidelines and Standards for Texas Capital Counsel, State Bar of Texas (2006) ...... 124
Holland, Death Row Conditions: Progression Towards Constitutional Protections, 19 AKRON L. REV. 293 (1985) ...... 286
Hussain & Tozman, Psychiatry on Death Row, 39 J. CLINICAL PSYCHIATRY 183 (1979) ...... 286
xxvi Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 28 of 384
James W. Marquart, et al., The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990 (1994) ...... 277, 278
Johnson, Under Sentence of Death: The Psychology of Death Row Confinement, 5 LAW & PSYCHOLOGY REV. 141 (1979) ...... 286
Jonathan Sorenson & James W. Marquart, Prosecutorial and Jury Decision-Making in Post-Furman Texas Capital Cases, 18 N.Y.U. REV. L. & SOC. Ch. 743 (1990-91) ...... 279
Juan A. Lozano, Harris County DA Resigns Amid Scandal, Dall. Morning News, Feb. 16, 2008 ...... 265
Ku Klux Klan Candidates Leading in Texas; Most Big Cities and Counties Carried by Them, N.Y. Times, June 24, 1922 ...... 271
Lambrix, The Isolation of Death Row in FACING THE DEATH PENALTY (M. Radelet ed. 1990) ...... 288
Marcia Johnson & Luckett Anthony Johnson, Bail: Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas, 7 NW J. L. & SOC. POL’Y 42 (2012) ...... 276
Mary Thompson, A Long and Winding Road: An Historical Perspective on the Role of Women and Minorities in the Houston Bar Association, 33 HOU. L. REV. 36 (1995) ...... 273
Matt Stiles & Alan Bernstein, State Probe Sought into DA’s Emails, Hous. Chron., Jan. 10, 2008, at A1 ...... 264
Millemann, Capital Post-Conviction Petitioners’ Right to Counsel, 48 MD. L. REV. 455 (1989) ...... 286
Model Rules of Professional Conduct (1983) ...... 88
Note, Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 830 (1972) ...... 286
Ralph Blumenthal, New Investigation in Texas E-mail Case, N.Y. Times, Jan. 9, 2008 ...... 265
Ralph Blumenthal, Prosecutor, Under Fire, Steps Down in Houston, N.Y. Times, Feb. 16, 2008 ...... 264
Report of Raymond Paternoster, Racial Disparity in the Case of Duane Edward Buck (Dec. 28, 2012) ...... 251
xxvii Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 29 of 384
Rich Motoko, Segregation Prominent in Schools, Study Finds, N.Y. Times, Sept. 19, 2012 ...... 271
Robert J. Hunter et al., The Death Sentencing of Rapists in Pre-Furman Texas (1942-1971): The Racial Dimension, 20 AM. J. CRIM. L. 313 (Spring 1993) ...... 279
Rupert C. Koeninger, Capital Punishment in Texas, 1924-1968, 15 CRIME & DELINQ. 132 (1969) ...... 278
Schabas, Execution Delayed, Execution Denied, 5 CRIM. L. FORUM 180 (1994) ...... 286
Scott Phillips, Continued Racial Disparities in the Capital of Capital Punishment: The Rosenthal Era, 50 HOUS. L. REV. 131 (Fall 2012) ...... 249
Scott Phillips, Racial Disparities in the Capital of Capital Punishment, 45 HOUS. L. REV. 807 (Summer 2008) ...... 249
Sheldon Eckland-Olson, Structured Discretion, Racial Bias, and the Texas Death Penalty, 69 POL. SCI. Q. 853 (1988) ...... 279
Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 WASH. & LEE L. REV. 405 (Spring 2000) ...... 272
Stafer, Symposium on Death Penalty Issues: Volunteering for Execution, 74 J. CRIM. L. 860 (1983) ...... 286
Tim Fleck, As the Jim Crow Flies: Court Art Attracts Heat But No Media Light, Hous. Press, July 10, 2003 ...... 274
Wood, Competency for Execution: Problems in Law and Psychiatry, 14 FLA. ST. U. L. REV. 35 (1986) ...... 286
xxviii Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 30 of 384
PARTIES
Petitioner Gerald Marshall is an inmate of the Texas Department of Criminal
Justice (TDCJ). Marshall’s TDCJ number is 999489 and he is housed at the Polunsky
Unit in Livingston, Texas.
Respondent Lorie Davis is the Director of TDCJ’s Correctional Institutions
Division and an agent of the State that has custody of Marshall. She has custody
pursuant to the judgment and sentence of death entered against Marshall on
November 12, 2004, in State v. Gerald Marshall, No. 948591 (Tex. 180th Dist. Ct.—
Harris County). 1 CR 364.1
JURISDICTION AND VENUE
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 2241(a), and
2254(a). Venue is proper in the United States District Court for the Southern District
of Texas under 28 U.S.C. § 2241(d) because it is the court for the district within which
Marshall was convicted and sentenced.
PROCEDURAL HISTORY
Petitioner, Gerald Marshall, was charged by indictment with the capital
murder of Christopher Dean on May 11, 2003. 1 CR 10. On May 15, 2003, the trial
court appointed Marshall “Mack” Arnold as lead counsel and nearly nine months
later, on February 4, 2004, J. Sidney Crowley was appointed as second chair trial
1 Marshall will cite the reporter’s record of his trial proceedings as [volume number] RR [page number]. The clerk’s record, which includes pre-trial motions and other documents filed in the court, will be cited as [volume number] CR [page number]. The clerk’s record from state habeas proceedings is cited as [volume number] SHCR [page number].
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counsel. Id. at 7, 65. Jury selection began on October 11, 2004, and the State began
its case in chief on November 1, 2004. The jury found Marshall guilty as a principal
on November 9, 2004. After a brief punishment phase trial, the jury answered “yes”
to the future dangerousness special issue and “no” to the mitigation special issue.
Marshall was accordingly sentenced to death on November 12, 2004. Id. at 364–65;
TEX. CODE CRIM. PROC. art. 37.071(b), (e).
Wayne T. Hill was appointed to represent Marshall on direct appeal. On
December 7, 2004, Hill filed a motion for new trial, which was denied on January 14,
2005. 1 CR 389. The appellant’s brief was filed on November 17, 2005 and the Texas
Court of Criminal Appeals (“CCA”) affirmed Marshall’s conviction and sentence on
December 20, 2006. Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006).
The trial court appointed Richard E. Wheelan to represent Marshall in state
habeas. The application for postconviction relief, filed July 5, 2006, raised only four
claims. 1 SHCR 2–50. On July 11, 2006, Marshall filed a pro se document titled, in part, “Notice of Issues.”2 Id. at 70–96. In April 2008, Wheelan withdrew as counsel
for Marshall and the trial court appointed Jerome Godinich on June 20, 2008. Id. at
200. Over the course of the state habeas proceedings, Marshall filed a variety of pro
se motions, including requesting the removal of appointed counsel and to proceed pro
se.
2 The exact filing date of this document is unclear, as other versions display a file stamp of July 21, 2006.
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Godinich submitted proposed findings of fact and conclusions of law on
January 23, 2013 and the State submitted its proposed findings of fact and
conclusions of law on March 18, 2014. Id. at 267–88; 292–316. On July 18, 2014, the
trial court entered an order adopting, verbatim, the State’s findings of fact and
conclusions of law and recommended the denial of relief. Id. at 316. The CCA denied
relief on November 19, 2014, and construed Marshall’s pro se filing as an
unauthorized subsequent application. Ex parte Marshall, 2014 WL 6462907 (Tex.
Crim. App. Nov. 19, 2014).
This Court appointed Kurt Wentz to represent Marshall in federal habeas
proceedings on December 10, 2014; however, he was allowed to withdraw based on a
conflict of interest. DE 3, 7.3 Andrew Spaniol and Nicole DeBorde were appointed in his place. DE 7. Marshall timely filed his initial federal habeas application on
November 19, 2015. DE 19-38. Thereafter, this Court denied Marshall’s motion for
discovery and denied his request for leave to file an ex parte motion for funding, DE
44. Investigative funding in the amount of $7,500 was later granted, DE 52.
On November 21, 2016, this Court granted Marshall’s motion for leave to
subpoena his own records from the Texas Department of Family and Protective
Services (“TDFPS”). DE 57. Later, because TDFPS had failed to produce a complete,
unredacted copy of Marshall’s records, the Court granted Marshall’s motion to
compel. DE 61. On February 8, 2018, the Court, on its own motion, stayed and
3 References to the record in this cause number are designated by the letters “DE” followed by the docket entry number.
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administratively closed the case to allow the parties to complete discovery. DE 62. To date, TDFPS has still not complied with the order compelling the production of
Marshall’s complete, unredacted records. See DE 72.
On April 25, 2019, lead counsel Spaniol informed undersigned counsel that he was leaving his law firm to start his own practice and that he would be unable to continue representing Marshall. He informed Marshall of the same on April 29, 2019.
Spaniol filed a joint status report informing the Court of his change in employment and impending withdrawal on May 1, 2019, DE 64, and moved to withdraw on May
2, 2019—less than one week after informing undersigned counsel and Marshall, DE
65.
This Court granted Spaniol’s motion to withdraw on May 6, 2019 and—without appointing replacement counsel—reopened the proceeding and ordered Marshall to file an amended federal application within 90 days, or by September 17, 2019. DE 66,
71. On July 24, 2019, Marshall filed a motion requesting the appointment of the
Federal Public Defender for the Northern District of Texas, Capital Habeas Unit
(“FPD”) as lead counsel to replace Spaniol, and requested an extension of the deadline to file the amended petition until February 28, 2020. DE 72. On September 11, 2019, this Court appointed the FPD as lead counsel and granted an extension of time to file the amended petition until February 28, 2020. DE 77.
STATEMENT OF FACTS
A brief review of how the State investigated and cultivated its case against
Gerald Marshall is necessary to appreciate (1) the weakness of the evidence supporting the State’s theory that Marshall pulled the trigger, killing Christopher
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Dean; (2) the extent of the State’s misconduct in prosecuting Marshall’s case; and (3)
the magnitude of the numerous errors and omissions by defense counsel, all of which
combined to produce Marshall’s wrongful conviction and death sentence. The State’s
insistence that only Marshall could have shot Dean is belied by the strong evidence
pointing to co-defendant Ronald Worthy as the shooter and the measures the State
took to obscure this evidence from the jury that convicted and condemned Marshall.
A. The crime.
In the early morning of May 11, 2003, three men in a dark green Buick LeSabre
pulled into the drive-thru of a Whataburger restaurant on West Loop North in
Houston. Whataburger employee Christopher Dean was working the drive-thru. Two
robbers got out of the car, each with a gun in his hand. One grabbed Dean by the shirt
front, holding the gun in his other hand, and forced his way into the Whataburger
through the drive-thru window.
Two other employees, Wilbert Marsh and Tony Ketchum, seeing the robber
forcing his way in, ran to the back of the restaurant. Ketchum locked himself in a
deep freezer, and Marsh hid behind some boxes. Dean somehow escaped the robber’s
grip and ran out the restaurant’s back door. However, he was caught and forced back
inside, entering through a door beside the drive-thru window, which was locked from the outside but could be opened without a key from the inside.
There is a dispute as to whether one robber or two entered the Whataburger.
The following, however, is undisputed: During the robbery, one man asked Dean for keys to a safe and, when Dean could not produce them, shot Dean in the face, killing him. All three robbers then fled in the Buick LeSabre.
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Police eventually arrested and charged Gerald Marshall, Ronald “Bo” Worthy,
Kenny Calliham, and Gregory Love in connection with Dean’s death. Gregory Love was a manager at the Whataburger and had arranged an “inside” robbery with the other three, which all four co-defendants expected to go smoothly; Love was meant to hand over money from the safe without incident. However, Love left the restaurant early that night without informing the other three and therefore was not present when Marshall, Worthy, and Calliham arrived, resulting in surprise and chaos. At
Marshall’s trial, the State maintained that Marshall was the shooter, describing
Calliham as the getaway driver and Worthy as an accomplice. Marshall was convicted of capital murder and sentenced to death. Worthy was later convicted of capital murder under the law of parties, but the State did not seek death against him.
Calliham was allowed to plead to aggravated robbery with a sentence of deferred adjudication probation in exchange for testifying against Marshall. Although Love was not present during the crime, he was later convicted of capital murder for his role in orchestrating the robbery.
B. The State’s investigation: A case built on the self-serving statements of co-defendants who lied to police.
1. The crime scene: bystanders find what the police missed.
a. The police claim to find no fingerprints or other identifying information at the Whataburger.
At approximately 4:30 a.m., shortly after Dean’s murder, Houston Police
Department (HPD) officers arrived at the Whataburger and secured the crime scene.
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Appx. 168;4 14 RR 124−30. They summoned paramedics, who pronounced Dean dead
at 4:39 a.m. Appx. 168. Sergeant Hal Kennedy and Investigator Ricardo “Rick”
Moreno of the Homicide Division were assigned to investigate. Id. Officer D.C.
Lambright and the HPD Crime Scene Unit (CSU) took photos, recorded video, dusted for fingerprints, drew diagrams, and collected debris from the crime scene. Appx.
181−84; 14 RR 85−90. Behind the Whataburger, near the back door, HPD found a partially-smoked cigarette, an Old English 800 beer bottle, and an overturned trash bin; near the drive-thru window, they found Dean’s hat and headset. Appx. 182−84.
From this, they deduced that a struggle involving Dean had taken place near the back door and continued around to the side of the restaurant by the drive-thru. Id. at
168−71. Ultimately, however, HPD claimed to have collected no physical evidence that could be used to identify the person who shot and killed Dean.5 14 RR 90. As a
result, HPD would have to rely on statements and descriptions from witnesses to
determine the identity of the killer.
b. Whataburger employees and a bystander happen upon overlooked ballistics evidence.
A few hours after the murder, HPD received a call from Robert Bish, a
“longtime resident of the area” who claimed to have known Dean and to have
4 References to documents filed in Appendix to the Initial Petition (DE 20−38), are cited as Appx. References to documents filed in the Supplemental Appendix to the Amended Petition are cited as Supp. Appx.
5 Notably, HPD had a long-standing policy of suppressing exculpatory forensic evidence by failing to document or disclose when scientific testing it performed on fingerprints did not connect the evidence to the defendant. See Claim 3, infra.
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recovered a bullet from a Diamond Shamrock gas station a few blocks from the
Whataburger. Appx. 234. According to Bish, “when he looked down, he saw a single bullet lying on the ground,” picked it up with a piece of newspaper and placed it in a plastic bag—all of which he happened to have on him at the time. Id. Bish delivered this unfired bullet to Detective Moreno, who turned it over to the HPD Firearms Lab.
Id. HPD initially believed that this unfired bullet was unrelated to the Whataburger robbery and Dean’s murder. Id.
On May 12, 2003, the medical examiner recovered a fired bullet during the autopsy of Dean, and that bullet was also delivered to the HPD Firearms Lab. Appx.
163.
The following day, Victor Garcia—a maintenance man—found a spent shell casing behind a bun warmer inside the Whataburger. Appx. 235. Restaurant manager Davilyn Spencer placed the casing in a plastic bag and called HPD. Id.
Detective Moreno retrieved the casing and delivered it to the HPD Firearms Lab. Id.
2. The shooter: Gerald “Tank” Marshall or Ronald “Bo” Worthy?
The following facts are not in dispute:
1. On May 13, 2003, when he was arraigned in this matter, Gerald Marshall was six feet, one inch (6’1”) tall and weighed 212 pounds. See Harris County District Clerk docket sheet for Cause No. 948591.
2. Gerald Marshall is a light-skinned African-American.
3. Gerald Marshall is right-handed.
4. In May 2003, at the time of his arrest, Ronald Worthy was listed as six feet one inch (6’1”) and weighing 195 pounds. See Harris County District Clerk docket sheet for Cause No. 948721.
5. Ronald Worthy is a dark-skinned African-American.
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6. Ronald Worthy is left-handed.
a. The initial, neutral evidence received by police pointed to Ronald Worthy as the shooter.
The first descriptions police received of the shooter came from neutral sources—the eyewitnesses to the robbery and an anonymous Crime Stoppers tip. The information they provided—including the alias, physical description, and address of the shooter—all fit Ronald “Bo” Worthy.
Two Whataburger employees, Tony Ketchum and Wilbert Marsh, saw the robber who forced his way in through the drive-thru window. Both gave statements to the police on the date of the incident (May 11, 2003), and Marsh gave another sworn statement a couple of weeks later. All three statements describe the robber who came through the drive-thru window as a dark-skinned black male, in his 20s, with a slim build, holding a shiny gun in his left hand. See Appx. 260−61 (“The black male had a gun and pulled Chris to the window. The male had Chris’s shirt with his right hand and appeared to be hold [sic] the gun in his left hand . . . The black male was in his twenties and spoke good English.”) (emphasis added); Appx. 403−05 (“I focused past Wilbur [sic] and saw a black male about halfway through the drive thru window. He had a gun in his left hand … He was a black male in his early twenties, about 5’10 to 5’11, dark complexion and a thin build.”) (emphasis added); Appx. 1014
(“It was a black, slim guy.”).
HPD Officers Hal Kennedy and Rick Moreno later incorporated these descriptions into their report of the incident. See Appx. 179−80 (“Maish [sic] said that he saw a black male suspect reach through the drive through window and grab the
9 Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 39 of 384
complainant, Dean, by the clothing. This suspect had a pistol in his left hand and grabbed Dean with his right . . . [Ketchum] said that he looked up and saw a black male reaching through the drive in window. This suspect had a pistol in his left hand and had grabbed Dean by the clothing with his right hand.”).
Beyond the eyewitness statements, HPD received an anonymous tip early in the investigation. By HPD’s own admission, their “first really big break” in the case was an anonymous call to Crime Stoppers on either May 12 or May 13, 2003. 14 RR
138−40 (Officer Moreno testifying regarding a tip to Crime Stoppers). The caller said that police should focus their investigation on the Greenspoint area of Houston and look for “Bo” and “Tank.” Id. Importantly, the Crime Stoppers caller identified “Bo” as the shooter and, when pressed for more identifying information, gave Bo’s address as 12803 Northborough #1306. 14 RR 151, 180−81 (Officer Moreno testified that the caller (a) stated that Bo admitted he had killed Dean and (b) provided an address for
Bo); see also Appx. 189 (caller said that “the investigation should center on the
Greenspoint area, and that the individuals involved were ‘Tank’ and ‘Bo’. It was further said that ‘Bo’ admitted to the anonymous caller that he had murdered
Christopher Martin Dean, the Whataburger employee, since he would not open the safe.”).
After receiving the Crime Stoppers call, police began trying to identify “Bo” and “Tank,” and sought information regarding the address given for Bo. 14 RR 141.
Apparently, HPD received another anonymous call stating that “Bo” was Samuel
Denny Robinson and that “Tank” was involved in an altercation at 3434 West Little
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York. Id.; Appx. 189. HPD then conducted record-checks revealing that Samuel
Robinson used the name “Bo” as an alias, was 5’11” tall, and weighed 140 pounds. See
Appx. 252−54. Similar record-checks revealed that Marshall used the alias “Tank” and had been involved in an incident at 3434 West Little York.
On May 12, 2003, Sgt. Kennedy pulled photos of Robinson and Marshall and generated two separate photo arrays—one including Robinson’s photo and one including Marshall’s. 14 RR 143−145; 25 RR 57 (Robinson Photo Spread) and 58
(Marshall Photo Spread). Later that day, Officer Moreno presented both photo arrays to Marsh, who had seen the robber entering through the Whataburger drive-thru window. 14 RR 144−45. Although Officer Moreno did not expect Marsh to be able to identify anyone from either of the photo spreads, Marsh “immediately picked out No.
2 Samuel Robinson.” 14 RR 145−49 (emphasis added). Marsh did not then, or at any point thereafter, identify Marshall from a photo spread. 14 RR 150; Appx. 190
(“Wilbert [Marsh] was shown the photo array with ‘Tank’ Gerald Edward Marshall and he could not pick out the suspect in the photo array . . . He immediately picked out the photo of Samuel Denny Robinson that was in position #2 of the array.”).
With Marsh’s “good I.D.” to support an arrest warrant for Robinson, at approximately 5:00 a.m. on the morning of May 13, 2003, HPD officers—including
Sgt. D.D. Shirley, Sgt. Kennedy, Investigators Rick Moreno, Curtis Scales, and Breck
McDaniel—went to the address given in the Crime Stoppers tip to arrest Bo
Robinson. 14 RR 151; Appx. 191. Upon entering the apartment, the police asked for
“Bo” and were told he was upstairs. 14 RR 151. When the police went upstairs,
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however, they found Ronald “Bo” Worthy instead of Samuel “Bo” Robinson. Id. The
nearly contemporaneous HPD Police Report reflects that (a) Worthy was identified
as “Bo” and (b) Worthy and Robinson “have very similar features.” See Appx. 190 (“[I]t
should be noted that Samuel Robinson does have very similar features as Ronald
Worthy.”); id. at 192 (“Ronald Worthy stated that his nickname was in fact ‘Bo’”). The
same report notes that “this would also start the many lies that ‘Bo’ Ronald Worthy
would tell during this investigation.” Id. at 195.
Despite having found a “Bo” who bore a close physical resemblance to their
prime suspect and resided at the address provided in their “big break” Crime Stoppers
tip, HPD neither arrested Worthy nor questioned him about the crime they were
investigating. Instead, when Worthy denied knowing Robinson (itself a lie), HPD left
the apartment. 14 RR 151; Appx. 192.6 Robinson would later prove to have a solid
alibi and Worthy would be identified as one of the Whataburger robbers.
b. After police fail to arrest Ronald Worthy for capital murder, they arrest Gerald Marshall for writing bad checks and bring him in for questioning.
After releasing Worthy, the same HPD officers (Scales, McDaniel, Shirley,
Kennedy, and Moreno) went to 3434 West Little York, the address the Crime
Stoppers informant had given for the incident involving “Tank.” 14 RR 153−54; Appx.
6 In an apparent attempt to explain away his blunder in allowing Worthy to go free in the critical early hours of investigating Dean’s murder, Detective Moreno thereafter continued to emphasize the resemblance between Robinson and Worthy. For instance, in a June 4, 2003 interview (long after HPD had cleared Robinson as a suspect), Detective Moreno sought Robinson’s confirmation that he resembled Worthy. See Appx. 224 (“Both Samuel Robinson and his attorney when shown a picture of “Bo” Ronald Worthy appeared to agree that there were similarities in their facial features.”).
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195. Marshall was not at this address, but the officers spoke with Tamara Woods, who was then Marshall’s girlfriend and pregnant with his child. Appx. 256 (Witness
Statement of Tamara Woods, dated May 13, 2003). Woods led the HPD officers to
Rush Creek Apartments where Julia Marshall—Gerald Marshall’s sister—lived. Id.;
14 RR 155−57.
Although they had not sought an arrest warrant for Marshall based on the
Whataburger murder, the HPD officers broke down Julia Marshall’s door and entered the premises, relying on an outstanding Class C misdemeanor warrant for Marshall for the nonviolent offense of having written bad checks. 13 RR 16; 15 RR 47. Once inside, the officers found Marshall in a bedroom and arrested him. 15 RR 48−51.
Although Julia Marshall’s apartment allegedly “[was] not a very good environment to interview someone,” Sgt. Shirley interviewed Julia at her apartment, in her bedroom, immediately after Marshall’s arrest. 15 RR 49 (Officer McDaniel testifying as to why Gerald Marshall was not immediately interviewed at Julia
Marshall’s apartment); Appx. 196. In fact, Sgt. Shirley interviewed Julia with
Officers Kennedy and Novak “surrounding her” while she held one baby and another child hid behind her. See Appx. 34−45. The officers told Ms. Marshall that if she did not answer their questions, they would take her downtown and call CPS to take her children. Although Sgt. Shirley recorded his interview with Ms. Marshall, he covered the microphone on certain occasions. Id. In this environment, Julia informed HPD that “Bo” was shorter, thinner, and darker than Marshall. See Transcript of Interview of Julia Marshall by Sgt. D.D. Shirley at Appx. 040. Sgt. Shirley never showed Ms.
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Marshall the photo array that included a picture of Samuel “Bo” Robinson to
ascertain whether he was the individual she described.
After arresting Marshall at his sister’s apartment, Officer McDaniel drove him
to the HPD Homicide Division at 1200 Travis Street, where Marshall gave an hour- long interview to Officer McDaniel and Detective Brian Harris. 14 RR 50−51; Appx.
74−158 (Marshall’s first interview with HPD).
At the outset of the interview, Marshall acknowledged that he was nicknamed
“Tank” from his size during high-school football days, when he weighed close to 250 pounds. Appx. 074. Marshall admitted that the Whataburger robbery was an inside job, explaining that he and “Black” (whom Marshall identified as Samuel Robinson, then HPD’s prime suspect) had planned the crime with Whataburger shift manager
Greg Love, whom Marshall knew from a prior workplace. Id. at 89−100. Through the rest of the interview, Marshall denied any direct involvement in the robbery.
Claiming that he was never at the Whataburger himself, Marshall said that “Black”
Robinson and two other unidentified men attempted to rob the restaurant, and that
“Black” killed Dean when he refused to disclose “the safe code” to get the money. Id.
at 101−08. In fact, Marshall stated that he was with “Ron” that night. Appx. 124.
Approximately one hour into the interview, while on a break from questioning,
Marshall stated that he did not want to continue.7 Appx. 120 (“That’s it I’m through.
7 It appears from the video that Marshall was alone in the interview room when he stated his intention to remain silent. Appx. 120.
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I ain’t saying shit else.”). Nonetheless, the interview resumed and continued for another forty minutes. Appx. 120−58.
c. Police finally identify the “right Bo”—Ronald Worthy.
While Officer McDaniel was interviewing Marshall, Marshall’s girlfriend
Tamara Woods gave a sworn statement to Officer Scales. Appx. 256−59. Woods’s statement provided several critical pieces of information: (1) Marshall was friends with “Bo” who lived at 12803 Northborough, Apt. 1306—the place where police had found Ronald Worthy; (2) Bo Robinson was not the “right Bo”; (3) Ronald Worthy was the “right Bo”; (4) on May 9, 2003, Marshall had talked about robbing a Whataburger to make money; (5) Marshall had a Whataburger napkin with a phone number and the name “Greg” on it; (6) on the morning of the Whataburger robbery, Marshall,
Worthy, and another man—later identified as Kenny Calliham—arrived at her apartment, and Marshall kicked in her window and had a pistol; (7) Marshall seemed
“wet up” from smoking marijuana laced with embalming fluid; and (8) Woods believed
Marshall had been involved in the Whataburger robbery-homicide. Id.
Woods’s statement—typed by Investigator Scales—maintains that she “felt he
[Marshall] did the robbery killing because he told me he was going to rob the
Whataburger’s.” Appx. 258 (emphasis added). The ambiguous phrasing in this statement is the first of many such formulations by HPD tying Marshall to Dean’s shooting. It is particularly telling, in that Worthy had not yet been arrested or interviewed and, in fact, had been released by the HPD officers without so much as a warning just a few hours before Woods’s statement. This ambiguous statement
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invites further scrutiny given Woods’s sworn testimony that Marshall always
maintained that he did not shoot Dean and that Bo Worthy did. 14 RR 268−69.
Later that day, after both had been interviewed by the police, Marshall called
Woods and asked her to arrange another interview for him with Investigator Scales.
The following morning, Investigator Scales checked Marshall out of his holding cell
and took him to an interview room where they had a brief discussion based on
Marshall’s understanding that, in return for confessing his role in the Whataburger
robbery, he would only be charged with aggravated robbery. 13 RR 29, 42.8
Beginning at approximately 10:30 a.m. on May 14, 2003, Investigator Scales
audio-recorded a forty-minute interview with Marshall. Appx. 52. Initially, there was
some confusion regarding whether Marshall intended to waive his right to remain
silent; after Marshall stated he did not wish to waive, Investigator Scales told him
that he “ha[d] to say yes” for the interview to continue. Id. at 053. During this
interview, Marshall explained that, on May 5, 2003 (the Monday before the robbery),
he, Ronald “Bo” Worthy, and Bo’s friend drove to the Whataburger that they would
later rob. Id. at 054. Marshall identified a picture of Calliham as Bo’s friend. Id. Shift-
manager Greg Love came outside to talk to Marshall because they had previously
8 According to Marshall’s testimony at a pre-trial suppression hearing, Det. Moreno was on the elevator on the ride down to the interview room and that Det. Moreno threatened Marshall with physical violence if he started “playing again” (i.e. giving a false statement, as in his first interview). 13 RR 43−44. Marshall further maintains that Inv. Scales occasionally stopped taping the interview and, during the pauses, (a) Inv. Scales assured Marshall he would only be charged with aggravated robbery and (b) Det. Moreno came in and physically assaulted him. 13 RR 46−54.
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worked together. 9 Id. While Marshall was asking about a potential job at
Whataburger, Worthy jumped out of the car with a gun in his hand, saying he was
going to rob the Whataburger. Id. at 055. Unperturbed, Love suggested they wait
until the weekend because Love could arrange for the doors to be open, for $7,000 to
be available, and for other Whataburger restaurants to be set up for robbery. Id. at
056. Love would keep $2,000 of the stolen money. Id. Love insisted that the manager
would have the keys to the safe and, if the manager said otherwise, he was lying. Id.
Love then wrote his name and cell number on a napkin and gave it to Marshall. Id.
at 058.
According to Marshall, on the night of the robbery, Worthy procured two .380
caliber pistols and Marshall borrowed a green Buick LeSabre from his sister’s
boyfriend. Id. at 61−62. Marshall, Worthy, and Calliham got together around 11:00
p.m., and went drinking and clubbing until the early morning hours. Id. at 63−64.
Calliham then drove them to the Whataburger. Both Worthy and Marshall got out of
the car, each man wearing something to cover his face. Id. at 65−66. Worthy managed
to climb through the drive-thru window with difficulty, which gave the Whataburger
employees time to run to the back of the restaurant. Id. at 066. According to Marshall,
he ran around back to prevent any employees from escaping. Id. Marshall heard
Worthy demand, “[W]here is the safe, open the safe.” Id. at 068. Then Marshall heard
a single gunshot. Id. Marshall ran back to the car, meeting Worthy coming from the
9 During the interview with Inv. Scales, Marshall identified and signed photographs of Love and Worthy. Appx. 54−55.
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inside of the restaurant; when they jumped in, Worthy said, “I had to off that nigger.”
Id. at 070. Worthy then took both guns with him. Id. at 071.
After Marshall was arrested, Officer McDaniel obtained a court order for Love’s cell phone records. Appx. 48. Those records showed two calls between Love’s phone and Julia Marshall’s landline on the night before the robbery. Id. Based on this information, Sgt. Kennedy swore an affidavit for Love’s arrest. Id. at 047−49. After his arrest, Love denied any knowledge or involvement in the robbery. Appx. 200−01.
3. Calliham and Worthy place the blame on Marshall after they are alerted to Marshall’s arrest.
a. After police bang down the door and arrest Marshall across the street from Calliham’s apartment, Calliham rushes to make a statement—initially indicating that he did not know who shot Dean.
Kenny Calliham was the driver on the night of the robbery, and he knew immediately afterward that a Whataburger employee (later identified as Dean) had been killed. 16 RR 165−77. Calliham lived with his sister in an apartment across from
Julia Marshall’s, from which they could see as the police broke down Julia’s door and arrested Marshall. 14 RR 194 (“Yeah, [Kenny Calliham] could see the apartment where Mr. Marshall was arrested.”).
Eight hours after Marshall’s arrest, Calliham went with his sister to HPD
Homicide and “volunteered” to speak with Det. Moreno. Appx. 17−33 (Calliham’s first interview with HPD). In this interview, Calliham admitted knowing “Gerald” and
“Bo” but denied knowing their last names. Appx. 21. Calliham further admitted driving Bo and Gerald to the Whataburger in a car Gerald had borrowed. Id. Calliham drove because he thought Gerald and Bo were too drunk to drive. Id. at 032, 021.
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According to Calliham’s initial statement, he had no idea there was a plan to rob the
Whataburger.
When the car arrived at the Whataburger, Calliham claimed, both Bo and
Gerald got out, and Gerald climbed into the restaurant through the drive-thru window. Id. at 021−25. Calliham did not know whether Bo went into the restaurant, but he soon heard a gunshot. Id. Both Bo and Gerald ran back to the car screaming,
“Go, go, go!” but neither said anything about who had fired the gun and killed Dean.
Id. at 025−26.
Det. Moreno falsely told Calliham that, in his statement earlier that day,
Marshall had been “trying to put it off on you” and had “put [Calliham] in a position that I can’t answer.” Appx. 30−31 (emphasis added). Det. Moreno would later type a progress report stating that “Kenny Calliham would give a statement saying that he was the driver and that ‘Bo’ Ronald Worthy and ‘Tank’ Gerald Marshall had committed the robbery.” Appx. 197.
After this interview, HPD discovered that Calliham had outstanding warrants from the City of Houston and the Southeast Texas Criminal Information Center, and arrested him. Appx. 197.
b. Bo Worthy surrenders to HPD and tells “many lies” to help himself.
Although HPD had already obtained an arrest warrant for Worthy, Tamara
Woods apparently convinced Worthy to turn himself in on May 14th. Appx. 197, 298.
At approximately 1:30 p.m. that day, Detective Harris interviewed Worthy. Appx.
205−06 (Detective Harris’s summary of the interview), Appx. 269−301 (transcript of
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interview). As Detective Moreno later stated, “Ronald Worthy would tell us many lies on the night of May 14, 2003.” Appx. 207.
Detective Harris began the interview by presenting a cassette tape of
Marshall’s second interview and noting “the position that your friend [Marshall] put you in”. Appx. 205, 270, 279. Throughout his initial interview, Worthy presented inconsistent information and outright contradictions:
• Regarding Worthy’s location during the robbery:
o Worthy never went in the Whataburger (Appx. 205);
o He was supposed to go in through the side door after Marshall opened it (Appx. 205);
o He refused to “go[] back in there [the restaurant]” (Appx. 294) (emphasis added);
• Regarding the pistols used in the robbery:
o Worthy did not have a gun (“I ain’t even had a pistol”) (Appx. 282);
o He had a toy gun, not a real gun (“It’s not even real it’s a toy pistol”) (Appx. 280);
o He supplied the guns for the robbery (“They were my guns”) (Appx. 285);
Worthy also stated incongruously that:
• He was responsible for crowd control, but did not want a gun because “if somebody in there had a pistol I would have got shot” (Appx. 281);
o Worthy used a toy gun specifically for crowd control (Appx. 288)(“[W]e was supposed to put everybody in the cooler … that’s the only thing I was gonna do that’s why I had the toy gun”);
• From his experience working at a Whataburger, Worthy knew that, if anyone got out the back door, an alarm would trip and the police would arrive in five minutes (Appx. 283); but
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o When he saw employees running to the back of the restaurant as Marshall climbed through the window, crowd control was no longer an issue so he got back in the car (Appx. 281, 283);
• While back in the car (in the drive-thru lane), he could see Dean run out the back door (Appx. 281)10;
• Worthy arranged for Kenny Calliham to drive that evening for a fee of $50 (Appx. 210).
• Conspicuously absent from Worthy’s interview is any reference to the following:
o Stopping at a Diamond Shamrock before or after the Whataburger robbery;
o Ejecting an unfired bullet from a pistol at the Diamond Shamrock; or
o Agreeing, before the Whataburger robbery, to pay Calliham $50 for driving.
That evening, Officer McDaniel and Detective Moreno checked Worthy out of
jail so that he could show them where he had disposed of the “toy gun” from the
robbery. Appx. 207, 240. Notably, Worthy was allowed to use Detective Moreno’s
personal cell phone several times during this “wild goose chase:”11
1. Worthy led the officers to a bridge near his girlfriend’s apartment in Northborough and told them he had thrown it in the water below. Id. at 214, 241. When the HPD dive team asked Worthy to go down by the water’s edge to show them exactly where he had allegedly thrown the toy gun, he refused and recanted his story about throwing the guns off the bridge, claiming a fear of snakes. Id.
2. Detective Moreno and Officer McDaniel then accompanied Worthy to the apartment complex where his girlfriend, Pashela Nieshon Pitts,
10 State’s Exhibits 1 and 1-A, diagrams of the Whataburger, show a corner of the building obstructing any view from the drive-thru lane to the rear exit of the Whataburger.
11 Appx. 207.
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lived—the same apartment where HPD had found and then released Worthy on the morning May 13, 2003. Appx. 241.
a. There, the officers learned that Worthy had asked Pitts to dispose of the clothes he was wearing at the time of the Whataburger robbery. Id. Unfortunately, the dumpster where Pitts had thrown the clothes had been emptied in the interim. Id.
b. Pitts informed the officers that the guns from the murder were given to “Damien”—whose girlfriend “Sabrina” lived in Apt. # 1301 in the complex. Appx. 241. HPD never followed up on this lead.12
3. Worthy then led the officers to a dumpster at the northwest corner of the apartments, claiming he had thrown the gun in there. Appx. 241. However, that dumpster had also been emptied. Id.
4. Worthy then claimed to have melted the plastic gun. Appx. 241. When confronted with a lack of burn marks on the pavement, Worthy admitted that he had had a real gun during the Whataburger robbery, but claimed it had no clip or bullets. Id. Worthy then claimed to have sold both guns from the robbery to two black males named “Louisiana” and “Black.” Id. Again, HPD did not follow up on this lead.
As Officer McDaniel noted, “Suspect Worthy was being untruthful with
investigators and was trying to find a way to help himself in his situation.” Appx.
241. He would soon find a way to do exactly that.
c. To regain credibility, Worthy discloses the Shipley’s Donuts robbery and fingers Marshall as the killer.
To regain credibility and shift blame from himself, after having discarded his
clothing and told so many lies regarding the guns from the Whataburger robbery,
Worthy told Detective Moreno and Officer McDaniel that, “after being extremely
angry that no money was gotten from the robbery of the Whataburger Gerald
12 There is no record, report, document, or testimony reflecting any attempt by HPD to locate Damien or Sabrina, not even walking to the apartment identified by Pitts.
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Marshall robbed the Shipley’s Donuts on Antoine Street.” Appx. 208. “In this conversation [Worthy] would tell officers that it was Gerald Marshall who was the shooter of Christopher Dean.” Id.
The following day, Detective Moreno called the HPD North Robbery Division, spoke to Sgt. Mike Rivera and Investigator Odell Haynes, and learned that the
Shipley’s Donuts on Antoine had been robbed shortly after the Whataburger robbery.
Appx. 208. The police report for the Shipley’s Donuts robbery described a 1994 Buick
4-Door sedan with three black males inside. Id.
On May 16, 2003, Detective Moreno reviewed videotape of the Shipley’s Donuts robbery and “immediately [he] could tell the suspect in the surveillance video was
Gerald Marshall . . . holding what appeared to be shinny [sic] semi automatic pistol.”
Appx. 209. Detective Moreno believed this video confirmed Tamara Woods’s statement that, when Marshall arrived at her apartment after Dean’s murder, he was
“brandishing a shinny [sic] pistol.” Id.
That same day, Officer Scales traced the vehicle described in the Shipley’s robbery to Ella Therdgood, whose son David Therdgood was Julia Marshall’s boyfriend. Appx. 230−31. Ms. Therdgood consented to a search of the vehicle, which was conducted on May 19, 2003. Id. at 231. The vehicle search yielded no substantial forensic evidence.
On May 19, 2003, concurrent with the vehicle search, Officer Haynes conducted a live line-up at the Harris County Jail, and one of the Shipley’s Donuts
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witnesses identified Marshall as the robber. Appx. 207. 13 Detective Moreno then
obtained a still-photo of Marshall “committing the [Shipley’s] robbery” that he
intended to use in a “future interview that will be conducted with Kenny Calliham to
see why he omitted the information about the Shipley’s robbery to me.” Appx. 209.
From this point forward, HPD ignored any leads indicating that someone other
than Marshall had shot and killed Dean.
d. Worthy and Calliham change their stories to fit the evolving police narrative.
As demonstrated above, the transcript of Worthy’s interview is conspicuously
devoid of any reference to Diamond Shamrock or an unfired bullet, and HPD did not
initially believe that Bish’s magical discovery of the unfired bullet was relevant to the
investigation. However, after investigating the Shipley’s robbery, HPD’s follow-up
reports (particularly the narratives authored by Detective Moreno) claim that, on
May 14, 2003, Worthy volunteered that (a) he, Marshall, and Calliham had gone to
the Diamond Shamrock two hours before the Whataburger robbery; (b) “Gerald was
so drunk that ‘his drunk ass must have dropped the bullet while we wuz [sic] at the
store’”; and (c) “Kenny [Calliham] was in on the robbery and . . . was to be paid 50
dollars for driving the car.” Appx. 208, 210.14
13 Interestingly, however, Detective Moreno failed to acknowledge that another witness identified one of the line-up “fillers” (i.e. a non-suspect). 20 RR 98−99 (John Poston testifying regarding incorrect identification at lineup).
14 At Worthy’s trial in February 2006, Calliham testified that Worthy was the one who entered the Diamond Shamrock to steal beer. See Appx. 365−66.
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In short, once HPD believed Marshall had committed the Shipley’s robbery,
Worthy’s previous interview became retroactively more informative and fit their budding theory of the case.
On June 1, 2003, Detective Moreno and Sgt. Shirley obtained an arrest warrant for Calliham relating to the capital murder of Dean. Appx. 220. On June 4, officers arrested Calliham. That afternoon, Calliham gave a second interview (Appx.
001−16; 17 RR 13) to Detectives Moreno and Harris and claimed as follows:
1. Marshall was “Tank” and Worthy was “Bo” (Appx. 3);
2. Calliham drove on the night of the Whataburger robbery because Bo and Tank were too drunk to drive themselves (Appx. 3);
a. The car belonged to Marshall’s sister’s boyfriend (Appx. 9);
3. Both Marshall and Worthy exited the vehicle, and both had pistols (Appx. 5−06);
4. After Calliham heard the gunshot, both Marshall and Worthy came running back to the car (Appx. 8−09);
5. When Marshall got back in the car, he admitted killing someone (Appx. 7, 14);
a. Worthy “was getting on Gerald’s ass about what he done” (Appx. 9);
6. At some point, Calliham pulled over to let Marshall drive (Appx. 7);
7. After the Whataburger robbery, Marshall robbed Shipley’s Donuts, and Worthy was the getaway driver (Appx. 10);
a. Calliham identified Marshall from the photo of the Shipley’s robbery (Appx. 9);
b. During the Shipley’s robbery, Calliham cowered in the back of the car (Appx. 9);
8. Marshall drove to “his baby momma’s [Woods’] house” (Appx. 10);
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9. Calliham then returned the car to Julia Marshall, Marshall’s sister and Calliham’s neighbor (Appx. 10−11);
10. Calliham told Julia Marshall, “I don’t know what really went on, but I know your brother just shot somebody . . . .” (Appx. 11).
Notably, most of these new statements identifying Marshall as the shooter
were developed via leading questions (e.g., “Is he [Marshall] holding anything in his
hand?” “Yeah, I seen him with a pistol.”). More important, the entire interview
appears designed to confirm HPD’s theory of the Whataburger robbery rather than
investigate it: namely that Marshall climbed through the drive-thru window, and shot and killed Dean. As demonstrated more fully below, this theory and Calliham’s testimony would be integral to prosecuting and convicting Marshall.
e. Police use an unfired bullet to support Worthy’s self- serving accusation that Marshall was the shooter.
As described above, HPD Firearms Lab received the bullet recovered from
Dean’s body during the autopsy, the unfired bullet Bish allegedly found at the
Diamond Shamrock, and the spent casing found at the Whataburger. On June 5,
2003, after HPD had come to believe that Marshall had robbed the Shipley’s Donuts, giving credence to the avowedly self-serving liar Worthy, Detective Darrell Stein performed ballistics tests on these three items. Appx. 236−38. Although HPD had initially believed the unfired bullet was unrelated to Dean’s murder, Detective Stein’s tests now apparently revealed that the fired bullet and the unfired bullet had been inside the same weapon. Id.; see also 16 RR 59−68.
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4. Calliham and Worthy, improperly housed together at the Harris County Jail, get their stories straight.
After Marshall, Worthy, and Calliham had all been charged with capital
murder and placed in Harris County Jail, the trial court entered a keep-separate
order requiring them to be housed in separate cells or “tanks.” One purpose of such
an order is to prevent defendants from colluding with one another to align their
stories.
In this case, however, jail personnel neglected to properly enforce the keep-
separate order. Instead, Marshall was kept apart from Worthy and Calliham, but the
duo were housed together in cell 5D4 for several weeks in June/July 2003. 18 RR
47−55. After Marshall was convicted, the State would admit—at Worthy’s trial15 –
that it had been a mistake to allow Worthy and Calliham to share a cell, particularly
for such a long time.16
It was a mistake for one simple reason: During their time together at Harris
County Jail, Worthy and Calliham would “concoct a story” and “freely collaborate . .
. [on] the best thing to say”17 to exonerate themselves and inculpate Marshall. Worthy
and Calliham enlisted another cellmate, Dennis John Meyer, to help them. Meyer
had been in and out of jail for drug-related offenses for more than a decade before
15 Notably, the same trial team that prosecuted Marshall—Colleen Barnett and Vic Wisner—also prosecuted Worthy.
16 See Appx. 385 (Colleen Barnett admitting it was a “huge mistake” by the sheriff and prosecution to allow Worthy and Calliham to stay in holdover together).
17 See id.
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landing in cell 5D4 with Calliham and Worthy. 18 RR 44−45. Combining his native
intellect with time spent in the jail’s law library, Meyer became the quintessential
“jailhouse lawyer” with a reputation for helping other inmates with their cases. 18
RR 46−47.
When Worthy and Calliham approached Meyer, their particular concern was
whether they could be found as culpable as Marshall if he was convicted as Dean’s
shooter. See 18 RR 51. Worthy and Calliham asked Meyer to help them prepare
affidavits that would “verify their roles as they wanted them to be seen” or “to clear
[each other] of any wrongdoing.” Id. at 52. Meyer not only offered advice, but actually
wrote out two affidavits—one for each man to copy and sign. 18 RR 57. Worthy’s
affidavit stated that Calliham had not known about the plan to rob the Whataburger,
and Calliham’s affidavit stated that Worthy had not entered the Whataburger during the robbery. 18 RR 57−59. Later, Meyer would try to leverage his knowledge of the case to work with HPD and the State to arrange a plea bargain for himself. State v.
Worthy, 5 WRR 76−78, 87−88 [Supp. Appx. 675−79].
C. The defense: Marshall was represented at trial by one attorney overburdened by death penalty cases and one sanctioned by the State Bar for incompetent representation.
On May 15, 2003, the trial court appointed Marshall “Mack” Arnold as lead counsel and nearly nine months later, on February 5, 2004, appointed J. Sidney “Sid”
Crowley as second-chair counsel. 1 CR 7 (order appointing Arnold); id. at 65 (order
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appointing Crowley).18 After Marshall’s trial, in or around January 2008, Arnold
suffered a severe stroke. While he was hospitalized, his family disposed of all his files.
By his own admission, Arnold has no memory of representing Marshall. See Appx.
604. Crowley did not maintain a separate file, using Arnold’s instead (to the extent he used any materials at all). See id. at 605−06. Even without an extant physical file, it is clear that Arnold and Crowley conducted little or no investigation of Marshall’s case.
1. While representing Marshall, lead counsel Mack Arnold was assigned to two simultaneous death-penalty cases and struggling to keep up.
When Arnold should have been preparing for Marshall’s trial, he was occupied as second chair counsel in another death penalty trial. On July 27, 2004, less than three months before jury-selection would begin in Marshall’s case, Arnold submitted a fee expense claim for representing Anthony Quinn Francois in Case No. 961278 in the 339th District Court of Harris County. 19 See Appx. 1029. The trial court in
Marshall’s case was clearly aware of Arnold’s other obligations, as the court approved
Arnold’s fee expense claim for the trial he was second-chairing while he should have
been preparing for Marshall’s trial. Id. (noting that the fee expense claim “must be approved by Judge Stricklin (180th) to exceed case max” and bearing the initials
18 Texas law guarantees the provision of two attorneys to represent capital murder defendants. Marshall was appointed two attorneys for only approximately eight of the seventeen months between his arrest and trial. 19 Francois was sentenced to death and remains on death row.
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DMS, dated August 13, 2004). Arnold overextended himself and, consequently, failed
to adequately prepare for Marshall’s capital murder trial and sentencing.
From the time he was appointed to represent Marshall to the end of Marshall’s trial, Arnold was appointed on approximately 133 other felony cases plus numerous other misdemeanor cases. Of those, not including Marshall’s, three were capital murder cases. Supp. Appx. 949−61. As a result, Arnold struggled to keep up during
Marshall’s trial. In the midst of the lengthy cross-examination of key State’s witness
Wilbert Marsh, Arnold admitted that his hearing aid battery was “totally dead” and he could not hear a question posed to him by the judge. 17 RR 119. Thus, in a critical moment of the trial, Arnold could not hear what was being said while he questioned an important witness.
2. Second-chair counsel Sid Crowley has a history of deficient performance in capital murder cases and was sanctioned by the State Bar for multiple violations of the rules of conduct.
Although Crowley had been appointed to represent many individuals charged with capital murder, he plainly preferred his career as a prosecutor and never performed well on the other side. Crowley began his legal career as a prosecutor in
Harris County but eventually lost his job around 1990. For a few years, he worked in private practice, but returned to prosecution in 1993 at the Fort Bend County District
Attorney’s Office. He was elated to once again be a prosecutor, telling a local newspaper that he much preferred prosecuting people to defending them. Supp.
Appx. 607. But by 1995, he had been let go yet again. Supp. Appx. 635.
Once again forced into private practice, Crowley mostly took court appointments, particularly as state writ counsel in death penalty cases. He later
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admitted he had no idea how to handle such complex cases, and the results were
predictably disastrous. In 2002, just two years before Marshall’s trial, he was
identified as one of the worst capital defense lawyers in Texas. Supp. Appx. 790−92.
For example, in Ex parte Nenno, Crowley filed a state habeas petition just eight pages long, raising only two record-based claims (which, because they could have been raised on direct appeal, are ordinarily not even cognizable in Texas post-conviction proceedings). The petition made clear that Crowley had not even read the trial record, as one of the claims alleged that trial counsel failed to request a lesser-included offense instruction, while the record showed that counsel had in fact requested and received the charge in question. Supp. Appx. 790−91. Similarly, in Ex parte Arthur,
Crowley filed a 14-page petition containing no extra-record claims and no supporting evidence. Supp. Appx. 791. In Ex parte Villarreal, Crowley submitted a 9-page petition with no extra-record claims or supporting materials. Id. He did the same in
Ex parte Smith. In Ex parte Rousseau, after filing a ten-page petition, Crowley finally conceded his incompetence in capital habeas litigation:
At the time I was appointed, I was not familiar with how to litigate a capital habeas corpus case and was not aware of the need to investigate facts outside the trial record. I also did not have enough time to devote to the case. As such, my representation consisted of reading the trial record, meeting with [Rousseau], conducting legal research on the claims I had identified from the record and drafting the application. Id.
Moreover, Crowley’s deficiencies as a capital attorney were widely reported in the media. A 2006 newspaper article noted that although Crowley “admitted that his first death row writ, a skimpy 10-page document, lacked substance because he didn’t
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understand the rules of habeas corpus, his “following writs were equally scant— seven, none, 14 and 15 pages.” Chuck Lindell, Sloppy Lawyers Failing Clients on
Death Row, Austin-American Statesman, Oct. 29, 2006. The following year, an article noted that “[h]aving Sid Crowley as one’s state habeas counsel was tantamount to having no counsel at all.” Chuck Lindell, Often-Criticized System of Private Lawyers
Still in Place, After Legislation’s Demise in Last Days of Session, Austin-American
Statesman, June 9, 2007.
In 2006, after years of deadly deficient performance in capital cases, Crowley was sanctioned by the State Bar of Texas and publicly reprimanded by the 240th
Judicial District Court in Fort Bend County. Crowley had been appointed to represent
George S. Guo on direct appeal from his burglary conviction but failed to timely file the brief, due on October 6, 2003, claiming he “was occupied with several other legal matters.” Supp. Appx. 604. He also failed to seek additional time to file the brief, apprise his client regarding the status of the appeal, or notify him that the brief had not been timely filed. Id. Crowley finally filed a motion for extension on March 12,
2004, but once again failed to file the brief on time, managing to submit it only three weeks later. Id. at 605−06. Meanwhile, he had been ignoring letters from Guo. Id. at
605. Ultimately, a Fort Bend district court found that Crowley had committed multiple violations of the Texas Disciplinary Rules of Professional Conduct and, at the urging of the State Bar, entered a judgment of public reprimand against Crowley.
Just one year after Marshall’s trial, Crowley was removed as counsel on the eve of trial from another death penalty case and found to be constitutionally
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ineffective. Crowley had been appointed to represent Francisco Castellano in a death
penalty case set for trial on March 20, 2006, in Matagorda County. On December 15,
2005, Crowley was removed from the case because the trial court found that as of
November 23, 2005—about four months before trial—“no work had been done on this case in which a man’s life is at stake.” Supp. Appx. 641. Disgusted, the court found that “Mr. Crowley’s defense … to date has been ineffective [and] his plan for providing a defense to the defendant would be ineffective if allowed to be put into place.” Id. at
648−49. Accordingly, the court removed Crowley as counsel on the grounds of ineffectiveness. The court also found reason to believe that Crowley was in contempt of court, calling it “an understatement” to say that Crowley had done “a monumental disservice to this court and to the profession.” Id. at 650. After Crowley was discharged, the new defense team was able to reach a plea agreement with the State and avoid the death penalty.
3. Trial counsel rarely met with Marshall and did not prepare him for trial.
Although Arnold was appointed to represent Marshall just three days after his arrest, over the history of the case, he visited Marshall only a handful of times. Arnold visited so infrequently that, on June 21, 2004, Marshall filed a motion to dismiss
Arnold and have new counsel appointed. 1 CR 69−71 (asserting, among other things, that “Counsel had no contact with defendant in the past five months.”).
When Arnold did meet with Marshall, they did not have a private space where the confidentiality of their privileged communications could be protected. Rather, they met at the holding tank at the courthouse, with other prisoners present. It was
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well known that Arnold was hard of hearing and, as a result, spoke loudly himself
and demanded that others do so, too. 15 RR 81 (Arnold addressing the trial court:
“[A]s you know, I don’t hear all that well. . . . .”). The problems with this scenario,
particularly with preserving confidential information, are obvious.
On August 20, 2003, Clarence Grimes Green shared the holding tank with
Marshall for approximately three hours. 16 RR 122. Green would later approach HPD
and, on August 21, 2003, he would write a letter to Assistant District Attorney
Colleen Barnett alleging that he had information relating to Dean’s murder. Id. Most
important, Green would assert that Marshall had confessed to shooting Dean and
that Green had heard Marshall describe details of the incident that were not
otherwise public. Id. at 123−24. But Marshall had met with his hard-of-hearing attorney in the presence of Green, while Arnold himself loudly conveyed details of the case. 17 RR 182.
And consistent with his dismal performance in multiple death penalty cases,
Crowley utterly failed to prepare for Marshall’s trial. Crowley never met with
Marshall at any point outside the courtroom. And because he did not maintain his own file, Crowley did not keep notes, research materials, or any other documentation to help him prepare for trial. Apparently, as he had done in other capital murder cases, Crowley did nothing whatsoever to prepare Marshall’s defense.
D. The trial: Unreliable snitch testimony points to Marshall as the shooter.
The prosecution’s case that Gerald Marshall shot Christopher Dean rested on three shaky pillars: (1) the self-contradictory, non-credible testimony of co-defendant
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Kenny Calliham; (2) the testimony of a jailhouse snitch receiving a sweetheart deal;
and (3) an in-court identification of Marshall by a witness who had originally
described someone else and failed to identify Marshall in photo lineups. Moreover,
the prosecution repeatedly told the jury they could be sure Marshall—not Worthy—
was the shooter because only Marshall had entered the restaurant and Dean was
killed inside. Because Marshall was not charged under the law of parties, for the
State to prevail, it was necessary to convince the jury that Marshall himself killed
Dean.
1. Kenny Calliham testifies to get probation for his involvement in the murder.
From the moment the trial began, the prosecution worked to bolster Calliham’s statements, stressing that jurors could trust Calliham because he had turned himself in before the police arrested him and “agreed to testify truthfully in exchange for a
no contest plea . . . for a short term of probation.” 14 RR 26. From the very beginning,
the prosecution insisted that Marshall was the shooter because Calliham “will tell
you Bo was standing outside of the car when he hear [sic] the gunshot and that Gerald
came running from back of the restaurant into the car and said, I had to kill him.” Id.
at 27. But Calliham’s testimony was contradictory and dishonest.
Calliham claimed that he barely knew Marshall and Worthy, and had gone
clubbing with them the night of the murder with no idea that they planned to rob the
Whataburger; that it was Marshall’s idea to go to Whataburger to get a late-night meal but that Marshall did not order any food at the drive-thru—only Calliham did— which Calliham apparently did not find strange; and that Calliham was still in the
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dark as to the plan until the moment Worthy and Marshall jumped out of the car with masks on their faces and guns in their hands. 16 RR 162−88. Calliham testified he believed Marshall had to be the shooter because Worthy was standing next to the car when they heard a gunshot ring out from the restaurant. Id. at 175. He claims
Marshall ran to the car a few seconds later with a silver gun, announcing, “I killed that bitch.” Id. at 178. Calliham reported to the jury that his trial testimony was exactly the same story he had told police when he turned himself in. Id. at 189. But it wasn’t.
Before he spent weeks marinating in the Harris County Jail with Worthy,
Calliham had told police that he saw both Marshall and Worthy running from the restaurant at the same time, that Marshall had a black gun, and that both Marshall and Worthy had shouted “go, go, go” when they got back to the car. Appx. 21−26. That account contained nothing about anyone taking responsibility for shooting Dean. But at trial, Calliham said Marshall was the shooter and, after all, he had to be “truthful” to get probation for his involvement in a man’s death. Calliham categorically denied that he was accusing Marshall as part of a deal he had made with Worthy—a self- serving claim that the prosecution gladly adopted when they needed the jury to believe Calliham.
2. By testifying, Clarence Green wins a sentence of probation despite having assaulted a police officer—an offense for which, under normal circumstances, he would have been sentenced to 25 years- to-life.
Jailhouse snitch Clarence Green, a man with a lengthy rap sheet, eagerly wrote to the prosecution to offer his help against Marshall. And the prosecution, after
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agreeing to reward Green with a drastically reduced sentence, duly trotted him before the jury to tell his story of Marshall’s alleged confession.
Green was facing a minimum of twenty-five years in prison, and possibly a life sentence, on his pending charges for domestic violence and assault of a police officer, when he had the good fortune to be placed in a holdover cell behind the courtroom with Marshall for a mere three hours. 16 RR 137. According to Green, in their brief interlude, Marshall readily told Green all about the robbery at a “Wendy’s” and said that no one would ever find the guns used because they had been registered in his girlfriend’s name—a fact that neither the State nor the defense apparently ever investigated. Id. at 147−50.
Green denied that he was able to learn about Marshall’s charges because, while they were in the holdover together, Marshall’s hard-of-hearing lead counsel visited the holdover and talked loudly about the details of the case. 17 RR 182. Green further claimed that Marshall gave him a letter to deliver to Worthy telling him to keep quiet, but that Green, being a “good citizen,” had torn it up. 16 RR 151. He did not keep the letter to turn over to the prosecution when he reached out about a deal. He could not explain why Marshall would have given him a letter to deliver to Worthy, since Green and Worthy were not housed together in the jail. 17 RR 185. The very next day, however, Green wrote to the prosecutors about Marshall’s alleged loose lips and in return for his tale secured a one-year sentence of probation. Id. at 176.
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3. Wilbert Marsh identifies Marshall as the shooter—something he was unable to do before he saw Marshall sitting at the defense table in trial.
Working at the Whataburger the night that Dean was killed, Wilbert Marsh saw a man with his face covered come in through the drive-thru window, holding
Dean at gunpoint. Marsh hid behind some boxes while Dean ran out the back door of the restaurant. Marsh testified that the intruder chased Dean around the restaurant and forced him back inside through the door next to the drive-thru window, although
Marsh acknowledged that door could not be opened from the outside. 16 RR 101−04.
The intruder then shot Dean and left the restaurant. Id. at 109.
The prosecution repeatedly asked Marsh to confirm that only one person had entered the restaurant that night, and that person shot Dean. Marsh testified he did not hear or see anyone else enter the restaurant, other than the man who came through the window. Id. at 101, 110. During his testimony at trial, Marsh described the man as having braided hair and as holding a shiny gun in his right hand. Id. at
92−93. Moreover, during trial, Marsh for the first time identified Marshall, the man sitting at the defense table, as the person who had shot Dean. 17 RR 72, 77. Marsh also claimed that he had picked Marshall out of a photo lineup during the police investigation. 16 RR 115−16.
But that was not true. According to police, Marsh did not pick Marshall out of the photo lineup. Just one day after the shooting, Marsh failed to identify any suspect from the photo linup containing Marshall’s picture, and instead picked Samuel
Robinson—the man police openly acknowledged looks like Ronald Worthy—out of a
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second lineup. 18 RR 27.20 Marsh even told a defense investigator that police had told
him he picked out the wrong person from the lineup. 17 RR 54. Moreover, Marsh’s
testimony differed from the statements he gave police right after the shooting. He
told police that the man held the gun in his left hand, and was unable to provide any
information about the man’s hair, describing him as tall and skinny with a dark
complexion. Appx. 260−61. Marshall, nicknamed “Tank” for his broad build, did not
match that description. Although his previous description did not match Marshall,
Marsh insisted at trial that he was now sure the man he had seen was Marshall.
4. The State bolstered all its questionable evidence to convict Marshall as the shooter.
In closing, the State bolstered its dubious evidence to obtain Marshall’s conviction. The State assured the jury that Calliham was trustworthy and had been given such a generous plea deal only to “secure his testimony to let you know for certain who the killer of Christopher Dean is.” 19 RR 19. As proof of his candor, the prosecution falsely claimed that Calliham’s story had been consistent since his first interview with police and that he had no motive to put the blame on Marshall instead of Worthy. Id. at 61. Of course, Calliham’s statements were anything but consistent
and Calliham had been in the county jail with Worthy for an extended period of time,
allowing them the vital opportunity to get their stories straight and escape potential
death sentences. Ignoring Calliham’s obvious conflict, the prosecution told the jury
20 Marsh was never shown a photo of Worthy in a lineup.
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that Calliham had no reason to point the finger at Marshall rather than Worthy
unless it was the truth. Id. at 62.
The State likewise embraced Green’s dodgy testimony, noting that Green could
have only gotten his information about the “Wendy’s” robbery from Marshall,
ignoring that Green had gotten key details of the crime wrong. And the prosecution
personally vouched for Green’s credibility, assuring jurors that they would never have
given Green such a favorable deal on his pending charges if they thought he’d actually
harmed a police officer. Id. at 22.
Finally, the State asked the jury to credit Marsh’s belated and questionable
identification of Marshall over the testimony of the police officers who had obtained
Marsh’s statement immediately after the shooting. Prosecutors explained that police
deal with these sorts of crimes all the time and are likely to confuse crucial suspect
descriptions. Marsh, on the other hand, had undergone a traumatic event, and thus,
the prosecution claimed, was more likely able to accurately identify the shooter over a year after the crime. Id. at 16.
To assuage any doubt the jurors might have about who shot Dean, the state
point-blank told them there was no evidence to establish that anybody other than
Marshall was in the restaurant. There was no reason for anyone else to go inside and
specifically no evidence that Worthy had ever entered the Whataburger—“there was
only one guy there.” Id. at 74. As will be shown below, the same prosecutors made the
exact opposite arguments at co-defendant Worthy’s trial—arguments that were
backed by considerable evidence.
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Evidently concerned about the possibility that another participant in the
robbery had been the shooter, during deliberations the jury asked to hear the
testimony about whether the door adjoining the drive-thru window—the door Dean re-entered after fleeing the restaurant—was locked. Id. at 76. Ultimately, the prosecution managed to obscure the evidence that a second person was inside the restaurant during the robbery and Marshall was convicted as a principal in Dean’s shooting and ultimately sentenced to death.
STATEMENT REGARDING PROCEDURAL DEFENSES
Federal habeas petitioners are usually, but not always, required to exhaust available state court remedies to obtain relief. 28 U.S.C. § 2254(b)(1). All of the claims in Marshall’s petition are either exhausted or fall within an exception to the exhaustion requirement.
In federal habeas proceedings, the respondent must plead procedural defenses under Rule 5(b) of the Rules Governing Section 2254 Cases in the United States
District Courts. Under Rule 5(b), the respondent, by way of the Answer, “must address the allegations in the petition. In addition, [the answer] must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.” Marshall explicitly reserves the right to reply to any potential procedural defenses raised by the Director regarding every claim in this petition.
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CLAIMS FOR RELIEF
CLAIMS ONE, TWO, AND THREE: A PERVASIVE AND CONTINUING PATTERN OF STATE MISCONDUCT VIOLATED MARSHALL’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.
In securing Marshall’s conviction and death sentence for the capital murder of
Christopher Dean, the State knowingly presented false and misleading testimony, failed to correct testimony it knew to be false, and withheld and untimely disclosed material favorable evidence. This Court should grant relief because Marshall’s constitutional rights to due process and to be free from cruel and unusual punishment were violated by the State’s gross failure to “refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88
(1935).
RELEVANT FACTS
A. A tale of two trials: The State used diametrically opposed evidence to convict both Marshall and Worthy of capital murder.
Because the State charged Marshall as a principal, its efforts to secure a conviction and death sentence depended on convincing the jury that Marshall alone entered the Whataburger and thus only he could have killed Dean. Problematically, the HPD investigation exposed the fact that, necessarily, two people must have entered the restaurant. The investigation also strongly pointed to Worthy as the triggerman. To win its case against Marshall, the State actively concealed this evidence from Marshall’s jury and created a false picture that Marshall acted alone.
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1. The State manipulated the evidence to convince Marshall’s jury that only Marshall entered the Whataburger and thus had to be the shooter.
Because the State did not seek to convict Marshall under the law of parties,
the prosecutors had to convince the jury that Marshall himself pulled the trigger and
killed Dean. To do so, the State obfuscated the evidence and pursued a theory at
Marshall’s trial that contradicted the one it presented at co-defendant Worthy’s trial: that the crucial, objective evidence uncovered by HPD showed that two individuals were present in the Whataburger when Dean was shot and that Worthy was likely the shooter.
Based on the evidence it elicited at Marshall’s trial, the prosecution told the jury “[w]e know that the person that came through that drive-thru window at 3:30
in the morning is the person that is the shooter. . . . There was no other evidence
to establish that anybody else was in that store except for [the staff] and the
shooter.” 19 RR 68−69 (emphasis added). This was the prosecutors’ mantra
throughout Marshall’s trial. See id. at 16 (“And you know [Marsh] saw only one [man
enter the restaurant].”); id. at 72 (“Why is it that . . . suddenly [ Worthy] becomes the
shooter, when [Worthy] wasn’t even in the store as far as we can tell? Why is it that
there is only one person in the store and it’s Gerald’s plan that he doesn’t go in the
store? Again, it doesn’t make sense and it is not logical.”); id. at 74 (“There was only
one guy [in the restaurant].”).
The State pursued this theory even knowing that it was contradicted by the evidence, including the opinions of its eyewitness and investigating officers. The first tactic was making a deal with Kenny Calliham to give him deferred adjudication on
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an aggravated robbery charge—rather than facing capital murder charges—in exchange for his testimony that only Marshall entered the restaurant and that
Worthy was standing by the car when the shot that killed Dean rang out. Calliham, however, had initially told officers that both men ran, together, from the restaurant after he heard the gunshot. 16 RR 6. To bolster Calliham’s credibility, the State argued in its opening statement that Calliham turned himself in to police, even though the police at that time were unaware he had taken part in the crime, “because he wanted to give them information about what happened that night,” and that
“Kenny [Calliham] will tell you that he did not know a robbery was going to occur that night [].” 14 RR 26. The State further emphasized Calliham’s testimony that
Worthy was standing outside the car when they heard the gunshot. Id. at 27.
Prosecutor Barnett personally vouched for this testimony, noting that the State’s deal with Calliham required him to testify truthfully against Marshall: “Kenny Calliham will testify before you that his participation was just that. He has agreed to testify truthfully in exchange for a no contest plea to aggravated robbery for a term of probation.” Id.21
Problematically for the State, though, at Marshall’s trial Calliham’s version of
events changed significantly from his prior statements to HPD investigating officers.
In his initial statement to HPD, Calliham told officers that both Marshall and Worthy
21 The prosecution later acknowledged that it knew at the time it presented Calliham’s testimony that at least part of it was perjured. See 19 RR 18; see also 18 RR 60 (Dennis Meyer testifying that based on his information, when Calliham stated he was unaware of the robbery plan ahead of time, Calliham perjured himself).
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left the car, and that after he heard the gunshot he saw both men running toward the
car from the drive-thru area at the same time. Appx. 21−22. He did not know whether
Worthy had gone inside. Id. He specifically stated that Marshall never said anything
about having shot Dean. Id. at 25. He also told police that Marshall was holding a
black gun at the time, which does not match the silver gun the eyewitnesses saw. Id.
at 29.
At Marshall’s trial, Calliham’s testimony shifted dramatically. He testified
that after the three co-defendants went to a club, Marshall instructed him to drive to
Whataburger so they could get a deal on food because his friend worked there. 16 RR
165. Calliham repeatedly denied knowing anything about the planned robbery before
it occurred. See id. at 169−70, 190. He testified that Marshall surprised him by
jumping out of the backseat of the car and climbing through the Whataburger’s drive-
thru window. Id. at 168. It was then that he first saw Marshall carrying a silver pistol.
Id. at 169. Worthy also exited the car, but according to Calliham’s testimony,
immediately returned without entering the restaurant. Id. at 170−71. Calliham
claimed that before hearing the gunshot, he drove off, passed the Whataburger’s
parking lot exit, and started making a U-turn when Worthy jumped back inside the
car. Id. at 172. At the time he heard the gunshot, he testified, he could see Worthy already running toward the car. Id. at 174−75. The State clarified, “[a]nd you are
absolutely sure that that was Worthy” running toward the car when the gunshot
sounded, to which Calliham responded, “yes, ma’am.” Id. at 175. He testified that he
recalled seeing a second, black gun that evening, but did not recall ever seeing Worthy
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carrying that gun. Id. at 176. According to Calliham, when Marshall returned to the
car alone, he told him to “go,” and said, “I killed that bitch.” Id. at 177−78. Near the
close of his direct examination, at the State’s urging, Calliham again disclaimed any
knowledge that a robbery had been planned. Id. at 190.
In closing arguments, again working to bolster Calliham’s credibility, the State minimized the significance of the relationship between Calliham and Worthy, in
response to evidence from the defense that the two were housed together in jail after
their arrest in the Dean murder, and had conspired to draft affidavits exculpating
each other. The State argued that Calliham had been,
consistent from the beginning to the end that Gerald Marshall was the shooter. And what difference is it to him if he says it is Bo or Gerald? Does it matter to him who he blames it on? Has there been anything established he’s going to get a better deal or a worse deal for who he says is the shooter? Is there any reason why he would say that its [sic] Gerald over Bo? There has been nothing established with that. Nothing.
19 RR 62 (emphasis added).
The second tactic the State employed to create the impression that Worthy never entered the Whataburger was calling Wilbert Marsh to testify that he had no doubt in his mind that only one man entered the restaurant, and that man killed
Dean. 17 RR 72, 77. Furthermore, even though Marsh had previously positively identified Samuel Bo Robinson as the assailant who entered the drive-thru window, and gave two statements in which he was unable to provide any identifying information that matched Marshall, Marsh made a definitive in-court identification
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of Marshall as the man who entered the drive-thru window. 16 RR 115−16; 17 RR 72,
77.
Marsh could not testify with certainty that only one person came into the
Whataburger that evening, because he had quickly hidden behind a number of boxes
in the restaurant’s back storage area, from which his view was at all times at least
partially obscured. Prosecutor Wisner nonetheless elicited testimony from Marsh
that he believed only one man entered the restaurant and was completely confident
that the person who entered the drive-thru window was the same person that shot
Dean:
Q. (Wisner) I want to ask you this. And I want you to think hard about it. To your knowledge, besides that one man who came through with the gun in his hand, did anybody else come into the Whataburger from what you could hear and from what you could see?
A. (Marsh) I did not hear nobody that came inside and I did not see nobody that came inside, only one person I saw inside the building.
Q. And when you were down hiding in the boxes and could see and hear, did it still appear to be the same person who came through the drive- thru?
A. Yes, sir.
16 RR 101. Later in his testimony, Prosecutor Wisner asked again:
Q. (Wisner) Did you ever even to this point or after hear or see any second person in the store?
A. (Marsh) No, sir.
Q. Is there any doubt in your mind that the person who shot Chris was the same person who you saw come through the window?
A. That’s the same person I saw coming through the window and shot Chris.
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Id. at 110.
On cross-examination, Marsh admitted it was possible that a second person had entered the Whataburger, but he nonetheless maintained that he heard only one voice, and that to the best of his knowledge only one person entered the Whataburger.
17 RR 118−19; see also id. at 112 (Marsh only saw one man inside the Whataburger).
No investigating officers testified to their conclusions, based on the evidence they collected, that two men must have entered the restaurant.
Finally, at Marshall’s trial, no evidence was presented that the State had determined that Worthy supplied the guns for the offense, and there is only one page of testimony by Officer McDaniel, elicited on cross-examination, relating to HPD’s search for the guns that Worthy admitted discarding. In this testimony, Officer
McDaniel stated simply, “[y]es, we went with Ronald Worthy and attempted to locate the gun where he said we might be able to find it, yes.” 15 RR 89. On redirect, the
State pressed Officer McDaniel to testify in a manner that would be inconsistent with his later testimony at Worthy’s trial, stating they were only going to look for one gun that day, and that “Ronald Worthy said that there was a plastic gun that I think he had used that he claimed he had burned at one point, possibly; but, yes, there was a second toy gun.” Id. at 91 (emphasis added).
The prosecution used this evidence collectively to convince the jury that
Marshall was the only one carrying a real gun and the only one who entered the restaurant, and therefore had to be the shooter.
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The prosecution later presented polar-opposite testimony at Worthy’s trial to convict him of capital murder.
2. The same prosecutors that secured Marshall’s conviction and death sentence convinced Worthy’s jury that Worthy also entered the Whataburger.
Although the State did not use the law of parties when seeking Marshall’s conviction, it did convict Ronald “Bo” Worthy under a theory of party liability. In doing so, the State presented testimony from many of the same witnesses it had called to testify against Marshall, but this time their testimony had changed dramatically.
The only consistent witness was Calliham, who testified on Worthy’s behalf at his trial.
HPD officers testified at Worthy’s trial that they concluded through their investigations that both Marshall and Worthy must have been inside the
Whataburger restaurant at the time Dean was shot, and concluded from their investigations that both were carrying loaded guns:
Q. (Wisner) Based on your investigation did there have to be a second person inside the Whataburger for this robbery to take place the way it did?
A. (Moreno) That was my theory, yes, sir.
Q. What makes you say there needed to be a second person inside, aside from the shooter Tank?
A. The way that that side door opened, was locked from the inside, didn’t show any type of forced entry. I knew that Mr. Marshall had jumped through the window and immediately allowed – believe to have allowed somebody else in. That on top of, based on my theory, Christopher Dean was kind of a large individual and I don’t think that Gerald Marshall could have handled him by himself.
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Q. Is there any way that Gerald Marshall could force Chris through the drive-thru window?
A. No.
…
Q. Do you think it is realistic to assume, based on your investigation, that Christopher Dean was assaulted outside, stopped the assault, reached into his pocket, got the keys, put the keys in the door, put them back in his pocket, lead [sic] him and tank back inside?
A. No, sir.
Q. Do you think there was a second person inside?
A. Yes, sir.
…
Q. Based on your investigation, could this capital murder have occurred without a second person inside to let them in from the way it went down?
A. That we learned later on in the way – in the manner that it went down, no, it would have required two people.
Worthy Trial, 4 WRR 75−77 [Appx. 341−43] (emphasis added).
Similarly, Officer Breck McDaniel testified at Worthy’s trial that, “our investigation indicates that two of the—in my opinion, two of the defendants entered the Whataburger. One through the drive-thru window and then one was led in through a side door, was my opinion of what actually happened, based on the evidence.” Id. at 133 [Appx. 357] (emphasis added). Sergeant Brian Harris, who interviewed Worthy after his arrest, noted in his testimony at Worthy’s trial that
Worthy told police he was not going “back in there. How can he go back to something he wasn’t in? So, that statement alone puts him in the store.” Id. at 171 [Appx 358].
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Finally, D.C. Lambright, the crime scene investigator on the case, testified at
Worthy’s trial to material statements made to him by lead Investigator Hal Kennedy,
which were neither memorialized in any police reports turned over to Marshall, nor
acknowledged at Marshall’s trial.22 Near the beginning of his testimony at Worthy’s
trial, Detective Lambright stated that the drive-thru window was “the location that the witnesses advised that the suspects entered through.” Worthy Trial, 3 WRR 30
[Appx. 316]. On cross-examination, Worthy’s defense counsel attempted to clarify this seeming misstatement of the evidence. Detective Lambright, however, stood by his story, which was suppressed at Marshall’s trial and told for the first time at Worthy’s:
Q. (Moncriffe) Who told you there were more than one suspect?
A. (Lambright) Sergeant Kennedy received that information from the witnesses.
Q. What witnesses?
A. The other employees.
Q. All right. And can you look in your report, sir, if you have it and see who the other employees were?
A. I can tell you.
Q. Who said that two people went through the window?
A. I don’t have their names in my report, sir. I don’t –
Q. But you are sure that’s what the witnesses said?
A. That’s what I was – the information that I received from Sergeant Kennedy.
22 Marshall renews his discovery request for all materials memorializing Investigator Hal Kennedy’s witness interviews.
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Q. Kennedy?
A. Yes, sir.
Q. Did he bring his report? Is he here today, also?
A. I have not seen him, but he has retired.
Q. All right. So, we don’t have that information from – you didn’t bring his report, did you?
A. No, sir.
Id. at 52−53 [Appx. 317−18].
And while the State elicited Calliham’s testimony at Marshall’s trial, stressing to the jury that he was an honest man, they attacked his credibility forcefully and completely in their campaign to convict Worthy. Calliham was the sole defense witness at Worthy’s trial, and gave the exact same testimony on Worthy’s behalf that he had given for the State at Marshall’s trial. But now the same prosecutors who had encouraged the jurors at Marshall’s trial to trust Calliham took the opposite position, demonizing him as a “liar” peddling a “cockamamie” story cooked up with Worthy while the two were “holed up” together in jail:
Let me talk to you about Kenny Calliham. First of all, we know Kenny is a liar. He told us that – or couldn’t remember a lot of details. First of all, Kenny Calliham told the officers as soon as he got arrested, he told them that he saw both those guys with guns. They both had pistols. That’s very clear in his statement what he said. He said they both had pistols. They both came running from the drive-thru window and they got in the car and they left.
Now, what he told the officers back then, which was within a week of being – participating in the robbery, three key things. They both had guns – and he mentioned that more than once. They both ran to the car
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at the same time. And they both came through the drive-thru window. Now – I mean the area of the store where the drive-thru window was.
Now, how would he have known that if he was parked over here? He couldn’t possibly have known that. But when he testified and gave his cockamamie story – remember, it is now three years later. He’s been holed up in the holdover with this defendant [Worthy]. They concoct a story. You know they have. I mean, that’s just common sense.
He and his co-defendant is [sic] in the holdover together, by some huge mistake, either by the sheriff’s department or by us, where they can just freely collaborate and talk about their defenses and what is the best thing we are going to say.
…
And as you could see here today and through the course of their testimony it changed. No longer did he see them both with guns, he just saw Gerald with the gun. He wasn’t sure if Bo had a gun. Then he couldn’t recall if Bo had a gun. And this thing – this part I think is really telling. He admits that he saw guns that night, a silver gun and a black gun. And he admits that Gerald had the silver gun.23
Well, when I said, well, who had the black gun? He says, I don’t recall. Well, there are three guys in the car. He didn’t have a gun. Who else had a gun? That’s because Bo had the other gun. The real live gun, not the Wal-Mart toy gun.
…
The other testimony, and we know full well, that Bo [Worthy] and Gerald had a plan to commit an aggravated robbery, why in the world wouldn’t they tell their getaway driver what they are going to do? That doesn’t make sense, either.
He makes some kind of U-turn up there. There is not even room for a U-turn. Absolutely, he is waiting for those guys. And the story about him going forward while Bo is running behind the car does not make sense.
23 In fact, in his first statement, Calliham told officers that Marshall had the black gun. Appx. 29.
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Worthy Trial, 6 WRR 45−49, 51 [Appx. 384−88] (Colleen Barnett Closing Argument)
(emphasis added). This story, however, was the exact one the State had elicited from
Calliham, and left uncorrected, at Marshall’s trial. 16 RR 165−75.
When the State called Wilbert Marsh to testify at Worthy’s trial, he again testified on cross-examination that from his position crouching behind the boxes in the storage area, he only saw one man enter the restaurant. Worthy Trial, 3 WRR
109, 114 [Appx. 323, 328]. However, at Worthy’s trial, the same prosecution team that had pressed Marsh at Marshall’s trial to confirm that only one person entered the
Whataburger, now pressed him to agree that more than one person must have come inside:
Q. (Wisner) You know from your common sense that there has to be a second man who led Chris and the shooter in because [the door was locked from the outside and] Chris can’t fit through the drive-thru window, right?
A. (Marsh) That’s correct, sir.
Id. at 115−16 [Appx. 329−30].
Marsh’s inconsistent testimony at Worthy’s trial—that two people must have initially entered the restaurant, if the shooter and Dean were later able to re-enter the restaurant—was supported by police officer testimony on this issue in the same proceeding. See Investigator Moreno’s Testimony, Worthy Trial, 4 WRR 75−77 [Appx.
341−42]; Officer McDaniel Testimony, Worthy Trial, id. at 133 [Appx. 357]; Detective
Lambright Testimony, Worthy Trial, 3 WRR 53 [Appx. 318].
Finally, the State presented testimony at Worthy’s trial that Worthy had provided the guns for the robbery, and disposed of them afterward. This evidence
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painted Worthy as a much more active participant in planning the robbery than the
State had suggested at Marshall’s trial. Officer McDaniel testified at length about
the wild goose chase Worthy led as HPD pursued the missing guns. See Worthy Trial,
4 WRR 111−23 [Appx. 344−56]. The guns were never found, and it was determined
that Worthy likely sold them to two men named Louisiana and Black. Id. at 122−23
[Appx. 355−56].
Furthermore, Officer McDaniel testified that Worthy could not keep his story
straight about whether the gun he possessed during the robbery was fake, or broken,
or unloaded, or whether both his and Marshall’s guns were real. Id. at 116−19 [Appx.
349−52]. Officer McDaniel testified consistently with the State’s closing argument at
Worthy’s trial that if two individuals entered the Whataburger to conduct a robbery
that was an “inside job,” and only one of their guns was functional, it would have
made more sense for Worthy—who was supposed to guard the non-cooperating victims—to have the real gun, since Marshall would be working with his friend and co-defendant Gregory Love to peacefully access the safe:
He’s the one that took the officer to the bayou to say: This is where I threw the gun and then to take him to a dumpster where he says he threw the guns in a dumpster and then to take him to a sidewalk where he says he burned the guns. He takes responsibility for the guns.
We know they are his guns and we know they are both real guns and the reason we know they are both real guns is, No. 1, Bo admits that to the officer at the scene when he’s trying to tell the officer where the guns are.
You remember the testimony from both Moreno and from the other officer, Breck McDaniel, that through the course of that little trek out to the bayou and to the dumpster, the defendant admitted that the guns were real and that the gun he had was real.
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…
Both guns are real. And why is that important? It is important because you have to know what is going on through this man’s mind when they are going to commit an aggravated robbery.
Worthy Trial, 6 WRR 41−42 [Appx. 381−82] (Colleen Barnett Closing Argument)
(emphasis added).
The same prosecutors elicited inconsistent and irreconcilable testimony and
argument at Marshall’s and Worthy’s capital trials for the same offense. But the
weight of the true evidence—Calliham’s initial statements to police, Marsh’s inability to identify Marshall and his positive identification of a suspect that bore a “strong resemblance” to Worthy, Marsh’s initial statements that the shooter was left-handed,
Worthy’s ownership of the guns used and his discarding of his own bloody clothing along with the guns, and the Crime Stoppers tip relaying a confession by Worthy that was on all fours with eyewitness Marsh’s recounting of the event—indicates that the account presented by the State at Marshall’s trial was the false and misleading one.
B. To secure Marshall’s conviction and death sentence as the principal in Dean’s murder, the State withheld and otherwise misrepresented the evidence.
1. The State failed to introduce evidence at Marshall’s trial tying Worthy to the murder weapon.
The State introduced evidence at Worthy’s trial that prior to the Whataburger robbery, Worthy stole beer from the Diamond Shamrock where a bullet was ejected into the parking lot, which the State claimed matched the shell casing from the
Whataburger. Worthy Trial, 5 WRR 165−66 [Appx. 365−66] (Kenny Calliham
Testimony); see also Appx. 208. This evidence raised the possibility that Worthy,
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rather than Marshall, was in possession of the gun that killed Dean shortly before
the offense occurred, see Worthy Trial, 6 WRR 45 [Appx. 384] (Colleen Barnett
Closing Argument), but this fact was not introduced at Marshall’s trial.
2. The State withheld and untimely disclosed material evidence that was favorable to Marshall’s defense.
Prior to trial, Marshall’s counsel filed numerous motions preserving his right
to material exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).24 The
trial court granted those motions. 1 CR 300; 2 RR 7; 3 RR 3−5, 7−10, 14−15. In
particular, the court ordered the State to disclose “any written statement or any
sworn statement” by a witness that was “inconsistent with the defendant’s guilt.” 3
RR 10.
The prosecution allegedly had an open file policy in the case. 1 CR 400−02. But
despite the State’s purported “open file policy,” material Brady evidence was withheld
from Marshall. Furthermore, while some evidence was ultimately made available to
Marshall’s trial counsel, it was provided too late for trial counsel to use.
24 See 1 CR 11 (Motion for Discovery and Inspection); 1 CR 180 (Defendant’s Motion to Prevent Unfair Surprise During Trial); 1 CR 183 (Defendant’s Motion to Discover State’s Extraneous and/or Unadjudicated Acts of Misconduct to be Offered at Guilt or Punishment); 1 CR 203 (Defendant’s Pre- Trial Motion for Disclosure of Detailed Exculpatory Evidence); 1 CR 223 (Motion to Compel Disclosure of Evidence Favorable to the Defendant); 1 CR 233 (Motion for Discovery of Punishment Evidence); 1 CR 237 (Motion for Discovery and Inspection of Reports, Notes or Records). See also 1 CR 30 (Pro Se Motion for Discovery, Production and Inspection of Evidence No. 1); 1 CR 40 (Pro Se Motion for the Discovery of Witnesses Favorable to the Defendant); 1 CR 45 (Pro Se Motion to Compel Disclosure of all Evidence Favorable to Defendant); 1 CR 55 (Pro Se Motion for Discovery of Witness List).
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a. The State suppressed evidence that more than one co-defendant entered the Whataburger restaurant, and more than one co-defendant was present when Dean was shot.
At Worthy’s trial, D.C. Lambright testified that Sergeant Hal Kennedy, after speaking with eyewitnesses Wilbert Marsh and Tony Ketchum, had informed him that two masked robbers had entered the Whataburger restaurant immediately prior to Dean’s murder. Worthy Trial, 3 WRR 53 [Appx. 318]. Sergeant Kennedy’s notes from his interviews with Marsh and Ketchum are not in the disclosure turned over to undersigned counsel. This is material, exculpatory evidence undermining the
State’s case that Marshall was the shooter because he was the only co-defendant to enter the restaurant.
Detectives Lambright and Moreno and Officer McDaniel all testified at
Worthy’s trial that each of them concluded, based on their investigations, that two individuals must have entered the Whataburger immediately before Dean was shot, otherwise the capital murder would not have been possible. See Worthy Trial, 4 WRR
75−77 [Appx. 341−42] (Detective Moreno testimony); id. at 133 [Appx. 357] (Officer
McDaniel testimony); Worthy Trial, 3 WRR 53 [Appx. 318] (Detective Lambright testimony). None of the evidence turned over to the defense as part of the State’s compulsory constitutional duty of disclosure indicated that the investigating officers were following any leads that both Marshall and Worthy had entered the
Whataburger just before the shooting.
Furthermore, other than one sentence in Detective Moreno’s summary of his interview with Dennis Meyer, none of the evidence turned over to the defense
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indicates what evidence investigating HPD officers discovered to convince them that
at least two perpetrators must have been inside the Whataburger at the time of the offense.
b. The State suppressed exculpatory results from scientific testing.
In Marshall’s case, the State never turned over any test results pertaining to
fingerprint evidence collected at the scene or other biological evidence gathered from
items found at the Whataburger. At the trial, the State on multiple occasions left the
impression that no fingerprint evidence was collected. For instance, Colleen Barnett
led Officer Moreno to testify that the police found no fingerprints. 14 RR 129 (“Q. And
you never get any fingerprint evidence? A. That’s correct.”).
Contrary to Moreno’s testimony, however, the police did find fingerprints that
they submitted for testing. 25 Officer Lambright, the crime scene investigator,
disclosed this detail in a brief answer at trial: “I did lift two cards [of prints]. . . . I
found them on the exterior side of the window of the door.” Id. at 86. However, the
State left that thread dangling. Instead of acknowledging whatever the test results
showed—and they were surely exculpatory to Marshall, because otherwise the State
would have used them to bolster its shaky case—the prosecution downplayed them,
treating them as if they did not exist. Because it never disclosed the results, they
precluded the defense, judge, and jurors from seeing the evidence.
25 It has since been discovered that contemporaneous HPD policy dictated that police not create reports when fingerprints did not match their suspect. See infra Relevant Claims 1−3, Relevant Facts (C)(1).
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Police testimony from Worthy’s mistrial and retrial confirms that testing was
performed on fingerprint evidence from the Whataburger. Officer Lambright, as he
stated on direct in Marshall’s trial, testified at Worthy’s mistrial that he “lifted two
cards of prints” but apparently made no identification from them. Worthy Mistrial, 1
RR 50 [Supp. Appx. 667].26 When Officer Moreno testified that he did not believe
Lambright had collected any fingerprints, prosecutor Wisner corrected him:
“Q. [Wisner] There’s been some talk in the courtroom about fingerprints. Were any of those fingerprints even usable?
A. [Moreno] I had asked Lambright to attempt to lift fingerprints and, no, he was not able to lift any, to my knowledge.
Q. Okay. Do you know whether or not he was not able to lift any or whether or not the latent lab was not able to identify any?
A. Not able to identify any.
Q. In either case did any fingerprint evidence lead you to any suspects in this case?
A. No, sir.”
Id. at 76 [Supp. Appx. 948].
Results from these fingerprint analyses, or from any other forensic testing done on items recovered at the crime scene (including the cigarette butt and empty bottle) were never disclosed to the defense.
26 Oddly, Lambright gave a different response at Worthy’s re-trial. There, his testimony indicates that he found no fingerprints. When Barnett asked him, “you did lift some prints from the drive-thru window?” he responded, “No, ma’am, I attempted to, but I found none.” 3 WRR 30 [Appx. 316].
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c. The State only revealed mid-trial, several months after the relevant events, that Clarence Green had spoken to Marshall in violation of a keep-separate order.
Just before Green testified, the trial court held a proffer outside the presence of the jury. 16 RR 118. During this proffer, the State informed defense counsel for the
first time that Green had a second encounter with Marshall, after which he claimed
Marshall told him that he shot Dean over the eye, and added, “I feel real sorry for the
man. I see that man’s face at night when I go to sleep.” Id. at 119. This second
conversation allegedly occurred in June 2004, either immediately before or just after
a “keep separate order” was entered for Green and Marshall. See Appx. 389. After
learning this information, defense counsel informed the court, “I am glad we did this,
because all of the things that [the prosecutor] says this man heard in the second
conversation, I have never heard in my life.” 16 RR 120. The State had told Arnold
that nothing new had been said during the second meeting between Marshall and
Green. Id.
Moreover, when defense counsel questioned Green outside the jury’s presence,
they learned for the first time that Green had given the State a statement around
August or September 2003. They asked to be allowed to see that statement, which is
also not contained in the discovery that undersigned counsel received for these
proceedings. Id. at 126−27. The State then clarified that it was in possession of a
tape-recorded statement that Green gave to HPD after the DA’s office contacted him
in August 2003. Id. at 127. Arnold was allowed to listen to that tape for the first time
in the middle of Marshall’s trial and was able to determine that Green had not stated
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after his first meeting with Marshall where the shooting had occurred or where on
his body Dean was shot. Id. at 128. Stressing that it was not “blaming anybody” for
the late disclosure of this tape, the court stated that it had understood that “all these
issues were going to be resolved” before trial. Id.; see also id. at 127 (“I wish you-all
had settled this before we got out here to do this. Go ahead, listen to it, whatever you
need to do.”).
d. The State represented at trial that it had no evidence to impeach Kenny Calliham’s credibility, despite then being in possession of Dennis Meyer’s interview tape.
On September 22, 2004, lead defense counsel Mack Arnold learned that the
State had reached an agreement with Dennis Meyer, the jailhouse lawyer to whom
Calliham and Worthy had made inculpatory admissions, to testify against Marshall’s
co-defendants Calliham and Worthy. 1 CR 400. He was informed the State did not
intend to call Meyer as a witness at Marshall’s trial. Id. About a month later, and
several days into voir dire, Arnold learned that the State had reached an agreement
with co-defendant Calliham to testify against Marshall. Id.; 16 RR 6. Upon learning that the State would call Calliham, defense counsel attempted to interview Meyer to learn any impeaching information he might possess related to Calliham. 1 CR 400−01.
However, his attempts to interview Meyer through Meyer’s attorney were unsuccessful. Id.
After hearing Calliham’s testimony, in which Calliham surprisingly claimed to have had no prior knowledge of the planned Whataburger robbery, defense counsel asked the State whether they were aware of any evidence not previously disclosed to
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the defense that would impeach Calliham’s credibility. Id. at 401. The State responded that it was not aware of any such evidence. Id. However, even as it made that representation, the State had in its possession an audio recording of an interview with Meyer made earlier that same month that contained impeaching information and had never been turned over to trial counsel. Id.
On November 4, 2004, four days into the guilt phase of Marshall’s trial, defense counsel requested a court order for Meyer’s attorney to appear and discuss a defense interview with Meyer. Id. The following day, which was the last day the defense presented evidence at the guilt phase, Meyer was made available to defense counsel for an interview. Id.
On November 5, 2004, Meyer informed defense counsel that Calliham had admitted prior knowledge of the planned robbery, that they had stopped before the robbery to procure and hand out the guns, and that both Worthy and Marshall were armed during the commission of the offense. Id. The State had not made Meyer’s interview available to defense counsel, and it did not correct Calliham’s contrary testimony when he testified on the State’s behalf. Id. at 401−02. Defense counsel then requested to hear the tape recording of Detective Moreno’s October 8, 2003 interview with Meyer, which was granted. Id. However, only a few minutes into the tape, the bailiff informed the parties that testimony was resuming in the trial, and defense counsel had no opportunity to hear the entire tape before being forced to call Meyer to the stand to testify about the information of which Marshall’s attorneys had just become aware. Id.
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Defense counsel moved for a mistrial, citing the State’s failure to disclose all
material exculpatory evidence in violation of Brady and the trial court’s discovery
order. 19 RR 8. Defense counsel acknowledged that they had been given access to
Detective Moreno’s brief summary of his interview with Meyer, but emphasized that
the audio tape of the interview was not made available to them until November 5,
2004, the last day of testimony in the merits phase. Moreover, the tape was withheld
until defense counsel specifically requested it, and provided too late for defense
counsel to hear the entire contents of the interview before trial resumed. See 1 CR
400−02. Defense counsel further asserted that Meyer had provided the State evidence that did not appear in Detective Moreno’s summary that was turned over to them. Id.
The State claimed that Prosecutor Barnett’s handwritten notes from her
interview with Meyer had been made available to defense counsel, but never
answered the accusation it had concealed the tape of Detective Moreno’s interview
with Meyer until the last day of guilt-phase testimony, when it was finally disclosed after defense counsel’s specific demand. 19 RR 9. The trial court denied the motion for mistrial. Id. After the motion was denied, the State made a record of the fact that the tape was made available to defense counsel before Meyer took the stand, omitting the untimeliness and context of the disclosure. Id. at 10 (“So, certainly any exculpatory information concerning Dennis Meyer that vis-à-vis Kenny Calliham, was made available to Defense before Mr. Meyer was called to the witness stand and it was available to the Defense even before Kenny Calliham testified.”). Prosecutor
Barnett again stated on the record that the defense had “ample opportunity to ask us
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to play the tape before he called the witness to the stand, had he chosen to do so.” Id. at 11−12. In the affidavit she filed in response to Marshall’s motion for new trial,
Prosecutor Barnett again asserted that the audiotape of Detective Moreno’s interview with Meyer had been available to the defense all along, placing the burden on the defense to be aware of and seek out this exculpatory evidence. 1 CR 405−07.
e. The State never informed defense counsel that Mario Cadena, the purported victim of a prison threat by Marshall, had provided exculpatory evidence.
The State’s first witness at Marshall’s punishment trial was Ronald Lee Dixon.
Dixon testified that that while in jail pending trial, he had witnessed Marshall join in a “riot” over control of the television, during which Marshall hit a Hispanic man several times. 20 RR 19, 46−49; 23 RR 4. The State also called David Harvey to testify to Marshall’s role in this “riot.” 20 RR 159−61. Mario Cadena was on the State’s list as a potential witness against Marshall; however, at some point the State made known its intention not to call Cadena, leading Marshall’s defense counsel to suspect
Cadena might have information helpful to the defense. 23 RR 4. Accordingly, on
November 10, 2004, two days into Marshall’s three-day punishment trial, defense counsel met with Cadena. Id. at 4−5. In that meeting, defense counsel learned for the first time that Cadena was the alleged victim of Marshall’s physical aggression during the “TV riot,” and that he had told Prosecutor Barnett a few days earlier that
Marshall had not assaulted him, and in fact had acted as a “peacemaker” in the incident. Id. at 5. Cadena gave this information to the State four days before the State called Dixon to testify that Marshall had attacked Cadena during the fight. Id.
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Before interviewing Cadena, defense counsel had asked the State whether it
had any yet-undisclosed Brady material, and again the State denied that it did. 20
RR 144; 23 RR 5−6. Defense counsel’s request came four days after Prosecutor
Barnett interviewed Cadena. Because Cadena had given the State material exculpatory evidence that the State had then failed to disclose, defense counsel requested a mistrial based on the State’s dual violations of Brady and the trial court’s discovery order. 23 RR 6.
In response, Prosecutor Barnett stated that November 5 had been the first time she was able to speak with Cadena. Id. She had subpoenaed Cadena, along with others involved in the jail incident, six weeks prior. Id. at 7. She claimed that she was unable to meaningfully communicate with Cadena because she spoke no Spanish and
Cadena no English. Id. Cadena nonetheless indicated to her that neither Marshall nor himself had been involved in the uproar. Id. She claimed ignorance of the fact that Cadena had been named as the complainant in the incident, claiming she knew only that he was somehow involved. Id. According to Barnett, she did not learn that
Cadena was the supposed victim of Marshall’s aggression until Dixon so testified on
November 9. Id. She further claimed that, even then, it was unclear whether
Marshall had allegedly struck Cadena or someone else. Id. at 8.
Based on the State’s arguments, the trial court denied a mistrial. Id. Afterward,
Arnold alerted the court that in the copy of Dixon’s statement that the State had provided the defense, Dixon clearly identified Cadena as Marshall’s victim. Id. at 9.
Furthermore, on the State’s copy, Cadena’s name had been underlined. Id. at 9−10.
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The State never provided a satisfactory explanation as to why it failed to timely
inform defense counsel of the exculpatory information it learned from Cadena on
November 5, and why it again failed to inform defense counsel of this exculpatory
information after hearing Dixon’s testimony.
f. The State never disclosed impeachment evidence related to its witnesses Israel Gonzales, Ronald Lee Dixon, David Harvey, and Leandrew Bradley.
After Israel Gonzales and Ronald Lee Dixon testified for the State at
Marshall’s punishment trial, defense counsel made a record of the fact that the State
had failed to comply with the trial court’s order to disclose the prior criminal histories
of its witnesses. 20 RR 141. The State acknowledged its failure to comply, but argued that its failure to disclose this evidence was irrelevant: “Judge, even if so, all we are doing is playing a game of ‘got you.’ We already impeached this witness with his prior criminal history. So, what in the world could the possible harm be?” Id.; see also 1 CR
405−06.
The trial court, clearly disturbed by the State’s failure to comply with its order
to disclose the prior criminal histories of its witnesses for impeachment purposes,
ordered the State to immediately disclose the criminal histories of all remaining
State’s witnesses. 20 RR 143−44. At that time, for the first time and on the first day of Marshall’s capital sentencing hearing, the State gave defense counsel David
Harvey’s and Leandrew Bradley’s criminal histories. Id. at 144.
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g. The State never revealed post-trial evidence used in Worthy’s trial that in a separate criminal proceeding, Kenny Calliham corruptly attempted to influence a witness.
At Worthy’s trial, the State impeached co-defendant Calliham’s credibility by
introducing evidence that in September 2005 he had attempted to convince a female
friend to change her testimony to exculpate him in a separate criminal case. Worthy
Trial, 5 WRR 171−75 [Appx. 367−71]. Though Marshall’s sentence had not yet become
final on appeal when the State discovered and elicited this evidence at Worthy’s trial,
the State failed to disclose the newly discovered impeachment evidence to Marshall’s
counsel.
C. Widespread evidence that the State lacks credibility should inform how this Court treats Marshall’s claims of misconduct.
Because the Court’s disposition of Marshall’s prosecutorial misconduct claims
may be informed in part by the credibility of the prosecutors and their office, evidence
that they lack credibility is relevant.27 In Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013),
when evaluating the credibility of a State witness whose misconduct was
simultaneously unraveling another prosecution in the same jurisdiction, the court
cited and considered “the cavalier attitude” of the District Attorney’s office “toward
its constitutional duty to disclose impeachment evidence.” Id. at 1016. Similarly here,
27 “[O]ne can imagine a particular prosecutor or office’s history of Brady violations making a difference to a court’s analysis of whether evidence was actually suppressed, for example, or how to craft an appropriate remedy. . . . Courts can and should rely upon previous findings of misconduct to analyze current claims.” Bidish Sarma, Using Deterrence Theory to Promote Prosecutorial Accountability, 21 LEWIS & CLARK L. REV. 573, 624−25 (2017).
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Colleen Barnett, Vic Wisner, and the HCDAO have given this Court numerous
reasons to consider Marshall’s allegations of misconduct carefully.
As background, when they tried Marshall’s case, both Barnett and Wisner were
senior prosecutors with years of service under their belts. Indeed, Barnett was a
career prosecutor who had never worked as a lawyer anywhere but the HCDAO: “I
was licensed in 1990 and have worked exclusively as an Assistant District Attorney
for the Harris County District Attorney’s Office since becoming licensed.” 1 CR 405.
By the time she tried Marshall’s case, Barnett had been at that office for well over a
decade, and had risen to a position giving her supervisory responsibility over other
prosecutors.28 Wisner had even more experience as a prosecutor, and had likewise
spent his entire legal career practicing in the same office. He received his bar license
in 1984 and was working at the HCDAO at that time.29 His tenure spanned more
than two decades.30 Wisner served as a supervisor for Barnett.
28 Barnett eventually left the office a few years after Marshall’s trial. However, she recently came back to the HCDAO when District Attorney Ogg was elected. See, e.g., Dennis Spellman, Harris County DA- Elect Ogg Announces Assistant District Attorneys, COVERING KATY, Dec. 30, 2016, available at: https://www.coveringkaty.com/news/city_of_katy/harris-county-da-elect-ogg-announces-assistant- district-attorneys/article_b062b590-2916-5090-b83c-9f839098774d.html (“[Barnett] has supervised younger prosecutors and taught office wide seminars on trial matters.”).
29 See Victor Jay Wisner, State Bar of Texas, available at https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template=/Customsource/Me mberDirectory/MemberDirectoryDetail.cfm&ContactID=192551 (last visited Feb. 13, 2020).
30 See, e.g., Statement of Victor Jay Wisner in justice’s case, HOUSTON CHRONICLE, Jan. 22, 2008, available at https://www.chron.com/news/houston-texas/article/Statement-of-Victor-Jay-Wisner-in- justice-s-case-1779571.php (citing the “24 years I have worked here,” going back to 1984).
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1. The prosecutors in this case have a pattern of withholding evidence.
Recent findings in another Harris County capital case raise legitimate
concerns about the integrity and professionalism of both Colleen Barnett and the
HPD. In October of 2019, the 180th Judicial District Court of Harris County issued
findings of fact and conclusions of law on a subsequent state habeas application in
State v. Ronald Hamilton, Jr., No. 0901049-B; Supp. Appx. 685−750. That court’s
findings illuminate the HPD’s long-standing policy to suppress exculpatory evidence
by failing to document and report when fingerprint testing does not connect the
evidence to the defendant. Supp. Appx. 710. The court found and was “troubled by[]
the prosecution team’s active suppression of exculpatory evidence.” Id. at 708. It determined that “both the Houston Police Department and trial prosecutor Colleen
Barnett actively suppressed exculpatory evidence that [petitioner] was excluded from contributing the fingerprints at the [] scene, and particularly on the 40-ounce bottle that [a] witness [] saw the shooter set down.” Id. Additionally, “prosecutor Colleen
Barnett knew, or should have known, prior to trial that [petitioner] had been excluded from leaving all of the prints recovered from the [] scene.” Id. at 716. Hamilton demonstrates that the HPD and HCDAO, and Barnett specifically, strategized to ensure that exculpatory information is not provided to capital defense teams by refraining from documenting that information in a shareable format.
Barnett’s history of Brady missteps is not limited to the Hamilton case. Indeed, transcripts reveal that Barnett suppressed impeachment evidence in the prosecution of Marshall’s co-defendant Gregory Love, eliciting false testimony from a key witness
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facing serious criminal charges that he had no deal or expectation of prosecutorial
assistance. Here is Barnett’s exchange with witness Derrel McQueen on December
14, 2004:
Q. [Barnett] Now, you are currently standing trial on a case, are you not?
A. [McQueen] Right.
Q. You have pending charges in the 351st District Court?
A. Right.
Q. Mr. McQueen, did I offer or did you ask for anything in exchange for your testimony here today against Gregory Love?
A. No, I did not.
Q. And are you going to receive any benefit –
A. No, I am not.
Q. -- in exchange for your testimony?
A. No, I am not.
Q. So, you will stand trial on charges in January?
A. True.
Q. And what you have done for this case, we are not offering you anything in exchange for your testimony in that case?
A. No, you are not.
Love Mistrial 2 RR 210−11 [Supp. Appx. 660−61] (emphasis added).
A few months later, after those proceedings resulted in a mistrial, McQueen
was back on the stand for Love’s re-trial. In the meantime, he had been acquitted on the criminal charges that had been hanging over his head when he testified back in
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December. Barnett first attempted to elicit the same testimony from McQueen—that
he had no deal and no expectation of support in exchange for his testimony. This time,
the witness told the truth:
Q. [Barnett] Okay. And we didn’t make any agreements about what would happen with you and your case; is that right?
A. [McQueen] No, we didn’t make any agreements other than, you know, if I was found convicted that you-all would come testify on my behalf.
Love Trial 5 RR 82 [Supp. Appx. 663] (emphasis added). Through a series of leading questions, Barnett made a concerted effort to whitewash the record:
Q. -- did I tell it -- what did I tell you regarding -- if I could help you or not help you in regards to your case?
A. Other than that there was no deals would be made as far as my case go and if I was convicted, you know, you would come testify as a character on my behalf.
Q. All right. Now, did I offer you any help about saying, Hey, I can get your case dismissed?
A. No.
Q. Or I can get it reduced?
A. No.
Q. Or I can do something about it?
A. No.
Q. Did I tell you that I could do anything at all with your case?
A. No.
Q. And was your case in a totally different court?
A. Yes, it was.
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Q. Did I kind of let you do with your case whatever it was you were going to do?
A. Yes.
Q. Did I offer you any kind of help at all?
A. No.
Q. Did I talk to the prosecutor in your case?
A. No.
Q. Did I do anything about your case?
A. No.
Id. at 82–83 [Supp. Appx. 663, 943] (emphasis added). Barnett’s effort ultimately led the witness to the conclusion she sought, but only after she spilled the beans herself:
Q. [Barnett] And anything that I told you that I could do, would be if you were found guilty, to testify in your punishment case that you would agree to cooperate in this case –
A. M-h’m.
Q. — is that right?
A. Yes.
Q. Did you view that as an agreement between us?
A. No.
Id. at 84 [Supp. Appx. 944] (emphasis added).
Barnett, however, did not leave it there. At the end of the trial, she stated,
“[n]ow, let me talk about Derrel McQueen, first of all. What does Derrel have to gain or lose by his testimony? Nothing. He doesn’t gain anything if he testifies. He doesn’t
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lose anything if he testifies. He doesn’t even have to testify.” Love Trial, 8 RR 50
[Supp. Appx. 665]. Even more astonishingly, she continued in her closing statement:
[A]s you heard from [McQueen] today, I had no agreement to help him whatsoever in his case at all. He didn’t want my help. He certainly didn’t need my help and there was nothing he was going to do or could do or would do. There is no way on God’s green earth that I was going to intervene in his case at all. Not at all. He knew that. You know that. Nothing that I would do, did do, in his case.
Id. at 51 [Supp. Appx. 946] (emphasis added). Barnett’s behavior at Love’s retrial, read in tandem with the court’s findings in Hamilton, demonstrates a troubling pattern of burying the truth when doing so might help her win a conviction or favorable sentence from the jury.
What happened in Hamilton and Love underscores and provides context for what happened at Marshall’s trial. As explored above, see supra (B)(1)−(2), the prosecution engaged in a consistent and prolonged campaign to withhold exculpatory and impeaching evidence from Marshall’s defense team. When the State did turn over such evidence, it generally did so at the last possible moment, in response to pressure from the defense lawyers or the court, despite its previously existing obligations under Brady and the trial court’s discovery order. And there is almost certainly even more Brady information that undersigned counsel have not yet seen.
2. The prosecutors in this case have demonstrated that they do not understand Brady.
Moreover, Marshall’s trial prosecutors have demonstrated on several occasions that they lack a basic understanding of the legal obligations imposed on them by
Brady. Both Barnett and Wisner have sworn that while they maintain what they call an “open file” policy, they do not include in that file any of their work-product. Of
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course, work-product containing information that exculpates the defendant falls
within Brady’s ambit.31 The trial prosecutors mistakenly think otherwise.
In her affidavit executed on January 14, 2005—submitted during a hearing on
the defense’s Motion for New Trial—Barnett shared her distorted view of an open file
policy. She explained, “Save for work product, Mr. Arnold had complete access to the
state’s file including the aforementioned tape recording. In fact, the notes that I had
made of my conversation with Mr. Meyer, which I considered work product, were
inadvertently given to Mr. Arnold before trial.” 1 CR 406.
The HCDAO’s, and Vic Wisner’s, distorted view of Brady became clear recently
when a federal judge in the Southern District of Texas ordered depositions of Wisner
and fellow prosecutor Kelly Siegler regarding the HCDAO’s failure to comply with
Brady in the capital prosecution of Ronald Prible. The Brady evidence withheld in
Prible included HCDAO notes from meetings with several prison informants which the prosecution refused to hand over because “any notes that either myself or [my investigator] made when we went to visit [the informant] is work product.” See
Petitioner’s Reply in Support of Renewed Motion to Compel at 2, Prible v. Davis, No.
4:09-01896 (S.D. Tex.) (Doc. #166, filed Nov. 30, 2017) (record citations omitted).
31 “Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus, the [federal] work-product immunity [rule] . . . does not alter the prosecutor’s duty to disclose material that is within Brady.” 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 254.2 (3d ed. 2000); see also Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006) (noting that while generally “a prosecutor’s opinions and mental impressions of the case are not discoverable,” Brady requires disclosure when “they contain underlying exculpatory facts”); United States v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989) (characterizing the district court’s finding that a memo with exculpatory information “was not discoverable under Brady because it represented the government attorneys’ work product” as a “rather dubious conclusion”).
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Wisner testified that despite HCDAO’s “open file” policy, “it would not include []
personal notes.” Exhibit 6 (Deposition of Vic Wisner at 9–10, Prible v. Davis, No. 4:09-
01896 (S.D. Tex. Sept. 20, 2017)); see also Ex parte Ghahremani, 332 S.W.3d 370, 482
(Tex. Crim. App. 2011) (noting that under its “open file” policy, the HCDAO did not permit defense counsel to examine documents in “work product” folders).
Prible confirms that Harris County’s “work product” withholdings can include
Brady evidence. After Prible’s counsel requested “any and all material . . . withheld from the defense on the basis that it is work product” from the prosecutor’s files, the
HCDAO withheld 487 pages of notes that it claimed constituted protected work product. See Petitioner’s Renewed Motion to Compel Production of Harris County
District Attorney’s “Work Product Files and “Work Product” E-mails in Light of
Prosecutor Kelly Siegler’s Deposition Testimony at 7–8, Prible v. Davis, No. 4:09-
01896 (S.D. Tex.) (Doc. #164, filed Nov. 3, 2017). After in camera review, the federal
district court determined that some of the notes might contain exculpatory
information and ordered them produced. See Order, Prible v. Davis, No. 4:09-01896
(S.D. Tex.) (Doc. #154, filed May 12, 2017).
While the State continually claimed it maintained an “open file” in Marshall’s
case, we now know this should not end the inquiry into Brady compliance. The
question is not whether the prosecutors labeled their policy “open file,” but what
materials the prosecutors kept out of that file. Given HCDAO’s misconceptions about
Brady—including their apparent confusion over whether the work-product doctrine
excuses them from disclosing exculpatory evidence—this Court can have no
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confidence that Harris County prosecutors have faithfully applied these concepts
when deciding to withhold the “work product” portions of Marshall’s file from defense
counsel, whether at trial or since.
Claim 1 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights to due process and to be free from cruel and unusual punishment were violated by the State’s knowing use of false testimony at the guilt and penalty phases of his trial.
No witness saw the triggerman fire the shot that killed Christopher Dean.
Seeking to convict Marshall as the triggerman—and seeking the death penalty against him on that ground—the prosecution elicited testimony at his trial that he, alone, illegally entered the restaurant in the early pre-dawn hours that Sunday.
Because the victim was killed inside, placing only Marshall across the threshold left no question about who was responsible. But, in a brazen turn, after putting Marshall on death row, the prosecutors presented contradictory evidence at the capital murder trial of co-defendant Ronald Worthy. There, the State and its key witnesses stated with certainty that two suspects went inside the Whataburger. With two armed perpetrators inside, no eyewitness to the fatal blow, and no scientific evidence to resolve the question, it would have been impossible for jurors to decide who pulled the trigger beyond a reasonable doubt (which is no doubt why the State pursued a party liability theory against Worthy, making “who pulled the trigger” legally irrelevant). Yet, Marshall’s jurors never knew two men went inside because the State presented false and misleading evidence to the contrary. The State’s misdeeds violated Marshall’s constitutional rights.
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A. The governing law.
A conviction obtained by the prosecution’s knowing use of false testimony violates the Fifth and Fourteenth Amendment guarantees of due process, because
“[s]uch a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” Mooney v. Holohan, 294 U.S. 103, 112
(1935). This is true whether the prosecution solicits the false testimony or simply allows unsolicited false testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264,
269 (1959) (citations omitted); see also Canales v. Stephens, 765 F.3d 551, 573 (5th
Cir. 2014). The knowing use of false testimony renders the result of a proceeding
“fundamentally unfair, and [the verdict] must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”
United States v. Bagley, 473 U.S. 667, 679 (1985).
In the Fifth Circuit, a false testimony claimant must prove three elements: (1) the falsity of a witness statement; (2) the State’s culpable elicitation or failure to correct it; and (3) materiality. See United States v. Dvorin, 817 F.3d 438, 451−52 (5th
Cir. 2016). The second prong has been read broadly and is satisfied when anyone on the government’s team knew, or the prosecution should have known, the testimony was false. Giglio v. United States, 405 U.S. 150, 154 (1972).
The standard for determining whether false testimony was material under
Napue’s third prong is more lenient than the Brady materiality standard, because
“the knowing use of perjured testimony involves prosecutorial misconduct and, more importantly, involves a corruption of the truth-seeking function of the trial process.”
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Bagley, 473 U.S. at 681 (internal quotation marks omitted). Even if sufficient evidence exists to support the guilty verdict without the perjured testimony, “the defendant is entitled to a jury that is not laboring under a Government-sanctioned false impression of material evidence when it decides the question of guilt or innocence with all its ramifications.” United States v. Barham, 595 F.2d 231, 242 (5th
Cir. 1979). Accordingly, the Napue standard is equivalent to the harmless error standard of Chapman v. California, 386 U.S. 18 (1967), which requires the State to
“prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Bagley, 473 U.S. at 679 n.9; Barham, 595 F.2d at 242.
Finally, as the Supreme Court has recently reminded us, false and misleading testimony must be evaluated for materiality cumulatively, rather than individually.
Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016) (overturning a conviction because “the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively”).
B. The State knowingly presented, and failed to correct, false and misleading evidence at the guilt phase.
The guilt phase of Marshall’s trial was replete with instances of the State presenting evidence that it knew to be false and/or misleading, leaving the jury with the false impression that (1) only one defendant could have been inside the
Whataburger restaurant immediately preceding and during the shooting of Dean, and (2) that defendant was Marshall.
At a minimum, the prosecution knew that the testimony it presented in support of the following material factual assertions was false:
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1. The prosecution demonstrated it knew Marsh’s testimony that only one person
entered the Whataburger was false when (1) they elicited testimony from
Marsh at Worthy’s trial that two people must have entered the Whataburger,
and (2) they elicited testimony from each of the investigating officers that the
offense could not have occurred as it did unless two people entered the
restaurant.32
2. The prosecution demonstrated that essentially the entirety of Calliham’s
testimony implicating Marshall as the only possible shooter was false, as
demonstrated by its vehement arguments to that effect at Worthy’s trial. See,
e.g., Colleen Barnett Closing Argument, Worthy Trial, 6 WRR 45−49 [Appx.
384−88] (“Let me talk to you about Kenny Calliham. First of all, we know
Kenny is a liar.”).
3. The State presented false and/or misleading testimony from Officer McDaniel
that Worthy was carrying a toy gun during the robbery. 15 RR 91. The State
knew this testimony to be false, or at best unreliable and misleading, as
demonstrated by the evidence and argument it presented at Worthy’s trial that
both Worthy and Marshall were carrying real, loaded weapons. See, e.g.,
32 See, e.g., Worthy Trial, 4 WRR 75−77 [Appx. 341−343] (Detective Moreno testifying that his theory during the investigations was that a second person was inside the Whataburger during the robbery and the offense “would have required two people.”); Worthy Trial, 4 WRR 133 [Appx. 357] (Officer McDaniel testifying that HPD’s investigation “indicates that two of the – in my opinion, two of the defendants entered the Whataburger.”); Worthy Trial, 4 WRR 171 [Appx. 358] (Sergeant Harris testifying that in his opinion Ronald Worthy was inside the Whataburger); Worthy Trial, 3 WRR 52−53 [Appx. 317−18] (Detective Lambright testifying that an eyewitness informed Sergeant Kennedy that two people entered the Whataburger).
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Colleen Barnett Closing Arguments, Worthy Trial, 6 WRR 41 [Appx. 380]
(“Both guns are real.”).
Examination of the same prosecutors’ conduct at Worthy’s trial is crucial to demonstrate that they knew false and misleading testimony was presented at
Marshall’s trial. To be clear: the prosecution did not claim to have done any new investigation of the facts between Marshall’s and Worthy’s trials, such that the theory of the events at Whataburger drastically changed. Brazenly, they simply presented
one story at Marshall’s trial and a definitively irreconcilable story at Worthy’s.
Notably, the prosecutors had much more evidence to support their theory of two
intruders, carrying two guns.
The Fifth Circuit has previously found that the government demonstrates
knowledge when it presents conflicting testimony against two co-defendants at
consecutive trials. In Ho v. Thaler, 495 F. App’x 488 (5th Cir. 2012), three men, Ho,
Le, and Hoang, were prosecuted separately for a drive-by killing. Le and Hoang each gave statements that they were not in the car at the time of the shooting, and that
Ho had admitted responsibility for the shooting to them over the phone. Id. at 490.
In contrast, eyewitness accounts placed all three men in the car at the time of the shooting—Le driving, Ho shooting, and Hoang in the back seat. Id.
Le was prosecuted first, on the theory that he drove the car during the shooting—a theory directly in conflict with his statement that he was not in the car and had not heard about the shooting until the next morning. See id. The State disavowed as false Le’s claim that he was not in the car. Id. Le was convicted. Id. Ho
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was tried next, under a theory that he was the actual shooter. The same prosecutor who had secured Le’s conviction by arguing that Le had been in the car used Le’s and
Hoang’s self-serving statements that they were not present in the car but heard about the shooting later to secure a conviction of Ho as the principal. Id. at 491. On these facts, the Fifth Circuit found sufficient evidence to demonstrate the State’s knowing use of false or misleading testimony because the State used evidence it knew and believed to be false (the self-exculpating statements from Le and Huang) to convict
Ho:
In the present case, Ho showed that the prosecution did more than present inconsistent testimony. He showed that the prosecution knew and believed Le’s and Hoang’s police statements to be false because the prosecution secured a conviction against Le on the theory that Le and Hoang were in the car with Ho during the shooting. . . . The prosecution presented statements that not only had been recanted, but which the prosecution knew to be false and would likely mislead the jury. . . . The prosecution’s use of the recanted statements therefore qualifies as false or misleading for the purposes of Ho’s due process challenge.
Id. at 493 (emphasis added). The holding of this case is clear: when the prosecution introduces evidence at one trial that is directly contradicted by the evidence and theory under which it secures a conviction at a co-defendant’s trial, the State has knowingly presented false or misleading testimony.
The same rule applies here. By prosecuting Marshall and Worthy on two theories that irreconcilably contradicted each other, and by presenting contradictory testimony from the same witnesses at the two trials, the prosecution demonstrated that it knew the testimony used to convict Marshall was false. Indeed, the prosecution did more than simply demonstrate that it knew Calliham’s testimony was false: it
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affirmatively argued so at Worthy’s trial, claiming, “We know Kenny [Calliham] is a liar.”
Because Marshall’s jury was instructed only on the theory of principal liability, and not under Texas’s law of parties, the false testimony left uncorrected by the prosecution was undoubtedly material. The State’s burden was to prove beyond a reasonable doubt that Marshall himself shot and killed Dean, not that he was involved in the planning and carrying out of a robbery that resulted in Dean’s murder, nor even that he was standing, armed, next to Ronald Worthy when Worthy shot and killed Dean. The jury that deliberated and found Marshall guilty had to find that
Marshall pulled the trigger. It did so under the false belief—intentionally created by the State—that Marshall was the only defendant who could have pulled the trigger.
19 RR 68−69 (“We know that the person that came through that drive-thru window at 3:30 in the morning is the person that is the shooter. . . . There was no other evidence to establish that anybody else was in that store except for [the staff] and the shooter.”). The State argued that it was impossible for anyone else to have been the shooter, when the evidence in its own possession in fact showed that more than one person necessarily entered the Whataburger. Investigator Moreno Testimony,
Worthy Trial, 4 WRR 75−77 [Appx. 341−343] (“Q. Based on your investigation, could this capital murder have occurred without a second person inside to let them in from the way it went down? A. [N]o, it would have required two people.”).
Moreover, the State led the jury to believe that Marshall had to be the shooter because only Marshall was carrying a functional firearm—a fact the prosecution
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likewise knew to be false. Worthy supplied the guns, Worthy was carrying a gun, and
Worthy needed to carry a functional gun. Colleen Barnett Closing Argument, Worthy
Trial, 6 WRR 41−42 [Appx. 381−82] (“We know they are his guns and we know they
are both real guns.”). Calliham told investigating officers at his first interview that
Marshall was carrying a black gun, thus placing the silver gun—the one the
Whataburger employees saw in the hands of the person who jumped through the
drive-thru window and later shot Dean—in Worthy’s hand.
Had the jury been informed truthfully that everyone involved in the State’s
case—the investigating police officers, Kenny Calliham, and the eyewitnesses—
either believed or knew that two defendants, and not one, had entered the
Whataburger, and that both defendants were in possession of functioning guns, it
could not have found beyond a reasonable doubt that Marshall was the triggerman
in this offense.
The jury itself demonstrated how critically it considered the evidence related
to the question of whether Marshall was the only co-defendant to enter the
Whataburger. During its guilt-phase deliberations, the jury sent a note to the judge
asking to rehear “Marsh testimony re: ‘locked doors’ @ drive-in window.” 1 CR 331.
The only relevance of Marsh’s testimony—that the door through which Dean and one of the co-defendants re-entered the restaurant shortly before the shooting automatically locked from the inside when closed—was whether the State’s theory
that Marshall was the only co-defendant inside the Whataburger, and thus the obvious shooter, was even feasible.
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The Fifth Circuit has recognized that the prosecution’s reliance on false testimony during closing arguments indicates its materiality. “False testimony deprives a defendant of due process when the government reinforces the falsehood by capitalizing on it in its closing argument.” United States v. Wall, 389 F.3d 457, 472–
73 (5th Cir. 2004) (citing to United States v. O'Keefe, 128 F.3d 885, 894–95 (5th Cir.
1997)) (“even when the defense is aware of the falsity of the testimony,” due process may be violated if “the government reinforces the falsehood by capitalizing on it in its closing argument”) (emphasis added)); see also LaCaze v. Warden La. Corr. Inst. for
Women, 645 F.3d 728, 738 (5th Cir. 2011) (prosecution’s discussion of material that should have been disclosed under Brady/Napue during closing statements an indicator of materiality). The prosecution relied heavily on Calliham’s and Marsh’s testimony during guilt-phase closing arguments.
The prosecution also relied heavily on the false and misleading evidence it presented at the guilt phase in its penalty phase closing arguments:
Apparently, the Defense is still going to claim – and you heard it from some of the questioning regarding the Shipley’s robbery, they are still going to claim Bo [Worthy] did it.
I want to go over that with you and just put this Bo thing to bed one last time.
…
Let’s put this Bo stuff to rest. The defendant is the shooter. Don’t fall for some kind of secondhand guilt trip that maybe you got the wrong guy, because that is not true.
23 RR 21. The State presented the jury with the false evidence that Marshall was the only possible shooter, and then it repeatedly emphasized that false evidence in both
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its guilt and penalty phase arguments. It cannot now credibly argue that the evidence
was not material.
C. The State knowingly presented, and failed to correct, false and misleading testimony at the penalty phase of Marshall’s trial.
Prosecutors also presented and failed to correct false evidence at the penalty
phase. The State knew at least as early as November 5, 2004, that Mario Cadena
would testify that Marshall did not physically attack him in jail during the “TV riot”
and that, in fact, Marshall acted as a “peacemaker” during the altercation. 23 RR 5.
The State nonetheless presented the testimony of Dixon and Harvey that Marshall
violently attacked Cadena during the fracas. 20 RR 19, 46−49, 159−61. Moreover, the
State was in possession of a report from one of the jail officers—Keith Royston—that indicated Marshall was not, in fact, fighting. Supp. Appx. 940−41. The State cannot demonstrate beyond a reasonable doubt that this false and misleading testimony did not impact the jury’s penalty phase deliberations, because the testimony given by
Dixon and Harvey—that Marshall had been violent while incarcerated—directly implicated Marshall’s potential for future dangerousness if his life was spared.
D. This claim is unexhausted.
This claim was not presented in state post-conviction proceedings and it is therefore unexhausted. Marshall expects to seek a stay under Rhines v. Weber, 544
U.S. 269 (2005), and seek further discovery, so that he may return to state court and exhaust it. It would be premature to address questions of default until Marshall conducts discovery and has a fair opportunity to present this claim to the state courts.
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Claim 2 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the state’s deployment of fundamentally inconsistent theories of the crime.
The State presented irreconcilable testimony and argument on the single most
critical fact issue at the trials of Marshall and Worthy. While prosecutors told
Marshall’s jury that only Marshall entered the Whataburger on the night of the
robbery, those same prosecutors presented evidence and argued to Worthy’s jury that
“common sense” and police investigations dictated two robbers must have entered the
restaurant. The State’s use of outright contradictory theories rendered Marshall’s
trial fundamentally unfair and violated his constitutional rights.
A. The governing law.
“[T]he Due Process Clause prohibits the government from presenting mutually
inconsistent theories of the same case against different defendants.” United States v.
Higgs, 353 F.3d 281, 326 (4th Cir. 2003). The constitutional concerns with the State’s
integrity run deeper. “[W]hile [a prosecutor] may strike hard blows, he is not at
liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935). While these
constraints may serve in some instances to temper the advocacy of the prosecutor,33
the U.S. Supreme Court has embraced the principle that it is better for a guilty person
33 The ABA Model Rules of Professional Conduct instruct that a prosecutor “has the responsibility of a minister of justice and not simply that of an advocate.” The Model Rules further require that “special precautions are taken to prevent and to rectify the conviction of innocent persons.” ABA Model Rules of Professional Conduct, Rule 3.8 Comment 1 (1983). Prosecutors thus occupy a unique space within the criminal justice system, in which they may forcefully and persuasively argue their case while also remaining obligated not to manipulate or present facts inconsistent with the truth. “The State’s obligation is not to convict, but to see that, so far as possible, truth emerges. This is also the ultimate responsibility to provide a fair trial under the Due Process Clause of the Fourteenth Amendment.” Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring).
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to go free than for an innocent person to be convicted. See, e.g., In re Winship 397 U.S.
358, 372 (1970) (Harlan, J., concurring). The relevant question here “is whether the
Due Process Clause forbids a state from using inconsistent, irreconcilable theories to secure convictions against two or more defendants in prosecutions for the same offenses arising out of the same event.” Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir.
2000). The answer is yes. See, e.g., id. at 1051; Thompson v. Calderon, 120 F.3d 1045,
1058 (9th Cir. 1997) (en banc) (plurality opinion), rev’d on other grounds, 523 U.S.
538 (1998); Drake v. Kemp, 762 F.2d 1449, 1478 (11th Cir. 1985) (Clark, J., concurring).
Prosecutors are bound by the Due Process Clause’s implicit command of fundamental fairness. Though the Supreme Court has held that fundamental fairness cannot be precisely defined, Lassiter v. Department of Social Services, 452
U.S. 18, 24 (1981), in cases involving prosecutorial misconduct, the focus is on the overall “fairness of the trial” itself (rather than the “culpability of the prosecutor”).
Smith v. Phillips, 455 U.S. 209, 219 (1982). A Due Process violation occurs when the alleged conduct has rendered the proceeding fundamentally unfair.
The Eighth Circuit has provided the best analysis of the constitutional trouble engendered by the State’s use of inconsistent theories. In Smith v. Groose, it held that the “State’s use of factually contradictory theories . . . constituted ‘foul blows,’ error that fatally infected [the defendant’s] conviction.” 205 F.3d at 1051. Jon Smith was convicted of first-degree felony murder as a party to the murder of an elderly couple committed during a robbery. The prosecution’s case relied primarily on the testimony
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of Anthony Lytle, an accomplice and codefendant. Lytle had given inconsistent
statements to law enforcement, placing Smith both inside and outside the premises
at the time of the murder. At Smith’s trial, the State, through Lytle, presented the
theory that Smith was burglarizing the victim’s home at the time that his accomplice
shot them. However, at the trial of codefendant Michael Cunningham for the same murders, the State, again through Lytle, presented the theory that Cunningham murdered the victims before Smith, Lytle, and their accomplices arrived at the scene.
Cunningham was convicted of first-degree murder. Id. at 1048. The Eighth Circuit found that the State’s “manipulation of the evidence deprived [Smith] of due process and rendered his trial fundamentally unfair.” Id. at 1051. For this reason, the court
vacated his convictions. See id. at 1053.
Smith is grounded on core principles of fundamental fairness and the
prosecutor’s duty to refrain from foul blows. As the Eighth Circuit explained, “we do
not break new ground nor impose a new obligation on the government. Neither the
due process requirement that the government prosecute fairly in a search for truth
nor the prosecutor’s role in such a prosecution constitutes a new rule of law.” Smith,
205 F.3d at 1053. Other courts have agreed with the Eighth Circuit’s approach. See
e.g., United States v. Collins, 799 F.3d 554, 582 (6th Cir. 2015) (acknowledging that
inconsistent theories can violate due process) (quoting Smith v. Groose 205 F.3d at
1052).34 “In some situations, the Due Process Clause prohibits the government from
34 While the Fifth Circuit has addressed and denied similar claims about the State’s use of inconsistent theories, its foundational case is one where the district court invoked a novel theory of constitutional estoppel. See Nichols v. Scott, 69 F.3d 1255, 1268−74 (5th Cir. 1995) (explaining and rejecting the
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presenting mutually inconsistent theories of the same case against different defendants.” United States v. Higgs, 353 F.3d 281, 326 (4th Cir. 2003); Hall v. State,
283 S.W.3d 137, 156 (Tex. App.—Austin, 2009) (“To violate due process, an irreconcilable inconsistency must exist at the core of the State’s cases.”).
At bottom, prosecutors may not manipulate evidence in support of inconsistent theories about each co-defendant’s culpability at multiple trials in order to obtain a conviction or death sentence in each case. When a prosecutor argues inconsistent theories across two trials, he or she knowingly presents testimony and evidence that is materially false in at least one trial, demonstrating a cavalier indifference to the truth. Furthermore, the use of inconsistent theories at co-defendants’ capital trials contravenes due process, the right to be free from cruel and unusual punishments, and notions of fundamental fairness because it increases the likelihood that an innocent person may be convicted or that a person will be sentenced to death who otherwise would have received a lesser sentence. See In re Sakarias, 106 P.3d 931,
944 (Cal. 2005) (“[W]e hold that the People’s use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair.”). The State’s deceitful and misleading conduct “reduce[s] criminal trials to mere gamesmanship and rob[s] them of their supposed search for truth.” Drake, 762 F.2d at 1479 (Clark, J., concurring).
district court’s rationale). “The Fifth Circuit has also discussed the problem of seemingly inconsistent prosecutorial arguments for different defendants at different trials, but in the context of estoppel, both collateral and judicial.” Smith, 205 F.3d at 1050.
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The Supreme Court has indicated that the use of inconsistent theories may
violate a capital defendant’s due process rights if the theory in question may have
been “material to [the] sentencing determination” and if the inconsistent theories
speak to who played the “principal role in the offense.” Bradshaw v. Stumpf, 545 U.S.
175, 187 (2005), rev’d on remand, Stumpf v. Robinson, 722 F.3d 739 (6th Cir. 2013)
(en banc). Due process demands that both criminal convictions and death sentences
remain free from the taint of inconstant theories.
B. The State presented inconsistent and irreconcilable theories of the offense in its prosecutions of Marshall and his co-defendant Worthy.
The State put Marshall on trial as Dean’s shooter. Because no witness saw the
shooting itself35 and no forensic evidence independently tied either defendant to the victim’s death,36 the State pursued Marshall’s conviction and death sentence on the
basis of testimony that he was the only perpetrator to enter the restaurant. But, when
it tried co-defendant Ronald Worthy, the State presented testimony from multiple
witnesses, including several law enforcement officers, that it was not just possible
but necessarily true that two perpetrators entered the restaurant. At Worthy’s trial,
law enforcement witnesses insisted that two co-defendants went into the
35 Whataburger employee Wilbert Marsh testified at trial that he saw Marshall come through the drive-thru window. But that identification was questionable, to say the least. During the police investigation, Marsh “immediately” identified a different suspect, Samuel Robinson. 14 RR 148; see generally 14 RR 144−49 (Officer Moreno’s testimony about the photo arrays shown to Marsh). Trial testimony established that Robinson resembles Worthy and does not look like Marshall. 14 RR 191.
36 See, e.g., 14 RR 126−29 (Officer Moreno’s testimony that there was no forensic evidence, no video surveillance, and no strong description of the person who shot Dean).
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Whataburger, and that they had known or believed this to be true from early in their investigations.
The disparity is captured starkly in the appellate courts’ respective opinions on direct appeal. In Marshall, the Court of Criminal Appeals observed that “Marsh [] testified that he never heard or saw a second assailant inside the Whataburger . . . .”
Marshall v. State, 210 S.W. 3d 618, 621 (Tex. Crim. App. 2006). In Worthy, however, the appellate court noted “Marsh explained that the complainant was too large to fit through the drive-through window and that it was possible that the complainant initially got away while the man who entered through the window was letting another man inside the restaurant.” Worthy v. State, No. 01-06-00134-CR, 2007 WL 624667, at *1 (Tex. App.—Houston [1st Dist.] 2007).
On the question of how many perpetrators entered the Whataburger, restaurant employee Wilbert Marsh was a key State’s witness. At Marshall’s trial, the prosecutor asked Marsh questions designed to elicit testimony that only one person broke into the restaurant:
Q (Wisner): I want to ask you this. And I want you to think hard about it. To your knowledge, besides that one man who came through with the gun in his hand, did anybody else come into the Whataburger from what you could hear and from what you could see?
A (Marsh): I did not hear nobody that came inside and I did not see nobody that came inside, only one person I saw inside the building.
Q: And when you were down hiding in the boxes and could see and hear, did it still appear to be the same person who came through the drive- thru?
A: Yes, sir.
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16 RR 101. The prosecution asked again: “Did you ever even to this point or after hear
or see any second person in the store?” Marsh replied, “No, sir.” 16 RR 110.
At Worthy’s trial, the same prosecutor led Marsh to the opposite conclusion.
Insisting that the very theory the State relied upon against Marshall was implausible,
the prosecution had Marsh confirm that a second person must have gone inside the restaurant:
Q: (Wisner) You know from your common sense that there has to be a second man who led Chris and the shooter in because Chris can’t fit through the drive-thru window, right?
A: (Marsh) That’s correct, sir.
3 WRR 115−16 [Appx. 329−30].
It was not only Marsh’s testimony that changed between Marshall’s trial and
Worthy’s. Investigating HPD officers provided factually inconsistent testimony as well. At Marshall’s trial, they indicated that he was the only person in the restaurant at the time of the shooting and claimed that there was no evidence that a second person was present. At Worthy’s trial, the prosecution elicited very different testimony. Multiple police officers testified that the crime could not have occurred without two people being inside the restaurant. 4 WRR 75−77 [Appx. 341−43]
(testimony of Investigator Moreno); 4 WRR 133 [Appx. 357] (testimony of Officer
McDaniel). Sergeant Brian Harris emphasized that Worthy had given a statement in which he said of the Whataburger building that he was not going “back in there.” 4
WRR 170−71 [Supp. Appx. 670−71]. As Harris aptly observed, “How can he go back to something he wasn’t in? So, that statement alone puts him in the store.” Id.
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The State introduced additional evidence to support the fact that Worthy went
inside the restaurant. Witness Dennis Meyer, who met both Worthy and co-defendant
Calliham while confined at the Houston jail, testified that Marshall “went in through a little window . . . and Ron [Worthy] went around to the side door. [Marshall] came over and opened the side door and went back in. [Worthy] walked in a little ways and stood there.” 5 WRR 70−71 [Supp. Appx. 673−74].
Seeking the death penalty against Marshall, the prosecution hammered home that he alone had illicitly entered the Whataburger that night. In closing, the State insisted that “[w]e know that the person that came through that drive-thru window at 3:30 in the morning is the person that is the shooter. . . . There was no other evidence to establish that anybody else was in that store except for [the staff] and the shooter.” 19 RR 68−69 (Barnett’s closing); see also 19 RR 16 (Wisner’s closing) (“And you know [Marsh] saw only one [man enter the restaurant].”). Beyond that, the State expressed incredulity at the idea that co-defendant Worthy could have been in a position to kill Dean. See 19 RR 72 (Barnett’s closing) (“Why is it that . . . suddenly
[Worthy] becomes the shooter, when [Worthy] wasn’t even in the store as far as we can tell? Why is it that there is only one person in the store . . . ?). Leaving no doubt about its theory, the prosecutor stated: “There was only one guy there.” 19 RR 74
(Barnett’s closing).
At Worthy’s trial, the State in closing responded directly to the defense’s theory that Worthy “was not inside.” 6 WRR 13 [Supp. Appx. 681] (Wisner’s closing). In sharp contrast to what he had said at Marshall’s trial, Wisner called the one-
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perpetrator-in-the-restaurant theory “ludicrous.” Id. at 683. He pulled no punches
“because that theory is so stupid.” Id. It was even “laughable.” Id. at 682. Indeed, the
State’s expressed unqualified confidence that both Worthy and Marshall went inside:
“[t]he only possible way” Marshall and the victim could have come back into the
Whataburger “is if [Worthy] let him in.” 6 WRR 55 [Appx. 394] (Barnett’s closing)
(emphasis added).
Perhaps most shocking is the prosecutors’ contradictory approaches to co- defendant Kenny Calliham’s testimony. Aside from Marsh, Calliham was the only witness who testified at Marshall’s trial that Marshall was the lone defendant to enter the Whataburger that night. In exchange for his testimony against Marshall, the State gave Calliham, who otherwise could have been tried for the same capital murder, a sweet deal for deferred adjudication on a reduced charge of aggravated robbery. Calliham was a friend of Worthy and barely knew Marshall. He claimed that
Marshall was the only one of three to enter the Whataburger.
According to Calliham’s testimony, Worthy was running toward the car when
Calliham heard the gunshot, making it impossible for Worthy to have been inside at the time of the shooting. 16 RR 175. Calliham also stated that Marshall returned to the car after the gunshot, announcing he had “killed that bitch.” 16 RR 178. Calliham insisted that he had known nothing about any plan to rob the Whataburger. 16 RR
170.
Throughout Marshall’s trial the State bolstered Calliham’s testimony. In opening statements, the State painted Calliham in a positive light by arguing that he
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turned himself in to the police even though they were unaware of his participation.
14 RR 26 (Barnett’s opening). The State also primed the jury for Calliham’s claim
that he was unaware that the robbery was planned and that he had not intended to
participate. Id. (“Kenny Calliham will tell you that he did not know that a robbery was going to occur that night.”). This point was reinforced consistently throughout
Calliham’s testimony. See 16 RR 162, 169, 190. Moreover, the prosecution
emphasized that Calliham’s deal with the State depended on his “testify[ing]
truthfully.” 14 RR 27 (Barnett’s opening).
As part of its strategy to underscore Calliham’s credibility, the prosecution downplayed his relationship with and loyalty to Worthy. The defense presented
evidence that while incarcerated, the two men had conspired to draft affidavits
exculpating each other in the murder. But Calliham distanced himself from both
Worthy and Marshall, stating that he did not know either man well and had known
them both for only a month or so. 16 RR 156–57. Though it would later deride
Worthy’s defense as “ludicrous,” Marshall’s trial the State insisted that any
suggestion that Calliham would plot with Worthy to clear each other was “ludicrous”
and “stupid.” 19 RR 20 (Wisner’s closing). It asserted that Calliham had no personal
motivation to lie. See 19 RR 21 (Wisner’s closing) (“Why would he cross you and cross
the police as to who the real shooter is? It just doesn’t make sense that he would frame
Bo for aggravated robbery, not capital murder, but exculpate him from being the shooter. It is ludicrous. It really is.”); 19 RR 62 (Barnett’s closing) (“And what difference is it to him if he says it is Bo or Gerald? Does it matter to him who he
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blames it on? Has there been anything established he’s going to get a better deal or a worse deal for who he says is the shooter? Is there any reason why he would say its
[sic] Gerald over Bo? There has been nothing established with that. Nothing.”). The
State also asked the HPD investigators if they believed that Calliham had a
“particular allegiance to either [defendant],” 14 RR 199, or whether he would benefit one way or another if he named a particular person as the shooter, 15 RR 84. They said no.
At Worthy’s trial, the same prosecutors flipped 180 degrees. They blasted
Calliham as a “liar” and took every opportunity to discredit the same testimony they had sponsored at Marshall’s trial. 6 WRR 45 [Appx. 384] (Barnett’s closing). In fact, the State did not even call Calliham to testify; he was Worthy’s sole defense witness.
On direct, his testimony was largely consistent and presented the same version of events that the prosecutors had elicited from him at Marshall’s trial. This time, however, the State called Calliham’s tale a “cockamamie story.” 6 WRR 46 [Appx. 385]
(Barnett’s closing). The prosecutors endorsed the very narrative that had once been urged by Marshall’s defense lawyers, underscoring that Calliham and Worthy had been jailed together and were close friends. See 6 WRR 51 [Appx. 390] (Barnett’s closing) (“Clearly, that’s the influence of [Worthy]’s testimony or the influence of being with—in holdover with [Worthy]. He’s changed his testimony to help his partner, because that’s exactly what [Worthy] calls him, his partner.”). The inference the prosecutors had previously denounced as “stupid” became “just common sense.” 6
WRR 46 [Appx. 385] (Barnett’s closing). In Barnett’s words, Calliham has “been holed
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up in holdover with [Worthy]. They concoct a story. You know they have. I mean, that’s just common sense.” Id.
The prosecution also disavowed Calliham’s claim—which they had promoted at Marshall’s trial—that he had no prior knowledge of the robbery, saying it didn’t
“make sense”: “The other thing that’s interesting about Kenny is that Kenny disclaims to know that there is any aggravated robbery about to go down . . . we know full well, that Bo [Worthy] and Gerald [Marshall] had a plan to commit an aggravated robbery, why in the world wouldn’t they tell the getaway driver what they are going to do? That doesn’t make sense either.” 6 WRR 48 [Appx. 387] (Barnett’s closing).
Most important, at Worthy’s trial the prosecution undermined two key points
Calliham had supplied them to help convict Marshall and put him on death row: (1) that Worthy did not enter the restaurant; and (2) that the gun Worthy carried was not real. As explored above, at Worthy’s trial the State fully endorsed and elicited testimony to support the theory that two perpetrators must have gone into the
Whataburger. This evidence discredited Calliham’s testimony that Worthy never entered. As the State put it, “[t]he only possible way that [Marshall] could have gotten back in is if Bo [Worthy] let him in.” 6 WRR 55 [Appx. 394] (Barnett’s closing).
The State also attacked Calliham’s testimony about the weapons Worthy had brought for the offense by exposing contradictions in the two statements Calliham gave to HPD investigators shortly after the shooting. In closing, the State focused on
Calliham’s statement that:
[t]hey both had guns – and he mentioned that more than once. They both ran to the car at the same time. And they both came through the . . .
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area of the store where the drive-thru window was. . . . And as you could see here today and through the course of their testimony, it changed. No longer did he see them both with guns, he just saw Gerald with the gun. He wasn’t sure if Bo had a gun. Then he couldn’t recall if Bo had a gun. And this thing – this part I think is really telling. He admits that he saw guns that night, a silver gun and a black gun. And he admits that Gerald had the silver gun. Well, when I said, ‘Well, who had the black gun?’ He says, ‘I don’t recall.’ Well there are three guys in the car. He didn’t have a gun. Who else had a gun? That’s because Bo had the other gun. The real live gun, not the Wal-Mart toy gun.
6 WRR 45−47 [Appx. 384−86] (Barnett’s closing). The prosecutors damned Calliham as a liar for providing the same testimony that they had sponsored from him at
Marshall’s trial.
The evidence about the guns presented across the two trials is yet another component of the State’s inconsistent theories. At Marshall’s trial, the prosecutor elicited testimony from HPD that Worthy carried only a “toy gun.” 15 RR 91
(testimony of Breck McDaniel). If this were true, of course, then only Marshall could have been responsible for shooting and killing Dean. At Worthy’s trial, however, the
State left no doubt that “[b]oth guns are real.” 6 WRR 41 [Appx. 380] (Barnett’s closing). The same officer who characterized them as toy guns at Marshall’s trial testified that “[i]nitially [in Worthy’s telling] they were real guns. Then that changes to they are toy guns. And then in his statement he said they were toy guns. At one point he vacillated back and forth numerous times on that topic.” 4 WRR 117 [Appx.
350] (testimony of Breck McDaniel). The prosecutor then asked, “this is supposed to be an inside job, [Marshall] knows Greg Love, Greg Love is in on it, why would
[Worthy] have a fake gun and [Marshall] would have a real gun? . . . [W]e can agree that that does not make sense?” 4 WRR 119 [Appx. 352]. Officer McDaniel agreed “it
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does not” make sense. Id. In other words, Worthy must have had a real gun. See also
Worthy Mistrial 1 RR 122 [Supp. Appx. 668] (Officer Moreno’s testimony that Worthy
“just kept lying” about having a fake gun).
That Marshall’s jury cared about whether one or two co-defendants entered the restaurant is not a matter of speculation. During deliberations, the jury asked to re- hear Marsh’s testimony about the possible entry of intruders into the restaurant through specific doors. See 19 RR 76. Clearly the jurors were thinking about this aspect of the prosecution’s case and wanted to know whether another suspect was inside the restaurant. Indeed, if Worthy was inside, no reasonable jury would have convicted Marshall as the triggerman, and jurors likely would not have sentenced him to death. The State kept that critical piece of information from the jury, and consistently shaded other evidence to minimize its understanding of Worthy’s culpability.
C. The State’s use of inconsistent and irreconcilable theories violated Marshall’s due process rights and entitles him to relief from his conviction.
The State’s actions here require a new trial. “To violate due process, an inconsistency must exist at the core of the prosecutor’s case against defendants for the same crime.” Smith, 205 F.3d at 1052. The inconsistencies across Marshall’s and
Worthy’s trials strike at the core of the State’s capital prosecution. Because there were no eyewitnesses to Dean’s shooting, the prosecution’s manipulation of the evidence to remove, one of the two perpetrators from the scene altogether was essential to convicting Marshall. So too was taking a possible murder weapon out of the second perpetrator’s hand. For these reasons, “the State’s zeal to obtain multiple
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murder convictions on diametrically opposed testimony renders” Marshall’s conviction and death sentence “infirm.” Id. (emphasis added). Based on the “bedrock principles” prohibiting prosecutorial misconduct, “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Thompson, 120 F.3d at 1058 (en banc) (plurality). Here, nothing justified the fundamental transformation the State’s theory underwent between Marshall’s trial and Worthy’s.
Marshall’s claim is distinct from others that have been previously rejected in this circuit. In those cases, “[a]ny inconsistencies in the State’s theory of each case
[are] immaterial to the conviction” because the jury charge would have permitted convicting the co-defendants as parties. Hernandez v. Thaler, 2011 WL 3567488, at
*13 (S.D. Tex. 2011); see also United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007)
(holding inconsistencies immaterial). Here, the State purposely decided not to pursue a parties theory against Marshall. It specifically sought to convict him as the triggerman. Any reasonable doubt that Marshall himself shot Dean entitled Marshall to acquittal.
The State thus chose not to present the jury with an alternate theory that both men were in the restaurant. Had the prosecution presented to Marshall’s jury the evidence it later produced against Worthy, the jury could not have found beyond a reasonable doubt that Marshall was the triggerman. Moreover, “speculation of what the jury might have done under different circumstances is not a basis upon which to
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dispense with the State’s Due Process duty of fair prosecution.” Smith, 205 F.3d at
1053. Thus, with a violation such as this, prejudice should be presumed.
Even if prejudice were not presumed, Marshall can establish prejudice. The
State's case at his trial turned him from one of two robbers participating in a robbery- gone-wrong into the lone suspect ever in a position to pull the trigger and kill Dean.
This culpability-transforming manipulation of the evidence contributed to the jury’s determination. See, e.g., Thompson v. Calderon, 120 F.3d 1045, 1059 (9th Cir. 1997), rev'd on other grounds, 523 U.S. 538 (1998) (finding prejudice in a multiple-defendant case where the State argued inconsistently at defendant’s trial that the defendant
“was alone in the apartment and killed [the decedent]” and where the State called jailhouse witnesses “who were known to law enforcement officers to be wholly unreliable”).
D. This claim is unexhausted.
This claim was not presented in state post-conviction proceedings and it is therefore unexhausted. Marshall expects to seek a stay under Rhines v. Weber, 544
U.S. 269 (2005), so that he may return to state court and exhaust it. It would be premature to address questions of default until Marshall receives the opportunity to present this claim to the state courts.
Claim 3 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the State’s suppression of exculpatory and impeachment evidence.
This is a case full of incentivized and unreliable witnesses, suspect prosecutorial maneuvers, and shifting stories. To this point, Marshall has gathered as much information as he can without assistance from the courts. His investigation
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indicates that there are likely notes, statements, files, and documents the prosecution
had a constitutional obligation to disclose, but to which he has never been granted
access. Thus, it appears that the police and prosecution have withheld information
inconsistent with the State’s case against Marshall. While several prosecution
witnesses gave false testimony at trial, Marshall cannot plead the full extent of the
State’s misconduct without access to information in its exclusive possession. To be
clear, information in the possession of law enforcement officials that is inconsistent
with the prosecution’s case or impeaches prosecution witnesses is Brady material,
and thus was—and still is—due to be disclosed to Marshall without any request.37
Undersigned counsel has recently conducted a review of the HCDAO’s file, and
believes that the materials to which counsel were given access did not contain all of
the information that must be disclosed.38
What follows are the suppression-of-evidence claims for which Marshall presently has sufficient notice and factual basis to plead a prima facie case. Not included here are any claims based on the still-suppressed information, because
Marshall cannot know what legal theories and facts to plead, if any, until he can review the additional information that law enforcement agencies are still
37 The ABA Criminal Discovery Standard 11-4.1(c) (3d ed. 1996) provides that each party has “a continuing obligation to produce discoverable material to the other side.” Id. (emphasis added). The Commentary to this Standard makes clear that the obligation continues after trial: “Even after trial . . . the discovery of exculpatory material may require reevaluation of the fairness of the conviction or of the sentence.” ABA Criminal Discovery Standard 11-4.1 cmt. at 69 (emphasis added).
38 Marshall will likewise file a motion for discovery in this Court.
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withholding. 39 Marshall anticipates that additional State misconduct issues will
emerge if and when the State complies with its Brady obligations and this Court
orders discovery.
Just as Marshall cannot plead the full breadth of the State’s misconduct
without further disclosure or discovery, this Court cannot assess it. See Kyles v.
Whitley, 514 U.S. 419, 436 (1995) (“suppressed evidence [must be] considered
collectively, not item by item”). Marshall’s plenary misconduct claim will not be ripe
for review until after the State discloses the Brady information in its possession and
Marshall can plead the full extent of the State’s misconduct.
A. The governing law.
In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
held that “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.
Subsequent decisions have eliminated the prerequisite of a defense request to trigger
the State’s duty to disclose exculpatory evidence. United States v. Bagley, 473 U.S.
667, 682 (1985). Moreover, the Court has rejected any distinction between
39 Claims based on information still withheld by the State will not be procedurally barred in these proceedings. In Strickler v. Greene, 527 U.S. 263 (1999), the Court found that a claim based upon withheld evidence is not procedurally barred when the failure results from: (1) the failure of the prosecution to produce the evidence; (2) the petitioner’s reliance on the prosecution’s open file policy; and (3) the State’s assurances during the state habeas proceeding that the petitioner has received everything known to the government. Strickler, 527 U.S. at 289; see also Banks v. Dretke, 540 U.S. 668, 698 (2004) (continuing suppression of Brady evidence throughout state postconviction proceedings is cause for the failure to plead state misconduct claim in state court).
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impeachment and exculpatory evidence for Brady purposes. Id. at 677; Giglio v.
United States, 405 U.S. 150, 154 (1972). Under Brady and its progeny, a proceeding is rendered fundamentally unfair if: (1) the prosecution suppressed favorable evidence, and (2) the evidence was material to either guilt or punishment. Brady, 373
U.S. 83, 87; see also Kyles, 514 U.S. at 432; Bagley, 473 U.S. at 683; Blackmon v. Scott,
22 F.3d 560, 564 (5th Cir. 1994), cert. denied, 513 U.S. 1060 (1994); Ex parte Adams,
768 S.W.2d 281, 290 (Tex. Crim. App. 1989).
Evidence is material “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Kyles, 514
U.S. at 434; Bagley, 473 U.S. at 682; Blackmon, 22 F.3d at 564. Kyles clarified four significant aspects of materiality analysis under Brady. First, to demonstrate materiality, Marshall need not demonstrate by a preponderance of the evidence that disclosure of the suppressed evidence would ultimately have resulted in a favorable verdict. Kyles, 514 U.S. at 434. The inquiry, rather, is whether the suppressed evidence undermines confidence in the jury’s decision. Id.
Second, materiality analysis “is not a sufficiency of the evidence test.” Id.
(emphasis added). That is, “[a] defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict [or return a sentence of death].” Id. at 434–35. Instead, one demonstrates a Brady violation by “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435 (footnote omitted); see also Lindsey v. King, 769
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F.2d 1034, 1042 (5th Cir. 1985) (suppressed impeachment evidence may have consequences for the case far beyond discrediting the witness’s testimony).
Third, harmless error analysis is not applicable to Brady violations. Kyles, 514
U.S. at 435 (“[O]nce a reviewing court applying Bagley has found constitutional error there is no need for further harmless error review.”).
Finally, materiality of the suppressed evidence must be assessed “collectively, not item by item.” Id. at 436. The Supreme Court has found Brady violations where the State failed to disclose impeachment evidence that could have been used to impugn the credibility of the State’s “key witness,” Giglio, 405 U.S. at 154–55, or that could have “significantly weakened” key eyewitness testimony. Kyles, 514 U.S. at 441,
453; see also Banks, 540 U.S. at 701–02 (holding Brady violation was material where the State suppressed impeachment evidence that police and prosecutors had coached two “essential” prosecution witnesses before they testified); Graves v. Dretke, 442 F.3d
334, 344 (5th Cir. 2006) (“Because the state suppressed two statements of . . . its most important witness that were inconsistent with [the witness’] trial testimony, and then presented false, misleading testimony at trial that was inconsistent with the suppressed facts, we have no trouble concluding that the suppressed statements are material.”).
B. The State engaged in a pattern of suppression and delayed disclosure in this case, validating concerns that to this day, the State is continuing to suppress evidence favorable to Marshall.
The record in this case reveals that whatever quantum of exculpatory evidence was ultimately disclosed to the defense before and during trial, the State held onto it as long as it possibly could, effectively forcing the defense to pry it out of the
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prosecution’s hands. This pattern of delayed and reluctant compliance suggests there has never been full disclosure. Instead, it points to the probability—if not the certainty—that other evidence beneficial to Marshall remains in the State’s exclusive possession.
The suppression of evidence suggested by the record in Marshall’s and his co- defendants’ cases becomes only more likely when one takes account of the recent findings in Hamilton. The hearing and the findings in Hamilton reveal several relevant practices by HCDAO, HPD, and Barnett specifically:
• “[I]f there was a request to test fingerprints, and a known suspect was excluded from having left a fingerprint recovered from a crime scene, no offense report supplement would be made.” Supp. Appx. 710.
• “The Court finds, and is troubled by, the prosecution team’s active suppression of exculpatory evidence. The Court finds that both the Houston Police Department and trial prosecutor Colleen Barnett actively suppressed exculpatory evidence that Mr. Hamilton was excluded from contributing the fingerprints at the Holman Murder scene, and particularly on the 40-ounce bottle that witness Johnson saw the shooter set down.” Id. at 708.
• “The Court finds . . . that trial prosecutor Colleen Barnett knew, or should have known, prior to trial that Hamilton had been excluded from leaving all of the prints recovered from the Holman Murder scene.” Id. at 716.
• “[M]embers of the District Attorney’s Office could simply call the lab and ask if fingerprints had been compared, and learn the results. . . . This would not happen with defense attorneys.” Id. at 711.
• “If a defendant was excluded from leaving a print at a scene or on an item of evidentiary value, that information should always be turned over to the defense. HPD policy prevented that from happening in this case.” Id.
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• “Defense counsel would not be permitted to review DA work product.” Id. at 717.
The contextual similarities between Marshall’s case and Hamilton are
noteworthy: Hamilton was tried in 2002 and Marshall was tried in 2004; Colleen
Barnett prosecuted both men; Chuck Rosenthal served as the head of the HCDAO
through that period; and Judge Debbie Strickland presided over both trial
proceedings. There is no reason to doubt that these findings should inform this
Court’s understanding of what occurred in Marshall’s case.
Given the dearth of information disclosed to the defense to this point, Marshall
sets out here several categories of exculpatory information he has good-faith grounds
for alleging the State has thus far suppressed. The grounds in many instances
emerged after trial, often in the prosecutions of Marshall’s co-defendants. 40 They include:
• Scientific test results from the fingerprint and biological evidence gathered
at the crime scene.
• Evidence, including law enforcement officers’ notes and electronic
correspondence within and between HPD and HCDAO, that two
perpetrators illicitly entered the Whataburger. See supra Claim 1.
40 As noted above, the prosecution has a continuing duty to disclose exculpatory evidence. See supra note 37.
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• Evidence that may reasonably undermine the credibility of the State’s
witnesses, particularly those incarcerated or facing criminal charges.41
• Evidence that Marshall’s co-defendant, Ronald Worthy, was more culpable
and had been in possession of the murder weapon.
• Evidence related to the Crimestoppers tip that identified “Bo” as the
shooter.
Taken individually and cumulatively, each category of exculpatory information has the potential to undermine confidence in the jury’s verdict. The State’s theory that Marshall went into the restaurant alone is shaky at best. Exculpatory evidence falling into these categories (and others Marshall may not have yet identified) would tend to deconstruct several aspects of that theory. It would establish that two perpetrators went inside, casting significant doubt on the claim that Marshall was the triggerman. Or, it could confirm that Worthy was the man who went in through the window, consistent with the early statements police took from Wilbert Marsh and
Tony Ketchum about the man’s appearance and in which hand he held the gun. As subsequent developments have made clear, the story is more complicated than the
one Colleen Barnett and Vic Wisner told at Marshall’s trial. Marshall’s defense team,
the judge, and the jurors deserved to know the truth.
41 This includes evidence the State introduced to impeach Calliham at Worthy’s trial. In September 2005, Calliham had attempted to convince a female friend to change her testimony to exculpate him in a separate criminal proceeding. 5 WRR 171−75 [Appx. 367−71]. Though Marshall’s sentence had not yet been finalized on direct appeal at the time this evidence was discovered and elicited at Worthy’s trial, the State failed to disclose the newly discovered impeachment evidence to Marshall’s counsel.
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C. This claim is unexhausted.
This claim was not presented in state post-conviction proceedings and it is therefore unexhausted. Marshall expects to seek discovery and a stay under Rhines v. Weber, 544 U.S. 269 (2005), so that he may return to state court and exhaust it. It would be premature to address questions of default until Marshall receives the opportunity to factually develop this claim through discovery and present it to the state courts.
Claim 4 Marshall’s Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel’s ineffective investigation and preparation for the guilt phase of trial.
At his death penalty trial, Marshall was represented by Mack Arnold, who had just completed a separate capital trial a couple of months earlier, and Sid Crowley, who had failed prior clients so badly that he was being sued by the State Bar of Texas even as he represented Marshall. Arnold and Crowley failed to conduct even a rudimentary independent investigation into Marshall’s culpability, to make use of the investigation done by their hired investigation firm, or to learn—much less test— the prosecution’s evidence and theory of the case. Trial counsel’s errors and omissions were not, and could not have been, strategic: rather than developing a trial strategy, counsel developed their defense on the fly, during the trial.
Had counsel satisfied their duty to Marshall, the jury would not have been convinced beyond a reasonable doubt that only Marshall entered the Whataburger, and therefore that Marshall must have been the shooter—facts essential to conviction under the State’s theory. An adequate investigation could have shown that significant evidence placed the murder weapon in Worthy’s hands, that the State’s witnesses
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were liars and snitch-profiteers, and that the alleged eyewitness identification of
Marshall was unreliable. Because the jury was instructed to convict of capital murder only if the State had proven that Marshall was the shooter, there is a reasonable probability of a different outcome had Marshall’s counsel performed effectively.
A. Because trial counsel failed to conduct an adequate investigation into the allegations against Marshall, they were unprepared to competently challenge the State’s claim that he entered the Whataburger alone and shot Dean.
Arnold and Crowley failed to conduct even a basic investigation into Marshall’s case. They failed to review the State’s file, interview key witnesses, or develop and present an effective theory of defense that should have been obvious from the evidence.
Although trial counsel engaged an investigation firm, Gradoni & Associates
(“Gradoni”), to assist with investigation and preparation for trial, they failed to oversee a competent inquiry into the State’s allegations. Trial counsel were responsible for ensuring that an adequate investigation occurred; yet it is clear that they did not direct, or even actively take part in, the investigation in Marshall’s case.
Instead, Gradoni’s invoices show a scattershot investigation undertaken with no clear guidance from trial counsel and no sense of a defense theory of the case.
A proper investigation under the oversight of reasonably competent counsel would have uncovered overwhelming evidence showing that the State’s theory of the case was impossible. Moreover, a competent investigation would have found evidence that Worthy procured, used, and disposed of the murder weapon. As the evidence
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shows, it is certain that two robbers entered the Whataburger that night, and that
Ronald Worthy was the most likely shooter.
1. Prevailing professional norms required that the defense perform a basic, independent pre-trial investigation
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington,
466 U.S. 668, 691 (1984). While counsel may make strategic decisions about what evidence to present at trial, “courts are ‘not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.’” Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (quoting
Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999)). When assessing counsel’s performance, courts “look at what might have been, not to judge the performance of trial counsel by failures of strategic decisions reasonable when made, but to meaningfully examine whether counsels’ failure to investigate was based on a
‘reasonable decision’ that made such an investigation ‘unnecessary.’” Draughon v.
Dretke, 427 F.3d 286, 296 (5th Cir. 2005).
The Fifth Circuit has recognized that, “at a minimum,” counsel must “interview potential witnesses [and] make an independent investigation of the facts and circumstances of the case. This duty is reflected in the American Bar Association
Standards for Criminal Justice, a proper guide for determining what is reasonable under the circumstances.” Nealy v. Cabana, 764 F.2d 1173, 1177−78 (5th Cir. 1985)
(footnotes omitted); see also Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999) (“[A]
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lawyer who fails adequately to investigate, and to introduce into evidence, [information] that demonstrate[s] his client’s factual innocence, or that raise[s] sufficient doubt as to that question to undermine the confidence of the verdict, renders deficient performance.”).
In Marshall’s case, no physical or forensic evidence directly indicated that
Marshall, rather than Worthy, was the shooter. Thus, the crux of the case turned on the credibility of the State’s witnesses’ claims that (1) Marshall was the robber who entered the restaurant by climbing through the drive-thru window, (2) no second man entered the Whataburger prior to Dean’s death, and (3) Marshall confessed to strangers and his co-defendants—all of whose interests were adverse to Marshall’s— that he shot Dean. Given the dearth of physical or forensic evidence on any of these points, the State’s case was particularly vulnerable to effective rebuttal had a minimally competent investigation been conducted. For that reason, pre-trial interviews of the witnesses for both sides were compulsory:
[Counsel] should have interviewed the eyewitnesses. Because there was no physical evidence connecting [the defendant] with the crime, the eyewitness identification of [the defendant] at the crime scene was the cornerstone of the state's case in chief. Consequently, information relevant to [the defendant’s] defense might have been obtained through better pretrial investigation of the eyewitnesses, and a reasonable lawyer would have made some effort to investigate the eyewitnesses’ testimony.
Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) (emphasis added); see also Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (calling it “a shocking dereliction of professional duty” to fail to interview any witnesses in a case where the state’s evidence, while legally sufficient, “was far from compelling”); see also id. (“The lawyer could not
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know how complete or accurate a prospective witness’s statement to the police was
without talking to the witness.”).
2. Trial counsel failed to develop critical evidence that Marshall was not the shooter.
The State’s theory was simple: Marshall entered through the drive-thru window and Marshall chased Dean out of the back door of the restaurant and around to the drive-thru side of the restaurant. Then, Dean and Marshall re-entered the restaurant through a door next to the drive-thru window, and Marshall shot Dean inside. The State’s case was built on the premise that because only Marshall entered the restaurant, Marshall had to be the shooter.
The nature of these facts left only one defense available: that Marshall was not the shooter. Yet, trial counsel failed to develop or pursue that theory; their failure to make an opening statement during the guilt-innocence phase left the jury to piece together even this primary defense entirely on its own. See 17 RR 1. Nearly every early lead in HPD’s investigation pointed to Worthy as the person who shot Dean:
1. Early witness statements described the robber who came through the drive-thru window as dark-skinned with a thin build and holding a shiny gun in his left hand;
2. Worthy is dark-skinned, slim-built, and left-handed;
3. Marshall is light-skinned, broader built, and right-handed;
4. The Crime Stoppers tip, the “first big break” in the case, identified “Bo” as the shooter and provided Worthy’s address;
5. Worthy goes by the nickname “Bo”;
6. When police attempted to serve an arrest warrant on Robinson at Worthy’s address, Worthy initially lied about his name and said he was not “Bo”; and
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7. Worthy bears a “strong resemblance” to Robinson, who was picked out of a lineup by eyewitness Marsh.
Later evidence also suggested Worthy as the shooter:
1. Calliham initially told HPD that both Marshall and Worthy exited the vehicle and both came running from the Whataburger drive-thru area at the same time;
2. Marshall admitted to helping plan the robbery but identified Worthy as the shooter;
3. Worthy admitted to procuring the guns for the Whataburger robbery, albeit after “telling many lies” and leading HPD on a “wild goose chase” to find the weapons;
4. Police learned during this “wild goose chase” that Worthy’s girlfriend discarded bloody clothing at his request; and
5. Even though Dean was shot at close range, a video of Marshall made less than two hours later showed no blood on Marshall’s clothing.
Had trial counsel conducted an appropriate investigation, they would have discovered significant evidence that the State’s theory of the case was impossible.
While Gradoni talked to a few witnesses and ran a few background checks, trial counsel neglected to perform certain common sense and critical tasks to ensure an effective defense for Marshall, all of which would have pointed to Worthy as the shooter:
1. Neither Gradoni nor trial counsel apparently ever visited the Whataburger restaurant where the crime took place;
2. No one investigated Worthy’s girlfriend Pashela Pitts, who had told police that she disposed of bloody clothing for Worthy and that the guns from the robbery had been given to individuals named Shirley and Damien who lived in her apartment complex;
3. No one inspected or measured the drive-thru window to test the credibility of the State’s claim that Marshall, a 6’1”, 212-pound man, climbed into the restaurant through it;
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4. No one investigated the Crime Stoppers tip, which police called the “first big break” in the case, and which identified “Bo” (Worthy’s nickname) as the shooter and provided Worthy’s address.
Had counsel taken these basic steps, they would have uncovered significant evidence
that would lead at least one juror unable to find Marshall guilty beyond a reasonable
doubt.
a. Counsel failed to investigate evidence that two robbers must have entered the Whataburger.
A key piece of evidence that trial counsel failed to investigate was whether it
was even possible for one person to have committed the robbery/murder at the
Whataburger. As the State later developed at Worthy’s trial, every HPD officer to
investigate this offense, as well as both of the eyewitnesses working at Whataburger
that night, concluded that at least two persons, both armed, were inside the
restaurant when Dean was shot.
This evidence was available to trial counsel had they simply interviewed the
key witnesses or visited the crime scene. While Gradoni interviewed Wilbert Marsh,
one of the eyewitnesses, no one spoke to the testifying officers or any other
Whataburger employees who could have told them that all doors leading from the
kitchen to outside the building were locked from the inside, such that no one outside
the restaurant could have entered through them. See, e.g., Worthy Trial, 4 WRR
75−77 [Appx. 341−43] (Detective Moreno testimony); id. at 133 [Appx. 357] (Officer
McDaniel Testimony). Had counsel or Gradoni asked this singularly critical question, trial counsel could have demonstrated that unless another robber had remained inside, Dean and the robber chasing him could not have re-entered the Whataburger
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via the drive-thru door after running outside. That fact, in turn, would have shown that two robbers, both armed, were inside the restaurant when Dean was shot and killed after re-entering. And no other evidence made it possible to ascertain which was the shooter.
Instead, the jury heard confused testimony on the question of the locked door next to the drive-thru window. Marsh initially testified that he knew Dean and the shooter had re-entered the restaurant through that door, because it was the only one they could have entered from the outside. 16 RR 104−05 (“No, there is no doubt in my mind [that they came back inside through the drive-thru door]. That’s the only way they could come back in the building through.” “Q. Any way else that they could have come in unless they unlocked the other doors? A. Unless somebody let them in from the front door. Nobody was there.”). He later testified that the drive-thru door was locked, but was adamant that he did not hear another intruder in the restaurant. 17
RR 115−18.
Had counsel actually investigated the crime scene, they could have shown that the crime could only have been committed if two people entered the restaurant. Like the State at Worthy’s trial, Marshall’s counsel could have established, through multiple witnesses, that the State’s theory of the case was impossible. See, e.g.,
Worthy Trial, 4 WRR 75−77 [Appx. 341−43] (Moreno testifying that it was impossible for the murder to have occurred without a second person inside); 4 WRR 133 [Appx.
357] (McDaniel testifying that two defendants entered the restaurant); 4 WRR 171
[Appx 358] (Harris testifying that Worthy indicated he had gone inside the
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restaurant); 3 WRR 115−16 [Appx. 329−30] (Marsh testifying that it was common
sense that a second person had to have entered the restaurant).
Moreover, they could have shown that Worthy admitted to entering the
restaurant. Had counsel simply listened to Worthy’s interview with HPD, they would have heard that Worthy told police he was not going “back in there.” [Appx. 358]. As
Sergeant Brian Harris aptly observed at Worthy’s trial, “How can he go back to something he wasn’t in? So, that statement alone puts him in the store.” Supp. Appx.
671.
b. Trial counsel failed to present critical evidence tying Worthy to the murder weapon.
Counsel had clear evidence from HPD files that Worthy possessed the gun on
the night of the robbery and destroyed evidence linking him to the crime. They knew,
or should have known, that Worthy procured both guns and Worthy got rid of the
guns, along with his own bloody clothing. Yet, counsel failed to present this evidence
to the jury.
HPD reports available to counsel stated that Worthy had his girlfriend Pashela
Pitts dispose of evidence, including bloody clothing that did not belong to Marshall,42
and that she knew where the guns from the robbery might be. Appx. 241. When police
spoke to Pitts at her apartment, she even climbed into the dumpster behind her
complex to attempt to locate the clothing, but could not. Id. Pitts admitted to HPD
42 This is evident from the fact that Marshall’s clothing was not bloody in the Shipley’s Donuts video and HPD procured Marshall’s clothing and found no evidence of blood. See Appx. 198.
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that she believed the guns from the Whataburger robbery had been given to one of
her neighbors in the complex, “Shirley,” who then gave them to another resident,
“Damien.” This evidence placed the murder weapon in Worthy’s hands and
demonstrated that Worthy destroyed critical evidence pointing to him as the
triggerman. See id. This evidence was crucial to rebutting the State’s theory of the case that Marshall acted alone. And despite being available to trial counsel through discovery, it was completely ignored and never brought up at trial.
Counsel also had evidence that Worthy had the murder weapon shortly before
the crime and dropped a bullet at the Diamond Shamrock gas station. The State’s
forensic evidence, although questionable at best, linked the bullet from the Diamond
Shamrock to the gun used to kill Dean. 16 RR 63 (State’s expert testifying that the
unfired bullet found at the Diamond Shamrock was ejected from the murder weapon).
Calliham’s pretrial statements linked the dropped bullet to Worthy, who stole beer
that night from the Diamond Shamrock. Appx. 208. In fact, the State used this
evidence against Worthy at his trial. Worthy Trial, 5 WRR 165−66 [Appx. 365−66]
(Kenny Calliham Testimony); 6 WRR 44−45 [Appx. 383−84] (Barnett arguing at
closing in Worthy’s trial suggesting that Worthy dropped the bullet). But counsel
ignored it.
Not only did trial counsel ignore this important evidence from the HPD reports,
they failed to interview Pitts. Pitts could have testified about the blood on Worthy’s
clothes; that fact and Worthy’s request that Pitts dispose of evidence would doubtless
have cast suspicion on him, particularly since HPD had found no trace of blood on the
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clothes Marshall was wearing on the night of the robbery. Appx. 198, 228. Pitts’
information on the potential location of the murder weapons could have allowed them
to be recovered and subjected to accurate forensic and ballistics testing.
Instead, Marshall’s jury heard that Worthy had only brought a toy gun to the
robbery, while Marshall carried a real gun. 15 RR 91 (“Ronald Worthy said that there
was a plastic gun that I think he used that he claimed he had burned at one point,
possibly; but, yes, there was a second toy gun.”). Had counsel investigated, they could
have put the murder weapon in Worthy’s hand. But trial counsel never attempted to
develop this evidence and completely failed to bring these facts to Marshall’s jury, which never heard about Worthy’s inculpatory conduct.
Counsel further failed to highlight the wild goose chase Worthy led police
through to find the missing guns. Worthy took police officers to a bridge and claimed
he had thrown the guns into the water below, but claimed he was afraid of snakes
and couldn’t show them exactly where. Appx. 214, 241. He then took them to Pitts’
home and learned that the guns were given to some of her neighbors. Appx. 241.
Worthy next claimed that the guns were in a dumpster, which had been emptied. Id.
Finally, he claimed to have melted the plastic gun. Id. When police did not believe
him, Worthy admitted he had a real gun and had sold both guns from the night of the
robbery. Id. Counsel knew all of this from HPD reports and yet did not hammer these facts to the jury to show Worthy’s culpability.
In one of their only investigative steps, trial counsel learned that about two
weeks before Dean’s murder, Sherry Harrell called HPD to report an attempted
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shooting “at the same apartment complex as Ms. Pitts.” 25 RR 220−32. Harrell
described the shooter, armed with a silver pistol, as “Damon” or “Damino.” Id. At the crime scene, Officer Triplett recovered five .380 caliber shells, a complete slug, and pieces of several others. Id. Ultimately, HPD Ballistics Laboratory tested the slugs and shells recovered from this “Damien” shooting against those recovered from
Dean’s autopsy, the Whataburger, and the Diamond Shamrock. Id. The tests confirmed that all of the bullets and shells, from both Dean’s murder and the “Damien” attempted shooting, had been in the same firearm. Id. Trial counsel had the perfect chance to locate the guns from the Whataburger robbery and link them to Worthy, but failed to follow up the available leads.
Trial counsel wasted this opportunity because they failed to call Officer
Triplett or Huynh or the eyewitness victims to testify at Marshall’s trial. While counsel attempted to question Detective Moreno regarding the “Damien” report, the
State successfully objected. 18 RR 21−22. Therefore, trial counsel could not adequately question any HPD Officers or eyewitnesses regarding the Damien report or the ballistics match between that incident and Dean’s murder.
Counsel had a plethora of evidence to show that Worthy procured, used, and got rid of the murder weapon. But as they failed to investigate the case, or even fully review the State’s files, the jury heard none of it.
c. Counsel failed to develop evidence that Worthy orchestrated the robbery.
The State repeatedly argued that Marshall arranged the robbery because of
his pre-existing relationship with Greg Love. But defense counsel could have easily
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shown the jury that Worthy was the true leader of the crime. By all accounts,
Calliham was the driver on the night of the crime so, by process of elimination,
Worthy was the only other possible triggerman. Had trial counsel reviewed the HPD
Reports, they would have seen extensive evidence supporting that Worthy was the leader and the shooter.
Worthy had a pre-existing relationship with Calliham while Marshall had just met Calliham. At Worthy’s trial, Calliham admitted that he had known Worthy for three years but had just met Marshall weeks before the robbery. Worthy Trial, 5 RR
118, 132. And Worthy told police that he paid Calliham to be the driver for the robbery.
Appx. 210. Moreover, Worthy admitted that he procured the guns for the robbery. All of this indicates that Worthy was in charge of setting up the robbery. Additionally,
Worthy had previously worked at a Whataburger and thus knew that the doors were locked and that opening them would trip an alarm. Appx. 283. This evidence demonstrates Worthy’s principal role in preparing for this robbery, his deceit with police investigators, and his status as the only co-defendant who affirmatively tried to conceal his identity after the offense occurred.
Yet trial counsel made no investigations into Worthy’s role. By doing so, they could have demonstrated to the jury that Worthy, not Marshall, was the sophisticated leader who planned the robbery, made it possible, shot and killed Christopher Dean, and later hid the evidence.
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3. Counsel failed to take basic investigative steps, including reviewing the State’s file and interviewing witnesses.
a. Trial counsel admitted during trial that they had never listened to Marshall’s taped statement to the police.
Arnold veritably admitted that he never listened to the recordings or reviewed the transcripts of HPD’s interviews with Marshall. 15 RR 81−82. In his carefully worded, self-serving affidavit prepared in connection with Marshall’s motion for new trial, Arnold claims that he “was allowed to read [the State’s] file and review offense reports on a number of occasions, including during the trial itself.” 1 CR 400
(emphasis added). Tellingly, Arnold does not claim to have read the State’s file or reviewed offense reports before the trial, and the record makes clear that trial counsel did no such thing. For example, when the State played the recording of Marshall’s first HPD interview to the jury, Arnold suddenly jumped up because he “would have sworn [he] just heard [Marshall] say, ‘I want to terminate this interview.’” 15 RR 81.
He then asked that the tape not be played any further. Id. at 81−82. The prosecutor admitted that Marshall had invoked his right to terminate the interview, and that he may have done so several times, and agreed to stop the tape. Id. at 82. Counsel’s surprise demonstrates they had clearly never listened to their own client’s statements to police until they were played to the jury. Counsel’s error is especially baffling considering that counsel filed a motion to suppress Marshall’s statements, and the court held a hearing on the motion before trial began. 13 RR (Suppressing Hearing).
At the hearing, counsel failed to mention that Marshall had attempted to terminate the interview, apparently because counsel had not reviewed the tape and was not aware of this.
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This scenario became a theme in Marshall’s trial: his counsel’s learning of the
State’s evidence for the first time at the same moment the jury heard it, and scrambling to improvise their defenses as the trial unfolded. Counsel’s decision not to prepare an opening statement is simply more evidence that they lacked any defensive strategy, remained flagrantly ignorant of the State’s case, and failed altogether to prepare meaningfully for trial.
b. Trial counsel failed to conduct interviews, including of the State’s key witnesses.
Professional norms in a criminal case mandate that defense counsel “at least attempt interviews with all significant state’s witnesses. This is the most basic trial preparation.” See Bryant, 28 F.3d at 1418; see also Strickland, 466 U.S. at 694. Arnold’s affidavit, prepared immediately after Marshall’s conviction and sentence in support of a motion for new trial, essentially admitted that he failed to perform this “most basic” task. In addition to their manifestly deficient investigation, described above, trial counsel also admittedly failed to meet with or research key State witnesses, or to take other necessary protective measures for Marshall. See Ramey v. Davis, 942 F.3d 241,
246 (5th Cir. 2019) (finding substantial showing that trial counsel was ineffective for lack of preparation to impeach and cross-examine witnesses); Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases, American
Bar Association 31 Hofstra L. Rev. 913 (2003), Guideline 10.7 cmt (“Counsel should investigate all sources of possible impeachment of defense and prosecution witnesses.”); Guidelines and Standards for Texas Capital Counsel, State Bar of Texas
(2006), Guideline 11.1(A)(2)(h) (“The investigation for the guilt-innocence phase of
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the trial should generally encompass . . . trial strategy, including . . . cross examination techniques of State witnesses[.]”).
Kenny Calliham
As an accomplice to the Whataburger robbery, a neighbor to Marshall’s sister
(who, therefore, had a bird’s-eye view of Marshall’s arrest), a “partner” to Worthy, and a cooperating witness for the State, Calliham was a consequential witness whom reasonably competent counsel would have interviewed or, at minimum, investigated.
Moreover, Calliham’s two police interviews, his affidavit to exonerate Worthy, and his subsequent trial testimony were so shot through with contradictions and inconsistencies that an adequately prepared lawyer could have completely discredited him on the stand. For instance, Calliham initially stated that both
Marshall and Worthy went into the Whataburger and that both ran back to the car from the drive-thru exit immediately after Calliham heard the gunshot, that
Marshall was carrying a black gun, that Calliham drove the vehicle after the crime, and that neither Worthy nor Marshall admitted to shooting Dean. Appx. 17−33. But at trial, by contrast, Calliham testified that Worthy never went inside the
Whataburger at all and was standing at the car with Calliham when the gunshot was fired, that Marshall was carrying a silver gun, that Marshall drove from the
Whataburger to Shipley’s Donuts, and that Marshall admitted he was the shooter. 16
RR 162−75. Importantly, Calliham struck a plea bargain with the District Attorney in which he would receive ten years’ probation, as opposed to the life sentences
Worthy and Love faced, in return for his testimony against Marshall. 17 RR 27.
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With all of this information in hand, trial counsel should have made Calliham
a prime target for pretrial investigation and trial preparation. After all, a co-
defendant with a penchant for changing his story and a sweet deal from the
prosecutor should be of keen interest to any defense attorney. But trial counsel never
attempted to interview Calliham. And by all appearances, trial counsel were not even
prepared to cross-examine Calliham after his damning testimony against Marshall.
1 CR 401. By Arnold’s own admission, despite Calliham’s jailhouse affidavit
(prepared by Meyer with the understanding that Calliham and Worthy wanted to
exculpate each other in Dean’s murder), he was unprepared when Calliham “totally
exculpated himself and to a great degree exculpated Ronald Worthy from any guilt in
their respective pending Capital Murder cases” and had to reserve cross-examination
for a later date. Id.
Clarence Green
Green shared a holding tank with Marshall on August 20, 2003, when Arnold
came to confer with Marshall. Arnold took no precautions to protect his conversations
with Marshall, instead shouting through the glass and openly discussing the case in
Green’s presence, equipping Green with the evidence necessary to credibly fabricate
a “confession” supposedly made to him by Marshall on that date. 17 RR 162−67,
184−85 (Arnold admits discussing the State’s evidence and potential defenses with
Marshall in Greene’s presence). 43 Green wrote the District Attorney’s office the
43 Tellingly, Green also testified that Arnold met with Marshall for only “two to four minutes,” which is indicative of Arnold’s approach during his few meetings with Marshall. 17 RR 183.
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following day, interviewed with HPD, and later testified at trial that Marshall
confessed to shooting Dean and claimed he could “beat the case if him and his co-
defendants be quiet.”44 16 RR 123−24. Trial counsel were given notice of the State’s
agreement with Green to testify against Marshall, but never interviewed him. Thus,
trial counsel not only failed to interview Green prior to trial after being alerted he would testify, but lead counsel actually provided Green with the contextual evidence
necessary for Green to fabricate the purported jailhouse confession from Marshall to which he ultimately testified. In exchange, Green plea-bargained his potential sentence on pending charges from 25-years-to-life, down to one year. 17 RR 204−05.
Trial counsel thus did far more good for Green than they did for their own client.
Dennis Meyer
As discussed above, Meyer shared a cell with Calliham and Worthy for several
weeks, during which time he helped them hone their defense to capital murder and
prepared affidavits they could use to minimize each other’s culpability in Dean’s
murder. In fact, Meyer—facing a sentence of 25 years to life—was able to leverage
the information he gleaned from Worthy and Calliham to reduce his own sentence to
ten years with the possibility of parole. 18 RR 13, 77.45 Included in the “very useful
44 Notably, after Green agreed to testify for the State, the trial court entered a keep-separate order, but on December 19, 2003, Green was again housed with Marshall in a holding tank. 17 RR 178. This illustrates the laxity with which keep-separate orders were enforced in Marshall’s case and the detriments Marshall faced (e.g. collusion between Worthy and Calliham, further opportunity for Green to engineer “confession” details, etc.).
45 After trial, the State wrote a favorable letter to the prison classification office on Meyer’s behalf. Supp. Appx. 861.
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information” Meyer learned from Worthy and Calliham and provided to HPD was that, according to these co-defendants, Marshall “let Worthy in [Whataburger] through a side or back door.” Appx. 245 (emphasis added).
Trial counsel, however, had no idea Meyer had provided this valuable rebuttal information to HPD because they never interviewed him, never read the police report that contained this information, and never requested the audio tape of his interview with HPD. By Arnold’s own admission, he decided, before speaking with Meyer—who
Arnold knew had incriminating evidence against Marshall’s co-defendants—that
Meyer could provide no relevant information for Marshall’s defense. 1 CR 400. It was only after voir dire for Marshall’s trial had begun, when counsel learned Calliham had made a deal to testify against Marshall, that trial counsel left a message for
Meyer’s attorney urgently requesting an interview. Counsel never heard back from
Meyer’s attorney, though, and took no further steps to secure an interview with him before trial. Id.
Even after learning in the middle of Marshall’s trial that Meyer had important exculpatory information, trial counsel only listened to a few minutes of Meyer’s recorded HPD interview, and waited until the last day of guilt-phase testimony to do so. Counsel then called Meyer to the stand completely unprepared to question him.
In sum, trial counsel had no idea what Meyer would say before Marshall’s trial and then effectively “winged it” when Meyer testified.
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c. Trial counsel never investigated the crime scene.
Counsel egregiously failed to even visit the crime scene, which would have
provided significant evidence beneficial to Marshall. First, the jury heard testimony
at trial that Dean was too large to fit through the drive-thru window and thus must have re-entered the restaurant through a door. Marshall, nicknamed “Tank” for his stature, was also a large person. At the time of the robbery, jail records show he was
6’2” and 210lbs. But because counsel never visited the Whataburger, they could not present evidence to the jury about the size of the window.
Had counsel visited the scene, they also would have discovered significant impeachment evidence on Calliham. Calliham testified that before hearing the gunshot, he drove off, passed the Whataburger’s parking lot exit, and started making a U-turn when Worthy jumped back inside the car. 16 RR 172. As the State made clear at Worthy’s trial, “[t]here is not even room for a U-turn” and blasted Calliham as a liar. Worthy Trial, 6 WRR 45−49, 51 [Appx. 384−88] (Colleen Barnett Closing
Argument) (emphasis added). Moreover, the State pointed out that if Calliham had really been waiting in the spot he indicated, he would not have been able to see that
Worthy did not enter the restaurant. Id. If counsel had visited the scene, this would have been obvious and counsel would have easily been able to undercut Calliham’s testimony that Worthy could not have been the shooter.
d. Trial counsel’s investigation firm let critical months pass by.
As noted above, Gradoni’s invoices show a scattershot investigation with no clear guidance from trial counsel. According to the fee and expense claim Gradoni
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submitted to the trial court, Gradoni spent a total of 93.93 hours investigating
Marshall’s case. Appx. at 595. The invoices show 25.08 hours investigating Marshall’s
case between September 1, 2003, and June 30, 2004. Id. That is, in the first ten
months of the investigation, when events would have been freshest in witnesses’
minds and leads would have been most likely to develop, Gradoni spent
approximately 2.5 hours per month investigating this case. Even more egregiously,
given that the first dated entry on Gradoni’s invoices is for a September 1, 2003
interview with Marshall, it is safe to say that Gradoni did no investigation in the first
100 days of Marshall’s indictment. Id. For its part, Gradoni apparently had two meetings with Marshall during the course of their work on the case. None of the documentation suggests that trial counsel was directing Gradoni during this time or that trial counsel personally conducted any of their own investigations into the case.
e. Trial counsel ignored or failed to follow up on Gradoni’s limited investigation.
To the extent Gradoni’s investigation revealed any worthwhile information, it is clear that either trial counsel ignored or, more likely, never learned of the vast majority of the information Gradoni gathered.46 Gradoni met with Marshall twice,
interviewed a handful of witnesses, including the two Whataburger employees, and
located witnesses who believed Worthy had shot at them a few weeks before the
46 As noted above, neither Arnold nor Crowley could provide the undersigned with a file for Marshall’s case. However, it is abundantly clear even in the absence of an extant file that Arnold and Crowley made little use of any information they received from Gradoni with regard to Marshall’s case.
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Whataburger murder. According to Gradoni’s invoices, there were “briefings” with trial counsel; however, the length and substance of these briefings is not disclosed.
The only use trial counsel appears to have made of Gradoni’s investigation materials was to elicit less than five transcript pages of testimony from one Gradoni investigator, Harry Johnson. 17 RR 151−56. Even then, trial counsel failed to develop the nugget of information Johnson offered—namely, that Wilbert Marsh “was told
[by HPD] that he had picked the wrong person out [of a photo array]” and that “the person he [had] picked out was the person he was identifying as the person who came in the restaurant and shot the man.” 17 RR 54. Johnson recorded this conversation and while trial counsel admitted the tape as an exhibit, it wasn’t played for the jury.
17 RR 155−56. This evidence could have been used to discredit Marsh’s in-court identification of Marshall as the shooter, and to impugn the reliability of HPD’s eyewitness identification procedures.
When HPD originally believed that the “Bo” referred to as the shooter in the
Crime Stoppers call was Bo Robinson, Marsh identified Robinson as the shooter in a photo lineup. At the same time, Marsh was also shown an array containing a photograph of Marshall, and did not identify Marshall as the shooter. HPD later learned that “Bo” referred to Worthy, not Robinson, and that Robinson was not involved in the offense at all. Harry Johnson’s testimony demonstrates that at some point, someone improperly informed Marsh that his identification of Robinson was mistaken, which taints Marsh’s later identification of Marshall as the shooter. Trial counsel failed to elicit further testimony, from Johnson or Marsh, that Marsh had
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never been shown a lineup containing Worthy’s photo, even though Marsh’s original description of the shooter matched Worthy’s physical characteristics, and according to Detective Moreno, Worthy bore a strong resemblance to Robinson, whom Marsh had actually identified. This evidence, along with the testimony Johnson had offered, would have discredited Marsh as an eyewitness and encouraged jurors to view the
HPD’s investigation as slipshod and unreliable.
B. Trial counsel failed to adequately attack the weaknesses in the State’s case or to adequately develop their own theory of the case.
As described above, the State’s theory of the case was fairly straightforward:
Calliham drove Worthy and Marshall to the Whataburger; Marshall climbed through the drive-thru window, was the sole robber to enter the restaurant,47 and when Dean could not hand over keys to the safe, shot and killed him while Calliham and Worthy were outside, in or near the car. Because there was no forensic evidence from the crime scene, the State’s case that Marshall was the shooter relied entirely on eyewitness, co-defendant, and jailhouse informant testimony—all of which was subject to considerable challenge and doubt. Unfortunately, due to their lack of investigation, trial counsel failed to adequately rebut each of these witnesses’ allegations.
47 See, e.g., 19 RR 62, 68−69, 72 (in closing arguments, State repeatedly asserts that Worthy was not inside the Whataburger).
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1. Trial counsel failed to challenge the State’s eyewitness identification.
As part of his investigations, Detective Moreno showed Marsh two photo arrays the day after the murder. 14 RR 143−45. In doing so, Moreno covered the bottom portions of the photos with a piece of paper to simulate what Marsh would have seen when the masked gunman entered the restaurant. Id. at 147−48. The first array contained a photo of Marshall in position number two. Id. at 145. Marsh did not identify anyone from that array. Id. at 145−46. The second array contained a photo of Samuel Robinson, HPD’s initial suspect, also in position number two. Id. This time,
Marsh immediately identified Robinson. Id. Police later determined that Robinson had no involvement in the murder. Marsh was never shown an array containing
Worthy’s photo. See Supp. Appx. 852−53; 14 RR 193.
On September 30, 2004, shortly before trial, members of the Harris County
District Attorney’s Office showed Marsh a set of photographs for the purpose of identification. Supp. Appx. 862−63. At this point, Marsh apparently identified
Marshall. In response, counsel filed a Motion to Suppress Identification, noting that
Marsh had been shown Marshall’s photo numerous times and asked the Court to preclude Marsh from making an in-court identification. Id.
At trial, after seeing Marshall’s photo multiple times, Marsh identified
Marshall as the shooter he saw enter the drive-thru window. He was adamant that he was now sure of the suspect’s identity and made many contradictory, inflammatory statements throughout his testimony:
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a. Marsh claimed he only viewed one photo spread, when in fact HPD had showed him two and the District Attorney’s Office had shown him a third. 17 RR 78; 16 RR 115; Supp. Appx. 862−63.
b. Marsh claimed both that he had never previously seen a photo of Marshall and that he had identified Marshall from the initial photo array. 17 RR 72−73; 16 RR 115−16.
c. Marsh denied that he initially picked out Robinson in the photo spread. 16 RR 115−16.
d. Marsh believed he had made a photo identification about three weeks after the robbery, but it had actually occurred the day after. 17 RR 74−75.
e. Despite being confronted with his own earlier statements that the robber was slim, he now claimed to be sure the robber had a heavier build. 17 RR 98−103.
f. Marsh was positive Marshall was the one who shot Dean. 17 RR 72, 77.
As counsel filed a motion to suppress Marsh’s identification pretrial, counsel knew that Marsh was likely to identify Marshall as the shooter in court. Supp. Appx.
862−63. Faced with this new, compelling evidence against their client, counsel had an urgent duty to swiftly investigate its reliability. Had counsel retained the services of an eyewitness expert, they could have exposed several crucial weaknesses in
Marsh’s identification for the benefit of the jury. Instead, counsel’s motion was never ruled on and counsel did not make any objection during the trial to the identification.
Had counsel engaged an expert, the defense would have been able to establish that Marsh’s identification was tainted. First, someone at HPD violated an essential protocol when presenting the photo arrays to Marsh. Supp. Appx. 553 (Affidavit of
Roy S. Malpass). To avoid tainting the lineup, the officer should avoid making any statements or gestures that could influence the witness. Id. At some point after
Marsh identified Robinson as the shooter in one of the arrays, but before he identified
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Marshall in-court, he was told he “picked the wrong person out[.]” Id. at 554. This undoubtedly influences Marsh’s absolute belief that he had now identified the “right guy.”
Second, the circumstances of Marsh’s brief view of the gunman strongly indicate that he would not have been able to accurately remember what the gunman looked like. Id. A person’s ability to remember or “encode” a face is affected by the distance of the observer from the face, the speed at which the face is moving, the angle of the face, and the degree to which the face is obscured. Id. at 547. The gunman was wearing a bandanna over the lower portion of his face and Marsh saw the robber briefly from across the room before running away and hiding behind some boxes, in fear for his life. Id. Facial recognition is also “largely configural,” meaning that a person remembers the face he saw by how the facial features relate to each other and contribute to overall shape and appearance. Id. Because the person Marsh saw was wearing a mask, and Marsh only had a fleeting glance, Marsh would not be able to make these connections to encode the person’s face into his memory.
Moreover, facial-recognition memory decays over time. Id. at 548. But the observer will begin to associate the memory with other information presented and processed around the same time. Id. Thus, in the course of a criminal investigation, the observer will assimilate the description of a suspect’s face with other images the observer viewed around that time (such as mug shots, photospreads, and media images). Id. Notably, the observer is unaware that these images are being assimilated and blurred with his original memory, and when asked to retrieve the original facial-
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memory from the event, the observer is likely to recall the altered/integrated image without realizing the difference. Id.
Finally, in-court identifications lack any of the protections offered by the photo array procedures meant to protect against suggested identifications. No “fillers” are present and the situation is inherently suggestive because the defendant is sitting at the defense table. Id. The prosecution is free to encourage the identification by bolstering the accuracy of it to the witness. Id. Here, Marsh had been told he identified the wrong person before. At trial, in the face of the prosecution’s theory of the case and Marshall sitting at the defense table, his identification of Marshall cannot be called reliable. Id. at 556.
Marsh’s garbled and contradictory description at trial, and his purported in- court identification of Marshall, occurred approximately 18 months after the crime.
During that time, Marsh was interviewed by HPD and a private investigator, viewed multiple photo arrays with Marshall’s photo (and was told he had identified the wrong person), gave a sworn deposition in a civil action related to the crime, was likely inundated with media coverage of the murder, and spoke to prosecutors about his memory of that night. Thus, his recollection at the time of trial “would have been both diminished from the initial facial encoding but also significantly altered by assimilation of the information presented in these intervening events.” Id. at 555. In other words, “Marsh could not have made a credible, reliable, unbiased identification” at the time of the trial. Id.
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Had counsel engaged the services of an eyewitness expert, they could have
gravely undermined Marsh’s credibility with the jury. This is especially significant
because the prosecution highlighted Marsh’s identification in closing argument,
encouraging the jury to believe Marsh over police officers because Marsh had
undergone the traumatic event, thus imprinting every detail indelibly on his mind.
19 RR 16. Securing an expert opinion would have armed trial counsel to rebut this
damaging, and demonstrably false, claim about the reliability of Marsh’s memory.
See Beltran v. Cockrell, 294 F.3d 730, 734−35 (5th Cir. 2002) (holding counsel
ineffective for failing to challenge identification testimony of eyewitnesses);
Stephenson v. State, 226 S.W.3d 622, 628 (Tex. App..—Amarillo 2007) (“[A]
defendant’s ability to effectively challenge the certainty and confidence of an eyewitness identification is a matter of paramount importance to the fair administration of justice.”).
2. Trial counsel failed to challenge the State’s ballistics expert.
At trial, the State presented testimony from Officer Stein linking the bullet
recovered from Dean’s body during his autopsy, the casing recovered from the
Whataburger, and the unfired bullet discovered by Bish at the Diamond Shamrock.
While this evidence did not directly imply that Marshall shot Dean, it was clearly
intended to persuade the jury that one gun had been used throughout the evening in
question and, by extension, Marshall was the one person to carry that gun. For
sentencing purposes, this evidence may have also persuaded the jury that Marshall
had been reckless throughout the night, putting even more people at risk of
significant injury or death. This evidence even afforded Worthy an opportunity to
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shore up HPD’s theory that Marshall was the killer when, after prompting from the police, Worthy claimed that Marshall had dropped the bullet at the Diamond
Shamrock. Appx. 210.
Trial counsel never challenged the scientific validity of Officer Stein’s ballistics testing or methodology under Daubert or in any other fashion, nor attempted to test the validity and accuracy of the “Damien” ballistics testing. Their failure allowed the
State to bolster a forensically thin case with seemingly legitimate “science.”
Setting aside any Daubert issues, trial counsel could and should have tendered their own expert to discredit Officer Stein’s testimony and the underlying tests. Had they done so, counsel would have been able to establish that matching an unspent bullet to a gun is scientifically unsound.
First, Stein’s testimony that he could narrow the firearm used to one of ten different manufacturers was false. Supp. Appx. at 566. The shell casings and bullet recovered from the Whataburger and the Diamond Shamrock could have been fired from 20 different models of weapon from any of 24 different manufacturers—meaning there are 240 possibilities, not 10. Id. Thus, while the State showed the jury a firearm meant to look like the murder weapon, the State in fact had no idea what the gun actually looked like. A qualified ballistics expert could have provided hundreds of photographs to show that the evidence in question could have been fired from hundreds of different guns. Id. Notably, at Marshall’s trial, the prosecutor claimed he could only find one photograph of what the murder weapon might have looked like.
However, photographs of all of the hundreds of possibilities have been available
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online since at least the late 1990s and a qualified expert could have produced such
photographs. Id. at 567. Perhaps more important, the actual gun the State used as a
demonstrative exhibit was not even among the hundreds of possible candidates. Id.
Yet, Stein chose to use a gun that could not be the murder weapon.
Second, much of Stein’s testimony was wrong and highlighting this fact in front
of the jury would have damaged his credibility, and the credibility of the State’s case
as a whole. Stein incorrectly testified that the demonstrative firearm was “double
action only,” when in fact it is a “single action only” firearm. Id. “No qualified expert
in ballistics would ever make this kind of mistake, as it betrays a fundamental lack
of knowledge regarding firearms.” Id.
Third, Stein apparently failed to take any ballistic comparison photographs
during his investigation. Id. at 568. This technique has been widely used since the
1920s but Stein failed to document the alleged “match” of either the bullet or casing
in this case to establish his findings, leaving jurors to take his word for it. Id. Stein failed to produce scientific, visual evidence using readily available technology and resources. Id. at 569. As a result, another expert cannot check his work without viewing the actual evidence. This is especially important because a cartridge casing
“match” is a purely subjective determination. Id. at 568. While one expert might
declare a match based on three small scratches, that “conclusion is far less reliable
and credible than identifying 38 to 50 individual scratches that line up perfectly with
no breaks or interruptions.” Id. at 569.
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Finally, Stein testified that he matched the unspent bullet from the Diamond
Shamrock parking lot to the gun that fired the shot killing Dean. 16 RR 64. But courts
have recognized that science does not support matching unspent bullets to particular
firearms, particularly when that firearm is not available to the expert. See Sexton v.
State, 93 S.W.3d 96, 100−01 (Tex. Crim. App. 2002) (noting that the scientific
literature requires the examiner to have the tool available when testing whether
markings match). Without an expert to challenge Stein’s conclusions, the defense left
the jury with no alternative but to accept his junk science.48
Without any photographs documenting his work, it is unclear what type of
“match” Stein found. Had trial counsel retained an expert, the expert could have
viewed the evidence and reached an independent determination whether the bullets
were indeed a match. Supp. Appx. at 569. Doing so would not only have eliminated any forensic advantage the State held, but damaged the credibility of the State’s entire case against Marshall as the shooter.
3. Wilbert Marsh’s shifting stories went largely unchallenged.
As demonstrated above, immediately following the Whataburger robbery,
Marsh described the man who crawled through the drive-thru window as a dark- skinned black male with a slim build, holding a shiny gun in his left hand. Marsh gave a similar description in a sworn statement approximately two weeks afterward.
48 Moreover, the State presented this evidence at Marshall’s trial without telling the jury that significant evidence pointed to Worthy as the one who dropped the unspent bullet at the Diamond Shamrock. 5 WRR 166 [Appx. 366] (Calliham testifying at Worthy’s trial that Worthy stole the beer at the Diamond Shamrock); 6 WRR 44−45 [Appx. 383−84] (Barnett arguing at closing in Worthy’s trial suggesting Worthy dropped the bullet).
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Appx. 260−61. And, when HPD showed him a photo array, he picked out “Bo”
Robinson. Appx. 190.
Trial counsel should have used these facts not only to defend against the
State’s case against Marshall, but to present its own case that Worthy was the person
Marsh saw climbing through the drive-thru window and, therefore, there could be “no doubt” he was also the one who killed Dean. Instead, trial counsel confusingly tried to walk Marsh through two photo arrays. Counsel should have pointed out, as the
State later did in Worthy’s trial, that two robbers must have entered the
Whataburger. Instead, counsel failed to fully develop Marsh’s admission that a second robber “could” have come into the restaurant (17 RR 117−19); failed to play a recorded statement in which Marsh admitted to a Gradoni investigator that he “was told he had picked the wrong person [out of one of the photo arrays]” (17 RR 104–06); and failed to adequately impeach Marsh with his former statements to HPD and his testimony in the civil action by Dean’s family against Whataburger (17 RR 97−100).
Because trial counsel had no previous personal interaction with Marsh and were not familiar with the HPD File, they could not adequately undermine the credibility of his testimony.
4. Trial counsel was unable to adequately impeach the State’s jailhouse snitch because counsel had become a witness.
Clarence Green testified that Marshall confessed to Green while the two were in a holdover cell behind the courtroom. To bolster his testimony, Green claimed familiarity with critical facts about the crime, denying that he had actually heard these facts from Marshall’s defense counsel. 16 RR 137; 17 RR 182. On the day of the
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alleged confession, Arnold—who was admittedly hard of hearing—visited Marshall
in the holdover and loudly discussed various facets of the case in front of other
inmates, including Green. 17 RR 182. When Arnold confronted Green on the stand
about this, Green denied that he had overheard the attorney-client conversation. Id.
To rebut Green’s testimony, trial counsel should have been called to testify that he discussed critical aspects of Marshall’s case in Green’s presence, likely providing
Greene with the information he used to leverage his deal with the State. However, counsel’s role as a witness to a critical fact issue was in conflict with his role as
Marshall’s attorney and his testimony would have exposed the fact that he had plainly breached attorney-client privilege by discussing the case in front of third parties.
Given the gravity of his error, trial counsel’s failure to adequately bring the potential conflict of interest to the attention of the court and his client, to explain that he had become a critical witness to discredit Green, is hard to comprehend. The likeliest explanation is that Arnold forewent the chance to confront Green’s damaging allegations through his own testimony, solely to protect his own reputation and role in the case.
5. Counsel failed to adequately impeach co-defendant Calliham and jailhouse snitches Green and Meyer.
As a preliminary matter, trial counsel did not even attempt to exclude/limine the evidence of jailhouse snitches or co-defendants as self-serving and unreliable.
While trial counsel did expose some of the minor contradictions between Calliham’s two police statements and his in-court testimony, adequate preparation would have
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enabled counsel to comprehensively discredit Calliham on cross-examination. For example, trial counsel failed to establish the strength of the relationship between
Calliham and Worthy. Their prior relationship, and the fact that neither man had any such relationship with Marshall, provided an added incentive for Calliham to exculpate Worthy at Marshall’s expense, but counsel failed to establish this fact. Once again, at Worthy’s trial, the State achieved what Marshall’s counsel had failed to do:
“[Calliham] changed his testimony to help his partner, because that’s exactly what
Ron [Worthy] calls him, his partner.” Colleen Barnett Closing Argument, 6 WRR 50
[Appx. 389]. There is no excuse for trial counsel’s failure to highlight Worthy and
Calliham’s pre-existing “partnership” to Marshall’s jury, though the explanation is clear—trial counsel failed to investigate or prepare Marshall’s case prior to trial.
Moreover, to support its theory that Marshall was the triggerman, the State was relying on testimony from imminently impeachable sources. Green and Meyer were career inmates both facing long prison sentences (up to life). Codefendants
Calliham and Worthy had a powerful interest in deflecting guilt from themselves and onto Marshall, and by their own admission had spent weeks sharing a jail cell working to do exactly that. Calliham, Green, and Meyer share one striking trait: each received a massive sentence reduction in exchange for testifying against Marshall, putting their penological interests in direct conflict with Marshall’s. Indeed, each of these self-interested witnesses reduced his sentence by at least 15 years. Calliham faced capital murder charges carrying a potential death sentence and instead
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received a ten-year deferred sentence for robbery. Both Meyer and Green received one-year sentences despite both facing twenty-five years to life.
C. There is a reasonable probability that this very close case would have ended differently absent counsel’s errors.
Marshall was prejudiced by counsel’s deficient performance because there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. When assessing prejudice, this Court must consider the totality of the circumstances. Williams v. Taylor, 529 U.S. 362, 397–98 (2000) (“[T]he State Supreme
Court’s prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available . . . evidence—both that adduced at trial, and the evidence adduced in the habeas proceeding . . . .”).
The Supreme Court instructs that, when assessing the impact of counsel’s deficient performance, “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 695−96 (emphasis added). No fair-minded observer can characterize the State’s theory here—that Marshall went into the restaurant alone and shot Dean, which rests solely on the testimony of interested witnesses, uncorroborated by forensic proof—as enjoying “overwhelming record support.” Counsel’s errors during trial, all of which stem from their failure to conduct a minimally adequate pre-trial investigation, had widespread and devastating impact on the reliability of Marshall’s
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trial. A reasonable investigation would have rebutted all four of the key elements of
the State’s case against Marshall:
• that Marshall possessed the murder weapon,
• that Marshall entered the Whataburger alone prior to Dean’s death,
• that Worthy did not enter the Whataburger at any point,
• that Marshall confessed to his co-defendants and to strangers in his jail
cell, each of whom had interests adverse to his own, that he was the
triggerman, and
• that it necessarily follows that Marshall shot and killed Dean.
This was a close case that hinged on the testimony of witnesses who received
a deal from the State to finger Marshall as the shooter and a shaky eyewitness whose testimony was tainted by flawed HPD procedures and his own trauma from the event.
No forensic evidence tied Marshall to the crime, and significant evidence pointed to
Worthy as the shooter. Counsel’s errors had overwhelming impact on Marshall’s trial.
The prosecution’s feeble case for Marshall’s guilt, though vulnerable to challenge, was
not meaningfully tested.
Although defendants may be convicted of capital murder and sentenced to
death in Texas under a theory of party liability, the State did not indict Marshall
under “the law of parties.” See Tex. Penal Code §§ 7.01, 7.02; Tex. CODE CRIM. PROC.
art. 37.071 § 2(b)(2); 1 CR 331. Thus, even if a differently-charged jury could have
convicted Marshall of capital murder under the law of parties, this jury was
instructed only on the theory that Marshall was guilty of capital murder as the
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principal/shooter, and prejudice is established by showing the probability of a different result under those instructions.
1. Effective counsel could have presented significant evidence that Marshall was not the shooter.
Effective counsel would have dismantled the case against Marshall. First, counsel would have presented evidence tying Worthy to the murder weapon. Counsel should have seen in the HPD reports that Worthy provided the guns for the robbery, and that after the robbery he instructed his girlfriend to get rid of his bloody clothes and the murder weapon. This evidence put the murder weapon in Worthy’s hands and showed that he destroyed evidence to conceal his involvement. See Guevara v.
State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Attempts to conceal incriminating evidence . . . are probative of wrongful conduct and are also circumstances of guilt.”).
But the jury heard none of it. Instead, the jury was told by police officers that Worthy had a toy gun, meaning that Marshall was the only person carrying a working firearm that night. Counsel had significant evidence at their disposal to discredit the State’s arguments and used none of it.
Second, counsel would have shown the jury—as the State did at Worthy’s trial—that the State’s theory of the case was physically impossible. Multiple witnesses, including Whataburger employees and police officers, could have testified that all the doors into the restaurant were locked, meaning that only if another intruder had entered the premises could Dean and his pursuer have been let back inside. Instead, the jury heard a garble of confused and contradictory claims about locked doors from Marsh. Counsel never made it clear that all of the doors were locked.
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The question of whether one or two suspects entered the Whataburger, and the implications of that evidence on Marshall’s guilt, was demonstrably in the jurors’ minds. While deliberating, the jurors sent a note to the court requesting
“Whataburger’s Pictures” and “Marsh’s testimony re: ‘locked doors’ at Drive in
Window.” 19 RR 76. Had counsel done a reasonable job of demonstrating that Dean and the shooter could not have reentered the Whataburger through the door by the drive-thru window without a third person opening the door from the inside, the jury could not have found beyond a reasonable doubt that the State had proved Marshall, rather than Worthy, to be the killer—even if they credited the remainder of the
State’s evidence.
Third, a competent attorney would have presented evidence that Worthy, not
Marshall, was the leader of the trio that night. The State’s argument at trial, that
Marshall had organized the robbery because he was the one who knew the
Whataburger manager, went totally unrebutted. Had counsel simply listened to
Worthy’s interview with police, they would have heard that Worthy used to work at
Whataburger, was aware of the issue of locked doors, and was aware of the possibility of tripping an alarm. Moreover, Worthy paid Calliham to drive that night and supplied and disposed of the guns. All of this evidence points to Worthy as the principal, but counsel utterly failed to present it to the jury.
A cohesive, impenetrable defense to the capital murder charges was at trial counsel’s fingertips. Through the police reports, they should have known that all of the initial descriptions—from the eyewitnesses to the Crime Stoppers tip—pointed to
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Worthy as the shooter. They should have known that Worthy obtained and disposed
of the guns and his clothes from the night of the murder, while Marshall’s clothes
were not soiled and were handed over to police. Instead, counsel failed to familiarize
themselves with the State’s files and failed to adequately conduct their own
investigations. Had they done so, there is a reasonable probability of a different
outcome.
2. Effective counsel could have significantly undermined the State’s witnesses and evidence.
The State’s case was built on unreliable witnesses and other evidence that was
not coherently or meaningfully challenged. Effective counsel could have easily
impeached the State’s evidence through thoroughly prepared cross-examination and
the use of experts.
A critical moment in Marshall’s trial was when Marsh, in the presence of the
jury, unequivocally identified Marshall as the shooter. Counsel knew or should have
known that the description Marsh had initially provided to police did not match
Marshall. Counsel also knew that Marsh had been exposed to suggestive photo arrays
that included Marshall’s picture and, as a result, identified Marshall shortly before
trial. Yet, counsel presented no evidence to challenge Marsh’s identification as
unreliable. Had they engaged the services of an eyewitness identification expert, the
jury would have heard crucial evidence essentially nullifying the probity of the in- court identification.
Moreover, had counsel engaged the services of a ballistics expert to counter the expert counsel knew the State would present, counsel could have significantly
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undermined the credibility of not only the State’s expert witness, but also the entire
investigation as well as the judgment of the prosecution. The State’s witness made
several glaring errors that any competent expert would have been able to reveal.
Instead, the jury had no indication that the “expert” testimony they heard was junk.
And had counsel investigated the State’s informant witnesses—all of whom
received significantly reduced sentences—they would have discovered, early in their
representation, that none of those witnesses could provide reliable evidence against
Marshall. Not only would this information have enabled counsel to effectively
impeach the testimony of the State’s star witnesses—Kenny Calliham, Dennis Meyer,
and Clarence Green—it would have enabled counsel to prepare its own case that
Marshall did not shoot Christopher Dean.
This evidence, taken as a whole, paints an entirely different picture of the
Whataburger robbery than was presented to the jury. There is a reasonable
probability that, had trial counsel performed their duties on Marshall’s behalf in
conformity with the constitutional protections afforded capital defendants, at least
one juror would have voted to acquit Marshall as a principal in Dean’s capital murder.
D. Marshall is entitled to federal habeas corpus review of, and relief on, his substantial ineffective-assistance-of-counsel claims because any applicable procedural default was caused by state habeas counsel’s deficient performance.
Ten years ago, the State of Texas scrapped the regime of unregulated capital habeas corpus court-appointments that applied to Marshall’s case. Even the Texas
judges who administered the state’s now-abandoned scheme have acknowledged that
serious flaws lead death-sentenced individuals to become “victims of deficient and
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inadequate lawyering.” Ex parte Medina, 361 S.W.3d 633, 647 (Tex. Crim. App. 2011)
(Keasler, J., joined by Hervey, J., dissenting). Marshall was one of them. Habeas counsel’s voucher in this case documents a failure to conduct the mandatory extra- record investigation dictated by the Texas statute and the contemporaneous standard of care. Instead, state habeas counsel—whose deficient capital habeas representation garnered notoriety in the media while Marshall’s application was pending—merely read the appellate record and cobbled together a perfunctory, four-claim application based on the record and claims he cut-and-pasted from other cases. Counsel’s failure to conduct an adequate post-conviction investigation led to the omission of substantial ineffective-assistance-of-trial-counsel (“IATC”) claims.
This Court, however, can review Marshall’s IATC claims and grant relief: “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan,
566 U.S. 1, 17 (2012). The “initial-review collateral proceeding” in Texas is the initial state habeas corpus proceeding.49 Thus, to “establish cause to excuse [a] procedural default,” a petitioner “must prove that his counsel in the initial-review collateral proceeding was deficient; that is, he must show that the representation of his initial- review collateral proceeding ‘fell below an objective standard of reasonableness.’”
49 Trevino v. Thaler, 569 U.S. 413, 429 (2013); see also Canales v. Stephens, 765 F.3d 551, 567 (5th Cir. 2014) (“In Trevino, the Supreme Court explained that Martinez applies in Texas”); Green v. Stephens, No. 4:13-CV-1899, 2017 WL 1929358, at *2 (S.D. Tex. May 10, 2017) (“In Texas, state habeas review is the first meaningful opportunity to present a claim of ineffective assistance of trial counsel.”).
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Canales v. Stephens, 765 F.3d at 567–68 (quoting Strickland v. Washington, 466 U.S.
668, 688 (1984)). Additionally, a petitioner must also plead a substantial underlying
IATC claim, “which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14 (citing the Miller–El v. Cockrell, 537 U.S. 322
(2003), standard for issuing certificates of appealability)). Marshall has pled IATC claims that satisfy Martinez’s “some merit” threshold, including this claim. Marshall can also prove that the performance of his counsel in the initial-review collateral proceeding fell below an objective standard of reasonableness.50
1. Adequately investigating any potential claims available through the exercise of due diligence is the most fundamental duty of capital habeas counsel.
In Texas, “[a] writ of habeas corpus is available only for relief from jurisdictional defects and violations of constitutional or fundamental rights.” Ex parte
McCain, 67 S.W.3d 204, 207 (Tex. Crim. App. 2002) (footnote omitted). However,
“[e]ven a constitutional claim is forfeited if the applicant had the opportunity to raise
50 Dick Wheelan was the first lawyer appointed to represent Marshall in state habeas proceedings and was responsible for preparing and filing Marshall’s application for state habeas corpus relief. See Supp. Appx. 877−81 (Wheelan voucher). Wheelan filed the application pursuant to the statutory deadline on July 5, 2006. After the statutory filing deadline had long since passed, while the application was pending in the trial court, Wheelan became ill and withdrew from the case. Wheelan was replaced by Jerome Godinich on June 20, 2008.
At the time Godinich was appointed, any attempt to amend the application would have been subject to Texas’s abuse-of-the-writ rule, codified in TEX. CODE CRIM. PROC. art. 11.071 §5. See Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002) (“art. 11.071, § 5 . . . generally bars consideration of a subsequent writ after filing the ‘initial application.’”); see also Ex parte Holberg, 2014 WL 5389907, at *1 (Tex. Crim. App. Sept. 17, 2014) (holding that “documents . . . filed in the trial court after the deadline provided for the filing of an initial application for habeas corpus” which “attempt[] to raise new claims” are “subsequent applications” subject to the abuse-of-the-writ rule). Given Texas’s prohibition against amendments after the initial filing deadline, it is Wheelan’s representation that is at issue for Martinez purposes because his failure to investigate and plead IATC claims is what now subjects them to Texas’s abuse-of-the-writ rule.
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the issue on appeal.” Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004).
Texas habeas corpus proceedings are primarily for litigating constitutional claims
based on extra-record facts. And, “Texas courts in effect have directed defendants to
raise claims of ineffective assistance of trial counsel on collateral, rather than on
direct, review.” Trevino, 569 U.S. at 425–26. Thus, the most fundamental duty of habeas counsel is to investigate and develop all potentially meritorious claims, especially IATC claims, before filing the initial application. This core investigative function is mandated by the statute governing habeas counsel’s appointment, 51
described in contemporaneous Texas training publications,52 and delineated in the
2006 State Bar of Texas Guidelines and Standards for Texas Capital Counsel, which
reflected the “state-wide standard of practice for the defense of capital cases”53 during
the preparation and filing of Marshall’s initial state habeas application. All of these
sources confirm that investigating beyond the trial record, especially for IATC claims,
is a fundamental duty of capital habeas corpus counsel.
51 See TEX. CODE CRIM. PROC. art. 11.071 § 3.
52 See, e.g., Padilla v. Kentucky, 599 U.S. 356, 367–68 (2010) (looking to, inter alia, state and city bar publications to establish prevailing norms of criminal defense practice).
53 Guideline 1.1, State Bar of Texas Guidelines and Standards for Texas Capital Counsel (April 21, 2006) (“State Bar Guidelines”) (available at https://www.texasbar.com/AM/Template.cfm?Section=Consider_a_State_Bar_Committee &Template=/CM/ContentDisplay.cfm&ContentID=28741) (last visited Feb. 26, 2020).
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a. Texas’s capital habeas corpus statute requires that appointed counsel conduct an extra-record investigation.
Article 11.071 of the Texas Code of Criminal Procedure governs Texas capital habeas corpus proceedings. TEX. CODE CRIM. PROC. art. 11.071 § 1. The habeas statute
requires that counsel conduct an extra-record investigation:
Investigation of Grounds for Application
Sec. 3. (a) On appointment, counsel shall investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the filing of an application for a writ of habeas corpus.
Id. at § 3 (emphasis added). That the required investigation is an extra-record endeavor is clear from the statutory command to investigate even before the appellate record is finalized. Counsel must be thorough and exercise reasonable diligence to uncover the factual basis for every available claim. Id. at § 5(e) (claims are not
cognizable in subsequent habeas applications, and thus waived, unless “the factual
basis was not ascertainable through the exercise of reasonable diligence” when the
prior application was filed). Because investigation is fundamental, Texas courts are
obligated to grant all reasonable investigative funding requests. Id. at § 3(c); § 3(d).
Adequate fact investigation is a prerequisite to satisfying the burden of
pleading in Texas habeas corpus cases: “there are clear statutory requirements for . . .
habeas-corpus applications to allege the facts which must be proved by evidence.” Ex parte Medina, 361 S.W.3d 633, 639 (Tex. Crim. App. 2011); id. at 640 (“we reiterate today what we have long held: an application for a writ of habeas corpus, whether filed under Article 11.07 or 11.071, must contain sufficient specific facts that, if proven to be true, might entitle the applicant to relief.”). A habeas corpus claim is
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incomplete if it fails to allege the factual predicate on which relief can be granted: “A
Texas writ application must be complete on its face. It must allege specific facts so
that anyone reading the writ application would understand precisely the factual basis
for the legal claim.” Id. at 641 (footnote omitted). An application that fails to allege
the specific facts on which relief can be granted is “not a proper writ application.” Id.
at 642.
b. The contemporaneous standard of care in Texas capital habeas corpus cases, as reflected in State Bar of Texas materials, prescribed a broad and thorough investigation.
One year after the 1995 passage of article 11.071 established a right to capital
habeas counsel, the State Bar of Texas published the third edition of the Texas
Criminal Appellate Manual. Supp. Appx. 416 (Excerpt, Texas Criminal Appellate
Manual 1996, 3d ed.) (the introduction to the manual, an unnumbered page, describes its publication history). One of the chapters in the State Bar Manual was a primer for defense counsel litigating capital habeas corpus cases. Id. The State Bar Manual confirms that, for the decade preceding the filing of Marshall’s application, the prevailing standard of care in capital habeas corpus representation compelled counsel to conduct extensive investigation.
The manual begins with “essential ideas to bear in mind” when considering the habeas corpus litigation, the first two of which stress the need to investigate the case:
1. State habeas litigation is not the same as a direct appeal. Habeas litigation concentrates on developing and presenting facts outside the appellate record which, in conjunction with facts in the record, raise important constitutional claims. Habeas counsel must know the appellate record, but cannot be bound to it, or they will offer their clients nothing more than another attempt at a direct appeal.
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2. Writ practice requires investigation. You can’t learn about, develop, and present facts outside the record if you don’t investigate the case. Investigation for a writ can be as intensive as investigation in preparation for trial. This must be so particularly where habeas counsel believes that trial counsel may have rendered ineffective assistance of counsel. It is impossible to accurately evaluate the effectiveness of counsel without knowing what the counsel in question knew or could have known.
Id. at 422 (emphasis added).
Ten pages—almost 25%—of the State Bar Manual are dedicated to describing
the scope and depth of the requisite investigation. Id. at 432–38. An adequate
investigation begins with the client, and the State Bar Manual describes the “[t]opics
to cover” during client interviews: “(1) Your client[’]s version of the facts of the offense;
(2) his or her relationship with the trial and direct appeal lawyers; (3) anything the
client found strange, unusual or objectionable about the trial or direct appeal; (4) your
client’s social history, including his or her background, education, family history,
medical history, drug abuse history, etc.” Id. at 430–31.54 Given this broad range of
topics, the State Bar Manual advises habeas counsel that “the information you need
from your client cannot be obtained in just one interview,” thus “the more
conversations you have, the more likely it is that you will win the inmate’s trust and
uncover additional helpful and highly relevant information.” Id. at 431.
Client interviews, though critical, “must serve as the beginning, not the end,
of [counsel’s] investigation”:
54 This standard essentially mirrors Texas Court of Criminal Appeals’s (“CCA”) determination that, in a 1997 trial, capital defense counsel had a duty to interview the client about specific aspects of his social history. Ex parte Gonzales, 204 S.W.3d 391, 400–01 (Tex. Crim. App. 2006) (Cochran, J., concurring).
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[The client’s family] may shed light on mitigating evidence that was not presented at trial, or guilt/innocence phase evidence that was suggested to trial counsel, but not presented. They will certainly have things to tell you about your client’s background that you can get nowhere else that could contribute substantially to the development of claims concerning mental disorders, mental limitations, or drug abuse.
Id. at 431–32.
The above steps are merely preliminary measures, the State Bar Manual subsequently describes three basic methods for investigating the case. First, habeas counsel must collect a wide variety of records, a lengthy process that begins early in the representation: “It is vital to start gathering records as early in your writ preparation process as possible. Records collection is time-consuming and is sometimes contested by agencies who are the custodians of records. It is preferable to deal with these disputes early in the investigation rather than in the last weeks or days before the writ application is due.” Id. at 433. The State Bar Manual describes some of the records that should be gathered in every case, including prison records, school records, medical and mental health records, and the criminal records of witnesses. Id. at 433–34. In addition to these fundamental documents, the State Bar
Manual includes a five-page “Investigative Source List,” id. at 444−48, that itemizes numerous other sources of relevant documents.
Second, habeas counsel must collect information from all relevant law enforcement agencies:
Always seek access to the district attorney’s files and law enforcement agency files regarding the capital offense and any other offenses that you believe will be relevant to any of your claims, including offenses committed by key state’s witnesses, such as jailhouse informants . . . . [I]t [is] important to energetically seek access to the files of every law
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enforcement agency that may have generated information regarding your client.
Id. at 434.
Third, habeas counsel must obviously interview witnesses and, when possible
do so in person: “As you begin to focus on the claims you want to pursue, you will
identify people who have important information about those claims. Some may have
testified at trial. Others may never have been called or perhaps were even unknown
at the time of trial. You or your investigator need to interview these people in person,
if at all possible.” Id. at 435.
The State Bar Manual observed that “it should be clear that the services of an
experienced criminal or habeas investigator are invaluable in efficiently and
comprehensively gathering the information necessary for a writ application.” Id. at
436. “Other experts will likely be needed, too,” including mental health and medical experts. Id.
Ten years after the publication of the State Bar Manual, the State Bar of Texas published the 2006 State Bar Guidelines. As evidenced by the CCA’s citations to them,55 the 2006 State Bar Guidelines reflect the standard of care for Texas capital
habeas counsel.
The Guidelines are explicit that a thorough, independent investigation is the
core duty of capital habeas counsel:
55 See e.g., Ex parte Medina, 361 S.W.3d 633, n.13 638 (Tex. Crim. App. 2011) (relying on the 2006 State Bar Guidelines as evidence of habeas counsel’s duties with respect to pleading claims); Ex parte Van Alstyne, 239 S.W.3d 815, 822 (Tex. Crim. App. 2007) (relying on the 2006 State Bar Guidelines as describing habeas counsel’s duty to secure expert assistance with mental health claims).
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Habeas corpus counsel must understand that the state habeas corpus proceeding is not a second direct appeal. Direct appeal-like, record-based claims are not cognizable in state habeas corpus and can be fatal to the capital client. Counsel should not accept an appointment if he or she is not prepared to undertake the comprehensive extra-record investigation that habeas corpus demands.56
The 2006 State Bar Guidelines require that capital habeas counsel:
conduct a guilt-innocence phase investigation regardless of any admission or statement by the capital client about the facts of the crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be examined. Instead, counsel must independently investigate the circumstances of the crime and all evidence inculpating the client.57
This investigation includes obtaining and reviewing the files of all law enforcement agencies involved in the case, the files of all prior counsel for the State and the defense, and of course the trial record.58 Counsel are required “to interview most, if not all, of the critical witnesses for the prosecution and investigate their backgrounds,” and “determine if a witness’s testimony bears scrutiny or whether motives for fabrication or bias were left uncovered at the time of trial.”59 Additionally,
“[h]abeas corpus counsel must also assess all of the non-testimonial evidence and consider whether to perform independent forensic testing, either because some technology, such as DNA testing, was unavailable at the time of trial, or because trial counsel failed to ensure that the necessary testing took place.”60
56 State Bar Guideline 12.1(1)(a).
57 Id. at 12.2(B)(4)(a).
58 Id. at 12.2(B)(4)(b)–(c).
59 Id. at 12.2(B)(4)(e).
60 Id. at 12.2(B)(4)(f).
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Capital habeas counsel’s duties to investigate punishment phase-related issues, including the client’s social history, are generally co-extensive with the duties of trial counsel. 61 Thus, “[h]abeas corpus counsel should retain an independent mitigation specialist as a member of the defense team as soon as possible after appointment.”62 The State Bar Guidelines mandate that “[h]abeas corpus counsel’s mitigation investigation should include a review of the capital client’s”:
(i.) medical history (including hospitalizations, mental and physical illness or injury, alcohol and drug use, pre-natal and birth trauma, malnutrition, developmental delays, and neurological damage); (ii.) family and social history (including physical, sexual, or emotional abuse; family history of mental illness, cognitive impairments, substance abuse, or domestic violence; poverty, familial instability, neighborhood environment, and peer influence); other traumatic events such as exposure to criminal violence, the loss of a loved one, or a natural disaster; experiences of racism or other social or ethnic bias; cultural or religious influences; failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality foster care or juvenile detention facilities); (iii.) educational history (including achievement, performance, behavior, and activities) and special educational needs (including cognitive limitations and learning disabilities); (iv.) military service, (including length and type of service, conduct, special training, combat exposure, health and mental health services); (v.) employment and training history (including skills and performance, and barriers to employability); and (vi.) prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services).63
The State Bar Guidelines further make clear that, because the actions of state habeas counsel will affect the client’s rights in federal habeas corpus, state habeas
61 Id. at 12.2(B)(5).
62 Id. at 12.2(B)(5)(c).
63 Id. at 12.2(B)(5)(d).
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counsel must request all process necessary for the full and fair development of the client’s claims—even steps not required by Texas law. First, habeas counsel “should attach all available proof to the application (affidavits, documentary evidence, etc.) even though doing so is not technically required by state law,” because “[f]ailing to attach proof in state court will likely waive the client’s ability to present it in federal court.” 64 Capital habeas counsel must “demand on behalf of the capital client all resources necessary to provide high quality legal representation, to conduct a thorough investigation of both the conviction and sentence, to procure documentary evidence, and to retain experts.”65 Counsel must also “file a written request for an evidentiary hearing on all disputed factual issues and provide the trial court with an in-depth explanation of why a hearing is necessary.”66
In sum, contemporaneous authorities of every stripe mandated that capital habeas counsel conduct substantial investigation. Marshall’s counsel, however, performed almost none of his duties. As documented in his vouchers, rather than investigate claims, state habeas counsel merely cobbled together a petition from the trial record and briefing cut-and-pasted from other clients’ cases.
64 Id. at 12.2(B)(7)(d).
65 Id. at 12.2(B)(6)(a).
66 Id. at 12.2(B)(6)(c).
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2. Marshall’s initial state habeas counsel failed to “investigate . . . the factual . . . grounds for the filing of an application for a writ of habeas corpus” 67 and instead filed a record-based pleading comprised entirely of non-cognizable and unsupported claims.
The scope of Wheelan’s work on behalf of Marshall is documented in the voucher he submitted to the courts and reflected in the nature and source of the claims he eventually filed in the initial application. Absent from the record of
Wheelan’s labors is the extra-record investigation approximating the professionally reasonable representation defined by the applicable contemporaneous standards and norms. Because Wheelan failed to function as a post-conviction lawyer, the final product of his efforts though styled as an application for habeas corpus relief bore little resemblance to one.
a. Too little, too late: Wheelan performed only a small fraction of the work required of him, and did so only after he squandered most of the twenty months between his appointment and the filing deadline.
Wheelan was appointed to Marshall’s case on November 12, 2004, and—after receiving a 90-day extension—filed an application twenty months later on July 5,
2006. Supp. Appx. 882.
During the first year of the representation, Wheelan bore sole responsibility for investigating and preparing Marshall’s state habeas application because he failed to request the services of an investigator, a mitigation specialist, or any other services necessary for adequate capital habeas representation. Yet, in this period, Wheelan
67 TEX. CODE CRIM. PROC. art. 11.071 § 3(a).
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devoted only 40.2 hours to Marshall’s case—of which only 45 minutes were devoted
to investigation. Id. at 879. Indeed, Wheelan performed no work whatsoever on
Marshall’s case during ten of the first twelve months after appointment.68 One year
after his appointment, and with only five months remaining before the initial filing
deadline, Wheelan had yet to even meet his client. Other than 45 minutes of
“contacting family & witness,” Wheelan’s only extra-record work during this period
involved interactions with the district clerk and court staff, and one contact with
Marshall’s direct appeal counsel that was 15 minutes or less. Id. The remainder of
Wheelan’s 40.2 hours was spent obtaining and reviewing the trial record, and
performing one hour of “legal research and brief writing.” Id.
In December of 2005, thirteen months after he was appointed to the case,
Wheelan began to “[r]e-review [the] appellate record” and “[c]atalogu[e] possible
errors.” Id. In addition, Wheelan met with his client for the first and only time. Id.
That meeting was an hour long. Id.
On February 16, 2006, the State served its direct appeal brief on counsel. The
filing of the State’s brief—the brief was deemed filed by the CCA on February 22,
2006—began the 45-day filing deadline for Marshall’s application for habeas relief.
See TEX. CODE CRIM. PROC. art. 11.071 § 4(a). Thus, Marshall’s application was due
on April 10, 2006.69
68 See Supp. Appx. 879. Wheelan performed no work on Marshall’s case from: January 14, 2005, to March 14, 2005 (two months); March 21, 2005, to April 26, 2005 (one month); April 30, 2005, to September 30, 2005 (five months); and October 11, 2005, to November 9, 2005 (one month).
69 April 8, 2006, the 45th day after the State’s brief was filed, was a Saturday.
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On February 20, 2006, less than two months before the application was due,
Wheelan prepared and filed a motion for investigator. Supp. Appx. 880. Although the
motion was granted the same day—authorizing an initial investigative budget of just
$1500—Wheelan’s investigator would not begin work on the case until March 12,
2006, less than one month before the application was due. Exhibit XX (Allen Voucher)
at 4. Wheelan then requested and received the statutory maximum 90-day
extension70 for filing the application, giving him until July 7, 2006.
In the remaining months, Wheelan devoted the bulk of his time to reviewing
the record and “writing [the] brief.” Supp. Appx. 880–81. Wheelan spent the vast
majority of the 253 hours he worked on the case to record review and research and
writing. His efforts thus resembled the work expected of direct appeal counsel:
Activity Time (in hours)
Researching and writing brief 117.05
Reviewing appellate record 108.6571
Reviewing other documents 5.15
Travel 4.25
Visiting client 1.00
72 Interview & Conference 8.50
70 See TEX. CODE CRIM. PROC. art. 11.071 § 4(b). 71 Wheelan billed for 113.8 hours of “Obtaining & Reviewing Records.” Supp. Appx. 879−80. All but 5.15 hours was for reviewing the appellate record. Id.
72 This time was largely devoted to interacting with clerk and court staff, correspondence, and other administrative matters.
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Investigation & Other 8.4
Total 253
Wheelan’s record-based work was supplemented by only 43.5 hours of
investigation by Waymon Allen, a recently-retired police officer73 whose last-minute
work on the case consisted of contacting a few witnesses, one meeting with Marshall,
and writing reports. Supp. Appx. 597–600.
Wheelan never secured the assistance of a mitigation specialist, a mental
health expert, or any other individual qualified to perform a professionally adequate
social history and screen for mental health issues. Likewise, the belated and paltry
investigative efforts left Wheelan without adequate information about the crime, the
State’s investigation, and the prosecutions of Marshall and his co-defendants.
Wheelan’s omissions, combined with his failure to secure or review trial counsel’s files,
left him with no basis whatsoever for assessing the adequacy of trial counsel’s
preparation for either phase of Marshall’s trial. Because Wheelan abdicated his duty
to investigate IATC claims, his investigation was unquestionably deficient.
b. Wheelan filed a perfunctory application that offered Marshall no basis for state habeas corpus relief.
Absent an adequate independent investigation into Marshall’s case, Wheelan
had no basis for pleading cognizable claims for relief. Instead, he filed a four-claim, record-based application—a substantial portion of which was copied from other cases.
73 Allen was with the Houston Police Department from 1974 to 2004. See https://hpou.org/obituaries- of-hpd-family-members-30/ (last visited Feb. 27, 2020).
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The first claim was the only one not partially or wholly cut-and-pasted from elsewhere, but it was not cognizable in habeas corpus proceedings. Counsel argued that, because Marshall’s arrest was illegal, his subsequent statements were obtained in violation of the Fourth and Fifth Amendments. Petition for Post-Conviction Relief to Vacate Judgment and Sentence, Writ of Habeas Corpus By A Person in State
Custody, Application for Stay of Execution and Evidentiary Hearing (“State Habeas
Petition”) at 11–19. The state courts concluded that the claim was “procedurally barred,” “not cognizable” in a habeas corpus proceeding, and without merit.74
The second claim was a verbatim cut-and-paste of the first claim, with 1.5 pages tacked on the end alleging that trial counsel was ineffective for failing to preserve the issue. Compare State Habeas Petition at 11–19 with id. at 20–28.
Because the underlying lacked merit, the state courts found that Marshall could not demonstrate that the result of the proceeding would have been different had trial counsel objected to the admission of his statements based on the alleged illegality of the arrest. FFCL at 20.
The third claim, another purely record-based issue, argued that the introduction of gruesome photographs was more prejudicial than probative. State
Habeas Petition at 31–34. This claim was not cognizable in habeas corpus proceedings for two independent reasons: (1) it was not jurisdictional or constitutional
74 State’s Proposed Findings of Fact, Conclusions of Law and Order (“FFCL”) at 18–19. The trial court and the CCA adopted the State’s findings verbatim.
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error;75 and, (2) it could have been raised on direct appeal.76 Moreover, Wheelan cut-
and-pasted all of the legal briefing—as well as significant other portions of the text—
from pleadings he filed for other clients. Compare State Habeas Petition at 31–34
with Supp. Appx. 629−33 (Excerpt from 1999 Dennes Petition) and Supp. Appx.
864−68 (Excerpt from 1998 Prystash Petition).
Marshall’s fourth and final claim was a method-of-execution claim. State
Habeas Petition at 35–47. As the state courts found, this claim was both non-
cognizable and unripe. FFCL at 22. Wheelan had filed the same claim in another case
and dumped a verbatim copy into Marshall’s application. Compare State Habeas
Petition at 35–47 with Supp. Appx. 449−65 (Excerpt of 2005 Broxton Petition) (while
some of the formatting was changed, the text is identical).
In all, three of four claims—over half of Marshall’s forty-seven page state
habeas application—were largely or completely cut-and-pasted from other claims or
cases.77 Three of four claims were not cognizable in state habeas proceedings and
some were also procedurally barred. The only cognizable allegation was a record-
based IATC claim. In short, the application offered no basis for habeas corpus relief,
which was hardly surprising given Wheelan’s failure to conduct the requisite
investigation.
75 See Ex parte McCain, 67 S.W.3d at 207.
76 See Ex parte Townsend, 137 S.W.3d at 81.
77 Yet, Wheelan billed for 117 hours of researching and writing the application, in addition to the 108 hours he spent reviewing the record.
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Several months after Wheelan filed Marshall’s application, the Austin
American-Statesman published a series of articles chronicling disturbing instances of deficient lawyering in Texas capital habeas cases.78 Dick Wheelan was cited as among the most deficient lawyers for having “submitted a number of writs copied largely verbatim from a death row inmate’s direct appeal, even though such claims cannot be considered in a writ of habeas corpus.” 79 Federal counsel representing another of Wheelan’s former state habeas clients pulled no punches: “People aren’t being executed; they’re being murdered by their lawyers . . . . I’ve been doing this for
20 years. I’m no wet-behind-the-ears law school graduate, but I have never seen anything this bad.”80
Because counsel in Marshall’s initial-review collateral proceeding was ineffective, this Court can review and grant relief on Marshall’s substantial IATC claims. The preceding sections demonstrate the substantiality of the underlying IATC claim.
78 Chuck Lindell, Sloppy Lawyers Failing Clients on Death Row, AUSTIN AMERICAN-STATESMAN, Oct. 29, 2006, at A1 (hereinafter “Sloppy Lawyers”); Chuck Lindell, Attorney Cuts, Pastes Convicted Client’s Letter, AUSTIN AMERICAN-STATESMAN, Oct. 29, 2006, at A11; Chuck Lindell, When $25,000 is the Limit on a Life, AUSTIN AMERICAN-STATESMAN, Oct. 30, 2006, at A1; Chuck Lindell, Lawyer’s Writs Come Up Short, AUSTIN AMERICAN-STATESMAN, Oct. 30, 2006, at A11; Chuck Lindell, New Appeals, Old Arguments, AUSTIN AMERICAN-STATESMAN, Oct. 30, 2006, at A11.
79 Lindell, Sloppy Lawyers, supra.
80 Lindell, Sloppy Lawyers, supra.
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Claim 5 Marshall’s Sixth, Eighth, and Fourteenth Amendment rights were violated by counsel’s ineffective investigation and preparation for the penalty phase.
Despite readily available records and witnesses willing to assist, trial counsel
Mack Arnold and Sid Crowley failed to thoroughly investigate Marshall’s background,
leaving them literally defenseless to the State’s grossly inaccurate portrayal of
Marshall’s youth as normal. Instead, trial counsel brought the jurors shallow and,
ultimately, incorrect information about Marshall’s background, telling them in
closing that Marshall might have been “the happiest little guy in the world.” 23 RR
43.
A reasonable investigation would have revealed that Marshall suffered
significant trauma, violence, and sexual abuse throughout his childhood. Even before
birth, Marshall was exposed to substance abuse by his biological mother. As a child,
Marshall and his three siblings had no consistent access to either food or shelter, or
a safe refuge from their father’s violent and debased behavior. At the age of six,
following increasingly urgent interventions by the Texas Department of Family and
Protective Services (“DFPS”),81 Marshall and his siblings were abandoned by their
mother to DFPS when she disappeared for months. Marshall was briefly returned to
the care of his biological father (Gerald Sr.), but he and his older sister, Julia were
removed after verified reports of phsyical abuse by Gerald Sr. Marshall and
thereafter remained in the foster care system until he turned 18, including in a long-
81 Despite multiple attempts, Marshall still has not received a complete set of records from DFPS and anticipates filing additional requests for those records.
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term home placement investigated by DFPS on allegations of emotional, physical, and sexual abuse. It was there, where Marshall remained from ages 12 to 18, that his foster parents locked him in a bedroom, denied him food, and beat him.
Despite attempting to reunite with his biological family, obtaining employment to support his long-term girlfriend’s six children, and enrolling in college, Marshall was arrested just one year and ten months after ageing out of foster care. Yet, trial counsel never even attempted to discover the trauma Marshall had suffered. Had they conducted a competent background investigation and presented the fruits of that investigation to Marshall’s jury, there is a reasonable probability that at least one juror would have answered Texas’s mitigation special issue in his favor.
A. Trial counsel rendered deficient performance by failing to reasonably investigate Marshall’s background.
As foretold by the State, “[t]he person you will be hearing the mitigation about[] won’t be that defendant.” 20 RR 9. Arnold and Crowley failed to develop even a rudimentary mitigation investigation plan, failed to review available records and interview willing witnesses, and failed to present what little mitigation evidence they did discover. Counsel benefited from some sixteen months to prepare, had over 1,100 pages of DFPS records and notes, and were even approached by potential witnesses to testify on Marshall’s behalf. Yet, they presented just three life history witnesses, including a DFPS case aide who had no involvement in Marshall’s care beyond shuttling him between DFPS-mandated appointments. Counsel did not interview their three witnesses before calling them, opting to examine them from notes handed to counsel as the witnesses approached the stand. Further, trial counsel dumped over
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1,100 pages of undigested DFPS records into the jury’s lap, telling jurors to “do whatever” with them. 23 RR 43.
1. Prevailing professional standards at the time of Marshall’s trial required that trial counsel conduct a thorough background investigation.
Capital defense counsel have an “obligation to conduct a thorough investigation of the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 396
(2000). When assessing counsel’s performance, a reviewing court measures the mitigation investigation for “reasonableness under prevailing professional norms.”
Wiggins v. Smith, 539 U.S. 510 (2003) (quoting Strickland v. Washington, 466 U.S.
668, 688) (1984)).
In discharging their duty to explore the client’s background for potential mitigation, “trial counsel must not ignore pertinent avenues of investigation, or even a single particularly promising lead.” Charles v. Stephens, 736 F.3d 380, 390 (5th Cir.
2013) (internal citations omitted). And acquiring “only rudimentary knowledge of [the defendant’s history] from a narrow set of sources” constitutes deficient performance.
Wiggins, 539 U.S. at 524. Likewise, failure to obtain “information that the State has and will use against the defendant” falls below prevailing professional norms.
Rompilla v. Beard, 545 U.S. 374, 385–87. Further, the “failure to uncover and present voluminous mitigating evidence” cannot be passed off as trial strategy where trial counsel has not first discharged its duty to conduct a thorough background investigation. Wiggins, 539 U.S. at 522; Escamilla v. Stephens, 749 F.3d 380, 392 (5th
Cir. 2014) (“[I]f a purportedly tactical decision is not preceded by a reasonable
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investigation, then it is not sufficiently informed and not entitled to the deference
typically afforded counsel’s choices.”).
Here, Arnold and Crowley failed to expand their investigation beyond
Marshall’s DFPS records, the defense expert’s incomplete and uninformed
assessment of Marshall’s psychological functioning, and just five lay witnesses whom
they never personally interviewed. As in Wiggins, trial counsel’s performance was all
the more unreasonable given that the DFPS records revealed significant trauma,
included detailed information about potential witnesses, and thoroughly documented
several instances of severe emotional, physical, and sexual abuse. Wiggins, 539 U.S.
at 525 (finding scope of trial counsel’s investigation unreasonable in light of what
counsel “actually discovered” in institutional records, including foster care records).
Yet, trial counsel blandly described these records to the jury as simply “good and bad.”
23 RR 43.
2. Trial counsel did not conduct a background investigation that met prevailing professional norms.
First chair Mack Arnold was appointed on May 15, 2003, two days after
Marshall’s arrest and sixteen months prior to trial. 1 CR 7. Despite having sixteen months to prepare for trial, counsel neglected to begin their investigation of
Marshall’s background in earnest until September 30, 2004, just ten days before jury
selection began, with the consequence that the bulk of the interviews occurred at the
courthouse during trial.82 Appx. 917–22.
82 Mack Arnold and Sid Crowley have no files regarding Marshall’s trial. Arnold suffered a stroke several years ago, and his files were destroyed. Crowley kept no separate file even during the trial.
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Mitigation specialist Gina Vitale was retained on January 24, 2004, eight full
months after Arnold’s appointment. 1 CR 19–20. Aside from an initial phone call
lasting 0.08 hours, however, Vitale had no further formal contact with trial counsel
in connection with her efforts to explore Marshall’s background. Appx. 917–22; Supp.
Appx. 585. While she met occasionally and informally with Arnold, she had no contact
with Crowley. Supp. Appx. 585. Further, while much of the mitigation evidence that
counsel presented was discovered by Vitale during trial, neither Arnold nor Crowley
met with her after trial began. Id. Arnold did sometimes invite her to meet him at a
bar after court was recessed for the day. Id.
By May 2004, one year from Arnold’s appointment, just three witnesses had
been contacted by the defense team, and no records had been reviewed. Appx. 917–
22. In the remaining five months prior to trial, only three further witnesses were
interviewed. Id. Two were witnesses who took the initiative to contact the defense
team themselves. One was Marshall’s paternal aunt Nitia Marshall; even though she
reached out to them, the defense team never interviewed her in person. Supp. Appx.
539. The other was Debra Williams, a close friend of Marshall’s biological mother,
Johni, who contacted Marshall’s defense team and offered to testify on his behalf. Id.
at 519. She was told she could not testify and was not contacted further. Id. Mitigation specialist Vitale identified another 69 potential witnesses. Id. at 871–76. Yet, by the
Notably, however, both filed vouchers with Harris County requesting payment in the maximum amount without submitting supporting documentation such as detailed time sheets. Appx. 602–03.
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eve of trial, just one testifying background witness, DFPS aide Myrna Chambers, had been approached. Appx. 917–22; Supp. Appx. 585–86.
Following the jury’s verdict that very morning, sentencing proceedings began on November 9, 2004. 1 CR 385. Marshall’s biological mother, Johni Marshall, was interviewed by the defense for the first and only time on November 8, 2004, and testified on November 11, 2004. 21 RR 154. Marshall’s paternal uncle, Willie
Marshall, was interviewed at the courthouse immediately prior to his testimony on
November 11, 2004. Supp. Appx. 578–79, 585–86. Trial counsel did not contact
Marshall’s younger sister, Guinevere Marshall, until the evening prior to her testimony, at which time they threatened to “subpoena [her] ass.” Id. at 532–33. The attorney did not explain to Guinevere that his purpose was to ascertain whether she could testify in support of her brother as a life history witness. Id. at 533. According to Guinevere, trial counsel sounded intoxicated on the phone. Id. at 532–33. Trial counsel further spoke to Gerald Marshall Sr. at the courthouse, after which Marshall
Sr. left, foreclosing the possibility of him testifying. 21 RR 183.
Despite having received 1,100 pages of DFPS records, the defense team dedicated just six hours to record review. Appx. 917–22. No further records were requested until defense psychologist Dr. Petzold asked that trial counsel attempt to obtain further institutional records. Dr. Petzold was eventually provided with just two additional pages of school transcripts. Supp. Appx. 473. Nothing indicates that trial counsel sought to obtain Marshall’s birth records, complete school and college
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records, medical and mental health records, criminal history and juvenile records, or any records relating to Marshall’s siblings, parents, and family.
Trial counsel made no attempt to digest nor explain the voluminous DFPS records concerning Marshall before introducing them into evidence and asking the jury to “do whatever” with them. 23 RR 43. Yet, these records included detailed information about Marshall from ages 6 to 18, including thorough notes from DFPS investigations of allegations of emotional and physical abuse; notes from multiple
DFPS home visits establishing that Johni Marshall suffered from severe substance addiction, was unable to care for her children, and eventually abandoned her children; a thorough record of a DFPS investigation of physical and sexual abuse perpetrated by Gerald Marshall Sr. and prompting authorities to remove Marshall and his sister from his care; and notes documenting escalating conflict within various foster placements. These records further included detailed notes from DFPS-mandated therapy, exposing the significant emotional toll imposed on Marshall by his mother’s abandonment. Finally, they identified foster parents and siblings, CPS case workers who followed Marshall’s progression through the foster care system, and several family members who sought to remain involved with Marshall’s life even after he was removed from his biological parents’ care. As trial counsel laconically observed in closing argument, “That’s a lot of record.” 23 RR 43.
Neither Arnold nor Crowley ever met with testifying witnesses Johni Marshall,
Willie Marshall, and Myrna Chambers. Supp. Appx. 586. Nor did they direct or even engage with Ms. Vitale’s limited investigation into Marshall’s background. Id. at 585;
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Appx. 917–22. Trial counsel’s failure to properly investigate Marshall’s background is nowhere more obvious than from their closing argument: “I can go through these
DFPS records and I can find a page here and a page there and paint a picture of the most horrible circumstances in the whole world; or I can pick a page there and a page there and I can make it sound like this is the happiest little guy in the world.” 23 RR
43.
Although Vitale identified sixty-nine potential mitigation witnesses, she interviewed just five of them, and only three testified. Supp. Appx. 871–76. Other than a threatening phone call to Marshall’s older sister, Guinevere, and a heated conversation with Gerald Sr., trial counsel themselves did not reach out to, nor interview any witnesses. Id. at 532–33, 586.
Although Marshall’s older sister, Julia, was present at trial, neither Crowley nor Arnold sought to interview her. 21 RR 188; Supp. Appx. 615. Yet, the DFPS records in their possession clearly showed that Marshall and Julia were returned to their father’s care together, that they were removed from his custody following verified reports that Gerald Sr. sexually abused Julia, and that they were then placed with Zelma Brooks where Marshall remained until age 18. Julia was present in the courtroom and willing to testify, even reaching out to a close family friend to ask her to testify in support of her brother. Supp. Appx. 519, 615.
Marshall’s older brother, Damond Porter, was jailed in Harris County on drug- related charges at the time of trial, and therefore easy to locate and interview. Supp.
Appx. 514. However, he was not contacted as part of the mitigation investigations.
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While trial counsel did reach out to Marshall’s younger sister Guinevere, either
Arnold or Crowley threatened to subpoena her and did not explain that she would be testifying as a mitigation witness in support of her brother. Id. at 532–33. Having been given only one day’s notice, Guinevere was unable to secure transportation to testify. Id. DFPS records similarly revealed that Damond and Guinevere had been raised by Johni, alongside Marshall and Julia, until all four siblings were removed from their mother’s custody and placed in separate foster homes.
Marshall’s first cousin, William Porter III, lived in Houston and was also present in the courtroom during trial. Supp. Appx. 571. Trial counsel briefly spoke to
William outside the courtroom on about four occasions. Id. at 571–72. Although
William told trial counsel that he had spent time with Marshall in the year and a half prior to his arrest, trial counsel did not ask further questions. Id. Marshall’s paternal aunt, Patsy Porter, was also living in Houston and would have been willing to testify, however she was not approached by anybody from the defense team. Id. at 620.
Likewise, Marshall’s maternal aunt, Brenda Reece, and paternal aunt, Sheryl
Marshall, were not interviewed even though their names appeared in the DFPS records. Both would have been willing to testify. Id. at 466, 561.
Debra Williams, a close friend of Johni, was also available and willing to testify, and she reached out to trial counsel at Julia’s request. Supp. Appx. 519. However,
Debra was told she could not testify as a character witness. Id. Additionally, both
Marshall’s long-term girlfriend, Tamara Woods, and close family friend, Ella Faye
Davis, testified for the State and clearly knew Marshall well. However, neither was
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approached by trial counsel before trial. Id. at 524, 621–22. Finally, even though
Marshall was in the foster care system from ages 6 to 18, none of the foster parents nor foster siblings identified in the DFPS records were contacted as potential witnesses.
In addition, the following life-history witnesses were never contacted by trial counsel, but have since passed away:
• Marshall’s paternal grandmother, Vera Marshall Price (died 2005) • Marshall’s foster mother, Zelma Brooks • Julia Marshall’s foster mother, Sandra Jackson (died 2012) • Marshall’s maternal uncle, Elmore Porter (died 2013) • Marshall’s DFPS/grade school counselor, Shirley Moore (died 2014) • Marshall’s foster sibling, Ebony Coleman • Marshall’s foster mother, Hazel Hughes • Marshall’s therapist at Yoakum, Shirley Moore (died 2014) • Marshall’s babysitter, who watched Marshall and his siblings when Johni left her children, Emma Winfrey
3. Trial counsel failed to timely retain or prepare defense expert Dr. Carmen Petzold.
On September 30, 2004, just ten days before trial, Marshall’s counsel retained
Dr. Carmen Petzold to assess Marshall’s psychological functioning. 1 CR 296; 22 RR
45. Dr. Petzold was only hired at the suggestion of mitigation specialist Gina Vitale, who knew of her expertise in reviewing and analyzing DFPS records. Supp. Appx.
586. While Dr. Petzold would have required at least eight hours to adequately inform trial counsel of her findings and prepare her testimony, Arnold did not meet with Dr.
Petzold until November 10, 2004, the day before she testified. Id. at 470–71. Crowley had no contact with Dr. Petzold at all. Id.
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While clinical interviews are key to the assessment of an individual’s psychological functioning, Dr. Petzold’s appointment to Marshall’s defense team on the eve of trial prohibited an in-depth interview. Supp. Appx. 473–74. Dr. Petzold was able to meet with Marshall just twice, as trial was ongoing, and for only three hours each time. Id. at 473–74, 476. In Dr. Petzold’s own words, this compressed schedule denied her the time necessary to build rapport with Marshall, which in turn hindered him from disclosing the full extent of the trauma and abuse he suffered as a child; nor did she have the time to familiarize herself with essential background information before interviewing Marshall. Id. at 473, 478. The significant constraints imposed by counsel’s delay in retaining Dr. Petzold further prohibited any referral for evaluation by a neurologist, neuropsychologist, and psychiatrist, despite
Marshall’s exhibiting signs of severe mental illness. Id. at 473–74, 476.
Although Dr. Petzold requested that trial counsel provide her with records relevant to Marshall’s psychological functioning, including institutional records, trial counsel provided only (1) Marshall’s DFPS records, (2) a three-page memo and four- page timeline prepared by their mitigation specialist Vitale, and (3) notes from the limited witness interviews Vitale had conducted. Supp. Appx. 473. Upon further request by Dr. Petzold, trial counsel gave her just two pages of school records. Id. at
472–73; 22 RR 73–74. While over forty hours would have been necessary to review the DFPS records alone, Dr. Petzold’s appointment as jury selection began severely limited her ability to review what few records trial counsel did provide. Supp. Appx.
471–72, 476–77. Counsel’s failure to timely seek Dr. Petzold’s appointment denied
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her the time necessary to review Marshall’s voluminous DFPS records in full and
forced her to rely on inadequate summaries instead. Id. at 473, 476.
To reach a reliable and complete diagnosis, Dr. Petzold required the following:
a. background on family composition structure and interaction; b. statements from life history witnesses; c. background information about parents, siblings and marital partners; d. forms of discipline by caregivers; e. educational records, including school disciplinary records and health records, in addition to school transcripts; f. job performance reviews; g. history of alcohol and drug abuse by family members and the individual; h. history of suicidal ideations or attempts by family members and the individual; i. psychiatric hospitalizations for family members and the individual; j. episodes of rage in the family and by the individual; k. criminal activity in the family or legal problems for the individual; l. a history of counseling or therapy for family members and the individual; m. problems with alcohol and drug abuse by family members and the individual; n. medical history or illness of the individual and immediate family; o. problematic or traumatic events in the individual's life; and p. details and circumstances related to the crime, such as any recorded or written witness statements, incident report, offense reports, and the indictment.
Supp. Appx. 472–73. However, trial counsel did not—and could not—provide Dr.
Petzold with this information because trial counsel failed to investigate any of these avenues. Significantly, Dr. Petzold was not made aware of either Johni or Gerald
Marshall Sr.’s histories of mental illness. Id. at 477.
Deprived of much of the information related to, and any context within which to evaluate, Marshall’s traumatic background, Dr. Petzold concluded that Marshall suffered from “significant emotional disturbance” related to his then-present legal circumstances, but he was otherwise “emotionally stable, mature, a socially precise
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individual who had been fairly well adjusted.” 22 RR 50–51. She also concluded that
Marshall suffered from an anxiety disorder not otherwise specified. 22 RR 56; Supp.
Appx. 478–79. However, Dr. Petzold further testified that she “couldn’t rule out the possibility that this is the beginning of a paranoid schizophrenia mental illness.” 22
RR 52.
Nevertheless, Dr. Petzold attempted to inform trial counsel of significant mitigation themes she was able to glean from the limited time she spent with
Marshall and the few records trial counsel provided her. Supp. Appx. 474–76.
Specifically, Dr. Petzold identified that Marshall’s mother was likely abusing drugs during pregnancy and was then serving time for the manufacture of crack cocaine; that Marshall and his younger sister were beaten daily by their father; that
Marshall’s only childhood memory was of nearly drowning as a child when his mother left him; and that he reported that his most traumatic experience was being removed from his mother’s care. Id. Dr. Petzold even highlighted in bold in her report that
“current psychological testing results are consistent with those often-observed in individuals who were victims of childhood abuse.” Id. at 512 (emphasis in original). Dr. Petzold further identified a number of stressors that were weighing on
Marshall in the weeks immediately before his arrest, including the loss of his car and job, escalating substance abuse, trouble with his long-term girlfriend whose children he was helping to raise, and his sister’s likely eviction from her home soon after delivering her child. Id. Regardless, trial counsel did not investigate any of the themes or circumstances identified by Dr. Petzold.
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Trial counsel’s failure to meet with Dr. Petzold other than immediately prior to her testimony further prevented her from fully communicating her findings from the witness stand. Supp. Appx. 470–71. For instance, although her report made no mention of sociopathy, trial counsel focused Dr. Petzold’s testimony on this line of questioning for no apparent reason, to Marshall’s detriment. Id. at 478–79; 22 RR 60.
Likewise, trial counsel did not prepare Dr. Petzold for any questions on the issue of future dangerousness. Supp. Appx. 480. When cross-examined about whether
Marshall represented a future danger, Dr. Petzold could only reply she was “not certain I have all of the information.” 22 RR 102; Supp. Appx. 480. Further, she was not made aware of a number of recent incidents allegedly involving Marshall, leading her to testify that Marshall had lied. Supp. Appx. 479; 22 RR 89. However, these incidents were known to defense counsel. 1 CR 249–52.
4. Trial counsel failed to prepare testifying lay witnesses.
Defense counsel called seven witnesses during punishment: Officer Robert
Musick, who had testified earlier in punishment for the State; Mark Cadena, an inmate from the Harris County Jail who was the alleged victim of an assault by
Marshall; Kenny Calliham, Marshall’s co-defendant who testified for the State at guilt-innocence; Carmen Petzold, the defense’s mental health expert; and three lay witnesses: Marshall’s mother Johni Marshall, his paternal uncle Willie Marshall, and
Myrna Chambers, the DFPS aide who transported Marshall between foster homes and visitations. Trial counsel did not meet with any of these three life history witnesses prior to their testimony, examining them from Vitale’s notes. Supp. Appx.
579, 586.
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Willie Marshall, Marshall’s paternal uncle, was first contacted by the defense
team on November 11, 2004, the same day he took the stand. Supp. Appx. 578–79.
Willie had been present in the courtroom throughout trial. Id. He was approached by
Vitale for the first time at the courthouse and interviewed in a waiting room by the
courtroom. Id. Trial counsel did not take part in the interview, nor inform Willie that
he would be testifying in the afternoon as a mitigation witness. Id. at 579. Instead,
trial counsel relied entirely upon the notes taken by Vitale during her single
conversation with Willie earlier in the day, which she handed to counsel for the first
time as Willie took the stand. Id. On direct examination, counsel did not explain to
Willie why he was called to testify, nor why counsel was repeating the questions
Vitale had asked shortly before. Id.
Willie Marshall testified that his brother and Marshall’s father, Gerald Sr., did
not have a drinking problem nor struggle with substance abuse. 21 RR 178. When
confronted by trial counsel with contradictory statements made to Vitale, Willie
Marshall replied that he really didn’t know what had happened to his brother. Id. at
180. The remainder of Willie Marshall’s testimony focused on Johni Marshall, her
addiction, and his sister having to take over Marshall and Julia’s care from their father. 21 RR 84–86.
Similarly, Johni Marshall was not interviewed until two days prior to her testimony and was not contacted by trial counsel. Appx. 917–22; Supp. Appx. 586. At
the time, Ms. Marshall was incarcerated in Harris County Jail. 21 RR 170. Ms.
Marshall testified that she did not suffer from addiction while Marshall was in her
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care, 21 RR 158; that they had a “beautiful home-life,” 21 RR 162; that she visited him weekly after DFPS removed him and that he was placed in one foster home only, id. at 160, 167; and that Gerald Sr. was not physically abusive, id. at 162. Finally,
Ms. Marshall told the jury that she had been present in her children’s lives. Id. at
167. Trial counsel did not challenge Johni’s testimony, aside from indicating that
Marshall had in fact been placed in more than one foster home. 21 RR 167.
DFPS case aide Myrna Chambers was interviewed once by Vitale in April 2004 but was not contacted by trial counsel. Appx. 917–22; Supp. Appx. 586. Chambers testified that she transported Marshall between DFPS-mandated appointments once a week. 22 RR 21–22. Chambers described Marshall as “pretty much okay” and testified that she was not aware that Marshall was having problems in foster care.
Id. at 25, 27. On cross, Ms. Chambers confirmed that she had not been involved in
Marshall’s life past the age of 12 and that the only issue she perceived in his placement was that Marshall’s foster mother did not let him participate in extracurricular activities. Id. at 30.
Despite clearly contradictory evidence from the DFPS records and contrary information from defense psychologist Dr. Petzold, trial counsel did not challenge
Willie Marshall’s or Johni Marshall’s testimony, setting the prosecution up to gloss over the traumatic experiences of violence, abuse, and deprivation Marshall suffered throughout his childhood. By failing to interview and prepare these testifying witnesses, trial counsel failed to elicit critical and accurate information about
Marshall’s background, and failed to discover Myrna Chambers’ very limited
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involvement in Marshall’s life. Worse, as discussed below, the jury heard a distorted story of Marshall’s life that did not in any way reflect his true experiences.
5. Trial counsel failed to investigate numerous “red flags” signaling the need for further investigation.
In short, Mack Arnold and Sid Crowley “abandoned their investigation of
[Marshall’s] background after having acquired only rudimentary knowledge of his history from a narrow set of sources.” Wiggins, 539 U.S. at 524–25.
Despite billing the maximum amount permissible for a capital case, neither
Arnold nor Crowley submitted a detailed voucher. Appx. 602–03. Crowley failed even to create a file in the case. Still, trial counsel’s closing statement that Marshall’s
DFPS records could be read to depict “the happiest little guy in the world” betrays their profoundly deficient mitigation investigation. 23 RR 43. The DFPS records detailed progressively urgent interventions following reports that the Marshall children did not have access to electricity, were begging for food, and had been abandoned by Johni.
Additionally, the DFPS records included references to DFPS-mandated therapy to help Marshall confront his mother’s abandonment. These records documented Johni’s addiction, failure to meet any of the requirements to be reunited with her children, and multiple missed office visits with her children that left
Marshall and Julia in tears.
These records would be considered a red flag of significant childhood trauma by any competent capital defense attorney. Yet Arnold and Crowley undertook no investigations into Marshall’s time in foster care, allowing Marshall’s childhood to
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effectively fall through the cracks at trial and ensuring that relevant mitigation evidence would not reach the jury.
Likewise, Dr. Petzold identified a number of potential mitigation themes that counsel should have explored. Supp. Appx. 474–75. Potential themes identified by Dr.
Petzold included, inter alia, Johni’s addiction to crack cocaine; that Johni may have been surviving on welfare or disability; that Marshall had no memories of his childhood but one traumatic memory of nearly drowning; that Marshall and Julia were beaten by their father; that Marshall’s most traumatic experience was of being separated from his mother; and that Marshall had been afflicted by a number of stressors shortly prior to the offense. Id.; 22 RR 57–58. These were included in her report dated November 8, 2004, which she provided to trial counsel. Supp. Appx. 509;
22 RR 57–58. Dr. Petzold further flagged in her report that “The greater question regarding this individual’s functioning is the impact of both his prenatal and early childhood experiences of abuse.” Supp. Appx. 513. However, again, trial counsel took no steps to investigate these crucial mitigation themes; nor could they have effectively done so, having retained Dr. Petzold only days before the penalty phase began.
B. There is a reasonable probability that, had trial counsel conducted an adequate mitigation investigation commensurate with then-prevailing norms in capital cases, Marshall would have received a life sentence.
Had counsel meaningfully investigated Marshall’s background, they would have discovered information that at least one juror would have relied upon to answer the mitigation special issue in Marshall’s favor. Strickland, 466 U.S. at 696.
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Since his early childhood, Gerald dreamed of belonging to a loving family; instead, he was abandoned by his father just weeks after his birth, placed in protective custody from his mother before age 6, again placed in protective custody from his father at age 11, and separated from his beloved sister Julia from ages 12 to
18. Throughout those years, Gerald clung to the promise of being reunited with his mother and siblings. Unfortunately, Johni was never able to get clean and Gerald remained in foster care from age 6 to 8, and again from 11 to 18. While in his father’s care, ages 8 to 11, Gerald witnessed and was himself the victim of Gerald Sr.’s uncontrollable temper and violence. While in his longest term placement with Zelma
Brooks, where Gerald remained until the age of 18, he was beaten, humiliated, and deprived of food. Notwithstanding this abuse, Gerald graduated from high school at age 18 and enrolled in college. After ageing out of foster care, he attempted to reunite with his mother and siblings but was thrown out after confronting his mother about her indifference towards Gerald’s little sister, Guinevere.
It was then that Gerald spiraled downward into addiction and deteriorating mental health, reflecting his own parents’ known addiction and psychiatric diagnoses.
Despite attempting to create a family with long-term girlfriend Tamara Woods, her six children, and their own unborn child, Gerald gravitated towards Bo Worthy and drugs. Just one year and ten months after leaving the State’s care, Gerald was arrested and charged with capital murder.
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Gerald (left), sister Julia (right), and mother Johni (center) during a DFPS supervised visit.
1. Before and at the time of Gerald’s birth, Gerald Sr. and Johni fought violently, abused alcohol and drugs, and beat their children.
Gerald Marshall Jr. was born on July 11, 1982, in the military town of Fort
Hood, Texas. Supp. Appx. 684. Gerald Sr. was serving as a soldier in the U.S. Army
while Johni stayed at home with her young children, newborn Gerald and siblings
Damond and Julia. Damond was born in 1976,83 and Julia and Gerald just nineteen
months apart. Johni, who had struggled with alcohol and drug addiction since her
early teens, continued to abuse drugs throughout her pregnancy with Gerald.84 Id. at
540, 573, 611. She did not receive any prenatal care until her fifth month of pregnancy
with Gerald, and had just two prenatal visits thereafter. Id. at 684.
83 Gerald Sr. is not Damond’s biological father.
84 Julia Marshall, born on December 10, 1980, just nineteen months prior to Gerald, had to be flown to a specialized hospital at birth to pump drugs from her system. Supp. Appx. 611.
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On July 23, 1982, just twelve days after Gerald’s birth, Gerald Sr. was
honorably discharged from the Army. GM Sr. Supp. Appx. 854. He thereafter never
reported any formal employment. GM Sr. Id. at 854–66. He continued to appeal the
denial of his disability claim before the Veterans’ Administration for over twenty
years, alleging frost bite, a head injury, and other injuries resulting from service.85
Id.
Johni and Gerald Sr.’s relationship was volatile and violent. They fought so often and so violently that Damond’s earliest childhood memory is of his mother and
Gerald Sr. fighting. Supp. Appx. 515. Gerald Sr. hit Johni as if she were his equal in
strength, hurling his wife down the stairs or striking blows with a car jack. Id. at 467,
515. The physical violence was so extreme that it was like watching animals fight. Id.
at 467.
Gerald and his younger brother and sister were not spared. The children often
hid from Gerald Sr. Supp. Appx. 515. Damond recalled being instructed by a neighbor
to hurry and hide from Gerald Sr., as she put her body between him and the bathroom
door behind which the children huddled. Id. Gerald Sr. beat the neighbor unconscious, then broke down the bathroom door. Id. Young cousins stopped visiting the family for fear of Gerald Sr.’s rage. Id. at 516.
Amidst the chaos, violence, and Gerald Sr.’s unemployment, Gerald and his siblings went without clothing, electricity, and food. Supp. Appx. 515. Damond, the
85 In September 2017, the VA recognized Gerald Sr. as suffering from major depressive disorder, with anxious disorder reported as lower back pain, resulting in 100% disability. Supp. Appx. 858.
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eldest, often called their maternal aunt Patsy to ask for these necessities. Id. at 618.
Likewise, their paternal aunt Sheryl donated clothing, delivered groceries, and purchased toys at Christmas. Id. at 562–63. Her husband, Willie, had even trained
Damond to call when the children were without food. Id. at 573. Patsy and her husband continued to help the children until they realized that Johni was selling their donations to support her addiction to crack cocaine. Id. at 618.
Soon after Gerald’s birth and Gerald Sr.’s discharge from service, Gerald Sr. left one evening and never returned, abandoning Johni and their young children.
Supp. Appx. 519. Thinking that her husband might still be out with friends, Johni reached out to close friend Debra Williams. Id. However, by late the following morning, Johni realized that Gerald Sr. had left. Id. Debra discovered Johni distraught and the children left to their own devices. Id. In an attempt to look after his months-old brother, Damond had filled Gerald’s baby bottle with Dr. Pepper. Id.
Realizing that Johni was not able to care for her very young children, Debra took
Johni and the children in. Id.
Gerald Sr. briefly returned to the family home to announce that he was leaving
Johni because it was important to him to look his best and she could not help him with that. Supp. Appx. 520. He was thereafter very minimally involved in the children’s lives, visiting only when Johni asked him to discipline them. In April 1983,
DFPS responded to allegations of physical violence to Damond by Gerald Sr. Id. at 2–
3. Gerald Sr. confirmed that he had spanked him with a switch after Johni reported
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to him that Damond had misbehaved. Id. at 2. Gerald Sr. and Johni eventually
divorced in 1985.86 Id. at 5.
2. After being abandoned by his father, Gerald was not cared for by his mother.
Soon after Gerald Sr. abandoned the family, Johni’s sister Brenda took them
into her home in Corpus Christi. Supp. Appx. 467. With no resources with which to
support herself and her children, Johni could not provide food or shelter. Id. As her
addiction took an ever stronger hold, she left her children with Brenda for days on
end to guess whether she would return. Id. Despite her extremely precarious
circumstances, Johni eventually returned to Houston with her children. Id. at 520.
There, she moved her family into a storage unit in a friend’s yard. Id. With no running
water or electricity, Johni relied on an extension cord running from the storage unit
to the friend’s home to power a hot pot with which to heat up food. Id. at 520–21.
Soon after returning to Houston, Johni met Billy Hubbert. Supp. Appx. 515.
As with Gerald Sr., their relationship was marred by violence and addiction. Id. at
515–16. The couple fought often over drugs, and Johni resorted to prostitution to
sustain their addiction. Id. at 515, 521. Just as with their father, Gerald and his
siblings were frequently the target of Billy’s beatings. Id. at 534. In August 1989,
86 Johni reported that her and Gerald Sr. separated in 1982. Supp. Appx. 2. Gerald’s younger sister, Guinevere, was born on December 12, 1984. Gerald Sr. denies paternity of Guinevere.
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Julia, aged 9, and Guinevere, aged 5, reported to DFPS that Billy had sexually abused
them.87 Id. at 54, 62, 535.
Johni’s severe and lifelong addiction to crack cocaine was widely known to friends, family, and her children. Supp. Appx. 467, 516, 522, 540, 524, 611, 617. As the eldest of his siblings, Damond understood that his mother had resorted to
prostitution to support her addiction. Id. at 515. Other times, Johni asked Gerald and
his siblings to beg for money, traded the family’s food stamps, or sold donated clothing
intended for the children. Id. at 618. She also suggested that Gerald and his brother
accept money in exchange for sitting on the lap of a man known in the neighborhood
to be a pedophile. Id. at 521.
Johni sometimes offered Damond 25 cents to search out and retrieve rocks of
crack cocaine from around the apartment. Supp. Appx. 516. With what little money
the family had going to Johni and Billy’s addiction, Gerald and his siblings went
without basic necessities and, as noted above, family members ceased donating food
and clothing after realizing that Johni was selling the donations to support her
addiction.88 Id. at 516, 522, 534, 612, 618. Julia recalls being so hungry during this
time that she tore a picture of a burger from a magazine and ate it. Id. at 612. Gerald
87 Allegations of sexual abuse by Billy were extensively investigated by DFPS. Supp. Appx. 55–64. Although Billy had previously accompanied Johni on some office visits, DFPS prohibited Billy from having any further contact with Julia and Guinevere. Id. at 56. 88 They could not provide for the children—Damond would call his aunt, Brenda, and asked them to bring food and clothing. Supp. Appx. 618.
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and his siblings found occasional reprieve by begging for a meal from neighbors. Id. at 1, 612.
In addition to struggling with addiction, Johni received a diagnosis of bipolar disorder and schizophrenia. Supp. Appx. 466–67, 617. Even as a very young child,
Guinevere realized that her mother was profoundly mentally unwell. Id. at 536–37.
Johni’s addiction, combined with her serious diagnoses, impacted her ability to care for her children. She struggled to cope with basic tasks, for example, insisting on changing Gerald’s diaper outside in the cold because she could not stand the smell of his dirty diaper. Id. at 521.
It was apparent that Johni could not—and did not want to—care for Gerald and his siblings. Supp. Appx. 618. She beat her children and disciplined them excessively harshly. After noticing that Damond was tugging at the collar of his shirt, she cut it off and made him eat it. Id. at 516. Once, angry that the children had made more juice mix than they could drink, Johni and Billy made them drink the remainder until their stomachs hurt. Id. at 534. After Julia threw up from the juice, she was made to lick her vomit from the floor as her siblings watched. Id.
Johni did not bond with Gerald. Supp. Appx. 520. She never played with him, and Gerald later did not know how to interact with other children. Id. Gerald never cried, even when he was being physically punished. Id. at 519.
3. Just shy of his sixth birthday, Gerald was placed in protective custody after being abandoned by his mother.
In the span of ten months, from September 1988 to July 1989, DFPS recorded four allegations of child abuse and neglect by Johni. Supp. Appx. 1. In July 1989,
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DFPS established that Johni had abandoned her children. Id. at 25–27. Just before the age of 6, Gerald was removed from his mother’s custody and, along with Julia, placed in foster care. Gerald would remain a ward of the State of Texas until he aged out at 18.
First, in September 1987 DFPS launched an investigation following a report that Julia had bruising under her eye and welts on her arms. Supp. Appx. 1. Upon further investigation, DFPS discovered multiple red welts across her back. Julia explained that she had been whipped with an extension cord for not reciting the alphabet and for using profane language. Id. at 6. Damond was also brought in to determine whether a recent scar to his head and keloid scars on his back and buttocks resulted from physical abuse. Id. Both Julia and Damond denied that overdiscipline was an issue. 89 Id. During a follow-up home visit by DFPS, Johni admitted to disciplining Julia with a belt but reported that she generally disciplined her children only by grounding them. Id. DFPS concluded that Johni must have lost control and that she lacked the parenting skills to manage her children’s behavior. Id. at 9.
Despite further reporting from a school nurse that the children were not attending school, DFPS closed its investigation. Id. at 9–10.
Second, in February 1988, DFPS investigated allegations that Johni was selling her food stamps and other items to purchase drugs, and that the children had been begging neighbors for food. Supp. Appx. 1. In an interview with DFPS, Johni
89 Damond lied to DFPS to protect his mother. Supp. Appx. 516.
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denied that the children went without food, denied abusing drugs, and denied using benefits to support any alleged addiction. Id. at 12. Johni insisted that, despite her very limited income, she made sure her children had clean and adequate clothes. Id.
She conceded that she sometimes smoked marijuana, but never in the presence of
Gerald and his siblings. Id. When interviewed separately, Damond denied begging for food and reported that he and his siblings were happy living with their mother.
Id. at 13.
Third, in March 1988, DFPS received renewed reports that the school had filed truancy charges against Johni and that Gerald and his siblings had been left alone and without food. Supp. Appx. 1. Upon arriving at Johni’s home, DFPS noted that several window panes were broken and the apartment appeared to be very messy.
DFPS noted two trash containers, one containing little more than potato chip bags and the other cans of coke and beer. Id. at 16. The leasing manager expressed relief at DFPS’s intervention and confirmed reports of the children begging for food from neighbors. Id. The apartment complex staff further confirmed Johni was abusing drugs, and had been selling her furniture, deceased mother’s clothing, and food stamps to support her addiction. Id. They described the children as appearing dirty and dressed like clowns. Id. Management staff agreed to allow DFPS into Johni’s apartment to determine whether Gerald and his siblings had been left alone but would not enter due to the smell. Id. at 17.
DFPS immediately reached out to the three oldest siblings’ school and confirmed that they had failed to attend school for the month of March. Supp. Appx.
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17. A school nurse further reported that the children required counseling, noting that
Gerald was hyperactive, but Johni refused to cooperate. Id. Upon an inspection of the home, DFPS concluded that the children were not safe there. Id. DFPS established that the home was without electricity, that there were no beds for the children, and there was no food in the home. Id. at 18. As DFPS was documenting the home, Gerald
Sr. arrived, indicated that he had been prevented from having any contact with his children by Billy, and suggested Johni may have taken the children to her father’s.
Id. at 19.
Following up on the lead provided by Gerald Sr., DFPS was eventually able to reach Johni. Still, Johni refused to disclose where she and the children were living, to provide any contact information, and to attend an office visit with her children.
Supp. Appx. 20. Johni eventually agreed to visit DFPS offices, however she forbade
DFPS from interviewing or inspecting Gerald and his siblings. Id. at 23. During a scheduled home visit, DFPS was met by a man who introduced himself as an out-of- town relative who had temporarily moved in to help Johni while she attended trade school. Id. at 24. DFPS, however, noted that the man was likely Johni’s boyfriend pretending to be a relative. Id. The apartment was rated as adequate, despite still having no electricity. Id. In April, DFPS validated allegations of educational and physical neglect. Id.
Finally, in July 1989, allegations of abandonment were referred to DFPS as a
Priority I case. Supp. Appx. 25. Within the hour, DFPS visited Johni’s apartment and immediately observed extensive loop marks and bruises over Julia’s back, buttocks,
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and legs, loop marks over Damond’s shoulders, and insect bites across Gerald.90 Id.
After leaving her children with a neighbor, Johni had failed to return.91 Upon being
interviewed, Gerald and his siblings denied having been abandoned but admitted
that the home was without food and electricity, and that they were beaten. Id. at 27.
Paternal uncle Willie was present at the time the children were removed after being called by Damond. Id. at 581. The first thing Willie noticed about the apartment was the smell of urine and feces covering everything in the apartment where Gerald and his siblings had been living. Id. Dirty pots and dishes were infested with flies, maggots, and larvae. Id. Willie could see and smell the dirt on Gerald and his siblings.
Id. Johni remained unreachable. On July 5, 1988, just shy of his sixth birthday,
Gerald was removed from his mother’s custody and placed in protective custody.92 Id.
at 25, 41–44.
On July 8, 1988, Johni returned home to discover her children had been
removed. Supp. Appx. 31. Despite strongly protesting that she had not abandoned her children, she admitted to whipping Julia and Damond with an extension cord. Id.
Johni continued to deny using public assistance funds to buy drugs. Id. at 32.
Nevertheless, DFPS refused to return Gerald, Julia, and Damond to Johni and
90 The neighbor reported that Gerald’s younger sister, Guinevere, was with Johni. Supp. Appx. 25.
91 Johni returned briefly on July 4, 1988. Supp. Appx. 25. However, Gerald and his siblings did not want to go with her. Id.
92 DFPS records reflect that DFPS took possession, as opposed to custody, of Gerald, Julia, and Damond in the event that their mother returned the following day. Supp. Appx. 25. All four siblings were soon thereafter placed in protective custody and Harris County appointed as managing conservator. Id. at 41–44.
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instructed her to deliver custody of Guinevere. Id. On July 11, 1989, the children
briefly reunited with their mother during a supervised office visit. Id. at 33. Gerald
and his siblings clustered around Johni, repeated that they loved her, and continued
to cry after she left. Id.
Photos of five-year-old Gerald taken by DFPS following reports of physical abuse and neglect
Throughout the remainder of 1988 and until July 1989, Johni was permitted
regular contact with her children. Supp. Appx. 37–46. DFPS continued to inform
Johni of the steps required for her to regain custody. Id. at 37–46, 80. Despite
cancelled visits by Johni, Gerald and his siblings continued to look forward to seeing their mother and frequently asked when they would be permitted to return home with her. Id. at 37–46. Johni, however, was arrested in August 1989 for probation violations and her whereabouts remained unknown for the next several months.93
93 Johni eventually contacted DFPS again by phone in November 1990. Supp. Appx. 80.
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Still, Gerald and his siblings told their foster mother they would be returning home
to Johni soon. Id. at 60. By March 1990, they had not seen their mother in eight
months. While discussing their circumstances with DFPS, Gerald and his siblings
told their caseworker that they “have not lost hope.”94 Id. at 65.
4. At age 11, Gerald was placed in protective custody after his father physically abused him.
All four siblings remained in foster placement with Hazel Hughes throughout
1989 but growing conflict prompted DFPS to seek alternative placements. Supp. Appx.
66. In June 1990, Gerald, age 7, and Damond were separated from Julia and
Guinevere and rehoused. Id. at 67. Soon after, Julia was not permitted to return home
from summer camp by the siblings’ former foster mother. Id. at 68. With Johni’s
whereabouts unknown, the siblings separated, and with Julia in limbo, DFPS turned
in earnest to placing the children with relatives.95
Gerald Sr. had been seeking to obtain custody of Gerald and Julia since July
1988, but refused to attend DFPS-mandated counseling. Supp. Appx. 40, 46. In early
July 1990, DFPS broached with Gerald the possibility of being reunited with his father and he appeared enthusiastic. Id. at 72. An initial visit shortly thereafter proved successful. Id. at 73. Gerald Sr. nevertheless declined to pursue any further
94 In 1990, Gerald and his siblings were referred by DFPS to therapy to “deal with issues related to being physically abused and neglected by their mother.” Supp. Appx. 403. As they continued to “grieve the loss of their mother,” their therapist reported that Gerald appeared to be coping well. Id. at 402– 04. DFPS only referred children from the most severe cases of abuse and neglect. Id. at 558.
95 Damond and Guinevere were quickly placed with an aunt in Indiana, where both siblings remained for the next several years. Supp. Appx. 14–15, 534.
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office visits with his children, despite continuing to seek custody of Gerald and Julia.
Id. In the meantime, Gerald remained in foster care and in school, where he made
Honor Roll for six weeks and was rewarded for high achievement. Id. at 83.
Despite Gerald Sr. declining any further visits with his children, in November
1990, DFPS ordered a home study of Gerald Sr. and his long-term partner, Fannnie
Dobbins. Supp. Appx. 26–27. While reporting no adverse factors prohibiting custody of Gerald by Gerald Sr., both DFPS caseworkers recorded “misgivings concerning the placement because of Marshall’s seeming volatile tense attitude about him.” Id. at 26.
Gerald Sr. was awarded custody of Gerald and Julia on January 17, 1991.
Gerald Sr. was widely known to family and acquaintances as a violent alcoholic.
Supp. Appx. 520, 540, 562, 582. Even neighbors called him “crazy” and knew to avoid him. Id. at 520, 540, 618. Gerald Sr. often appeared mentally unstable and was described as manic and irrationally paranoid. Id. at 540–41, 562. Willie Marshall recalled that his brother’s paranoia was easily triggered and he relied on a cocktail of alcohol, marijuana, and psychiatric medications. Id. at 582. Gerald Sr.’s paranoia often escalated into physical violence directed towards his children. Id. at 540.
Gerald Sr. often spoke of his car washing business, even inviting friends and relatives to bring their cars; Gerald Sr., however, never owned a carwash. Supp. Appx.
562. Over Thanksgiving weekend 1984, Gerald Sr.’s drug abuse escalated to the point that he was not able to recognize his own grandfather, a pastor, and offered him drugs.
Id. at 541. Shortly thereafter, Gerald Sr.’s paranoia prompted him to leave work midday, walk home despite having driven to work, and climb a tree to see into his
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bedroom with Johni. Id. Convinced that Johni was cheating on him and that he would
catch her in the act, Gerald Sr. refused to climb down. Id. Concerned family called
the police and Gerald Sr. was placed in a psychiatric hold. Id. He refused, however,
to continue any form of therapy, whether hospital-recommended or DFPS-mandated.
Id. at 46, 541.
Knowing that her brother was a violent alcoholic and drug addict and fearing
for Gerald and Julia’s well-being, Nitia Marshall reached out to Gerald Sr. soon after
he was granted custody and took in Gerald and Julia.96 Supp. Appx. 541–42. Gerald
and Julia’s trauma was obvious to Nitia. Id. at 542. She observed Gerald and Julia
hide food for fear they would starve and pack clothing to take to school in case their
belongings disappeared while they were gone. Id. Nitia was determined to make
Gerald and his sister feel safe, holding family meetings to discuss the children’s fears
and instituting a routine to provide a sense of security. Id. This was the first time
that Gerald and his sister had experienced stability and routine. Id.
Nitia resolved to continue caring for Gerald and Julia, and suggested moving
into a larger home. Supp. Appx. 542. However, Gerald Sr. soon thereafter erupted
back into Gerald and Julia’s lives, violently removing them from their aunt’s care,
and returning them to his own violent environment. Id. Still unemployed, Gerald Sr.
boasted about receiving larger social security checks for having custody of his children.
Id. at 543.
96 An informal trustee agreement drawn up on August 5, 1993, provided that Nitia and her husband would be caregivers to Gerald and Julia. Supp. Appx. 90–91.
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On January 12, 1994, DFPS received a report that Gerald Sr. was physically
abusing Julia. Supp. Appx. 86. Having previously investigated in 1993, DFPS
immediately launched an investigation that confirmed that Gerald Sr. was beating
Julia. Id. DFPS would further discover in July 1994 that Gerald Sr. was grooming
Julia for sexual abuse. Id. at 182. Also interviewed by DFPS, Gerald reported that
his father had spanked him with a water hose and had punched him in the chest so
hard that he had the wind knocked out of him. Id. at 90. Concerned for his sister,
Gerald was quick to add that his father did not bother him as much, although he was
afraid of him.97 Id. DFPS determined that Gerald was at “serious” risk, or 3 on a scale
of 4, of physical abuse. Id. at 99. Gerald and his sister were immediately placed in protective custody, just as they had been in 1989. Id. at 74.
5. From ages 12 to 18, Gerald was physically and emotionally abused by his foster mother.
As he had been four years prior, Gerald was placed under the managing
conservatorship of Harris County and returned to the foster care system on January
13, 1994. Supp. Appx. 107–15. Gerald and Julia were immediately placed with Zelma
Brooks. Id. at 118. Although Gerald is reported to have appeared relieved to be leaving his father’s care, and was outwardly happy, DFPS records reflect concern that
97 While admitting to disciplining Julia, Gerald Sr. pretended not to know about these incidents involving Gerald. When asked by DFPS to describe his relationship with his son, Gerald Sr. reported that it was very good. Supp. Appx. 95. Julia recalled that, just as he had with their mother Johni, Gerald Sr. beat Gerald as if he were a grown man. Id. at 613. Gerald Sr. knocked Gerald unconscious several times. Id.
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he had not come to terms with his mother’s abandonment.98 Id. at 119–20. Regardless,
Gerald continued to seem more concerned for Julia; DFPS noted he was trying to steer her in the right direction. Id. at 140. In the course of a DFPS-mandated assessment, a therapist noted that “Gerald does appear to be very concerned about his sister.” Id.
Just a week later, in March 1994, Johni contacted DFPS and demanded that she be permitted to visit her children. Supp. Appx. 136. Just as they were coming to terms with being returned to foster care, and over three years after their mother ceased all visitation, Gerald and Julia were reunited with Johni. Id. at 137. DFPS immediately began to plan for their full-time return to their mother’s custody. Id. at
142. However, over the next six years and until Gerald aged out of care, Johni struggled to meet DFPS-set requirements and goals. Gerald and his sister could not be, and never were, returned to their mother.
In October 1994, just ten months after escaping their father, Gerald and Julia were separated when Zelma suddenly refused to continue fostering Julia. Supp. Appx.
180. Although Gerald made clear to DFPS that he wanted to be with his sister, Julia was eventually placed in a separate foster home. Id. at 183. Gerald would remain separated from his sister from ages 12 to 18.
98 Following his removal from his father’s custody, Gerald was again referred to Yoakum. Supp. Appx. 401. Gerald reported that “his father had not whipped him like he had Julia.” Id. The therapist concluded that “[w]hile he is not content to be living in foster care, and wants to live with his mother, he is not angry or sad to the extent that Julia appears to be.” Id. at 402.
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Gerald and Julia in 1994 [DFPS File]
Although his placement in Zelma’s home was initially intended to be temporary, Gerald remained there, separated from his siblings, for six years. There,
Gerald endured physical and emotional abuse and was exposed to sexual abuse.
Although DFPS recorded multiple reports of sexual abuse, children being locked out, and their foster parent belittling them, Zelma was permitted to continue fostering
Gerald, in addition to siblings from another family (Gregory, Angel, and Ebony
Coleman). See Supp. Appx. 182, 203–04, 210–12. Gregory Coleman recalled that
Zelma deprived the children of food, rationing them to ketchup or butter sandwiches only. Id. at 528. All five children were kept locked in a bedroom, rarely permitted to play outside, and never allowed to watch television. Id. at 528, 608. The only time the children were allowed around the home was to perform their chores for Zelma. Id. at
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528. Angel Coleman remained locked in the back bedroom for such long periods that she pulled her hair out from the stress. Id. at 608.
Zelma’s adult twin sons sexually abused the children she fostered. Supp. Appx.
529. They would pick out one of the children from the bedroom and remove them to their own bedroom where the sexual assaults occurred. Id. Ebony Coleman was especially targeted and died from complications of AIDS at age 34. Id. One of Zelma’s sons was HIV positive at the time of the sexual assaults. Id. at 529, 608. It appeared that Zelma was aware of the sexual abuse perpetrated by her sons on the foster children but took no steps to prevent it.
Zelma herself was extremely emotionally and physically abusive. She lied to the children about their biological parents visiting, later telling them that their parents had not shown up because of the children’s bad behavior. Supp. Appx. 528.
She threatened to separate her charges from their siblings if they reported the abuse to DFPS or school officials. Id. at 527–28. She knew Gerald and Julia desperately wanted to remain together and used this to control Gerald. Id. at 527. Zelma beat
Gerald with a cowboy belt, removing him for hours or days at a time from the locked bedroom he shared with his foster siblings. Id. at 529. Once, Gerald was gone for so long that his foster siblings believed he might have been sent to another room. Id.
After years of positive reports by foster parents and DFPS concerning Gerald’s progress in school, by April 1995, Gerald was described as very bored, interested in nothing, and rarely going outside. Supp. Appx. 207. By 1996, Gerald was reported as not doing well at all, skipping school, and refusing to answer questions from his DFPS
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case worker. In May of 1996, DFPS again investigated Zelma following allegations of abuse and reported that she was providing the foster children with minimal care. Id. at 243–44. In particular, the report noted that Gerald appeared to have nothing in his room. Id.
In April 1996, Gerald was again referred to Yoakum for therapy, with the objective of supporting Gerald in “establish[ing] realistic expectations about their future with their mother.” Supp. Appx. 406. Therapeutic objectives further included
“to appropriately place blame for mother’s drug problem without assuming undue responsibility for their condition on himself and/or Julia.” Id. Initially recommended for six months, counseling continued through to July 1997. Id. at 413.
By 1997, Gerald was failing ROTC and Zelma continued to complain of his supposed acting out. See Supp. Appx. 303. Although Gerald continued to regularly call his sister Julia, Zelma said it had to stop and forbade further contact. Id. at 303,
351. She continued to complain about Gerald throughout 1998 and 1999. DFPS explored the possibility of removing Gerald but concluded that he should continue at
Zelma’s, where he had been since age 12. Id. at 369–70; 377–78. Gerald remained at
Zelma’s until he was released from the State’s care on July 11, 2000, his eighteenth birthday.
6. Upon ageing out of foster care, Gerald obtained employment, enrolled in college, and reunited his mother and siblings.
While in foster care, Gerald had completed the DFPS Preparation for Adult
Living Program, obtained employment at Popeyes, and enrolled at Texas Southern
University. Supp. Appx. 386. It was obvious to his family that Gerald was determined
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to overcome a childhood marred by abandonment and abuse to make something of his life. Id. at 574. Without any support from his biological parents or foster family,
Gerald took steps towards securing his financial independence and educational future. Id. For some time after leaving foster care, Gerald was doing well. Id. at 618.
As he had waited for since being removed from his mother at age 6, Gerald committed to reuniting his mother and siblings under one roof. Supp. Appx. 516–17,
535, 619. Despite never having experienced the love and care of a supportive adult,
Gerald attempted to take on that role. Id. at 537. Gerald was especially concerned about Guinevere, who had recently returned to Houston and was pregnant at 16. Id. at 535–36. However, Johni’s erratic behavior again dashed any hopes of living as a family. When Gerald confronted her for failing to parent Guinevere, Johni threw
Gerald out. Id. Soon after, Johni abandoned Guinevere and Gerald and his siblings drifted apart.
7. Gerald never recovered.
After being thrown out by his mother, and having any hopes of living as a family dashed, Gerald changed. Supp. Appx. 536, 574–75. Gerald, who had once prided himself on his neat and clean appearance, appeared disheveled and dirty. Id. at 536. Gerald turned to drugs, his appearance deteriorated, and in spring semester
2001 he dropped out of TSU. Id. He soon thereafter fell in with a group, including co- defendant Worthy, known to commit crimes around the neighborhood. Id. at 574–75.
It seemed to those who knew Gerald’s deep desire to belong to a family that hanging out with this crowd was second best. Id. Worthy, who was much older than Gerald,
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seemed able to manipulate him and convince Gerald to do things he otherwise would not. Id. at 626.
Gerald’s drug use worsened after he met long-term girlfriend Tamara Woods.
Supp. Appx. 619. At the time, Tamara, who was ten years older than Gerald, was a single mother of six children. Id. at 624. Gerald immediately began looking for ways to support the young family. Id. He tried to help Tamara parent her children by helping them with homework, providing them with what he and his siblings had never had, and creating a sense of being a real family. Id. at 517, 619–20. Tamara recalled their movie nights, during which Gerald, Tamara, and her children would cook dinner, watch movies, and eat ice cream all together. Id. at 627–28.
As Gerald’s addiction worsened, he increasingly stayed away and the couple fought more frequently, sometimes about Worthy’s influence on Gerald, but especially about money. Supp. Appx. 624–26. Although Tamara testified that Gerald and she had had three arguments that led to police intervention, according to Tamara, there were mitigating circumstances to each of those incidents, with her often instigating the fights. Id. at 625. At the time of Gerald’s arrest, Tamara was several months pregnant with their first child.
8. Had this evidence been made available to trial defense expert Dr. Petzold and to a trauma expert, they would have concluded that Gerald suffers from longstanding adverse consequences related to significant childhood trauma.
With the benefit of the information available from DFPS records and willing witnesses, Dr. Petzold has now concluded that “there is a very significant likelihood that Marshall's paranoia is an indication of a likely mood disorder with psychotic
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features, such as schizoaffective disorder.” Supp. Appx. 481. Notably, evidence of both
of Gerald’s parents’ longstanding history of severe mental illness would have
permitted Dr. Petzold to establish a genetic link to the symptoms Gerald exhibited
and strengthened her diagnosis. Id. She further would have declined to opine as to
his future dangerousness, absent thorough neuropsychological and neurological
evaluations. Id.
Instead, Dr. Petzold would have concluded that “there is a significant amount
of new data supportive of Marshall having suffered long-term traumatic injury.” Supp.
Appx. 484. Evidence of experience of or exposure to emotional, physical, and sexual
abuse “would have left him feeling chronically as if his life was in danger, as well as
that the world was a dangerous place.” Id. at 485. This type of trauma is “the most
damaging and serious.” Id.
In short, “[e]ssentially what was missing at the time of Marshall's trial, was
the full breadth of the negative biological factors and severely abusive environmental
factors that shaped his psychology.” Supp. Appx. 482–83. An expert trauma
evaluation would have revealed that, as a child, Gerald experienced 9 out of 10
possible Childhood Adverse Experiences.99 Id. at 754. An ACE score of 4 is considered
high but an ACE score of 9 is considered extreme. Id. Such a high score placed Gerald at “extremely high risk of negative life outcomes.” Id.
99 The ACE study was available at the time of Marshall’s trial in 2004. Supp. Appx. 751.
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9. Had the jury heard this evidence, there is a reasonable probability that at least one juror would have answered the mitigation special issue in the affirmative, resulting in a life sentence.
Just one year and eleven months after ageing out of foster care, and just months after trying to reunite his mother and siblings, Gerald was arrested on capital murder charges.
By then, just as their mother had, Gerald and Damond had fallen prey to addiction. Supp. Appx. 515, 624–25. Even as a young child, Guinevere recognized the same mental health patterns in herself that she had observed in Johni. Id. at 536–
37. After being placed in the care of her aunt in Indiana, Guinevere was diagnosed as bipolar and spent a year in a psychiatric hospital. Id. Likewise, Julia struggles with crushingly low self-esteem from years of abuse and belittling. Id. at 524–25.
As a young child, Gerald had the saddest eyes and never cried, as if he had already been hardened by the violence he witnessed and endured. Supp. Appx. 520,
562. He himself described a positive home environment as one where there was food, although home is also where Gerald was punished by having his face rubbed into carpet, being locked in a closet, and being belittled. Id. at 754. Further expert evaluation of materials available at the time of trial would have confirmed that
“[f]rom birth to 18, Gerald had no access to any relationship or home structure that would allow for a healthy development.” Id.
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Gerald wanted nothing more than to belong to a family.100 Supp. Appx. 543,
573–74. Even as his mother failed year after year to get clean, as Gerald suffered,
separated from his beloved siblings and kept locked in a back bedroom of Zelma’s
house, he reported to DFPS that he “has the patience” to wait to be reunited with
Johni. As his hopes dampened, Gerald asked if he could go live with his aunt Nitia.
Id. at 90, 268. Nitia had offered to take custody of Gerald and Damond, as had other
maternal and paternal relatives throughout the years. See id. at 35, 467, 541–42. But
Johni always fought against her children being taken in by family and was jealous of
the relationships Gerald and his siblings developed with their aunts, uncles, and
foster families. Id. at 228, 468, 521, 617. She would not permit her children belonging
to a family that was not run by her. Yet, upon being reunited with her children after
Gerald aged out of care, Johni almost immediately kicked Gerald out. Id. at 535–36.
Amidst the chaos and violence of his biological parents’ and foster homes,
Gerald tried to protect his siblings. At the height of Gerald Sr.’s abuse, Gerald tried to shield Julia from their father’s blows or to make Gerald Sr. angry at him so that he would beat him instead of his sister. Supp. Appx. 614–15. Then, when Guinevere returned to Houston, pregnant and in trouble, Gerald confronted their mother over her indifference, and was thrown out. Gregory Coleman remembered that Gerald
“cared for me when he did not have to, and he did not ask for anything from me in
100 Despite his awareness of his mother’s violence towards him, Gerald reported to Dr. Petzold that the most traumatic experience of his life had been when he was removed from his mother’s care. Supp. Appx. 504.
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return.” Id. at 530. In Guinevere’s words, “[h]e tried to love, support and care for me, without ever having experienced that himself.” Id. at 537. To Julia, “Gerald is my protector and my heart.” Id. at 615.
Marshall’s jury was searching for this—more complete, more accurate—story to explain the tragic events of May 11, 2003. After one hour in deliberations, the jury foreman sent out a note requesting to see “Defense exhibit 9: DFPS file”. Even with incomplete and misleading mitigation evidence, Marshall’s jury wanted the truth and thought they could find it in the DFPS records. Unfortunately, not only had defense counsel simply submitted the DFPS file without relevant accompanying testimony to explain the significance of the evidence it contained, but the copy of the file that was submitted was missing every other page, rendering the records incomprehensible— even if the jury was willing to read through and interpret the voluminous record. In total, the jury deliberated for nearly 7.5 hours, including overnight sequestration, which is nearly twice the length of the defense’s entire mitigation presentation. 1 CR
385–88. With the benefit of the readily available evidence exposing Gerald’s humanity, there is a reasonable probability of a different result at the sentencing phase.
C. Marshall is entitled to federal habeas corpus review of, and relief on, his substantial ineffective-assistance-of-counsel claims because any applicable procedural default was caused by state habeas counsel’s deficient performance.
Any default of this claim can be excused by state habeas counsel’s failure to raise it. See Martinez v. Ryan, 566 U.S. 1, (2012). By this specific reference, Marshall incorporates all facts and arguments raised in Claim 4, § (D), supra. Because counsel
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in Marshall’s initial-review collateral proceeding was ineffective, this Court can
review and grant relief on Marshall’s substantial IATC claims. The preceding sections
demonstrate the substantiality of the underlying IATC claim.
Claim 6 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the cumulative effect of the ineffective assistance of his counsel and the State’s due process violations.
“The Constitution guarantees a fair trial through the Due Process Clauses . . .”
United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006). This guarantee “is, in
essence, the right to a fair opportunity to defend against the State’s accusations.”
Chambers v. Mississippi, 410 U.S. 284, 294 (1973). In service of the fundamental right
to a fair trial, the Constitution provides for specific safeguards such as the criminal
defendant’s Sixth Amendment right to be effectively represented and the Fifth and
Fourteenth Amendment prohibitions against the State’s withholding of evidence
favorable to the accused and presentation of false or misleading testimony to secure a conviction and favorable sentence.
Until recently, the Supreme Court has twice addressed the assessment of
prejudice under the Due Process Clause where there are multiple violations of a
criminal defendant’s constitutional rights in a single proceeding. See Taylor v.
Kentucky, 436 U.S. 478 (1978); Chambers v. Mississippi, 410 U.S. 284 (1973). Both
times, the Court considered the combined prejudicial impact from the various errors
to determine whether their “cumulative effect ... violated the due process guarantee
of fundamental fairness.” Taylor, 436 U.S. at 488; see also Chambers, 410 U.S. at
302–03; Wearry v. Cain, 136 S. Ct. at 1007 (addressing multiple allegations of
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prosecutorial misconduct, “the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively []”).
In Chambers, the trial court was found to have committed two errors. 410 U.S. at 295, 298. The Supreme Court declined to assess “whether [each] error alone would occasion reversal,” and instead accumulated their prejudicial effects to find a denial of due process: “We conclude that the exclusion of this critical evidence, coupled with the State’s refusal to permit [the defendant] to cross-examine [a key witness], denied him a trial in accord with traditional and fundamental standards of due process.” Id. at 302–03.
Similarly, in Taylor, the Court confronted a case with multiple allegations of constitutional error. 436 U.S. at 487–88. Rather than assess the prejudicial impact of each error individually, the Court aggregated them in its constitutional analysis.
Finding that one error “was not necessarily improper,” the Court found that the combination of the various errors “created a genuine danger that the jury would convict petitioner on the basis of [] extraneous considerations, rather than on the evidence introduced at trial.” Id. See also id. at n.14 (“We do not suggests that
[improper] prosecutorial comments, standing alone, would rise to the level of reversible error ... .”); id. at n.15 (noting that the Court concluded that the
“cumulative effect of the damaging circumstances of this case violated the due process guarantee of fundamental fairness”).
The Fifth Circuit, too, has adopted a cumulative error analysis. “The cumulative error doctrine recognizes that ‘an aggregate of non-reversible errors’ can
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result in ‘a denial of the constitutional right to a fair trial, which calls for reversal.”
United States v. Delgado, 631 F.3d 685, 710–11 (5th Cir. 2011) (reversing petitioner’s conviction based on a finding of cumulative error resulting from several harmless constitutional violations); see also id. at 710 (acknowledging the Court’s “obligation to assess the effect of trial errors in the context of the trial as a whole”); United States v. Riddle, 103 F.3d 423, 435 (5th Cir. 1997) (reversing for cumulative error in light of improper expert testimony, erroneous exclusion of extraneous evidence, and improper introduction of evidence); United States v. Labarbera, 581 F.3d 107, 110 (5th Cir.
1978) (reversing for cumulative error in light of improper cross-examination questions and improper prosecutorial statement); United States v. Diharce-Estrada,
526 F.3d 637, 642 (5th Cir. 1976) (reversing for cumulative error).
The Court has noted that the cumulative error doctrine requires reversal only in rare circumstances. See United States v. Villareal, 324 F.3d 319, 328 (5th Cir. 2003)
(“a reversal based on the cumulative effect of several alleged errors is a rarity”);
United States v. Reedy, 304 F.3d 358, 373 (5th Cir. 2002) (same). Nonetheless, the courts’ authority to reverse an unreliable judgment based on a finding of cumulative error is crucial to the due process guarantee of a fair trial, as it “serves as a judicial safety valve for trials so infected by unobjected-to or harmless error that the reviewing court lacks faith in the jury’s verdict.” United States v. Delgado, 631 F.3d at 723 (Clement, J., dissenting from the grant of relief based on cumulative error).
Other circuit courts have also applied the cumulative error doctrine to assess claims of prosecutorial misconduct and Strickland error. See Cargle v. Mullin, 317
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F.3d 1196, 1220–22 (10th Cir. 2003) (finding habeas relief was warranted on the basis
of cumulative error related to ineffective assistance of counsel and
associated/alternative Brady error and prosecutorial misconduct); Phillips v.
Woodford, 267 F.3d 966 (9th Cir. 2001) (remanding for cumulative prejudice analysis of Brady and Strickland errors); Gentry v. Sinclair, 576 F.Supp.2d 1130, 1171 (W.D.
Wash. 2008) (analyzing prejudice stemming from the Brady/Napue and ineffective assistance of counsel claims cumulatively).
In Cargle, the U.S. Court of Appeals discussed the application of a cumulative error analysis in the context of Brady and Strickland violations:
A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (quotation omitted) . . . . Consistent with the unqualified reference to all errors, our cases reflect application of cumulative-error review to legally diverse claims such as those here. . . .
There is a further point to be made, arising from the fact that the particular types of error considered here are governed in the first instance by substantive standards which already incorporate an assessment of prejudice with respect to the trial process as a whole: Strickland errors require us to assess whether there is a reasonable probability that counsel’s deficient performance affected the trial outcome; Brady errors require us to look for the same reasonable probability that the trial outcome was affected in order to assess the necessary “materiality” of withheld evidence; and claims of prosecutorial misconduct and admission of improper victim impact evidence require a showing of fundamental unfairness in order to provide habeas relief, unless they involve the violation of specific constitutional rights, in which case the principles governing such rights control. These substantive prejudice components essentially duplicate the function of harmless-error review. Thus, such claims should be included in the cumulative-error calculus if they have been individually denied for insufficient prejudice. Indeed, to deny cumulative-error consideration of claims unless they have first satisfied their individual substantive
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standards for actionable prejudice “would render the cumulative error inquiry meaningless, since it [would] . . . be predicated only upon individual error already requiring reversal.
Cargle, 317 F.3d at 1206–07 (citations and footnotes omitted).
In the present case, each of the Napue/Messiah/Miller, Brady, and Strickland
errors in Marshall’s case, standing alone, was sufficiently prejudicial to warrant
habeas relief. When considered together, the cumulative impact of the egregious
errors set forth in the petition undermined all reasonable confidence in the outcome
of Marshall’s trial and sentencing. When viewed as a whole, the violations of
Marshall’s rights in this case demonstrate that his trial was incurably infected by
false and misleading evidence, errors that must be laid at the hands of both the
government and defense counsel. Regardless of the sources of these violations, the
result is that his due process guarantee of a fair trial was violated, and reversal is
mandated.
Claim 7 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment Rights were violated by the trial court’s admission of his second statement into evidence because he did not validly waive his right to remain silent.
A. Marshall’s right to remain silent was violated.
On October 29, 2004, the trial court conducted a hearing on the Defendant’s
Motion to Suppress Evidence. CR 189, 240, 243, 341; 13 RR 6–65. Officer McDaniel
testified at the hearing that he arrested Marshall on May 13, 2003, based on a Class
C misdemeanor arrest warrant for issuing bad checks. 13 RR 15–16. The ensuing
interview by HPD was videotaped and Marshall was read his Miranda warnings
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before the interview began. Id. at 18. This initial interview ended with Marshall’s
invocation of his right to terminate. Appx. 157−58.
Officer Scales testified about a second in-custody interview with Marshall
conducted on May 14, 2003. 13 RR 25. Marshall’s girlfriend had contacted Scales on
Marshall’s behalf to request a follow-up meeting. Id. at 26. Officer Scales audio recorded the second interview. Id. After reading Marshall his rights, Marshall said
“no, sir” when asked whether he voluntarily waived his right to remain silent. Id. at
31–32. Despite Marshall’s invocation of his right to remain silent, Scales continued
the interview, though he acknowledged that Marshall had the right to change his
mind about talking to him at any point. Id. at 32–33.
Scales testified that he and Marshall likely had an unrecorded conversation
on the way to the interview room, 13 RR 29, but he could not recall the conversation
he had with Marshall before turning the tape on. Id. at 33. He could only recall that
there was an unrecorded conversation with Marshall. Id. at 59–60. He denied
stopping the tape after Marshall refused to waive his rights in order to promise
Marshall that he would be charged only with aggravated robbery if he confessed his
role in the offense that resulted in Dean’s murder. Id. at 57.
Marshall testified that he asked Tamra Woods to arrange the meeting with
Scales on May 14, 2003 based on her relating that Scales would only charge him with
aggravated robbery if he confessed. 13 RR 35. Marshall explained that Scales read
him his rights and he understood what was read to him. Id. at 45. He testified that
he told Officer Scales that he did not wish to voluntarily waive his rights, but after
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Scales told him that he had to say “yes,” Marshall went along with what he
understood to be Scales’s instruction. Id. at 55–56. The trial court denied Marshall’s
Motion to Suppress. 1 CR 189, 240, 243, 341.
The trial court allowed Marshall’s statement into evidence in violation of
clearly established Supreme Court precedent. Miranda v. Arizona, 348 U.S. 436
(1966). The Fifth Amendment to the United States Constitution provides that the
accused shall not be “compelled in any criminal case to be a witness against himself.”
Here, the trial court abused its discretion and violated Marshall’s Fifth, Sixth, Eighth
and Fourteenth Amendment rights by admitting Marshall’s involuntary statement
into evidence against him.
All questioning must stop when an in-custody defendant unambiguously
invokes his right to remain silent. Miranda, 384 U.S. at 473–74; Davis v. United
States, 512 U.S. 452, 459 (1994). A law enforcement agent is required to cease questioning of a suspect when the suspect’s invocation of his right to remain silent is unambiguous. Any statement obtained subsequent to the invocation of the right to remain silent is inadmissible in court against that defendant. Michigan v. Mosley,
423 U.S. 96 (1975). Marshall unambiguously invoked this right to remain silent when he responded “no, sir” to Officer Scales’ question whether he would voluntarily waive his rights. Moreover, he had unambiguously invoked his right to remain silent at the end of questioning the previous day, which investigating officers acknowledged and respected. Supp. Appx. 653−54.
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The burden is on the State to prove the voluntariness of a confession once the
accused has claimed his confession was involuntary. See North Carolina v. Butler,
441 U.S. 369, 374–75 (1979). Marshall informed Officer Scales that he did not wish
to waive his right to remain silent when he said “no, sir” after being asked “do you
voluntarily waive your rights and agree to talk to us again?” 13 RR 32; Supp. Appx.
656. As soon as Marshall told Officer Scales that he wished to invoke his Miranda
rights, Scales had a duty to cease the interrogation, regardless of whether Marshall’s
girlfriend initially requested the meeting on his behalf. Instead, Scales responded,
“OK, yeah, so you said no, but you didn’t understand the question. So I’ll restate it
one more time.” Id. He then asked the question again, followed with the statement,
“You have to say yes.” Id. at 657.
The right to remain silent must be scrupulously honored, and the failure to
honor this right shall result in the trial court suppressing the resulting confession.
Mosley, 423 U.S. at 104 (whether a statement obtained “after the person in custody
has decided to remain silent” may be admitted against that defendant in court
“depends under Miranda on whether his ‘right to cut off questioning’ was
‘scrupulously honored.’”) (quoting Miranda, 384 U.S. at 478–79). The Miranda Court
concluded that without proper safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains inherently compelling pressures,
which work to undermine the individual’s will to resist and to compel him to speak
where he would not otherwise do so freely. In order to combat these pressures and to
permit a full opportunity to exercise the privilege against self-incrimination, the
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accused must be adequately apprised of his rights, and the exercise of those rights must be fully honored.
To determine whether a subsequent statement was made under scrupulous conditions, the court must consider the totality of the circumstances, including the amount of time that has passed since the invocation of the right and whether the
Miranda warnings were repeated. Id. at 104–06. “To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.” Id. at 102.
Officer Scales testified at the suppression hearing before Marshall’s trial that
Marshall’s invocation of his right to remain silent was invalid because Marshall had asked his girlfriend Woods to contact Scales. 13 RR 32. This statement was a legally insufficient attempt to justify Scales’s behavior. Marshall firmly and clearly stated that his decision was to assert his right to remain silent immediately after being told his Miranda warnings, and only one day after having asserted his right to terminate questioning about the same offense. Id.; cf. Mosley, 423 U.S. at 104–05 (among the facts rendering the resumption of questioning after an invocation constitutional was the fact that the second round of questioning related to “a crime different in nature and in time and place of occurrence”). There was no significant passage of time before the questioning was re-initiated, either after the first interview or after the invocation at the second interview. Both Officer Scales and Marshall testified that Marshall had unequivocally invoked his right to remain silent. 13 RR 32, 46. Marshall testified that
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he did waived his right when asked a second time because he believed Scales had instructed him to do so, indicating he was influenced by the “compulsion inherent in custodial surroundings.” Miranda, 384 U.S. at 457–48. Scales’s only explanation was that he believed Marshall had been confused when he asserted his rights, though that explanation was disputed by Marshall himself.
The Supreme Court’s
decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty. The Due Process Clause does not mandate that the police forgo all questioning, or that they be given carte blanche to extract what they can from a suspect. “The ultimate test remains that which has been the only clearly established test in Anglo- American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self- determination critically impaired, the use of his confession offends due process.” Culombe v. Connecticut, [367 U.S. 568,] 602 [(1961)].
Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973).
The trial court erred when it denied the motion to suppress by denying
Marshall his protected rights as set forth in Miranda, to remain silent and terminate any further interrogation. The Miranda Court described the Fifth Amendment right to remain silent as “fundamental to our system of constitutional rule,” recognizing that “the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators.” Id. at 469. By allowing Marshall’s statement into evidence, the trial court ignored the Supreme Court’s mandate to “assure that the individual’s right to
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choose between silence and speech remains unfettered throughout the interrogation process.” Id.
B. 28 U.S.C. § 2254(d) does not preclude relitigation.
Section 2254(d) does not pose a barrier to the granting of relief on this claim.
Marshall presented this claim to the Court of Criminal Appeals (CCA) on direct appeal. The CCA denied the claim on the merits, but its decision resulted from both an unreasonable application of clearly established Supreme Court precedent and “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.
§ 2254(d)(1) & (2).
First, the CCA did not consider Marshall’s testimony from the suppression hearing. Marshall testified that before and after he asserted his right to remain silent,
Officer Scales instructed him, off tape, that in order to receive a reduced charge he must give a statement. 13 RR 37–38, 40, 42–43, 46–48. In addition, after Officer
Scales asked Marshall a second time whether he waived his right to remain silent, the tape reflects Officer Scales telling Marshall, “[s]o, I want to ask you one more time to clear it up. Do you voluntarily, on your own free will, agree to waive your rights and talk to us? You have to say yes.” Id. at 58 (emphasis added). The CCA ignored this evidence entirely when adjudicating this claim.
Second, the CCA’s finding that there was an ambiguity in Marshall’s statement, “no, sir,” given in response to the question whether he waived his right to silence, is unreasonable. There is nothing ambiguous in the statement, “no, sir,” and Marshall did not say anything more than those two words that could have rendered the statement ambiguous. It is a clear, assertive statement. Furthermore,
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from the context of the two interrogations on May 13 and 14, it is abundantly clear
Marshall clearly understood what it meant to refuse to waive his right to silence,
because he had waived his right during his prior interview, and then re-asserted it
during that questioning, resulting in the termination of his first interview. Officer
Scales had no basis to believe Marshall was confused or had suddenly forgotten the
consequences of asserting his rights.
Third, Marshall did not himself re-initiate his interviews with HPD, and thus did not give Officer Scales reason to doubt the veracity of his invocation during this second interview. His girlfriend, Tamara Woods, called Officer Scales and told him that Marshall wanted to speak with him. There was no firsthand explanation from
Marshall that he wanted to re-initiate, or why. Accordingly, when Officer Scales
ignored Marshall’s invocation and continued to press him on waiver, he had never
previously been told by Marshall that he wished to re-initiate his interviews.
Fourth, it was unreasonable for the CCA to find that, if Marshall was found to have unambiguously invoked his right to silence, Officer Scales did not continue to question him about the offense. Marshall, 210 S.W.3d at 628. The CCA opinion misapplies federal constitutional law by asserting that continuing to press an arrestee to waive his rights is an intervening event that makes future questioning, after the defendant’s will has been overborne and he has been convinced to change
his mind, constitutionally firm. This is both an unreasonable determination of the
facts and contrary to clearly established Supreme Court precedent. See, e.g., Charles
v. Smith, 894 F.2d 718 (5th Cir. 1990) (where the same officer questioned defendant
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about the same crime just a few minutes after the defendant invoked his right to silence, Miranda, as interpreted by the Supreme Court in Mosley, was violated).
Finally, the CCA’s opinion is an unreasonable application of clearly established law as determined by the U.S. Supreme Court, because it asserts the rule that “federal constitutional law does not prohibit the police from clarifying whether an arrestee wishes to waive his rights under circumstances like those here.” Marshall,
210 S.W.3d at 628. In Mosley, the Supreme Court held that interrogating police officers had “scrupulously honored” the defendant’s invocation of his right to remain silent, despite renewing questioning at a later time, because the police immediately honored the defendant’s invocation and only resumed questioning after hours had passed. Even then, police questioned the suspect regarding a separate offense. Mosley,
423 U.S. at 104–05. Application of Mosley to the set of circumstances here, where there was no pause in the questioning, where Marshall was not re-Mirandized, where he had successfully invoked his right to terminate questioning the day prior, and where he was questioned about the same offense each time, is unreasonable.
Moreover, the fact that Officer Scales pressed Marshall on his unwillingness to waive his right to remain silent before continuing questioning does not render the subsequent statements admissible. As the Supreme Court held in Davis, clarification of a defendant’s invocation is only permissible when the invocation is ambiguous. 512
U.S. at 459. Marshall’s statement that he did not waive his right to remain silent was unambiguous.
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Claim 8 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the trial court’s admission of his second statement into evidence because the statement was made in response to a false promise by Officer Scales.
A. Marshall’s rights were violated by Officer Scales.
The following facts are a continuation of the facts stated in the preceding claim.
Marshall testified at his pre-trial suppression hearing that, while on the elevator to the room where his second interview took place, Officer Scales promised him that he would only be charged with aggravated robbery and would be allowed a phone call to his girlfriend, if he would give Scales a confession to his role in the robbery. 13 RR 37.
Marshall further testified that after he knowingly refused to waive his rights, the tape recorder was turned off and Officer Scales admonished him that he had to agree to speak with him and admit his role in the robbery in order to receive the aggravated robbery plea deal. Id. at 46. Marshall explained that he only gave his second statement because of Officer Scales’s promise that he would only be charged with aggravated robbery. Id. at 48. Officer Scales testified that he did not stop the tape after Marshall refused to waive his rights and he did not promise Marshall that he would be charged with aggravated robbery. Id. at 57. Officer Scales recalled that he did have an unrecorded conversation with Marshall; however, he could never remember the nature of the conversation or exactly what was discussed. 13 RR 59–
60.
A defendant’s Fifth Amendment right to remain silent is violated when law enforcement elicits a statement based on false promises. Lynumn v. Illinois, 372 U.S.
528, 534 (1963). “[T]he question in each case is whether the defendant’s will was
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overborne at the time he confessed.” Id. (citing Chambers v. Florida, 309 U.S. 227
(1940); Watts v. Indiana, 338 U.S. 49, 52, 53 (1949); Leyra v. Denno, 347 U.S. 556,
558 (1954)). To be admissible in court against an accused, a confession must be voluntary and must not be obtained by any direct or implied promises, however slight.
Bram v. United States, 168 U.S. 532, 542–43 (1897); see also TEX. CODE CRIM. PROC. art. 38.21 (“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion.”). The error arising from an improper admission of the defendant’s statement is subject to harmless error analysis under Chapman v. California, 386 US
18 (1967). See Arizona v. Fulminante, 499 U.S. 279 (1991).
The promise Officer Scales made to Marshall was false because Officer Scales had no authority to make a promise regarding charging decisions made by the district attorney’s office; and it coerced Marshall into giving an involuntary statement that the trial court should have held inadmissible, but that was instead presented to the jury to convict and sentence him to death. Marshall testified that he would not have agreed to speak with police one day after invoking his right to remain silent if he had not learned from his girlfriend, Tamara Woods, that Officer Scales would promise a reduced charge in exchange for his testimony. He further testified that Officer Scales himself made this promise directly while they were speaking off-tape in the interview room on May 14, 2003. The trial court erred by allowing Marshall’s statement into evidence because it was the result of a false inducement made by Officer Scales.
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The question to be confronted in each case is whether the will of the accused was overborne, resulting in the inadmissible confession. Lynumn, 372 U.S. at 534.
Marshall’s confession was not “free and voluntary,” because Officers Scales’ promise of leniency overbore his stated will to remain silent. Marshall was facing a capital murder charge and, both before and after invoking his right to remain silent, he was made a compelling offer to escape the possibility of death in exchange for his confession. 13 RR 38. The promise to reduce a charge that held the possibility of death was undeniably an offer capable of overbearing his will, rendering his statement inadmissible.
The false promise used to obtain Marshall’s confession is clearly offensive to a civilized system of justice and offends the Due Process Clause of the Fifth and
Fourteenth Amendments. The trial court’s error in admitting Marshall’s involuntary statement into evidence was not harmless because there is a reasonable probability that, absent the introduction of Marshall’s coerced and involuntary statement, the result of his trial and sentencing would have been different.
B. 28 U.S.C. § 2254(d) does not preclude relitigation.
28 U.S.C. § 2254(d) poses no barrier to this Court granting relief on this claim.
This claim was raised in Marshall’s appellate brief and denied by the CCA with a single finding: “The record supports a finding that Scales did not promise appellant that he would be charged only with aggravated robbery.” Marshall, 210 S.W.3d at
628. The CCA’s finding in this regard is an unreasonable determination of the facts in light of the evidence presented to it. 28 U.S.C. § 2254(d)(2). Officer Scales admitted that he did not recall the content of his conversations with Marshall but testified that
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he assumed he would not have promised him leniency in order to secure his confession.
Marshall, on the other hand, recalled specifically the context of his decision to speak with Officer Scales, and the decision depended entirely on his understanding that he would be charged with the lesser offense of aggravated robbery in exchange for his truthful statement that, while he was involved in the planning and carrying out of the robbery, he was not involved in the shooting of Dean. Marshall’s recollection is supported by the fact that he had terminated his prior interview only the day before, demonstrating a clear desire to invoke his right to remain silent as long as he was facing capital murder charges. It is unreasonable to discount his testimony, which reasonably accounts for his change of heart, when the officer involved did not contest his version of the events. The CCA’s opinion reflects an unreasonable determination of the facts and unreasonably applies established Supreme Court precedent governing the inadmissibility of involuntary statements. See Lynumn v. Illinois, 372
U.S. 528, 534 (1963).
Claim 9 Marshall’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel’s failure to move to suppress Marshall’s statements on the ground that his arrest was illegal.
A. Trial counsel were ineffective when they failed to move to suppressed Marshall’s statements on the basis that his arrest was illegal.
Marshall’s illegal arrest and subsequent statements to police were taken in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S.
Constitution and the Texas Code of Criminal Procedure. Trial counsel failed to challenge the admission of Marshall’s statements at trial, resulting in prejudice at both the guilt and penalty phases of his trial.
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Tamara Woods, Marshall’s girlfriend at the time of the offense, led police to his sister Julia Marshall’s home on May 13, 2003. 13 RR 15. At that time, HPD officers had in hand a warrant to arrest Marshall for the Class C misdemeanor of writing bad checks, but no warrant related to the instant case. Id. at 16; CR 341. When no one answered Ms. Marshall’s door, police broke the door down, making forcible entry. 15
RR 44–45. Marshall was then taken into custody at approximately 9:00 a.m. 13 RR
15–16.
Police testified that Marshall was placed in a police car, advised of his Miranda rights, and taken to the HPD homicide division where his initial interview took place.
The time that the interview was initiated is not recorded, but it terminated at 11:10 a.m., only two hours and ten minutes after Marshall was arrested. 13 RR 17; Supp.
Appx. 658. Marshall cooperated with officers and gave a recorded statement during which he denied any involvement in the Whataburger robbery attempt. 13 RR 19–21.
He then invoked his right to terminate the interview, and the questioning ceased.
Supp. Appx. 653−54. On the next day, May 14, 2003, while Marshall was held in custody, Officer Scales testified that he was contacted by Woods who said that
Marshall wished to talk to him. 13 RR 25–26. Marshall had previously been advised by Woods that Officer Scales had promised that if Marshall confessed to his role in the offense, he would be charged only with aggravated robbery. Id. at 35–36. Officer
Scales subsequently took a second statement from Marshall. Id. at 26. In that statement, Marshall admitted his involvement in the planning and carrying out of the robbery, and he implicated Greg Love, Kenny Calliham and Ronald Worthy as
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his co-conspirators; however, he denied having entered the Whataburger and having shot anyone and told Officer Scales that Worthy was the shooter. 16 RR 43–44; 25 RR
97.
Trial counsel filed a motion to suppress Marshall’s statements and a hearing was held on October 29, 2004. Trial counsel did not raise the issue of HPD’s forced entry into Julia Marshall’s apartment as part of its suppression case.101 The trial court denied Marshall’s motion to suppress. CR 243. The court issued written findings of fact and conclusions of law, in which it found Marshall was arrested pursuant to a valid warrant, was advised of his rights, agreed to talk to investigating officers, later contacted officer to give a second statement through his girlfriend, was again advised of his rights, and again gave a recorded statement. 1 CR 341–42. The court also made the following conclusions of law:
1) HPD officers lawfully placed Marshall in custody on May 13, 2003, on an outstanding warrant for issuance of a bad check;
2) Marshall gave both statements freely and voluntarily;
3) The recorded statements were taken by HPD Officers McDaniel and Scales, respectively, in accordance with Article 38.22 of the Texas Code of Criminal Procedure; and
4) The taking of these statements did not violate Marshall’s Fifth, Sixth and Fourteenth Amendment rights.
CR 342.
101 The fact of the forced entry was first developed during the guilt phase of Marshall’s trial. 15 RR 46–47.
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Although it was determined during the suppression hearing that Marshall was arrested under the authority of a Class C misdemeanor warrant, HPD’s unlawful forced entry into Ms. Marshall’s apartment was never addressed. 13 RR 16.
Under Texas law at the time of Marshall’s arrest, a law enforcement officer had authority to “break down the door of any house for purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose,” but only in the case of felony arrests. TEX. CODE CRIM. PROC. art. 15.25. There was no such authority for forcible entry in furtherance of making arrests on misdemeanor warrants. Furthermore, Marshall’s misdemeanor warrant was for a non-violent offense—writing bad checks. Marshall’s arrest was, therefore, illegal.
Article 28.23 of the Texas Code of Criminal Procedure provides that no evidence may be admitted against a criminal defendant at trial if it was obtained in violation of any provisions of the Constitution or laws of the United States or the laws or Constitution of Texas. The terms of Article 38.23(a) are mandatory. Mendoza v.
State, 88 S.W.3d 236 (Tex. Crim. App. 2002). Evidence obtained in violation of the law must be excluded from jury consideration in criminal cases on request of the defendant. The judge should withhold such evidence from the jury altogether when it is inadmissible purely as a matter of law. Atkinson v. State, 923 S.W.2d 21 (Tex. Crim.
App. 1996).
Use of a statement resulting from an illegal arrest offends the Fourth
Amendment guarantee against unreasonable search and seizure, and for that reason, a mere showing that a statement was voluntarily given under the terms of the Fifth
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Amendment will not remove the taint of the unlawful arrest. Brown v. Illinois, 422
U.S. 590, 601 (1975); Bell v. State, 724 S.W.2d 780, 787 (Tex. Crim. App. 1986). In determining whether the illegal arrest was sufficiently attenuated from the confession to permit its use against the defendant at trial, the Supreme Court has identified the following factors:
1) Whether Miranda warnings were given;
2) The temporal proximity of the arrest and the confession;
3) The presence of intervening circumstances; and
4) The purpose and flagrancy of the official conduct.
Brown, 422 U.S. at 601.
In the instant case, police testified that Marshall was given his Miranda warnings before each statement. Marshall asserted his right to terminate the first interview. He testified at his suppression hearing that, before giving his second statement, he was told by officers that he would only be charged with aggravated robbery, and he related that he was physically intimidated by one of the officers, raising valid questions as to the legitimacy of his waiver before the second interview.
13 RR 41–43. The trial judge, as indicated in her findings of fact and conclusions of law, apparently found Marshall’s testimony not credible and that Marshall was properly advised of his rights. Nevertheless, the Supreme Court held in Brown that
Miranda warnings alone are insufficient to attenuate the taint of an illegal arrest.
Brown, 422 U.S. at 601.
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A finding of voluntariness of a confession is only a threshold requirement; the other three factors must be considered with no single factor being dispositive.
Furthermore, the burden is on the State to prove that the confession was not a product of the illegal arrest. Id. at 604.
In respect to the second Brown factor, temporal proximity of the arrest to the confession, in this case Marshall’s first statement was taken immediately after his arrest and transport to the police station. Although the time at which the interview began is not recorded, it ended only two hours and ten minutes after Marshall was arrested and taken into custody at his sister’s apartment. Although the second statement was taken the day following his arrest, it was precipitated by his first statement, and if the first statement was tainted, the subsequent statement was tainted as well. Furthermore, Justice Stevens has noted that prolonged detention is
“a more serious exploitation of an illegal arrest than a short one.” Dunaway v. New
York, 442 U.S. 200, 221 (1979) (Stevens, J., concurring).
The third factor in the determination whether the taint of an illegal arrest is sufficiently attenuated to render an otherwise inadmissible confession admissible is the presence of an intervening circumstance between the illegal arrest and the statement. Most of the cases addressing this third factor concern whether a suspect was taken before a magistrate after the illegal arrest but before the statement, or whether a complaint was filed after the tainted arrest but before the statement was taken. See, e.g., Taylor v. Alabama, 457 U.S. 687 (1982). The only factor that can be considered intervening in this instance is the fact that Marshall, through his
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girlfriend, was given information that he would receive a lesser charge than capital murder if he agreed to confess to his role in the robbery. However, that itself was a violation of Marshall’s constitutional rights.
This was not a scenario where Marshall initially declined to give a statement and then voluntarily contacted officers to confess, nor is it a situation wherein he was subjected to an illegal arrest, subsequently released, and then voluntarily contacted investigators to make a statement. Here, Marshall gave a partial statement immediately after being taken into custody; he invoked his right to remain silent and remained in custody; and, he subsequently gave a second statement after being induced to do so by a false promise of leniency. His first statement would not have been given had it not been for his illegal arrest, and his second statement would not have been given had it not been for his illegal arrest, detention, and coercion by
Officer Scales.
The final factor to be considered is the purpose and extent or flagrancy of the police misconduct. The CCA has held that this is the single most important element of the four factors to be considered. Self v. State, 709 S.W. 2d 662 (Tex. Crim. App.
1986). The instant case is not one wherein the police scooped a suspect off the street with skimpy or no probable cause. Here police broke into the home of a third person, without a search warrant or a felony arrest warrant, in direct violation of black letter law. Moreover, these were not inexperienced patrol officers; they were seasoned homicide officers who had no interest in arresting someone for a misdemeanor bad check charge. There was no threat of flight or escape. They were interested only in
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placing Marshall in custody for the purpose of investigating the Whataburger offense, a capital murder. It would have been a simple matter to post an officer to watch Julia
Marshall’s apartment while one of the investigators attempted to get a proper felony warrant. Moreover, officers testified that the arrest took place not in the middle of the night or during a holiday, but mid-morning on a weekday. 13 RR 15–16.
Certainly, judges and magistrates were available. It is difficult to imagine a more flagrant violation by police than the illegal breaking down of the front door of a residence belonging to a third party in order to effect a misdemeanor arrest for having written one bad check.
The fact that Marshall was illegally taken into custody was conveyed in HPD files, which were available to Marshall’s trial counsel prior to the suppression hearing. The fact of the illegal entry places the burden on the State to prove that the confession is not the product of the illegal arrest and should not be suppressed. Trial counsel was ineffective for failing to raise this issue at the suppression hearing, or at least after learning of the illegal arrest during Detective McDaniel’s testimony at the guilt-innocence phase of trial. 15 RR 46–47.
The Supreme Court has clearly established the standards for an ineffective- assistance-of-trial-counsel claim. First, counsel’s performance must fall below the accepted professional norm; and, second, there must exist a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure of counsel to litigate the legality of Marshall’s arrest and its effect on Marshall’s subsequent
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statements to police clearly falls below the professional norm. There can be no acceptable trial strategy for ignoring or overlooking an illegal arrest and a client’s consequential confession.
Regarding prejudice, the State relied on Marshall’s statement to police that he was involved in the Whataburger robbery but never entered the Whataburger or shot Dean to demonstrate a lack of remorse. They mentioned the statement in their opening remarks to the jury and again in closing arguments. 14 RR 23–24; 19 RR 61.
Had trial counsel challenged the admissibility of Marshall’s statement, it would have been suppressed under state law and on federal constitutional grounds. There is a reasonable probability that, absent Marshall’s statements to police, the jury would not have convicted him as the triggerman in the capital murder of Dean, or sentenced him to death.
B. Marshall is entitled to relief regardless of whether 28 U.S.C. § 2254(d) applies.
This Court should review the claim on the merits, de novo, because the state court did not do so. 28 U.S.C. § 2254(d) applies only to claims that were “adjudicated on the merits in state court.” Although Marshall raised this claim in his state habeas application, it would be inaccurate to hold that the state court adjudicated it on the merits. The CCA adopted the trial court’s findings of fact and conclusions of law without making any findings of its own. The trial court, in turn, adopted the State- drafted proposed findings of fact and conclusions of law verbatim, without making any of its own findings or conclusions or making any changes to the State’s
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arguments. Thus, the CCA’s order on this claim reflects only the State’s opinion on this evidence, and there is no state court adjudication to which this Court may defer.
Furthermore, the State’s proposed findings are incomplete, and provide an insufficient basis upon which to find counsel was not ineffective under Strickland.
The document states only that, “[t]he Court finds that the results of the proceedings would not have been different if trial counsel had objected to the legality of the applicant’s arrest and the admissibility of the applicant’s statements based on police forcing entry to the applicant’s sister’s apartment to arrest the applicant on a class
C warrant.” Ex parte Marshall, Case No. 948591-A, “State’s Proposed Findings of
Fact, Conclusions of Law and Order,” at p. 14 (signed by trial court Jul. 18, 2014).
This finding, unsupported with any explanation, is inconsistent with the trial record, which demonstrates that the State relied on Marshall’s statements to convict him and secure his death sentence. Marshall is entitled to relief on this claim, whether or not the Court applies § 2254(d).
Claim 10 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment Rights were violated because he was denied the right to confront the State’s evidence regarding the autopsy.
A. Marshall’s right to confront witnesses was violated.
During trial, the state called Dr. Roger Milton to give testimony related to the autopsy of Dean. 16 RR 198. Dr. Milton testified that the autopsy was performed by
Dr. Lisette Lester under the supervision of Dr. Harminder Narula, and he was not present for any portion of it. Id. Dr. Lester worked in Memphis at the time of the trial and Dr. Narula was retired. Id. at 198–99. Trial counsel objected to Dr. Milton’s testimony on the basis that Marshall was “being denied an opportunity to cross-
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examine the real witness—Crawford v. Washington,” as required by the Sixth
Amendment. Id. at 215.
The trial court overruled the objection and allowed Dr. Milton to give testimony on matters that he was only introduced to two weeks prior to the trial. 16 RR 202–03.
He had not personally witnessed the autopsy, and his only connection was through review of the photos, recordings and records made by Dr. Lester. Id. at 198, 203. Dr.
Milton testified that he hoped to explain to the jury the injuries sustained by Dean by using photos in addition to the autopsy report. Id. at 205. Prosecutor Wisner explained to the trial judge that he wanted Dr. Milton to “explain how and why
Christopher Martin Dean died.” Id. at 211. The State argued that Dr. Milton’s use of highly inflammatory photographs to present his testimony was “a relevant factor— if not at guilt/innocence, definitely a relevant factor in terms of punishment.” Id.
With the jury present, Dr. Milton testified to the distance that he believed the shooter was standing from Dean, and the likely cause of death. 16 RR 225. Without any firsthand knowledge of the autopsy, Dr. Milton testified that he believed Dean’s death was not instant but was also not survivable. Id. at 233–35. After giving detailed testimony as an expert on the gunshot wound and the distance he believed the shooter was standing from Dean when he was shot, Dr. Milton testified he was not prepared to agree with the defense that the person responsible for this injury should have had at least “minute specks” of blood from the shooting on his clothes. Id. at 251.
“The right to confront one’s accusers is a concept that dates back to Roman times.” Crawford v. Washington, 541 US 36, 43 (2004). The Supreme Court has held
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that this bedrock principle applies to both federal and state prosecutions. Id. at 42
(citing Pointer v. Texas, 380 U.S. 400, 406 (1965)). Under Crawford, the admission of
testimonial hearsay violates the Sixth Amendment unless the hearsay’s proponent
demonstrates that the declarant is unavailable to testify and the defendant had a
prior opportunity to cross-examine the witness. Id. at 68. A Crawford violation is
subject to harmless-error analysis. See Crawford, 541 U.S. at 76 (Rehnquist, J.,
concurring).
In the instant case, there is no indication the State met the first prong of the
Crawford test—unavailability. It may have been an inconvenience to produce Drs.
Lester or Narula, but the State made no showing that they were unavailable.
Furthermore, Dr. Milton’s testimony was testimonial in nature. The State itself
acknowledged that the purpose of Dr. Milton’s testimony, based on the autopsy report
and photographs, was to establish facts that would be relevant to the jury’s
deliberations during the penalty phase of trial, and possibly also during the guilt
phase. 16 RR 211. In other words, the inflammatory testimony by Dr. Milton, which
was accompanied by inflammatory photographs of Dean’s opened head, displaying
his brain tissue, was intended by the State to aid it in securing a death sentence, not
to establish any fact of relevance to the guilt phase of trial.
Furthermore, Marshall had no prior opportunity to cross-examine Dr. Lester
or Dr. Narula. Because the autopsy report was used in a testimonial manner, and
introduced through a witness immune from cross-examination, and because the
appropriate witnesses were neither unavailable nor made available for prior cross-
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examination, Marshall’s Sixth Amendment right to confront the witnesses against
him was violated.
B. 28 U.S.C. § 2254(d) does not preclude relitigation.
The CCA accurately assumed there was a constitutional violation arising from
the introduction of the autopsy report through Dr. Milton. It found, however, that
there was no harm from the constitutional violation for two reasons: (1) there was no
factual dispute about cause of death; and (2) the “report had no bearing on the central
issue in the case which was whether [Marshall] was the one who shot the victim.”
Marshall v. State, 210 S.W.3d at 629. This finding was unreasonable based on the
evidence presented. 28 U.S.C. § 2254(d). Indeed, the fact that Dr. Milton’s detailed
testimony about Dean’s cause of death—which was accompanied by gruesome
photographs depicting the autopsy, including a photograph of Dean’s exposed brain—
was irrelevant to any issues in the guilt phase of Marshall’s trial increases the harm
done to Marshall in this case, rather than diminishing it. The prejudice from his
testimony far outweighs its admittedly negligible probative value. Even if the
evidence did not harm Marshall during the guilt phase of his trial, it certainly harmed
him during the penalty phase, which the prosecutor acknowledged was its intended
use. 16 RR 211 (arguing for admission of the photographs through Dr. Milton because
they were “[o]bviously a relevant factor—if not at guilt/innocence, definitely a relevant factor in terms of punishment.”). Dean’s protected status as an intellectually disabled adult further increases the harm that resulted from the State’s introduction of the autopsy report and findings, including the photographs of his brain.
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Indeed, the CCA contradicted its own basis for finding no harm from the
Crawford violation during Marshall’s state habeas proceedings. In his state habeas application, Marshall raised a claim of error based on the introduction of the gruesome photographs through Dr. Milton because the photographs bore no relation to any contested issue in the case and were calculated to prevent the jury from rendering an unbiased judgment. SHCR 40. There, the CCA adopted the trial court’s finding that the introduction of the photographs was harmless because, “that testimony and photographic evidence showing the applicant’s external [sic] injuries, the stippling indicating the distance of the gun from complainant’s head, and the injuries indicating the path of the bullet were probative of the cause and circumstances of the complainant’s death.” Id. at 307; Ex parte Marshall, 2014 WL
6462907 (Tex. Crim. App. Nov. 19, 2014) (emphasis added). On direct appeal, the
CCA held that cause of death was not a relevant factor at Marshall’s trial, and thus the wrongful introduction of the autopsy report and photographs—which were relevant only to cause of death—was found to be harmless; in state habeas, the CCA held that the report and photographs were relevant because they were probative of cause of death, and thus their introduction was harmless. The CCA cannot have it both ways.
The CCA’s finding that the distance of the gun from Dean’s head and the path of the bullet were not relevant issues during the guilt phase of Marshall’s trial was correct, because the only issue was the identity of the triggerman. However, these facts were anticipated by the State to bear on the jury’s deliberations during
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sentencing, when the jury considered both Marshall’s potential for future dangerousness and his moral culpability. Thus, the photographs, and Dr. Milton’s accompanying testimony, did harm Marshall.
Because the CCA’s harmless-error analysis represents an unreasonable finding of the facts based on the evidence presented, this Court should address the claim on the merits, de novo. 28 U.S.C. § 2254(d)(2). Marshall is entitled to penalty phase relief on this claim because the introduction of the autopsy reports, including the gruesome photographs of Dean’s exposed brain, and Dr. Milton’s testimony related to the reports and photographs, violated Marshall’s Sixth and Fourteenth
Amendment rights to confrontation and there is a reasonable probability that, absent
Dr. Milton’s testimony, the autopsy reports, and the accompanying highly inflammatory photographs, Marshall would not have been sentenced to death. See
Chapman, 386 U.S. at 22.
Claim 11 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the grand jury did not allege the aggravating factor that exposed him to a death sentence.
A. Marshall’s indictment was improper.
Marshall filed a pre-trial Motion to Preclude the Death Penalty as a
Sentencing Option, citing the United States Supreme Court cases Jones v. United
States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.
Arizona, 536 U.S. 584 (2002). CR 131–37. The trial court denied Marshall’s motion.
CR 137. Marshall stood trial and was convicted of capital murder and the jury answered the penalty-phase special issues submitted to them in a way that resulted in his punishment being set at death. CR 340, 351–53.
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As Marshall noted in his motion, the maximum penalty for the offense of
capital murder was life in prison without the possibility of parole for forty (40) years.
Texas Penal Code § 12.31. It is only when the State seeks the death penalty that the
prescribed maximum can be exceeded, and then only if the finder of fact concludes,
beyond a reasonable doubt, that “there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing threat to society.”
Tex. CODE CRIM. PROC. art. 37.071 (2)(b)(1). A fact (future dangerousness) that
increases the penalty for a crime beyond the prescribed statutory maximum (a
sentence of life without the possibility of parole for forty years increased to death)
must be alleged in the indictment and proved to the jury beyond a reasonable doubt
in order to pass constitutional muster. See generally, Jones, 526 U.S. 227; Apprendi,
530 U.S. 466.
The Texas legislature has created two offenses, one is a capital felony where the State seeks death and the other is a capital felony where the State does not seek death. Texas Penal Code Sec. 12.31(a). Evidence of the defendant’s future dangerousness must be presented to the grand jury, and alleged in the indictment, if such dangerousness is found to be true by the grand jurors. If, as here, the indictment does not make the proper allegation, then the court does not have jurisdiction to prosecute the defendant for anything other than a non-death capital felony, and death should in those instances be precluded as a sentencing option.
In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that the rule in Apprendi applies to capital cases. Where a sentence of death is authorized only
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upon a finding of certain facts, those facts operate as the “functional equivalent of an element of a greater offense.” Ring, 536 U.S. at 609 (quoting Apprendi, 530 U.S. at
494 n.19). The trial court violated Ring in Marshall’s case because the grand jury did not allege the aggravating factor necessary to expose Marshall to a potential death sentence in the indictment in this case.
In this case, as in all Texas capital murder cases, the issues relating to future criminal acts of violence and mitigation are submitted to the jury. Article 37.071 of the Texas Code of Criminal Procedure violates the rule set forth in Ring because it treats the special issue questions not as elements of the death penalty, but as sentencing factors, and provides for proof of these facts without indictment by a grand jury. Art. 37.071 of the Texas Code of Criminal Procedure is contrary to the holdings of Jones, Apprendi and Ring, and is therefore facially unconstitutional.
B. This claim is reviewed de novo.
This claim must be considered by this Court on the merits, de novo. Marshall raised this claim in his direct appeal brief, but the CCA failed to address it on the merits. Instead, the CCA addressed whether “Article 37.071, TEX. CODE CRIM. PROC., is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because
Article 37.071 does not require the State to prove insufficient mitigating circumstances beyond a reasonable doubt.” Marshall, 210 S.W.3d at 626.
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Claim 12 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated because the State did not bear the burden of proving insufficient mitigating circumstances beyond a reasonable doubt, and because the defense was burdened with proving the existence of mitigating circumstances sufficient to warrant the default sentence of life without the possibility of parole for forty years.
A. Marshall’s rights were violated.
Marshall filed a pre-trial motion to hold Article 37.071, Sections 2(e) and (f) of the Texas Code of Criminal Procedure unconstitutional for placing the burden of proof concerning special issue number two (mitigation) on the accused. The trial court denied the motion. 1 CR 155–59.
When the State seeks the death penalty, a Texas jury that has convicted the defendant of capital murder is charged under Article 37.071 of the Texas Code of
Criminal Procedure. That statute demands that the defense produce “sufficient” mitigation evidence to warrant a sentence of life imprisonment upon a jury finding that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” TEX. CODE CRIM. PROC.
37.071(2)(b)(1). The mitigating evidence must be “sufficient” to overcome the defendant’s “moral culpability,” which at that point in the deliberations has already been established in the minds of the jurors. The defendant, if he is to save his life and receive the default sentence for capital murder, must offer evidence that is somehow greater than the jury’s finding of moral culpability and future dangerousness beyond a reasonable doubt.
The United States Supreme Court has held that a statutory presumption as to mental state, when it is made subject to rebuttal by a defendant, unconstitutionally
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relieves the State of its due process burden to prove every element of a criminal defense beyond a reasonable doubt, as required by In re Winship, 397 U.S. 358 (1970).
Mullaney v. Wilbur, 421 U.S. 684 (1975). The first special issue in Texas capital sentencing—the “future dangerousness” special issue—is an element of a death penalty capital offense, which the State must prove beyond a reasonable doubt before a death sentence may be imposed. After the jury answers “yes” to special issue number one, a defendant is presumed to be death-worthy and his sentence is presumed to be the death penalty. He will be sentenced to death unless he “disproves” it by way of the mitigation special issue. Further, a “probability” that a defendant will constitute a continuing threat to society is as amorphous as the “malice aforethought” element that the Maine court unsuccessfully sought to defend in
Mullaney.
Notwithstanding the labels applied, the final effect of the procedure employed pursuant to Article 37.071 is indistinguishable from the one rejected in Mullaney; and as the Supreme Court reaffirmed in Apprendi, this is the focus of the inquiry.
The Texas statutory scheme serves to diminish the State’s burden of proof necessary to sentencing a capital defendant to death, in violation of the Sixth and Fourteenth
Amendment’s requirements of a jury trial. Apprendi, 530 U.S. 471.
Moreover, Article 37.071 provides no further guidance to the jury that is called upon to make a life and death decision. As a result, Article 37.071 fails to narrow the class of defendants exposed to the death penalty, with the result that the death penalty is imposed in a wanton and freakish manner in Texas, in violation of
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Marshall’s rights to due process and protection from cruel and unusual punishment.
U.S. CONST. amends. 8, 14.
B. Marshall is entitled to relief regardless of whether 28 U.S.C. § 2254(d) applies.
Marshall is entitled to habeas relief on this claim notwithstanding 28 U.S.C. §
2254(d). First, although this claim was raised in his direct appeal to the CCA, the
CCA did not address his argument that, under Article 37.071, the death penalty is imposed in a wanton and freakish manner. Accordingly, this argument was not addressed on the merits, and this Court shall consider it de novo. Second, the CCA’s
adjudication of Marshall’s argument that Article 37.071 violates the Sixth and
Fourteenth Amendments because it places the burden on the defense to “disprove the
death penalty” was an unreasonable application of clearly established Supreme Court
precedent. The United States Supreme Court has held that “the factfinding necessary
to put [a capital defendant] to death” must be made by a jury, and only upon proof by
the State of each element of the sentence enhancement beyond a reasonable doubt.
Ring, 536 U.S. at 609; id. at 602. The State of Texas requires the jury to make two
fact findings necessary to sentence a capital defendant to death: (1) that, by proof
beyond a reasonable doubt, “there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society”; and (2)
that, “taking into consideration all of the evidence, including the circumstances of the
offense, the defendant’s character and background, and the personal moral
culpability of the defendant, there is [not] a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole rather
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than a death sentence be imposed.” TEX. CODE CRIM. PROC. art. 37.071. It violates
clearly established Supreme Court precedent under Ring to require proof by the State
beyond a reasonable doubt for only one element of the sentence enhancement, and to
require “sufficient” proof by the defense for the second. Accordingly, 28 U.S.C. §
2254(d) does not act as a bar to relief for Marshall. He is entitled to habeas relief on
this claim, and to a new penalty trial.
Claim 13 Marshall’s death sentence violates the Equal Protection and Due Process Clauses of the United States Constitution and the Eighth Amendment.
Marshall’s death sentence is the unconstitutional byproduct of pervasive racial discrimination in the Harris County District Attorney’s Office. Since at least 2004—
and likely before—the Harris County DA’s Office is far more likely to seek death
sentences for African-American offenders like Marshall than for similarly-situated
white offenders. Tried in October and November 2004, Marshall was at the forefront
of years of consistently seeking death against African-American defendants while
simultaneously foregoing capital charges against similarly situated white defendants.
The pattern is so pervasive that it rises to the level of racial discrimination. Marshall
is therefore entitled to a new punishment phase.
A. Marshall’s death sentence is unconstitutional because it was sought and imposed on the basis of race.
Marshall’s death sentence is a product of racial discrimination that renders it
unconstitutional.
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1. The Harris County DA’s Office racially biased exercise of prosecutorial discretion violated Marshall’s rights to due process and equal protection under the law.
The United States Supreme Court has made clear that “a prosecutor’s discretion is ‘subject to constitutional constraints.’ One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’” United States v.
Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Batchelder, 442 U.S.
114, 125 (1979); Oyler v. Boles, 368 U.S. 448, 456 (1962)) (citing Bolling v. Sharpe,
347 U.S. 497, 500 (1954)). In order to establish that a prosecutor’s exercise of discretion violates the Equal Protection Clause, a defendant must prove both “‘the existence of purposeful discrimination,’” and “that the purposeful discrimination ‘had a discriminatory effect’ on him.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (quoting
Whitus v. Georgia, 385 U.S. 545, 550 (1967); Wayte v. United States, 470 U.S. 598,
608 (1985)). Marshall meets this standard.
a. The Scott Phillips studies on the role of race in capital charging in Harris County.
Although the vast majority of studies on race and capital punishment in Texas have focused on statewide patterns, studies have examined the role of race in capital charging and death sentencing specifically in Harris County:
(1) A 2008 study of “whether race influenced the District Attorney’s (DA) decision to pursue a death trial or the jury’s decision to impose a death sentence against adult defendants indicted for capital murder in Harris County, Texas from 1992 to 1999,” when the elected District Attorney for Harris County was Johnny Holmes. See Scott Phillips, Racial
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Disparities in the Capital of Capital Punishment, 45 HOUS. L. REV. 807, 809 (Summer 2008) (hereinafter “Phillips/Holmes Report”); and
(2) A 2012 study of the role of race in the administration of the death penalty in Houston between 2001 and 2008, when the elected District Attorney for Harris County was Charles Rosenthal. See Scott Phillips, Continued Racial Disparities in the Capital of Capital Punishment: The Rosenthal Era, 50 HOUS. L. REV. 131 (Fall 2012) (hereinafter “Phillips/Rosenthal Report”).
Not surprisingly, given the entrenchment of racial bias, stereotypes and disproportionality in Texas’s administration of the death penalty, both studies found that race played an inappropriate role in the disproportionate administration of capital punishment in Harris County.
The Phillips/Holmes Report – which covered the time preceding Marshall’s capital prosecution – examined the final years of DA Holmes’ administration and made three significant findings:
(1) The “DA pursued death against black defendants and white defendants at the same rate despite the fact that black defendants committed murders that were less serious along several dimensions, meaning murders that were less likely to include the features that tend to lead to a death trial. Put differently, the bar appears to have been set lower for pursuing death against black defendants.”
Phillips/Holmes Report at 833–34.
(2) The “DA pursued death less on behalf of black victims than white victims despite the fact that black victims were killed in more serious murders with multiple victims. Put differently, the bar appears to have been set higher for pursuing death on behalf of black victims.”
Id. at 834.
(3) “[D]eath is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims.”
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Id. at 838.
The Phillips/Rosenthal Report on the death penalty in Harris County from
2001 to 2008, the time frame covering Marshall’s capital prosecution, examined whether the race effect found in the Phillips/Holmes Report continued after the retirement of DA Holmes and during the administration of DA Rosenthal. This study found that “death sentences were imposed on behalf of white victims at 2.5 times the rate one would expect if the system were blind to race, and death sentences were imposed on behalf of white female victims at 5 times the rate one would expect if the system were blind to race and gender.” Phillips/Rosenthal Report at 131–32. The evidence of apparent bias against victims of color was amplified by the fact that
“minority victims were more likely to be killed in the most heinous murders.” Id. at
135.
Thus, widespread racial bias infected Harris County’s administration of the death penalty in the years that preceded Marshall’s capital trial and for many years after it. Marshall’s death sentence—infected with this racial animus—is unconstitutional.
b. The Paternoster study on the role of race in seeking the death penalty against African-American defendants in Harris County.
University of Maryland Professor Raymond Paternoster has conducted a rigorous and comprehensive evaluation to determine “whether the defendant’s race affected either the decision to advance the case to a penalty trial or the decision to impose death among” a class of cases that were similar to those of Duane Buck, a similarly situated African-American defendant to Marshall. See Report of Raymond
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Paternoster, Racial Disparity in the Case of Duane Edward Buck, at 5 (Dec. 28, 2012)
(hereinafter “Paternoster Report”). Professor Paternoster’s findings are significant and damning: he concluded that “[t]here is reason to believe . . . that race played a role in the decision to advance [Buck’s] case to a penalty trial and impose a death sentence.” Id. at 7.
Professor Paternoster’s Report is informative here. He “examined data on 504 adult defendants indicted for capital murder in [Harris County] from 1992 to 1999.”
Id. at 2. Professor Paternoster considered “21 variables for which [he] had data and which were expected to explain why a case was advanced to a penalty trial and others were not.” Id. at 2. Those variables were:
i. Defendant prior conviction for a violent offense; ii. Defendant prior conviction for a non-violent offense; iii. Victim was a female; iv. Victim was of a vulnerable age (16 and under, or over 60); v. Victim had prior conviction; vi. Type of Capital Murder: Burglary; vii. Type of Capital Murder: Multiple Victims; viii. Type of Capital Murder: Kidnapping; ix. Type of Capital Murder: Rape; x. Type of Capital Murder: Remuneration: xi. Type of Capital Murder: Child Victim; xii. Type of Capital Murder: Other; xiii. Method of Murder: Victim was Beaten; xiv. Method of Murder: Victim was Stabbed; xv. Method of Murder: Victim was Asphyxiated; xvi. Victim was white; xvii. Attorney was hired; xviii. Defendant was male; xix. Heinous Level 2; xx. Heinous Level 3; and xxi. Multiple defendants indicted.
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Id. at 2–3. With these data, Prof. Paternoster estimated “a logistical regression
equation with the district attorney’s decision to advance a case to a penalty trial as
the outcome variable.” Id. at 2.
Professor Paternoster “estimated for each of the 504 cases . . . a propensity
score [which] is the estimated probability that a case [would] be advanced to a penalty
trial.” Id. at 4. He then identified the 21 “cases among the 504 that [were] most
similar to Buck’s, in terms of the overall estimated likelihood that the case would be
advanced to a penalty trial.” Id. at 5. In examining these cases, he concluded that at
the time of Buck’s capital murder trial:
The probability that the district attorney will advance a case to a penalty trial is more than three times as high when the defendant is African- American than for white defendants (this includes Marshall’s case). This disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable in terms of the estimated propensity score.
This racial disparity is only partially corrected at the jury sentencing stage . . . . Ultimately, among this group of comparable cases a death sentence was twice as likely to be imposed on an African-American defendant as a white defendant.
Id. at 6 (emphasis added).
The Phillips/Holmes Report (finding that the Harris County DA’s Office was
1.75 times more likely to seek death for African-American defendants than for
similarly-situated white defendants) and the Paternoster Report (concluding that the
Harris County DA’s Office was three times more likely to seek death for African-
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American defendants with case characteristics like Marshall’s, than for similarly
situated white defendants) strongly support a finding of discriminatory intent.102
c. Newly acquired TDCJ data establish that the Harris County DA’s office has stopped seeking death sentences against white defendants but continues to seek and obtain them against minorities.
For about fifteen years, there was effectively a moratorium on the death penalty for whites in Harris County. Data from the Texas Department of Criminal
Justice (“TDCJ”) show that with the exception of retrials and re-sentencings, the last white defendant to receive a death sentence was serial killer Anthony Shore, on
October 21, 2004, immediately before Marshall’s trial. Since that time, only one white defendant, Ronald Haskell (again, excluding retrials) has received the death penalty, whereas no fewer than 18 non-white defendants have been sentenced to death. In
October 2019, Haskell was the first white person to receive the death penalty in
Harris County since Shore. Texas Coalition to Abolish the Death Penalty Fact Sheet, https://tcadp.org/get-informed/texas-death-penalty-facts/ (Updated 1/1/2020).
Haskell’s was an especially heinous case, involving the shooting death of six members of his ex-wife’s family, including four children. Even including Haskell’s case,
102 Buck’s death sentence was commuted to life in October of 2017 after the United States Supreme Court sent the case back to Harris County due to issues with his sentencing. “Texas death row inmate Duane Buck has sentence reduced to life after Supreme Court orders retrial.” The Texas Tribune, October 3, 2017, https://www.texastribune.org/2017/10/03/high-profile-death-row-case-comes-end- guilty-plea/. The Supreme Court agreed with Buck’s attorneys that his sentencing was prejudiced because an expert witness claimed Buck was more likely to be a future danger because he is black. Id. Harris County District Attorney Kim Ogg explained the decision to not pursue the death penalty again by stating that “twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has been tainted by the indelible specter of race.” Id.
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nineteen of the last twenty defendants sentenced to death in Harris County are
people of color. Id.
A preliminary evaluation of available TDCJ data shows a bias toward harsher
sentences for non-white defendants. In the post-Shore time period (October 21, 2004)
through 2014, there were 1,331 total convictions for murder and capital murder. Of
those 1,331 convictions, 292 (21.9%) were for capital murder, and 1,039 (78.1%) were
for murder. Non-whites make up 88.1% of the total convictions but make up 90.4% of
the capital convictions. Whites, on the other hand, are underrepresented in the
capital convictions group. Whites make up 11.9% of the total convictions but only 9.6%
of capital convictions.
The differences between outcomes for different races are starker when looking
at the final sentence within the capital murder group in this time period. Of the 292
convictions for capital murder, only 17 resulted in death sentences (5.8%). But all 17
of those death sentences were for non-whites. All 28 white defendants convicted
of capital murder were sentenced to life in prison or life without parole. The difference
is even more pronounced when looking at whether the State chose to seek death in
the first place. The State appears to have sought a death sentence in 23 of 292 capital
cases (7.9%). All 23 of those cases (100%) were against non-white defendants.
This preliminary analysis of the TDCJ data shows that the Harris County DA’s office is applying the death penalty in a racially discriminatory way: That office charges a far greater percentage of non-whites with capital murder than whites; until
Haskell, every new death sentence since Shore has been for non-white defendants;
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and, the DA’s office has not even sought the death penalty against a white defendant
in that time period. In that same time period, the DA’s office has tried to send 23 non- white defendants to death row, and succeeded in 17 of those attempts.
When combined with the racial disparities shown by the Phillips Reports and the Paternoster Report, these TDCJ data (showing that the Harris County DA’s
Office does not seek death sentences against white defendants) establish the discriminatory purpose required by McCleskey.
d. History of racial discrimination and bias in the Harris County DA’s Office.
The above-described evidence of racial bias in Harris County overall and
Harris County’s administration of the death penalty in particular, is consistent with the culture of racial prejudice, stereotype, and discrimination which existed in the
Harris County District Attorney’s Office before, during, and after Marshall’s capital trial.
i. District Attorney Johnny Holmes.
From 1979 to 2001, Johnny Holmes served as the elected District Attorney for
Harris County. Holmes personally decided whether to seek the death penalty in every
potential capital case. See Allan Turner, Former DA Ran Powerful Death Penalty
Machine, Hous. Chron., July 25, 2007, at 2 (“Holmes defended his department’s
handling of capital cases, noting that the final decision to seek the death penalty in
such instances was his.”).
Throughout his tenure as District Attorney, Holmes and his office made
numerous statements and decisions evincing bias against African Americans. There
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is an abundance of evidence demonstrating that throughout Holmes’ tenure, the
Harris County DA’s Office excluded African-Americans from jury service because of their race. For example, in hearings concerning a claim of discrimination in jury selection raised by an African-American man who was tried and convicted of capital murder after a prosecution that took place during the Holmes era, Joseph Guarino, a
Texas judge with twenty-eight years experience in Harris County’s criminal justice system testified that he could “not recall a single instance in which a Negro juror sat on a petit jury in a criminal case in which the complainant was white and the defendant Negro.” Harris v. Texas, 467 U.S. 1261, 1263 (1984) (Marshall, J., dissenting). Similarly, Judge Miron Love testified that “in ‘most of those cases’ the prosecution ‘would eliminate most of the black jurors’ through the exercise of peremptory challenges.” Id. (Marshall, J., dissenting) (citations omitted).
The testimony of these Harris County judges “was corroborated by a variety of informed witnesses” including a Harris County attorney who testified that in only two of the roughly 140 criminal cases in which he participated where the complainant was white and the defendant black, “did Negroes ultimately sit on the jury, and in these cases it was only because the prosecution ran out of peremptory challenges.” Id.
Similarly, a Harris County court reporter testified he “could not recollect a single case in which a prospective Negro juror had been empaneled.” Id. Prosecutors who worked in the Harris County District Attorney’s Office also “confirmed that in this class of cases, the exclusion of Negro jurors was ‘the general rule.’” Id.
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Similar testimony was offered in Tompkins v. State, 774 S.W.2d 195 (Tex. Crim.
App. 1987), aff’d, 490 U.S. 754 (1989), and, in that case, the CCA acknowledged that
African-Americans appeared to be systematically excluded from Harris County
capital juries. Id. at 203. Under Holmes, Harris County prosecutors tried Phillip
Tompkins, an African-American man, for capital murder in front of an all-white jury
in 1981. That jury convicted Tompkins and sentenced him to death. The prosecutors
used their peremptory strikes to exclude all African-Americans from service on
Tompkins’ jury. On appeal, Tompkins asserted that he was entitled to a new trial
because the Harris County prosecutors “selectively exercised their peremptory
strikes on several black prospective jurors and fashioned their respective voir dire
examination of the remaining black prospective jurors in such a manner so that all
blacks would be prevented from serving as jurors.” Id. at 198. In response, the Court
of Criminal Appeals ordered the trial judge to conduct an evidentiary hearing on
Tompkins’ claim of discriminatory jury selection pursuant to Batson v. Kentucky, 476
U.S. 79 (1986) (prohibiting the race-based use of peremptory challenges in individual
cases). The evidence in that hearing established “that black jurors ha[d] been
relatively uncommon on capital murder juries in Harris County during the [previous]
several years.” Tompkins, 774 S.W.2d at 203.
Witnesses who testified at the Batson hearing in Tompkins stated that, in the late 1970s and early 1980s, Harris County prosecutors routinely used their peremptory challenges to exclude potential jurors of color. For example, Robert Moen, a Harris County Assistant DA from 1974 to 1985, testified that:
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[D]uring that period the general rule in capital murder selection, [was] be wary of minorities. If you don’t have an opportunity to talk with them individually, because of the historical relationship they have had and because of the percentage of times that we run up against minority members of this community, there is a very good chance they are not going to identify with you as a prosecutor and the police officers that will testify in a case.
Tompkins R.R. Vol. 1, 31:1-32:4 (June 3, 1987). Thomas Royce, another Harris County prosecutor, testified that: “everybody” in the Harris County DA’s Office engaged in conversations about “the undesirability of minorities on juries,” Id. at 161:20-162:3; and that he considered, in selecting a jury, “the notion that blacks are more inclined to be sympathetic towards black defendants,” Id. at 156:19-24, and the idea that
“blacks or minorities were more inclined to be lenient to defendants.” Id. at 162:11-
16.
Holmes himself testified at the Batson hearing in Tompkins, and echoed similar sentiments. He stated that, in the late 1970s and early 1980s, it was “the general feeling among prosecutors” that minorities were more sympathetic to defendants than non-minorities. Id. at 181:15-21; 182:8-14 (stating that “there was a caution exercised when dealing with minorities”). Holmes also expressed concern about prospective minority jurors of an older generation, explaining that:
If I have a minority person on the panel and the person is an individual of my age or older, I am cautious with that person and I think common sense dictates that. These are people who have experienced a different environment than we now have and many of those people have preconceived notions about law enforcement and government, justifiably, and they need to be explored, but exploring it is not the same thing, in my opinion, as saying I am not going to take him under any circumstance. I don’t feel that way and none of the guys that work for me feel that way to my knowledge.
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Id. at 184:17-185:4.
A third Harris County case, Williams v. State, 804 S.W.2d. 95 (Tex. Crim. App.
1991), corroborates the evidence that, under Holmes, Harris County prosecutors
systematically excluded prospective African-American jurors. In Williams, an all-
white jury convicted Arthur Lee Williams, Jr., an African-American man, of capital
murder and sentenced him to death. Williams claimed that “the ‘trial court committed
reversible error by not quashing the venire where it was shown that the Prosecutor
exercised six peremptory challenges against black jurors,’” resulting in no blacks
serving on the jury. Id. at 96, 102. At the December 9, 1988 Batson hearing in
Williams, Williams “presented the testimony of several local defense attorneys who
related that they were unaware of blacks being on any jury which they tried in Harris
County.” Id. at 107.
For instance, Will Gray, who had been a criminal defense lawyer for thirty
years by the time of the Batson hearing in Williams, “believe[d] [he] ha[d] been able
to isolate and identify [the] practices [of the Harris County DA’s Office as to their jury
selection process]” and testified that “based on [his] personal experience and
experience with other lawyers that [he has] participated in, it was a practice to
eliminate all Black jurors from the capital murder cases.” Williams R.R. Vol. 1 at
11:14-21, 13:1-4.
Carolyn Garcia, a criminal lawyer in Harris County since 1977, corroborated
Gray’s testimony. Ms. Garcia testified that “all Blacks were either struck peremptorily [from capital murder juries] or if they could not be struck for cause,
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Blacks were not permitted to be seated in a capital case, particularly when a
defendant was black.” Id. at 21:11-16. Ms. Garcia indicated that “what [she] observed
in trials that [she] was involved in and in observing other lawyers in trials was that
the Black prospective juror was either questioned on a very limited area that tended
to either result in a disqualification for cause or was only questioned in one area and
then peremptorily struck.” Id. at 24:2-9. In other words, “the breadth or width of the
examination was not the same as for most white jurors where one went into the facts
of the case, but the legal issues that would be raised by the facts in the case, which
would be a broad-based type of what they would say.” Id. at 24:14-20. Ms. Garcia
further stated that the State “often zeroed in on a prospective juror with the main
attempt of trying to disqualify them if they can without having to use one of their
peremptory challenges.” Id. at 25:10-15.
More recently, Hon. Patricia Lykos, who was a District Court judge in the
180th District Court of Harris County,103 Texas, from 1980 until 1994, and Harris
County District Attorney from 2008 until 2012, remarked that Harris County
prosecutors had a “habit” of “using race as their index” for jury selection. Alan
Bernstein, DA candidates view office in different ways; Siegler says she hasn’t seen
racism; all vow equal treatment, transparency, Hous. Chron., Feb. 7, 2008, at B1.
Judge Lykos stated that “as a felony court judge [during the Holmes administration],
103 Marshall was also tried, convicted, and sentenced in the 180th District Court, Hon. Debbie Stricklin presiding.
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she saw prosecutors eliminate potential jurors from a trial solely because of their race.” Id.
Ultimately, allegations of discrimination against prospective jurors of color were repeatedly raised—and sustained—throughout Johnny Holmes’ tenure as
Harris County DA. In Rosales v. Quarterman, this Court concluded that the Harris
County District Attorney’s Office exercised peremptory challenges in a racially- discriminatory manner in a 1985 capital murder trial. Rosales v. Quarterman, No. H-
03-1016, Mem. Order at 47 (S.D. Tex. Dec. 12, 2008). Specifically, the Court found that the trial prosecutors tracked the race of the prospective jurors of color but did not track the white prospective jurors, admitted to believing that prospective jurors of color would be “more sympathetic” toward defendants of color, used disparate questioning for prospective jurors of color and white prospective jurors; disproportionately struck prospective jurors of color, and proffered pretextual justifications for striking three prospective jurors. Id. at 17–19, 24–43. The Court further concluded that Harris County prosecutors commonly used race as a factor for excluding prospective jurors of color in 1985. Id. at 14–20; 24–43.
Rosales was not alone. Prosecutors working for Holmes were repeatedly found to have improperly exercised peremptory challenges based on race: Butler v. State,
872 S.W.2d 227 (Tex. Crim. App. 1994) (Batson violated or exercise of peremptory challenge against prospective African-American juror in a capital murder case);
Emerson v. State, 851 S.W.2d 269, 271–74 (Tex. Crim. App. 1993) (Batson violated where prosecutor’s race-neutral explanations for peremptory challenge to African-
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American prospective juror were insufficient as a matter of law to rebut prima facie showing of racial discrimination because the proffered reason was not uniformly applied to black and non-black venire members); Esteves v. State, 859 S.W.2d 613
(Tex. App. 1993) (Batson violated for the exercise of peremptory challenges against three prospective jurors of color where the prosecutor’s proffered justifications were not supported by the record, were not legally justifiable, and/or were equally applicable to accepted white jurors); Vargas v. State, 859 S.W.2d 534 (Tex. App. 1993)
(Batson violated for four racially discriminatory peremptory challenges by Harris
County District Attorney’s office); Wright v. State, 832 S.W.2d 601 (Tex. Crim. App.
1992) (Batson violated where prosecutor failed to proffer a race-neutral explanation for his peremptory challenge of a prospective African-American juror); Brooks v. State,
802 S.W.2d 692, 694–95 (Tex. Crim. App. 1991) (en banc) (Batson violated where the prosecutor “utterly failed” to proffer race- neutral explanations of his peremptory challenges); Garcia v. State, 802 S.W.2d 817, 819 (Tex. App. 1990) (Batson violated where prosecutor noted stricken prospective juror’s race and gender in writing and was unable to offer a race-neutral explanation for his peremptory challenge); Lewis v. State, 775 S.W.2d 13 (Tex. App. 1989) (Batson violated by three racially discriminatory peremptory challenges by Harris County DA’s office); Whitsey v. State,
796 S.W.2d 707, 714 (Tex. Crim. App. 1989) (Batson violated where all African-
Americans were struck from the panel and the prosecution used over half of its strikes to remove all blacks from the jury in a process that involved a “lack of questioning” of individual venire persons); Robinson v. State, 756 S.W.2d 62, 63 (Tex. App. 1988)
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(Batson violated where the prosecutor used all ten of his peremptory challenges to
strike blacks from the panel and “[w]ith one exception, the State here gave no racially
neutral reason for striking the blacks from the panel, and candidly admitted that race
was a consideration.”).
This pervasive history of the exclusion of prospective jurors on the basis of race
is, and was throughout Holmes’ administration, plainly unconstitutional. See Norris
v. Alabama, 294 U.S. 587, 599 (1935) (“[I]t was a ‘violent presumption,’ . . . that the
uniform exclusion of negroes from juries, during a period of many years, was solely
because, in the judgment of the officers, charged with the selection of grand and petit
jurors, fairly exercised, ‘the black race in Delaware were utterly disqualified by want
of intelligence, experience, or moral integrity, to sit on juries.’ Such a presumption at
the present time would be no less violent.” (citation omitted)); Strauder v. West
Virginia, 100 U.S. 303, 309 (1880) (“It is not easy to comprehend how it can be said
that while every white man is entitled to a . . . jury selected from persons of his own
race or color, or, rather, selected without discrimination against his color, and a negro
is not, the latter is equally protected by the law with the former.”), abrogated by
Taylor v. Louisiana, 419 U.S. 522 (1975).
ii. District Attorney Charles A. Rosenthal.
Charles Rosenthal was the Harris County District Attorney in 2004 when
Marshall was tried and sentenced to death. Rosenthal’s tenure as Harris County
District Attorney is notorious for racial bias, discrimination, and stereotyping of
African-Americans.
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Racist Emails: In 2008, by order of a federal court, Rosenthal released more
than 1,500 emails stored on his official computer in conjunction with a civil rights
lawsuit against the Harris County Sheriff’s Office. Associated Press, Rosenthal
Testifies in His Own Defense, Feb. 1, 2008; see also, Ralph Blumenthal, Prosecutor,
Under Fire, Steps Down in Houston, N.Y. Times, Feb. 16, 2008, at A10. The disclosed emails contained offensive stereotypes of Hispanics and women, racial slurs, racist
“jokes,” and statements of racial bias against African-Americans in general and
African-American jurors in particular. See Matt Stiles & Alan Bernstein, State Probe
Sought into DA’s Emails, Hous. Chron., Jan. 10, 2008, at A1.
Among the emails containing racial slurs and “jokes” was a photograph titled
“Fatal Overdose,” depicting a black man sprawled out on a sidewalk amid watermelon peels, a cup of soda, and a Kentucky Fried Chicken container. See Leslie Casimir,
Blacks Urge Rosenthal to Quit, Hous. Chron., Jan. 12, 2008; see also Ralph
Blumenthal, New Investigation in Texas E-mail Case, N.Y. Times, Jan. 9, 2008.
Rosenthal “joked” in another email that Bill Clinton was like having a black man as
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President because he “smoked marijuana and receives a check from the government
each month.” Casimir, supra. Furthermore, the disclosed emails contained apparent
code words, which were used to make derogatory comments about African-American
jurors. See Lisa Falkenberg, When is a Canadian not a Canadian?, Hous. Chron., Jan.
23, 2008 (describing email using the code name Canadians to refer to African-
American jurors).
Culture of Discrimination: In the wake of the disclosure of the Rosenthal emails, “[c]ommunity and religious leaders in Houston said the racist and sexist e- mails found on Rosenthal’s computer were an indication of deeper problems in the district attorney’s office.” Juan A. Lozano, Harris County DA Resigns Amid Scandal,
Dall. Morning News, Feb. 16, 2008. “Houston City Councilwoman Jolanda ‘Jo’ Jones, a criminal defense lawyer, said the e-mails confirmed what she and others have suspected about the DA’s office for years. ‘It’s systemic, the racism there,’ Jones said.”
Casimir, supra.
Further, Kelly Siegler, then-Chief of the Special Crimes Division, acknowledged that “racist attitudes persist in the district attorney’s office.” Alan
Bernstein, GOP Runoff Opponents Dispute Status of DA’s Office, Hous. Chron., Mar.
27, 2008, at B5. Hon. Patricia Lykos, who, as previously noted, was the elected Harris
County District Attorney from 2008 to 2012, and the District Court judge in the 180th
District Court of Harris County from 1980 until 1994, said of racism in the DA’s Office,
“[y]ou would have to be deaf or blind not to realize that there was that element among a certain segment at the district attorney’s office.” Id.
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African-American prosecutors confirmed and lamented the persistence of these racist attitudes, stereotypes, and biases in the Harris County DA’s Office:
“There is a subtle pressure . . . to keep minorities off juries and what seems like a higher-level of scrutiny and second-guessing for blacks than whites at the same experience level.” Lisa Falkenberg, A Lonely Feeling in the DA’s Office, Hous. Chron., Feb. 7, 2008.
“[A] dark-complexioned young prosecutor sitting in a dimly lit room said hello to a senior prosecutor and he responded with something to the effect of: ‘All I see is eyes and teeth. You need to turn the light on, girl.’” Id.
“[T]hey’ve heard Hurricane Katrina evacuees referred to as ‘Katrinians’ or ‘NFLs,’ which reportedly stands for ‘N-word From Louisiana.’” Id.
“[T]hey’ve heard white prosecutors talk down to or crack jokes about black defendants.” Id.
Jury Discrimination: This culture of racial bias, insensitivity, and stereotype manifested itself as not only inappropriate and unlawful conduct within the Rosenthal District Attorney’s Office, but also as discrimination against prospective jurors of color. See Moore v. State, 265 S.W.3d 73, 86–90 (Tex. App. 2008)
(Batson violated where prosecutor’s proffered justification for her strike applied to similarly-situated, accepted white prospective jurors, prosecutor used a disproportionate number of her peremptory challenges against prospective jurors of color, and prosecutor offered a false explanation for her strike), pet. dism’d, improvidently granted, 286 S.W.3d 371 (Tex. Crim. App. 2009); State v. Thomas, 209
S.W.3d 268, 275 (Tex. App. 2006) (Batson violation where the prosecution struck six of seven qualified black venire members; the State’s sole proffered reason – that the potential juror was a victim of crime – was insufficient because non-black venire members who were also crime victims were not struck).
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e. This claim is not barred by McCleskey.
In McCleskey, the Supreme Court considered whether a statewide study showing that African-American defendants who killed white victims were most likely to be sentenced to death could, in and of itself, prove discriminatory intent. 481 U.S. at 286. In addressing this question, the Court acknowledged that in some instances— such as jury venire challenges and alleged violations of Title VII of the Civil Rights
Act of 1964—statistics alone can support such an inference. Id. at 293–94 (citing
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 & n.13 (1977);
Bazemore v. Friday, 478 U.S. 385, 400–01 (1986)).
When comparing McCleskey’s claim to the contexts in which the Court has accepted statistics as proof of intentional discrimination, the Court found that in the latter instances, “the decisionmaker ha[d] an opportunity to explain the statistical disparity,” and “the statistics relate[d] to fewer entities, and fewer variables [were] relevant to the challenged decisions.” Id. at 295–96 (footnote omitted).
The Court concluded that McCleskey’s statistical evidence failed to prove intentional discrimination because it sought to establish a “state ‘policy,’” based on a multitude of individual jury decisions, despite the fact that juries cannot be asked to explain their sentencing choices, and on the past decisions of “scores,” of county- elected prosecutors that each had an “infinite” number of possible bases for deciding whether to prosecute and what to charge. Id. at 295–97 n.15–17. Under these circumstances, the Court held that McCleskey’s evidence was “insufficient to support inference that any of the decision makers . . . acted with discriminatory purpose.” Id. at 297.
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f. Marshall’s statistical proffer does not suffer from the same limitations as those in McCleskey.
Unlike McCleskey, Marshall does not attempt to rely on statewide statistics
alone. Instead, Marshall’s considerable statistical record is supported by proof that
the Harris County DA’s Office relied on racial stereotype and discrimination around
the time of Marshall’s capital trial and is bolstered by significant evidence of a history
of discrimination.
Furthermore, both the Phillips/Holmes Report, Paternoster Report, and the
TDCJ statistics examine the charging decisions of one prosecutor’s office, in one
county: the Harris County DA’s Office (which, as previously discussed, was the entity
solely responsible for deciding whether or not to seek the death penalty for Marshall)
over a lengthy period of time.
This distinction is critical because in McCleskey the Supreme Court
acknowledged that (a) “[r]equiring a prosecutor to rebut a study that analyzes the
past conduct of scores of prosecutors is quite different from requiring a prosecutor to
rebut a contemporaneous challenge to his own acts,”104 and (b) McCleskey’s statewide study failed to prove intentional discrimination because it could not shed light on the conduct of the prosecutor in McCleskey’s county. Id. at 295 n.15 (“Moreover, the statistics in Fulton County alone represent the disposition of far fewer cases than the statewide statistics. Even assuming the statistical validity of the Baldus study as a
104 481 U.S. at 297, n.17 (citing Batson, 476 U.S. at 79)
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whole, the weight to be given to the results gleaned from this small sample is
limited.”).
Because the statistical evidence on which Marshall relies pertains to
“decisions . . . over time [that] are fairly attributable to” the Harris County DA’s Office
itself, the evidence supports the inference of purposeful discrimination. Id. (emphasis
added); see also United States v. Bass, 536 U.S. 862, 864 (2002) (per curiam)
(distinguishing nationwide statistics from “a showing regarding the record of the
decision makers in respondent’s case” in evaluating persuasiveness of statistical
evidence in proving discriminatory intent); Belmontes v. Brown, 414 F.3d 1094, 1127
(9th Cir. 2005) (statistics “limited to the charging entity . . . and its death penalty
charging practices over time” can be sufficient to establish a prima facie case of
discriminatory intent), rev’d on other grounds sub nom. Ayers v. Belmontes, 549 U.S.
7 (2006).
g. Evidence of racism in Harris County’s judicial and other institutions supports Marshall’s claim.
Historical background which is “reasonably contemporaneous with the
challenged decision” is an “‘evidentiary source’ for proof of intentional discrimination.”
McCleskey, 481 U.S. at 298 n.20 (quoting Arlington Heights, 429 U.S. at 267); see also
Miller-El v. Cockrell, 537 U.S. 322, 347 (2003) (granting a Certificate of Appealability
on a jury discrimination claim). 105 Thus, “[i]f anything more is needed for an
105 “Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the District Attorney’s Office in the past was suffused with bias against African-Americans in jury selection. This evidence, of course, is relevant to the extent that it casts doubt on the legitimacy of the motives underlying the State’s
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undeniable explanation of what was going on, history supplies it.” Miller-El v. Dretke,
545 U.S. 231, 266 (2005) (relying, in part, on historical evidence of racial
discrimination to find that Texas prosecutors intentionally discriminated against
African-American prospective jurors).
There is ample historical evidence of racial discrimination against African-
Americans in Harris County that corroborates Marshall’s case of intentional discrimination. Houston’s African-American community has long been subjected to race-based exclusion, marginalization, and unfairness in significant aspects of civic life. The racism that corrupted Marshall’s capital prosecution and death sentence is a deplorable byproduct of the pervasive racial discrimination in the political, educational, and legal landscape of Harris County, Texas.
i. Racial discrimination in Harris County schools.
Harris County’s educational system has deep roots in racial segregation and exclusion. Harris County’s public school system has also struggled with persistent racial discrimination and segregation. Even after the Supreme Court declared racial segregation to be unconstitutional in Brown v. Board of Education, 347 U.S. 483
(1954), many of Harris County’s public schools remained segregated. A 1983 decision
described the bleak state of Houston’s school integration efforts:
The student population in twenty-two of the 226 schools in the system have been 90% or more black continuously since 1960. And there are thirty-three more schools whose student population is 90% or more black. There are, however, only two all-white schools, both elementary.
actions . . . Even if we presume . . . that the prosecutors . . . were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it.” Miller-El¸537 U.S. at 347.
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Fourteen of the twenty-two predominantly black schools were rezoned or paired in 1970 and were projected to be desegregated on a bi-racial basis. That goal failed when white students did not enroll in these public schools. Many of the remaining one-race black schools were at one time integrated or projected to be integrated, but all are now one-race because of housing patterns.
Ross v. Hous. Indep. Sch. Dist., 699 F.2d 218, 226 (5th Cir. 1983).
This trend has persisted. Research shows that Houston still has one of the highest rates of segregation among students in the country for African-Americans.
See Rich Motoko, Segregation Prominent in Schools, Study Finds, N.Y. Times, Sept.
19, 2012, at A5.
ii. Racial discrimination in Harris County’s political system.
Harris County’s political system has long been plagued by a legacy of racial bias and discrimination.
During the 1920s, the Ku Klux Klan successfully sponsored political candidates throughout Texas, including Harris County. In the 1922 Democratic primaries, for instance, Klan candidates carried all state-wide races in Texas. Their largest margins of victory were in Houston and other East Texas cities. See Ku Klux
Klan Candidates Leading in Texas; Most Big Cities and Counties Carried by Them,
N.Y. Times, June 24, 1922.
Consistent with this history, African-Americans have faced significant exclusion from elected office in Harris County. Houston’s judiciary provides a clear example of this phenomenon:
[In 1993,] the countywide election system consistently had resulted in an all-white bench, although 20% of the county’s electorate was African American and 22% Mexican American . . . [W]hite voters, voting as a
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bloc, consistently defeated the judicial candidate whom African- American voters favored when that candidate was also African- American.
Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public
Confidence, 57 WASH. & LEE L. REV. 405, 462 (Spring 2000).
iii. Racial discrimination in Harris County’s court system.
The Harris County court system also has a long history of racial discrimination.
African-American attorneys in Houston were traditionally excluded from the county
bar association and, along with African-American clients, were treated unfairly by
the courts because of their race.
Although the 1940 United States Census reveals that Houston had four black attorneys, the [Houston Bar Association (HBA)] remained segregated until 1965. By 1950, 1,250 of Harris County’s 2,044 lawyers were members of the HBA. However, some members of the bar were still denied access to the organization because of race. The HBA’s constitutional provisions required applicants to be ‘white.’ A motion to strike the ‘white’ requirement was first introduced in 1952, and amazingly, the issue of integration was debated for the next 14 years until the ‘white only’ clause was finally removed in 1965!
In the 1960’s, racial inequality in the legal community was still prevalent . . . [B]lack lawyers were the last to be heard at docket call. White lawyers representing black clients were the next to last to be heard, while white lawyers representing white clients were first on the docket.
Mary Thompson, A Long and Winding Road: An Historical Perspective on the Role of
Women and Minorities in the Houston Bar Association, 33 HOU. L. REV. 36, 37 (1995).
The Harris County court system’s prejudice against African-Americans was not limited to the order in which cases were called or the exclusion of African-
American lawyers from the bar association. Starting as early as 1900, Harris County
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court officials systematically excluded African-Americans from jury service. In
Collins v. State, 60 S.W. 42 (Tex. Crim. App. 1900), the CCA held that a defendant’s motion to quash an indictment was improperly denied where the evidence showed that African-Americans were intentionally and persistently excluded from Harris
County juries. In that case, a Harris County jury commissioner testified that African-
Americans were excluded from service on grand and petit juries because “negroes or persons of African descent had never been put on juries . . . in Harris County, within his recollection.” Id. at 43. He further testified he intentionally selected only white men for jury service. Id. Another jury commissioner testified that he never considered including African-Americans for service on juries. Id. He further stated that although he had lived in Harris County his entire life, he knew of no African-American to serve on a jury. Id.
The Court of Criminal Appeals reached a similar conclusion in Whitney v. State,
59 S.W. 895, 896 (Tex. Crim. App. 1900). In that case, the appeals court reversed the trial court’s denial of a motion to quash a Harris County indictment finding:
[T]here was sufficient evidence to show that, in the formation of the grand jury, negroes were intentionally excluded from the grand jury which found the bill of indictment. The witnesses show a large population of negroes, and among them material competent to constitute grand juries. They state that no negroes, within their knowledge, had ever been impaneled on any grand jury in Harris county. And the commissioner who assisted in drawing the grand jury stated that, if negroes had been given him on the list from which to form a grand jury, he would not have put them on, unless he had been so instructed by the court; that he did not regard them as fit material for juries.
Id.
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Evidence of racial bias and/or insensitivity by court officials has persisted. In
2003, “Jim Crow art” was displayed in a Harris County District Court jury room. See
Tim Fleck, As the Jim Crow Flies: Court Art Attracts Heat But No Media Light, Hous.
Press, July 10, 2003, at 1. The paintings, entitled “Mississippi Afternoon and Working
on the Levee,” depicted “blacks with caricatured physical features in happy, carefree
poses.” Id. They were observed by an African-American lawyer and his African-
American client when in the jury room for a mediated settlement in a civil lawsuit.
The attorney observed that the paintings had the potential to undermine the fairness of the deliberation process: “‘You ask jurors to leave all their prejudices at the courthouse door and have a clear mind, . . . [but] [w]hen they see that art on the wall, whatever discriminatory thoughts they may have creep back in and become a clear distraction.” Id. Both the attorney and his client were “offended by the artwork” but the client asked his lawyer not to “raise the issue because [the judge whose courtroom the painting was in] was mediating the proceeding.” Id. When journalists inquired about the paintings, the judge initially defended them by asserting that they had been placed in the jury room by an African-American member of her staff. Id. The judge ultimately removed the paintings, however, after declaring that they had become “a distraction to the court’s business.” Id.
Similarly, in 2012, two federal judges complained that paintings on display in
Houston’s federal courthouse “dredge up offensive imagery of slavery.” See Craig
Malisow, Some Judges Want Paintings of ‘Shirtless Black Men Hauling Bales of
Cotton’ Removed from Courthouse, Hous. Press Blogs, Feb. 9, 2012. Specifically, one
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United States District Judge objected to “a 1941 painting by Alexandre Hogue called
‘The Diana Docking,’ showing laborers and spectators along Buffalo Bayou . . .
[including] a white fellow with a gun, a black fellow with a bundle of logs and no shirt,
and a Native American fellow who is made out of wood.” Id. The Judge noted that
court employees had commented to her that “‘this picture as well as others in the
series are offensive to persons who would rather not be reminded about that period
in history or their part as either overseers or ‘workers.’” Id. A second federal judge
shared these concerns and had heard similar complaints voiced by court employees.
Id. The court chose not to remove the pictures, citing the prominence of the artists.
Id.
Today, the Harris County jails are disproportionately filled with African-
Americans and African-Americans receive the least favorable treatment by the criminal justice system:
[S]tatistics show that while only 18.9% of the population, African- Americans represent almost 50% of the persons detained in Harris County jails. The racial and ethnic make-up of the county is 40.8% Hispanic or Latino, 33% non-Hispanic white, and 18.9% non-Hispanic African-Americans. Yet the Harris County jail population is 49.2% African-American, 48.84% white (which includes Hispanics), and 1.24% ‘other.’
Additionally, data show that African-Americans are less likely to be released on their own recognizance or on bail than whites or Hispanics. In 2011, a Houston-based community activist group commissioned a report about the effect of Harris County criminal justice policies on African-Americans, particularly as it related to pretrial release. That report found that African-Americans make up the highest percent of misdemeanor arrests, yet bear the lowest pretrial release rate for misdemeanor offenses. Records show that while white defendants were released on bond about 70% of the time for misdemeanor offenses and 44% for felonies, and Hispanics were released about 52% of the time for
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misdemeanors and 31% of the time for felonies, African-Americans were released only 45% of the time for misdemeanors and 30% for felonies.
Marcia Johnson & Luckett Anthony Johnson, Bail: Reforming Policies to Address
Overcrowded Jails, the Impact of Race on Detention, and Community Revival in
Harris County, Texas, 7 NW J. L. & SOC. POL’Y 42, 67–68 (2012) (footnotes omitted)
(citing, inter alia, Janis Bane et al., Harris County Pre-Trial Services: Policies and
Practices, Hous. Ministers Against Crime (2011)).
h. The Texas capital punishment system has long been infected by racial bias and disproportionality.
Consistent with the significant history of racial discrimination in Harris
County’s educational, political and civic systems, there is longstanding evidence of racial bias and disproportionality in Harris County’s, and Texas’s, capital punishment system.
Harris County has maintained an extraordinary rate of death sentences and executions that “has often captured the national and international spotlight in the death-penalty debate.” See Phillips/Rosenthal Report, 50 HOUS. L. REV. at 133. “If
Harris County were a state it would rank second in executions after Texas, outpacing both Virginia . . . and Oklahoma.” Id.
The disparities are truly staggering. Between 1924 and 1973, no Texas county sent more people convicted of murder or rape to death row than Harris County. See
James W. Marquart, et al., The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990, at 42 (1994) (Table 3.2, “Percentage Distribution of Death-
Sentenced Rapists by Personal Characteristics, 1924-1972”); id. at 72 (Table 4.1,
“Percentage Distribution of Death-Sentenced Murderers by Personal Variables, 1923-
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1972”). Since 1976, one-quarter of all prisoners condemned to death in Texas were
from Harris County; one-quarter of all prisoners executed in Texas were from Harris
County; and one-third of the prisoners currently on Texas’s death row are from Harris
County.
From its earliest days, Texas’s death penalty has been tainted by racial bias
and disproportionality. Between 1875 and 1923, 76% of the men executed for the
crime of rape were African-American. “Black murderers represented 61% of the
murderers executed, and blacks convicted of murder where rape was involved were
the only people executed for such crimes.” Robert J. Hunter et al., The Death
Sentencing of Rapists in Pre-Furman Texas (1942-1971): The Racial Dimension, 20
AM. J. CRIM. L. 313, 323 (Spring 1993) (citing M. Watt Espy & John O. Smylka,
Executions in the United States, 1608-1987: The Espy File (1987) (machine-readable data file)).
Between 1923 and 1973, 56.9% of Texas’s death-sentenced prisoners were
African-American. See Tex. Dep’t of Criminal Justice, Racial and Gender Breakdown of Death Row Offenders 1923-1973. And “[o]f the death row prisoners executed for rape between the years 1924 and 1968, 83% were black, while only 14% were white . . .
[B]lacks convicted of rape in Texas were far more likely to receive death sentences than were whites or Hispanics.” See Hunter et. al., supra, at 317 (citing Rupert C.
Koeninger, Capital Punishment in Texas, 1924-1968, 15 CRIME & DELINQ. 132, 141
(1969)).
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In 1972, when the United States Supreme Court declared that the death
penalty was so arbitrarily imposed that it violated the Eighth Amendment’s ban on
cruel and unusual punishment, Furman v. Georgia, 408 U.S. 238 (1972), Justice
Douglas drew specific attention to Texas’s application of the death penalty and noted
that race played an improper role in death sentencing:
A study of capital cases in Texas from 1924 to 1968 reached the following conclusions:
Application of the death penalty is unequal: most of those executed were poor, young, and ignorant.
Seventy-five of the 460 cases involved co-defendants who, under Texas law, were given separate trials. In several instances where a white and a Negro were co-defendants, the white was sentenced to life imprisonment or a term of years, and the Negro was given the death penalty.
Another ethnic disparity is found in the type of sentence imposed for rape. The Negro convicted of rape is far more likely to get the death penalty than a term sentence, whereas whites and Latins are far more likely to get a term sentence than the death penalty.
Id. at 250–51 (concurring, Douglas, J.).
In the wake of this opinion, Texas revised its death penalty statute and the
Supreme Court, in Jurek v. Texas, 428 U.S. 262 (1976), declared that the new law
eliminated the unconstitutional risk of arbitrariness. Studies of Texas’s post-Furman death sentences, however, reveal “a clear pattern of minority-victim devaluation.” See
Brent E. Newton, A Case Study in Systemic Unfairness: The Texas Death Penalty,
1973-1994, 1 TEX. F. on C.L. & C.R. 1, 13 (Spring 1994). Specifically, between 1974 and 1983:
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[O]nly 51% of all Texas capital murders . . . involved white victims, yet 85% of all death sentences were for the capital murder of whites. Conversely, 23.4% of all Texas capital murders involved black victims, but such murders resulted in only 3.6% of all death sentences. Finally, it is notable that, with the rarest of exceptions, whites in Texas do not receive death sentences for the capital murders of blacks.
Id. at 12–13; Sheldon Eckland-Olson, Structured Discretion, Racial Bias, and the
Texas Death Penalty, 69 POL. SCI. Q. 853, 858–60, 861–63 (1988) (study based on
Texas capital murder statistics from 1974-1988)); Jonathan Sorenson & James W.
Marquart, Prosecutorial and Jury Decision-Making in Post-Furman Texas Capital
Cases, 18 N.Y.U. REV. L. & SOC. Ch. 743, 765–72 (1990-91); Vigneault v. State, 600
S.W.2d 318 (Tex. Crim. App. 1979)). A study of Texas capital murders “from 1980-86
show[s] that a white who committed the capital murder of an African-American
during those years had, statistically speaking, no chance of receiving the death
penalty.” Newton, supra, at 13 n.79 (citing Ex. 50, Sorenson & Marquart, supra, at
765 n.38).
i. Discriminatory effect.
“To establish a discriminatory effect of prosecution in a race case, defendant must show that similarly situated individuals of a different race were not prosecuted.”
Armstrong, 517 U.S. at 465. To meet this standard, the United State Supreme Court has emphasized the importance of focusing on “the record of the decision makers in
[the defendant’s] case” and the need to examine “charges brought against similarly situated defendants.” Bass, 536 U.S. at 864. Marshall has amply met this standard.
As detailed above, the Phillips/Holmes Report shows that the Harris County
DA’s Office was 1.75 times more likely to seek the death penalty for African-American
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defendants, like Marshall, than for similarly-situated white defendants. Moreover,
the Paternoster Report reveals that among defendants with cases whose
characteristics are similar to Marshall’s, the Harris County DA’s Office was over
three times more likely to seek the death penalty for African-American defendants
than for similarly-situated white defendants. Additionally, the TDCJ data establish
that the Harris County DA’s office has exercised its discretion to stop seeking death
sentences against white defendants while continuing to pursue death against
minority defendants.
Given that the Supreme Court has found discriminatory effect in evidence
showing that blacks were “1.7 times as likely as whites to suffer disenfranchisement,”
Marshall has met his burden. Hunter v. Underwood, 471 U.S. 222, 227 (1985).
Marshall was sentenced to death in violation of his rights to due process and
equal protection under the United States Constitution. He is entitled to a new punishment phase.
2. The racial bias that infected Marshall’s death sentence violates the Eighth Amendment’s ban on cruel and unusual punishment.
Similarly, because Marshall’s death sentence is a product of racial
discrimination, it violates the Eighth Amendment’s prohibition on cruel and unusual
punishments. “[I]f a State wishes to authorize capital punishment it has a
constitutional responsibility to tailor and apply its law in a manner that avoids the
arbitrary and capricious infliction of the death penalty.” Godfrey v. Georgia, 446 U.S.
420, 428 (1980). The evidence presented by Marshall makes clear that racial bias,
discrimination, and stereotype played a dispositive role in the Harris County District
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Attorney’s Office exercise of discretion in Marshall’s case, and that the death penalty in Harris County is administered in an arbitrary and capricious manner. As such, it violates the Eighth Amendment to the United States Constitution.
B. This claim is unexhausted.
This claim was not presented in state post-conviction proceedings and it is therefore unexhausted. Marshall expects to seek discovery and a stay under Rhines v. Weber, 544 U.S. 269 (2005), so that he may return to state court and exhaust it. It would be premature to address questions of default until Marshall receives the opportunity to factually develop this claim through discovery and present it to the state courts.
Claim 14 Marshall’s prolonged stay on death row violates his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
Marshall has now spent over fifteen years on death row awaiting execution.
Marshall’s continued incarceration under a death sentence violates both the United
States Constitution and international law. Marshall believes that this claim is not yet ripe and includes it for preservation purposes. If, however, this Court finds it ripe now, Marshall’s death sentence violates his right to be free from cruel and unusual punishment under the Eighth Amendment.
The question of whether the prolonged incarceration of an individual prior to their execution violates the Eighth Amendment is not a new issue. Over one hundred years ago, the Supreme Court granted a writ of habeas corpus to an individual awaiting execution in Colorado based on the conditions under which he was imprisoned. In re Medley, 134 U.S. 160 (1890) (holding uncertainty and delay in
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execution, along with the infliction of solitary confinement amounted to an ex post
facto violation). The Supreme Court recognized the anguish an individual suffers
awaiting an uncertain execution, stating:
[W]hen a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place.
Id. at 388.
Furthermore, the Court recognized that forcing a prisoner to await his
execution in solitary confinement was an “additional punishment of such a severe
kind that it is spoken of . . . as ‘a further terror and peculiar mak[e]r of infamy’ to be
added to the punishment of death.” Id. at 387.
This issue has been debated in both international human rights tribunals and
foreign courts. In several cases, such courts have found long periods of confinement
prior to execution to be incompatible with rights which are almost identical to those
protected by the Eighth Amendment. For example, the Inter-American Commission on Human Rights has found that the confinement of a prisoner on death row for eighteen years, coupled with repeated execution dates and a conviction and sentence by a “tainted” jury, violated Article XXVI of the American Declaration of the Rights and Duties of Man, which guarantees that “[e]very person accused of an offense has the right . . . not to receive cruel, infamous or unusual punishment.” Andrew v. United
States, Case 11.139 (Dec. 6, 1996). Similarly, the European Court of Human Rights in Soering v. United Kingdom, 11 EHRR 439 (1989), held that “the very long time
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spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty,” in conjunction with the age and mental state of the defendant, constituted a violation of Article 3 of the European
Convention on Human Rights, which prohibits “inhuman or degrading treatment or punishment.”
The United Kingdom Privy Council has described a delay of fourteen years between sentencing and execution as “shocking” and “wholly unacceptable” and held that it amounted to a breach of Section 17(1) of the Jamaican Constitution, which assures that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment.” The Court held that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment.’” Pratt & Morgan v. The Attorney General of Jamaica, [1994] 4
All ER 769.
In the United States, the Supreme Court raised a new debate in the courts regarding this issue in the memorandum respecting the denial of certiorari in Lackey v. Texas, 514 U.S. 1045 (1995). In Lackey, Justices Stevens and Breyer recognized the merit of claims that the inordinate delay in the execution of sentence in capital cases violated the Eighth Amendment and invited the “state and federal courts to ‘serve as laboratories in which the issue receives further study before it is addressed by [the
Supreme Court].’” Id. at 1047. Following Lackey, prisoners who have spent many years on death row have asserted two types of Eighth Amendment claims. First, that
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confinement on death row for such an extended period of time in itself constitutes cruel and unusual punishment because an inmate awaiting execution for an extended period of time is subjected to extraordinary psychological duress and extreme physical and social restrictions inherent in confinement on death row. Second, that after a sufficient amount of time has elapsed from the prisoner’s conviction, their execution would violate the Eighth Amendment because the retributive and deterrent effects of actually carrying out the execution are dramatically diminished after years of delay.
This debate has recently garnered the attention of two Supreme Court Justices.
Justices Breyer and Sotomayor, dissenting in Glossip v. Gross, 135 S. Ct. 2726 (2015), asked for full briefing on the constitutionality of the death penalty. Id. at 2756 (Breyer,
J., joined by Sotomayor, J., dissenting). One of the concerns specifically raised by the dissenting Justices is whether the lengthy delay between sentence and execution is unconstitutionally cruel:
These lengthy delays create two special constitutional difficulties. See Johnson v. Bredesen, 558 U.S. 1067, 1069, 130 S. Ct. 541, 175 L. Ed. 2d 552 (2009) (Stevens, J., statement respecting denial of certiorari). First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” Ibid.; Gomez v. Fierro, 519 U.S. 918, 117 S. Ct. 285, 136 L. Ed. 2d 204 (1996) (Stevens, J., dissenting) (excessive delays from sentencing to execution can themselves “constitute cruel and unusual punishment prohibited by the Eighth Amendment”); see also Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995) (memorandum of Stevens, J., respecting denial of certiorari); Knight v. Florida, 528 U.S. 990, 993, 120 S. Ct. 459, 145 L. Ed. 2d 370 (1999) (Breyer, J., dissenting from denial of certiorari). Second, lengthy delay undermines the death penalty’s penological rationale. Johnson, supra, at 1069, 130 S. Ct. 541, 175 L. Ed. 2d 552; Thompson v. McNeil,
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556 U.S. 1114, 1115, 129 S. Ct. 1299, 173 L. Ed. 2d 693 (2009) (statement of Stevens, J., respecting denial of certiorari).
Id. at 2765. Ultimately, Justice Breyer concluded, that “[t]he upshot is that lengthy
delays both aggravate the cruelty of the death penalty and undermine its
jurisprudential rationale.” Id. at 2769. When “the death penalty does not fulfill the
goals of deterrence or retribution, it is nothing more than the purposeless and
needless imposition of pain and suffering and hence an unconstitutional punishment.”
Id. (internal citations omitted).
A. Marshall’s prolonged stay on death row, for a crime he did not commit, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
The torturous effects of the “death row phenomenon”—that is, the
psychologically devastating effects of a lengthy stay on death row—have been widely
noted by jurists during the last three decades.106
106 See, e.g., Elledge v. Florida, 525 U.S. 944 (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U.S. 1045, 1045–47 (1995) (opinion of Stevens, J., respecting denial of certiorari) (citing cases); Free v. Peters, 50 F.3d 1362, 1363 (7th Cir. 1995) (Cudahy, J., dissenting) (citing cases), cert. denied, 514 U.S. 1034 (1995); Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J., concurring in the denial of certiorari) (recognizing that mental pain suffered by a condemned prisoner awaiting execution “is [a] significant form of punishment” that “may well be comparable to the consequences of the ultimate step itself [i.e., the actual execution]”); Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon.”); Furman v. Georgia, 408 U.S. 238, 288–89 (1972) (Brennan, J., concurring) (“[W]e know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.”); People v. Anderson, 493 P.2d 880, 6 Ca1.3d 628, 649 (Cal. 1972) (“The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to the execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the [protracted] process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”), cert. denied, 406 U.S. 958 (1972); Suffolk County District Attorney v. Watson, 411 N.E.2d 1274, 1289–95 (Mass. 1980) (Liacos, J., concurring) (vivid and detailed description of the type of psychological pain and torture that a condemned person experiences while awaiting execution); id. at 1287 (Braucher, J., concurring) (arguing that capital punishment is
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In the same vein, similar views have been expressed by legal commentators
and mental health experts.107
unconstitutional under Massachusetts Constitution in part because it “will be carried out only after agonizing months and years of uncertainty”); Commonwealth v. O’Neal, 339 N.E.2d 676, 680–81 (Mass. 1975) (Tauro, C.J., concurring) (“The convicted felon suffers extreme anguish in anticipation of the extinction of his existence.”); State v. Richmond, 886 P.2d 1329 (Ariz. Dec. 15, 1994); Hopkinson v. Wyoming, 632 P.2d 79, 209–11 (Wyo. 1981) (Rose, C.J., dissenting in part), cert. denied, 455 U.S. 922 (1982) (recognizing “the dehumanizing effects of long imprisonment pending execution”); Ross v. Connecticut, 646 A.2d 1318, 1379 (Conn. 1994) (Berdon, J., dissenting) (same), cert. denied, 513 U.S. 1165 (1995); Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439, 28 I.L.M. 1063 (1989) (European Court of Human Rights refused to extradite a German national from UK to Virginia to face capital murder charges because of anticipated time that he would have to spend on death row if sentenced to death); Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (India 1983) (criticizing the “dehumanizing character of the delay” in carrying out an execution); Sher Singh et al. v. The State of Punjab, 2 S.C.R. 582 (India 1983) (“Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.”); Catholic Comm’n for Justice & Peace in Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993) (reported in 14 HUM. RTS. L. J. 323 (1993)).
107 See, e.g., Schabas, Execution Delayed, Execution Denied, 5 CRIM. L. FORUM 180 (1994); Lambrix, The Isolation of Death Row in FACING THE DEATH PENALTY 198 (M. Radelet ed. 1990); Millemann, Capital Post-Conviction Petitioners’ Right to Counsel, 48 MD. L. REV. 455, 499–500 (1989) (“There is little doubt that the consciousness of impending death can be immobilizing. . . . This opinion has been widely shared by [jurists], prison wardens, psychiatrists and psychologists, and writers.”) (citing authorities); Mello, Facing Death Alone, 37 AMER. L. REV. 513, 552 & n.251 (1988) (same) (citing studies); Wood, Competency for Execution: Problems in Law and Psychiatry, 14 FLA. ST. U. L. REV. 35, 37–39 (1986) (“The physical and psychological pressure besetting capital inmates has been widely noted . . . . Courts and commentators have argued that the extreme psychological stress accompanying death row confinement is an eighth amendment violation in itself or is an element making the death penalty cruel and unusual punishment.”) (citing authorities); Stafer, Symposium on Death Penalty Issues: Volunteering for Execution, 74 J. CRIM. L. 860, 861 & n.10 (1983) (citing studies); Holland, Death Row Conditions: Progression Towards Constitutional Protections, 19 AKRON L. REV. 293 (1985); Johnson, Under Sentence of Death: The Psychology of Death Row Confinement, 5 LAW & PSYCHOLOGY REV. 141, 157–60 (1979); Hussain & Tozman, Psychiatry on Death Row, 39 J. CLINICAL PSYCHIATRY 183 (1979); West, Psychiatric Reflections on the Death Penalty, 45 AMER. J. ORTHOPSYCHIATRY 689, 694–95 (1975); Gallemore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 AMER. J. PSYCHIATRY 167 (1972); Bluestone & McGahee, Reaction to Extreme Stress: Impending Death By Execution, 119 AMER. J. PSYCHIATRY 393 (1962); Note, Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 830 (1972); Gottlieb, Testing The Death Penalty, 34 S. CAL. L. REV. 268, 272 & n.15 (1961); A. Camus, Reflections on the Guillotine in RESISTANCE, REBELLION & DEATH 205 (1966) (“As a general rule, a man is undone waiting for capital punishment well before he dies.”); F. Dostoyevsky, THE IDIOT 47–48 (D. Magarshack trans. 1955); Duffy & Hirshberg, EIGHTY-EIGHT MEN AND TWO WOMEN 254 (1962) (“One night on death row is too long, and the length of time spent there by [some inmates] constitutes cruelty that defies the imagination. It has always been a source of wonder to me that they didn't all go stark, raving mad.”) (quoting former warden of California's San Quentin Prison).
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1. The British Privy Council’s Landmark Decision in Pratt & Morgan.
Marshall’s Eighth Amendment arguments are strongly supported by a landmark decision in a capital appeal rendered by the Judicial Committee of the
Privy Council of the United Kingdom (the “Privy Council”).108 See Pratt & Morgan v.
The Attorney General of Jamaica, 33 I.L.M. 364 (Privy Council Appeal No. 10 of 1993,
Nov. 2, 1993) (en banc).
In Pratt & Morgan, an appeal by two condemned men on Jamaica’s death row, the Privy Council, sitting en banc for the first time in five decades, unanimously held that carrying out the death sentences of the two men would be “torture,” and
“inhuman and degrading” punishment. The Privy Council did not hold that capital punishment was cruel and unusual per se, but instead focused on the fact that the condemned men had been on death row for a protracted period of time—fourteen years. The Privy Council stated:
There is an instinctive revulsion against the prospect of [executing] a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.
Id. at 380.
108 The Privy Council is the highest appellate court for Commonwealth nations. The jurists who sit on the Privy Council are likewise members of England's highest domestic appellate court, the House of Lords (“the Law Lords”).
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Pratt & Morgan also surveyed the history of English common law regarding
the subject of lengthy imprisonment of a condemned man on death row and the
repeated setting of execution dates in a single case. The Privy Council concluded that
neither practice was condoned historically at common law. See, e.g., id. at 367 (“It is
difficult to envisage any circumstance in which in England a condemned man would
have been kept in prison for years awaiting an execution.”); id. at 369 (noting the
“common law practice that execution followed as swiftly as practical after sentence”);
see also Riley v. Attorney General of Jamaica, 1 AC 719, 3 All ER 469 (Privy Council
1983) (Lord Scarman, dissenting, joined by Lord Brightman) (“[T]here is a formidable
case for suggesting that execution after inordinate delay would have infringed the
prohibition against cruel and unusual punishment to be found in Section 10 of the
Bill of Rights of 1689 . . . .”) (majority opinion overruled by Pratt & Morgan);109 See also Lackey, 514 U.S. at 1045 (a delay of 17 years, “if it ever occurred, certainly would have been rare in 1789, and thus the practice of the Framers would not justify the denial of petitioner’s claim”). Pratt & Morgan, along with the various authorities
discussed herein, offers a firm legal basis for Marshall’s Eighth Amendment claim
challenging the State’s right to execute the death sentence in this case.110
109 As Justice Scalia has recognized, “[t]here is no doubt” that Section 10 of the English Bill of Rights of 1689 “is the antecedent” of the cruel-and-unusual-punishments clause of our Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (opinion of Scalia, J.). 110 Hundreds of American courts and jurists have been guided by the decisions of the Privy Council, the highest expositor of law in the United Kingdom, whose common law has greatly shaped our own. See, e.g., United States v. Raddatz, 447 U.S. 667, 679 (1980) (citing a Privy Council decision with approval); Kilbourn v. Thompson, 103 U.S. 168, 186 (1881) (same); see also Fisher v. United States, 328 U.S. 463, 486-88 (1946) (Frankfurter, J., dissenting) (“This Court in reviewing a conviction for murder . . . ought not be behind . . . the Privy Council . . . .”) (discussing Privy Council decisions).
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2. Eighth Amendment authority supporting Marshall’s claim.
Marshall’s incarceration on death row violates the Eighth Amendment under both the standards in place in 1789 and modern standards. Recent Eighth
Amendment decisions have, as a threshold matter, focused on whether a challenged punishment was considered unacceptable at the time of the adoption of our Bill of
Rights. See, e.g., Stanford v. Kentucky, 109 S. Ct. 2969, 2974 (1989) (in rejecting claim that the execution of sixteen and seventeen year olds is cruel and unusual, the Court noted that the punishment was not “one of those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted”) (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). If a punishment was considered cruel and unusual in 1789, then the Court’s Eighth Amendment analysis goes no further; it is cruel and unusual today. See Ford, 477 U.S. at 405–06.
Unquestionably, the Framers of the Constitution considered long delays between sentencing and execution cruel and unusual. Glossip, 135 S. Ct. at 2769 (Breyer, J., dissenting) (citing sources establishing that in the founding era, “[e]xecution took place soon after sentencing.”); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial of certiorari) (collecting sources, including petition seeking commutation of a death sentence in part because of a lengthy five-month delay).
The Privy Council’s review of English common law establishes that a protracted stay on death row would not have been tolerated at common law under any circumstances. Likewise, in the United States in the eighteenth and nineteenth centuries, executions routinely took place within one year of conviction. See Dwight
Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute
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Cruel and Unusual Punishment?, 29 SETON HALL L. REV. 147, 179–81 (1998).
Although appeals in capital cases take time, the necessary delay occasioned by such appeals does not extend the point where executing an individual becomes unconstitutional.111
Assuming, arguendo, that an individual’s execution after over fifteen years on
death row was a type of punishment that was permitted at the time that the Bill of
Rights was adopted, a second question arises: whether a punishment that may have
been acceptable to the Framers of the Constitution nonetheless now violates modern
society’s civilized standards. See, e.g., Campbell v. Wood, 18 F.3d 662 (9th Cir. 1993)
(en banc), cert. denied, 511 U.S. 1119 (1994) (hanging not a cruel and unusual
punishment). The Supreme Court has interpreted the reach of the Eighth
Amendment in a “flexible and dynamic manner.” Gregg, 428 U.S. at 171; see also
Weems v. United States, 217 U.S. 349, 373 (1910) (“a principle, to be vital, must be
capable of wider application than the mischief which gave it birth”). In recent times,
the Supreme Court has recognized that “the Eighth Amendment’s proscriptions are
not limited to those practices condemned by the common law in 1789.” Ford, 477 U.S.
at 406. Rather, it “must draw its meaning from the evolving standards of decency
that mark the program of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
As the concepts of dignity and civility evolve, so too do the limits of what is considered
111 Relying on other international law cases, the Privy Council in Pratt & Morgan held that even if an inordinate delay between trial and execution is attributable to discretionary appeals filed by the condemned person, the government nevertheless has no right to carry out an execution if the delay resulted from legitimate, non-frivolous appeals. Pratt & Morgan, at 380–84 (discussing cases).
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cruel and unusual. Such factors include the practices among the majority of the states in this country and international practices. See, e.g., Stanford, 492 U.S. at 369; Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982).
International law and practice is particularly relevant for purposes of this question. The weight of international authority—including Pratt & Morgan, a unanimous decision by the highest court in a fellow common-law jurisdiction— strongly supports Marshall’s contention that his execution would violate the Eighth
Amendment.
Other well-established Eighth Amendment principles of broad application also are relevant to this Court’s analysis. The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency” against which forms of punishment must be measured. Estelle v. Gamble, 429 U.S. 97, 102
(1976) (citation omitted). It “expresses the revulsion of civilized man against barbarous acts—the ‘cry of horror’ against man’s inhumanity to his fellow man.”
Robinson v. California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring).
The Eighth Amendment’s restrictions on the ability of a state to impose certain types of punishment “aim . . . to protect the condemned from [unnecessary] fear and pain . . . or to protect the dignity of society itself from the barbarity of exacting mindless vengeance.” Ford, 477 U.S. at 410. At its core, the Eighth Amendment stands to safeguard “nothing less than the dignity of man.” Trop, 356 U.S. at 100. In the particular context of capital punishment—where the infliction of some incidental pain is obviously unavoidable—the Supreme Court’s Eighth Amendment analysis of
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what is “cruel and unusual” turns on whether unnecessary or gratuitous pain is part of the punishment. As the Court stated in Louisiana ex. rel. Francis v. Resweber, 329
U.S. 459 (1947):
The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Prohibition against the wanton infliction of pain has come to our law from the [English] Bill of Rights [of 1689]. . . . Mr. Francis’ suggestion is that because he once underwent the psychological strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to lingering or cruel and unusual punishment. . . . [The Constitution does not protect against] the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseen accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block.
Id. at 463–64.
Marshall has endured a needlessly lingering form of torturous psychological punishment that, if the State has its way, will culminate in a lethal injection. See
Gregg, 428 U.S. at 170–71 (unnecessarily lingering form of execution is unconstitutional under the Eighth Amendment) (citing In re Kemmler, 136 U.S. 436,
447 (1890)). The fact that Marshall is challenging the lingering psychological anguish resulting from his excessively lengthy stay on death row—and is not alleging physical
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torture—does not foreclose an Eighth Amendment claim.112 It is well established that
the infliction of extreme mental anguish can be a form of unconstitutional torture.113
3. The unconstitutional conditions at TDCJ-ID’s Polunsky Unit further Marshall’s argument.
Additionally, the conditions under which Marshall has been incarcerated in— including solitary confinement—have been found to violate the Eighth Amendment.
There is no serious dispute that prolonged isolation is psychologically damaging, painful, and dangerous, and that it can cause a range of severe psychiatric problems.
112 In Pratt & Morgan, the British Privy Council focused exclusively on the mental torture inflicted on two condemned men on Jamaica’s death row. See Pratt and Morgan, slip op., at 1–2 (describing “the agony of mind that these men must have suffered as they have alternated between hope and despair in the 14 years that they have been in prison facing the gallows. It is unnecessary to refer to the evidence describing . . . the emotional and psychological impact of this experience, for it only reveals that which is to be expected.”).
113 See, e.g., Trop, 356 U.S. at 102 (expatriation as penalty for desertion “subjects the individual to a fate of ever-increasing fear and distress”); Hudson v. McMillian, 503 U.S. 1, 16 (1992) (Blackmun, J., concurring) (“I am unaware of any precedent of this Court to the effect that psychological pain is not cognizable for constitutional purposes [under the Eighth Amendment]. If anything, our precedent is to the contrary.”); Furman v. Georgia, 408 U.S. 238, 271–73 (1972) (Brennan, J., concurring) (“[T]he Framers also knew []that there could be exercises of cruelty other than those which inflicted bodily pain or mutilation.”); see also Smith v. Aldingers, 999 F.2d 109, 110 n.4 (5th Cir. 1993) (collecting recent cases holding that mental or psychological torture can violate the Eighth Amendment); cf. In re Medley, 134 U.S. 160, 172 (1890) (recognizing the “immense mental anxiety” that a condemned man experiences when the authorities intentionally refuse to inform him of the precise date of his scheduled execution, and referring to it as “one of the most horrible feelings to which he can be subjected”) (emphasis added). In re Medley was an ex post facto case, its century-old recognition of the “immense” and “horrible” mental anguish that a condemned man feels when he does not know the date of his execution—which the Supreme Court recognized as a form of “punishment” implicating the ex post facto clause—is instructive here. See Lackey, supra. Marshall does not allege that particular type of mental anxiety caused by his confinement on Texas’s death row; however, he does contend that the mental anguish that he has faced has been equally or more “immense” and “horrible.” Therefore, to permit the State to carry out an execution after requiring Marshall to endure such torturous conditions would unquestionably violate the Eighth Amendment.
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Literature on the damaging effects of solitary confinement abounds; the Glossip
dissent collected several of the many scientific studies reaching this conclusion. See
Glossip, 135 S. Ct. at 2765 (Breyer, J., dissenting) (citing Haney, Mental Health
Issues in Long-Term Solitary and “Supermax” Confinement, 49 CRIME &
DELINQUENCY 124, 130 (2003); Grassian, Psychiatric Effects of Solitary Confinement,
22 WASH. U. J. L. & POLICY 325, 331 (2003). The horrors of solitary confinement, and
particularly of prolonged solitary confinement, are widely acknowledged. Thus the
length of Marshall’s incarceration, together with the conditions under which he has
been held in segregation, constitute a clear violation of the Eighth Amendment and
international law.
B. Marshall’s execution after so many years on death row would have no deterrent or retributive effect and would therefore serve no penological purpose, thus constituting a breach of the Eighth Amendment.
In Gregg, the Supreme Court found that the death penalty did not in itself
violate the Eighth Amendment for two reasons. First, the death penalty was
considered permissible by the Framers. Second, the Court held that the death penalty
might serve two principal social purposes: retribution and deterrence. Gregg, 428 U.S.
at 177, 183. If, therefore, a particular execution does not serve those purposes, the
constitutional justification for such execution is removed.
Drawing upon the Supreme Court’s previous judgments in Furman, 408 U.S.
238, and Gregg, 428 U.S. at 183, that “[t]he sanction imposed cannot be so totally
without penological justification that it results in the gratuitous infliction of
suffering,” Justice Stevens in Lackey stated that when the death penalty does not
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serve the purposes of deterrence or retribution, it violates the Eighth Amendment. In the case of a prisoner who had spent seventeen years on death row, he stated that
“the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted” and that “the additional deterrent effect from an actual execution now, on the one hand, as compared to 17 years on death row followed by the prisoner’s continued incarceration for life, on the other, seems minimal.” Lackey,
514 U.S. at 1046. And, recently Justices Breyer and Sotomayor agreed that “[t]he second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so.” Glossip,
135 S.Ct. at 2767 (Breyer, J., joined by Sotomayor, J., dissenting).
Marshall has now spent over fifteen years on death row awaiting his own execution. This period of delay is sufficient to reduce any deterrent and retributive effect that his execution would have. This is particularly the case when coupled with the credible doubt as to Marshall’s guilt. The penological benefit of such execution would be so minimal as to constitute a breach of the Eighth Amendment. Because
Marshall has now spent so many years on death row, his continued incarceration under a death sentence violates both the United States Constitution and international law. For this reason, this Court should reverse his death sentence.
Claim 15 Marshall is actually innocent and his execution would constitute cruel and unusual punishment and violate due process.
In Herrera v. Collins, 506 U.S. 390, 417 (1993), the Supreme Court assumed without deciding that the execution of an innocent person would violate the
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constitution. Accord House v. Bell, 547 U.S. 518, 554–55 (2006); see also Schlup v.
Delo, 513 U.S. 289, 314 n.28 (1995). Five members of the Court in Herrera unequivocally found that the execution of an innocent person would be unconstitutional. Herrera, 506 U.S. at 419 (“the execution of a legally and factually innocent person would be a constitutionally intolerable event”) (O’Connor, J., joined by Kennedy, J., concurring); id. at 431 (the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence.”) (Blackmun, J., joined by JJ., Stevens and Souter, dissenting).
Evidence used to convict Marshall and sentence him to death was unreliable, and obtained and used in a manner that offends the Constitution for the reasons set forth in Marshall’s claims for relief, supra. State postconviction and federal habeas corpus counsel have mustered a persuasive case that Marshall is factually and legally innocent. His execution, therefore, would violate the Eighth and Fourteenth
Amendments. Herrera, 506 U.S. at 417, 419, 431.
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Claim 16 Marshall is entitled to habeas relief due to the failure of having an unbiased judge sit over his trial. Judge Stricklin was biased against Marshall, rendering his conviction and sentence unconstitutional.114
Defendants in the American judicial system have the right to a fair trial and part of this right is fulfilled by a judicial officer who impartially presides over the trial. See, e.g., Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).
However, “most questions concerning a judge’s qualifications to hear a case are
not constitutional ones, because the due process clause of the fourteenth amendment
establishes a constitutional floor, not a uniform standard.” Id. at 904. A judge will,
however, violate a defendant’s due process rights if he is biased against the defendant
or has an interest in the outcome of the case. Id. at 905. A likelihood or appearance
of bias can disqualify a judge as well. Taylor v. Hayes, 418 U.S. 488, 501 (1974). “A
criminal defendant tried by a partial judge is entitled to have his conviction set aside,
no matter how strong the evidence against him.” Edwards v. Balisole, 520 U.S. 641,
647 (1997) (citations omitted).
Generally, the Supreme Court has recognized two kinds of judicial bias: actual
bias and presumptive bias. See, e.g., W. Huron v Larkin, 421 U.S. 35, 47 (1975)
(“[V]arious situations have been identified in which experience teaches that the
probability of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.”); Bigby v Dretke, 402 F.3d 551, 560 (5th Cir. 2005)
114 This claim is included at Marshall’s request, and is presented in his own words with minor citation and typographical edits by undersigned counsel. Counsel has not edited the substance of Marshall’s allegations or arguments.
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(evaluating a judicial bias claim and noting that because there was no presumption
of bias from the defendant’s attack on the judge, it was necessary to “examine the
record for indications of actual bias on the part of the trial judge”) (emphasis added).
During the playing of State’s exhibit 44-A at the guilt-phase of trial, petitioner’s trial counsel stated that he heard petitioner invoke his right to terminate the interview:
Mr. Arnold: Your Honor, I ask it be cut off. Judge, I ask it be cut off and we approach the bench.
The Court: Okay.
(At the bench.)
Mr. Arnold: I may be wrong because as you know, I don’t hear all that well, but I would have sworn I just heard my client say, I want to terminate the interview?
The Court: Really.
Mr. Arnold: Very last thing he says right there.
Mr. Wisner: If you want to re-hear it that’s fine. He may say a couple of times I may want to terminate.
Mr. Arnold: First time he says it becomes effective.
The Court: That’s fine.
Mr. Wisner: That’s fine with us.
15 RR 81-82.
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A. Judge Stricklin knew Petitioner invoked his right to terminate the interview and allowed prosecutors to redact it, forcing him into self- incrimination.
In order to fully show the court the severity of this judicial bias claim, the
petitioner must show the court the portion of the transcripts that show trial counsel
hearing petitioner invoking his right to terminate the interview in relation to the
transcription of State’s Exhibit 44-A.
Prosecutor Wisner narrated State’s Exhibit 44-A while it was playing for the jury. He would stop the tape and ask a question to Officer Breck McDaniel about that portion of the tape that was being played for the jury. The testimony starts at 15 RR
62.
There are instances where the court reporter transcribes the tape being played, and continued. For instance at 14 RR 62 it reads “(States Exhibit 44-A Published).”
Immediately after that Prosecutor Wisner asks McDaniel a Question:
Q Let me ask you a couple of questions real fast.
A. Okay.
Q. The person that you are speaking to, [on the tape] is he the same person that you identified as the defendant in the court room?
A. Yes sir it is.
Q. And is he dressed -- I don’t have it right here in front of me. And he is dressed the same way as in the photograph that you-all took of him at that Northborough address when he was first placed in custody?
A. Yes Sir.
[Published].
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During the testimony of Breck McDaniel the transcript shows several times that the tape is started, meaning that when Mr. Wisner asks a question the tape is stopped. By following this logic with the transcription of State’s Exhibit 44A, we can detect where the petitioner invoked his right to terminate the statement.
On 14 RR 65 it reads:
(State’s Exhibit No. 44-a continued)115
Q. Let me just ask you a couple of questions. Fist of all why are you dressed like you are?
A. Because we went out looking to arrest these people and we often dress down in those cases so we can work in a plainsclothes capacity and we don’t stand out as the police.
Q. Where is Tamara as you are speaking to the defendant?
A. She is another interview room down the hall, down the same hall building.
Q. Is any body else doing any other work on the case as you are finding out information to try to confirm or dispel some of the things the defendant is telling you?
A. Absolutely. Other investigators are interviewing Tamara, the defendant’s sister, as well as the people that were in the apartment when we found the defendant.
Q. I am sorry, can other investigators actually see and hear you?
A. If they go into a neighboring room they can see me on a monitor and hear it yes.
Q. Was there any specific plan that anybody would see you or hear you or go in a certain point?
A. No, not that I was aware of, but I certainly knew that the investigators may come or go or watch the whole deal to interpret what was being said.
115 Stopped when Prosecutor Wisner asks several questions.
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Q. Do you actually leave at a certain point? It’s going to be in about an hour, but do you actually leave?
A. Yes I do.
Q. Was that some sort of advance plan or why do you leave?
A. I left because I had already gotten initial version from the defendant, A; and, b, I wanted to go speak to the other investigators about what information they were obtaining from other witnesses.
Q. And does a second investigator come in with you?
A. Yes.
Q. Who is that?
A. Officer Harris, Brian Harris.
Q. Why did he come in with you?
A. Because he had -- was just going to help me with interview, A: and B, he had a more thorough knowledge than I was able to obtain in a few minutes of the other witnesses statements.
Q. Was there any sort of specific plan, for instance, good cop/bad cop, or anything like that?
A. No sir. No there wasn’t. He just knew more -- knew the facts better about the other witness statement and he came in there with me.
Q. And one last question. Why are you letting the defendant smoke in a non- smoking building?
A. It goes along with you getting him something to eat, allowing them to use the restroom. People often want to smoke, especially when they are nervous. And, so, that’s a case sometimes we allow them to do that in our building.
Q. And why are you telling them stuff like, It’s good that you have these years in college and all that, that you need to go back?116
116 HPD File AT 0228 - McDaniel tells petitioner to go back to school.
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A. Well, I am -- I am just speaking to the man like I would to any body; but I am getting the biographical information we spoke about, which we try to obtain. We want to know who these people are, who they associate with, who their family is, where they work, where they go to school. I may need to go look for him later and I would like to know where he went. As far as commenting on school, it was just a friendly suggestions.
Q. Ingratiating yourself with a suspect is a viable tool?
A. That, too, yes sir.
Q. Okay.
(States exhibit 44-A Continued)
Q. How did you know anything about that invoice address and that foster mother? Where did you get that from?117
A. It was listed on some police documentation reports that we had.
Q. And when you are telling the defendant, I am going to be straight with you. I will be able to tell you most everything that I know about this, in fact, you are being honest with him?
A. Yes. Yes.
Q. And when this interview starts, do you really have any idea whether or not this defendant really had anything to do with this crime at all?
A. No at this point we just have the tip linking him to it; but, certainly him coming out and speaking on it so quickly at this point indicated to me that he probably increases his likelihood of involvement in my opinion.
Q. But if he would have been able to give you an alibi that you would have been able to verify, would you have been happy to clear him just like you would have with denny robinson?
A. Yes Sir we were looking for the facts and trying to determine who did what.
(states exhibit no. 44-A continued)
117 HPD file 233 232.
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Mr. Wisner: Let me ask you one fast question. Did you know about this fake un through robbery before he starts to tell you about it?
Mr. McDaniel: No Sir.
Mr. Wisner: Okay. The photograph that you are holding up as the same as states exhibit 58?118
A. Yes Sir.
Q. Matter of fact, is the State’s Exhibit No. 58 one and the same?
A. It very well could be, yes.
Q. Okay.
(States Exhibit No. 44-a Continued)
Real fast. To your knowledge has Sammy Deny Robinson in any HPD computer any database, any where ever been known a Black?119
a. No Sir.
Q. And to your knowledge does this defendant actually know Samuel Deny Robinson at all?
A. No, I never found any evidence of that.
Q. let’s just see. And we can see if the numbers are the same 850577?
A. Yes.
Q. Let me ask you one fast question.
A. Okay.
Q. He tells you a story. We met three girls. We lost them. We call them later from a pay phone. We drive by. And all of a sudden Greg starts to make a plan.
118 HPD File 242 – The first mention of a photo being shown to the petitioner, and Sammy Deny Robinson came up.
119 HPD file 242 – The first mention of “Black” in the interview.
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I am drunk with some one he doesn’t know, to rob him three days later. Does that sound plausible to you?
A. Because Like I said earlier, we always like to get the first version of a suspect’s statement or any witness, but especially a suspect who is more likely to be lying, get it recorded, get it down, let them say what they are going to say the first time and then we go -- can go back later attack problems with the story.
Q. And is he giving you a lot to attack him with?
A. Yes Sir.
(states Exhibit No. 44-A continued)
Q. Had any one told the defendant at that point that you-all had heard about a napkin with Greg Love’s name on it?
Mr. Crowley: Objection, hearsay, your honor.
The Court: It is overruled.
A. No sir, I was not aware of a napkin at that point.
Q. (By Mr. Wisner) Is it possible that he had been told that? Because obviously a lot of his story is centering around that napkin and the name?
A. Yes.
Mr. Crowley: That calls for speculation. Object your honor.
The Court: Sustained.
(States Exhibit no. 44-A continued)
Q. Where you ever able to confirm that there were three girls that they spent the night earlier with on the run-through with the robbery?120
A. No sir.
(states exhibit no. 44-A continued).
120 HPD File 249 – Mention of girls clubbing.
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Q. Let’s straighten out this car stuff. I don't know how much the jury has heard about it in opening statement. Did you later find out the car that was used in the Whataburger capital murder?121
A. Yes, we did.
Q. Whose car is it?
A. It belonged to a man who was Julia Marshall, the defendant’s sister -- this man was her boyfriend.
Q. In other words, this defendant’s sisters boyfriend.?
A. That’s correct.
Q. Do you have any reason to believe that either Julia or David were involved in this?
A. Not at all.
Q. Other than innocently lending this car?
a. Yes.
Mr., Crowley: objection to leading, your honor.
The Court: Don’t lead your witness.
Q. (By Mr. Wisner) How big is David?
A. he’s a very large man, 300 pounds plus.
Q. Maybe over 400.
A. Yes that’s very possible.
Q. Any way that he could fit through that Whataburger screen or Whataburger window?
A. No sir, that would be impossible.
121 HPD File 250 – first mention of the car Prosecutor Wisner mentions.
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Q. Do you know why the defendant is telling you about this Black having a car when in fact it was his sister’s boyfriend’s car?
Mr. Crowley: I object, that calls for speculation, your honor.
The Court: Sustained.
Q. (By Mr. Wisner) Did you know it was the defendant’s sister’s boyfriend’s car at the time?
A. No I didn’t.
Q And did you let the defendant know that you knew it was his sister’s boyfriend’s car at the time?
A. No I did not. I didn’t know at that point. I didn’t know.
Q. So my question is, did you have enough information to call foul or call lie on him when he starts talking about the car?
A. No sir, not at all.
(States exhibit no. 44-A continued)
Q. Let me just ask you something. Do you know yourself, from the offense report that the time sequence of what he’s talking about the right between he and Tamara is wrong?122
A Yes I have an idea of a time frame at that point, yes.
Q. Why didn’t you just stop him and say, hey, we got the offense report here. You are lying to me man?
A There again, I was wanting to get as much of the facts as he is going to put them out, down.
(States exhibit no. 44-A continued)
Q. Is that true at all?
122 HPD File 258 – Shows where the petitioner talked about arguing with Tamara, and the time he said.
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A. No sir there was no sketch.123
Q. So why didn’t you just say, you are lying to me, there is no sketch of this guy. This guy wasn’t even there?
A. Same reason I wanted to get the whole story and then come back and attack the problems.
(States exhibit NO. 44-A Continued)
Q. Now did you ever ask the defendant how he was able to recognize a silver gun? That should be obvious. But know that it was a .380 so fast?124
A. Did I ever ask him that? No, I don’t -- no, sir.
Q. Did it turn out that the real weapon used was a .380?
A. Yes sir.
Q. By the way, did you ever find that gun or locate it anywhere?
A. No we looked. We weren’t able to find it.
Q. And in fairness to the defendant, were you ever able to put a gun in his hands through A.T.F. records or something like that?
A. No Sir.
Q. Are guns commonly sold on the street though?
A. Very commonly, yes sir.
Q. And when the defendant says this was an inside job and Greg was supposed to be there and he wasn’t, is that basically true based on your investion of the case?
A. Yes it is?
(states exhibit 44-A continued)
123 HPD File 259 –The first mention of a sketch by the petitioner.
124 HPD File 262 – The page where a .380 pistol is mentioned by the petitioner.
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Q. Now did you really have any reason to believe that D.N.A. sampling would lead you to a suspect in this case?125
A. It’s unlikely. However, I believe some cigarette butts were collected at the scene, and, so, it’s a possibility that they could have smoked a cigarette, left it there, and we could match that to the defendants DNA.
Q. But I mean even if they were – have any reason to believe that the shooter himself had been cut or injured?
A. No sir.
Q. Spit or shed some hair or anything like that? and when did you – did you know when the defendant was telling you about broke Julias window before the capital murder, that was not so?126
A. Yes I did.
Q. Was that significant to you at this time?
A. Yes another one of his lies.
Q. Is it real important for you to determine if he was actually there or just set it up?
A. Absolutely. Sure.
Q. And is he ever able to give you an alibi as to where he was when this went down, at least a satisfactory alibi that you could check out?
A. No he’s trying to say that he is at Tamara’s apartment; but that doesn’t add up.
Q. Actually somebody else at Tamara’s apartment; isn’t there?
A one of the fathers of her other children.
The Court: Let me stop you, Mr. Wisner, send the jury to lunch. Ladies and gentlemen, if you would please step into the jury room. Mr. Wilkins is going to
125 HPD file 265 – The first mention of DNA in the interview.
126 HPD File 266 – The broken window is mentioned here.
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come get you in a moment. Once again, you are not to discuss the case among yourselves.
(Lunch Recess)
The Court: Would you be seated, please. Mr. Wisner.
Mr. Wisner: Thank you.
(States Exhibit No. 44-A continued)
Q. (By Mr. Wisner) Okay. What did you just show him?
A. I showed him a picture of Ronald Worthy.127
Q. How did you figure out to show him a picture of the right Bo?
A. Because I put that under the door earlier and might have seen me getting up. The other officer I am working up. When we were at that apartment on Northborough the first one we got that name Ronald Worthy from the man that was there, that bo, but we didn’t know he was Bo then, then ordered his booking photo and gave it to me underneath the door earlier in the interview.
Q. Are you speaking with Tamara in the next room?
A. Am I speaking to Tamara in the next room?
Q. I mean H.P.D.
A. It appears he lit a cigarette there.
(States exhibit no. 44-a continued)
Q. Did the defendant ever mention anything that he was with ronald worthy A.K.A. Bo until you confronted him with the photo?128
A. No. He did not.
127 HPD File 269 –McDaniel shows the petitioner a picture of Ronald Worthy.
128 HPD File 277 – After McDaniel comes back in the room the Petitioner mentions Ronald Worthy in the interview.
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Q. Let me ask you the obvious question. Would it make sense if you were trying to avoid detection to use your sister’s boyfriend’s plates on some other car that could be even traced to you, but instead put, basically your brother in laws plates on the car? Does that make sense?129
A. No.
Mr. Crowley: Objection Your honor. Calls for opinion and speculation.
The Court: sustained as to the form of the question.
Q. By Mr. Wisner: In avoiding detection, if you had an otherwise undetectable car, would you put your brother-in-laws plate on the car?130
A. No. Sir.
(States exhibit no. 44-a continued)
Mr. Arnold: Your honor I ask it be cut off. Judge I ask it be cut off and we approach the bench.
The Court: Okay.
(At The Bench)
Mr. Arnold: I may be wrong because as you know I don’t hear all that well; but I would have sworn I just heard my client say, I want to terminate this interview.
The Court: Really?
Mr. Arnold: VERY LAST THING HE SAID RIGHT THERE. (emphasis added)
Mr. Wisner: If you want to rehear it, that’s fine. He may say a couple of times I want to terminate.
Mr. Arnold: First time he says it, it becomes effective.
The Court: That’s fine.
129 HPD File 281, 282 – Depicts the mention of plates being put on a car.
130 HPD File 281, 282.
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Mr. Wisner: That’s fine with us.
The part where trial counsel, Mr. Arnold heard the petitioner invoke his right to terminate:
A. Yes.
Q. I meaning – you meaning H.P.D.?
A. Yes. Yes, they were.
Q. And presumably they would know the right Bo?
A. Yes.
Q. So you just showed this defendant a picture of Ronald Worthy and he told you what?
A. That’s Ron.
Q. Okay, But that’s not Bo?
A. I don’t believe that it was Bo, no.
Q. Okay. Lets go and show that again.
A. Okay.
(States Exhibit no. 44-A Continued)
Q. Why did the defendant say, “Who is that,” if that is his friend Bo?131
A. I am not sure. I think he may have not got a good glance at the picture after that point. I was shuffling through papers, but he asked and I fold it over so the name wouldn’t be visible.
(States exhibit no. 44-A fast forwarded)
Q. About how long are you gone?
131 HPD File 269 – Shows the petitioner asking “Who’s that” when showed a photo.
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HPD File 273 is where Breck McDaniel leaves the room and comes back in. In
between that the petitioner says “that’s it I aint saying shit else.” But it is fast
forwarded past that part by Prosecutor Wisner.
A. I think about six minutes and 19 seconds.
Q. And the defendant is doing what while you are gone?
A. He just sits there.
(States exhibit no. 44-A continued)
Q. Lets go back to where you first come in.132
(States exhibit no. 44-A rewound and continued)
The interview is not located in the transcription of States Exhibit 44-A, nor is it located in the videos that have been presented to petitioner’s counsel.133
i. Miranda and its progeny
The 5th amendment of the United States Constitution provides the accused shall not be “compelled in any criminal case to be a witness against himself.” Miranda v. Arizona, 348 U.S. 436 (1966). Under Miranda, before questioning suspects in custody, law enforcement officials must inform suspects, in some manner that: (1) they have the right to remain silent; (2) their statements may be used against them at trial; (3) they have the right to the presence of an attorney during questioning; and
132 HPD File 273.
133 Note by undersigned counsel: Undersigned counsel was given access to the VHS copy of the interview and retained a third party service to create their own CD copy.
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(4) if they cannot afford an attorney one will be appointed to them. Miranda, 384 U.S.
at 478-79.
Texas adopted Miranda in the Texas Code of Criminal Procedure art. 38.22,
Section (3): “no oral statement of an accused made as a result of a custodial
interrogation shall be admissible against the accused in a criminal proceeding unless:
(2) prior to the statement but during the recording the accused is given the warning in subsection (a) of Section 2 … and the accused knowingly, intelligently and voluntarily waives any rights set out in that warning.”
A defendant may also invoke Miranda Rights either prior to or during interrogation. If he does the police must cease any questioning. See Miranda, 384 U.S. at 473-74. An invocation of the right to remain silent must be “scrupulously honored.”
Maestas v. State, 987 SW.2d 59, 61 (Tex. Crim. App. 1999) (quoting Michigan v.
Mosley, 423 U.S. 96, 104 (1975)).
In Michigan v. Mosley the Supreme Court explained that no passage in the
Miranda opinion “can sensibly be read to create a per se proscription of indefinite
duration upon any further questioning by any police officer on any subject, once the
person in custody has indicated a desire to remain silent.” Mosley, 423 U.S. at 102-
103. The court continued, “[a] reasonable and faithful interpretation of the Miranda
opinion must rest on the intention of the Court in that case to adopt ‘fully effective
means … to notify the person of his right of silence and to assure that the exercise of
the right will be scrupulously honored… .” 384 U.S. 479. The critical safeguard
identified in the passage at the time is a person’s right to cut off questioning. Id. at
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474. “Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody decided to remain silent under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” Mosley, 423 U.S. at 103-104
(footnotes omitted).
In Mosley, the Supreme Court found the following factors important to its analysis: 1) whether the suspect was informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was informed of his right to remain prior to the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police honored the suspect’s initial invocation of the right to remain silent. Thus Mosley created an ad hoc test in which “courts must evaluate the facts of each case to determine if the resumption of police interrogation was consistent with scrupulous observance of the right to cut off questioning.” United
States v. Alvarado-Saldivar, 62 F3d 697, 699 (5th Cir. 1995), citing Wilcher v. Hargett,
978 F.2d 872, 877 (5th Cir. 1992). See also Phillips v. State, 701 S.W.2d 875, 890-91
(Tex. Crim. App. 1985) (Phillips was a capital murder case on direct appeal to the
CCA. As the appellate court they performed the review mandated by Mosley.) See
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also Watson v. State, 762 S.W.2d 591 (Tex. Crim. App.1989); Murphy v. State 766
S.W.2d 246 (Tex. Crim. App. 1989).
In petitioner’s case, the factors set out in Mosley have never been applied to
States exhibit 44, or 44-a.
The Supreme Court also ruled in Jackson v. Denno, 378 U.S. 368 (1964), that at the request of the defense a trial judge must conduct a pretrial hearing outside the presence of the jury to determine voluntariness before the government may introduce testimonial evidence obtained from the defendant. See Sims v. Georgia, 385 U.S. 538,
543-44 (1967); see also Jackson v. Denno, 378 U.S. at 376-77. The prosecution must prove by a preponderance of the evidence that the confession was voluntary. See
Colorado v. Connelly, 479 U.S. 157, 168 (1986). The Texas Code of Criminal Procedure article 38.22 allows the defense the right to file a motion to suppress statements.
Then the trial judge must conduct a pretrial hearing outside the presence of the jury.
At a motion to suppress the trial court is the sole and exclusive trier of fact and judge of credibility of the witnesses as well as the weight to be given their testimony.
The trial judge may choose to believe or disbelieve any or all of a witness testimony.
Allridge v. State, 850 SW.2d 471, 492 (Tex. Crim. App. 1994). As such the Texas Court of Criminal appeals is not at liberty to disturb any finding which is supported by the record. Johnson v. State, 803 S.W.2d 272, 787 (Tex. Crim. App. 1990).
“Because the trial court is in the best position to evaluate the testimony we must defer to the trial court’s findings.” Davis v. State, 829 S.W.2d 218, 220 (Tex.
Crim. App. 1992). Pursuant to Jackson v. Denno, a defendant who challenges the
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voluntariness of a confession sought to be used against him at trial has a due process right to a “fair hearing in which both the underlying factual issues and the voluntariness of the confession are actually and reliably determined.” Id. at 38. At such a hearing “the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.” Lego v. Twomey, 404 U.S. 477, 484
(1972).
B. Judge Stricklin was biased against the petition because she allowed the State to present false testimony, and hide evidentiary facts that would have deemed exhibits 44 and 45 inadmissible at trial.
The prosecution has a heavy burden to prove that a confession is voluntary by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 168 (1986).
In the current case after petitioner’s trial counsel filed the motion to suppress both statements the prosecutors put on two witnesses: Breck McDaniel, who took the videotaped confession from the petitioner, and Curtis Scales who took the audiotaped statement from the petitioner.
At the suppression hearing trial counsel did not challenge the admissibility of states exhibit 44; the only challenge was made by the petitioner himself on cross- examination:
Q. [by Coleen Barnett] Okay. So, the big Indian guy comes in, hits you a couple of times in the ribs, and then he just leaves?
A. That was talking -- they was telling me kind of stuff like I am going to die. I am never going to see my little boy and all this stuff like that. I guess they was trying to scare me.
Q. And then somebody else comes in and resumes the interview?
A. And resumes the interview.
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Q. And Breck comes back and resumes the interview?
A. I believe so.
Q. Was Breck in there when the big Indian guy was hitting you?
A. No, Ma’am, he was not.
Q. When the big Indian guy leaves, does Breck come in after that?
A. Yes, I talked to him afterwards.
Q. Okay. And this is – and that’s – then you continue the interviewing process with Breck?
A. With him or another officer.
Q. Or another officer. But the hitting part is in between that?
A. Yes Ma’am.
Q. Okay. And during the time that you are – the second part of the interview with Breck and this other man, you surely would have mentioned that somebody came in and assaulted you? Surely – that’s –
A. I brought it up man.
Q. That you would tell Breck that –
A. I brought it up.
Q. So that would be on the tape then?
A. It should be.
Q. All right. But the first part of the tape when you agree to speak with Breck McDaniel, before you were assaulted in the jail or before you were assaulted in the interview room, you voluntarily and freely...
A. Waived my rights.
Suppression hearing at 52.
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To rebut the suppression hearing testimony of the petitioner Prosecutor
Wisner called Breck McDaniel and asked him, “If there was a claim that that tape had somehow been altered, the tape had been stopped, and while you left the room, a big-looking Indian officer along with a smaller officer came in the room, put the defendant in a corner and physically assaulted him, would that be true?” Officer
McDaniel answered “no Sir.” 13 RR 49, 61.
After Judge Stricklin allowed States exhibit into evidence, she allowed the state to play states exhibit 44-A for the jury. States exhibit 44-A was played because the State said that they redacted all parts of the petitioner talking about probation.
See 13 RR 14. During the playing of States Exhibit 44-A prosecutor Wisner fast forwards past a part of the tape:
Q. I’m going to fast forward; Okay? Once you leave I will fast forward. Why do you leave?
A. To speak with the other detectives about what statements they were getting from the other witnesses.
(States exhibit no. 44-A fast forwarded)
Q. About how long are you gone?
A. I think about six minutes and 19 seconds.
Q. And the defendant is doing what while you are gone?
A. He just sits there.
(States Exhibit no. 44-A Continued)
Q. Lets go back to where you first come in.
(States Exhibit no. 44-A rewound and continued)
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A. It appears that he lit a cigarette there.
14 RR 79-80.
After undersigned counsel was appointed to petitioner’s case, they obtained a
CD copy of states exhibit 44-A.134 During the part where Prosecutor Wisner fast
forwards it shows that the petitioner in fact was not sitting there doing nothing. In
fact he states “That’s it. I Ain’t saying Shit else.” It is not played for the jury, or
petitioner’s trial counsel.
i. False Testimony by Breck McDaniel that was left uncorrected
Breck McDaniel testified falsely when he stated that the petitioner just sat
there in the room:
Q. And the defendant does what while you are gone?
A. He Just sits there.
He again testified falsely when he stated how long he had been gone from the
room. The tape shows Breck McDaniel leave the room at 48 minutes and 21 seconds
of states exhibit 44-A. He then comes back in at 55 minutes 30 seconds. That is
approximately 7 minutes and 9 seconds. One would think that these minor lies by
Breck Mcdaniel are not important, but the Supreme Court issued Napue to prevent
false testimony like this from happening.
While the state may “prosecute with earnestness and vigor” it still must refrain
from improper methods calculated to produce a wrongful conviction. United States v.
134 Note by undersigned counsel: Undersigned counsel was given access to the VHS copy of the interview and retained a third party service to create their own CD copy.
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Young, 470 US 1, 7(1985). “It is well settled that the state is not permitted to present
false evidence or allow the presentation of false evidence to go uncorrected.” Moody v.
Johnson, 139 F.3d 477, 484 (5th Cir. 1988). “To establish a due process violation based
on the government’s use of false testimony, a petitioner must show (1) that the witnesses testimony was actually false, (2) that the testimony was material, and (3) that the prosecution knew the witnesses testimony was false.” Fuller v. Johnson, 114
F.3d 491, 496 (5th Cir. 1997).
False testimony is material if there is “any reasonable likelihood [that the false
evidence could] have affected the judgment of the jury.” Giglio, 405 U.S. at 154,
(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). The Supreme Court has
explained that this materiality standard “is equivalent to the Chapman [v. California,
386 U.S. 18 (1967)] harmless-error standard.” United States v. Bagley, 473 US 667,
679 n.9 (1985).
In the instant case the testimony is material because had Officer McDaniel not
testified falsely – and prosecutor Wisner not fast forwarded past the part that shows
petitioner saying, “That’s it. I ain’t saying shit else,” it would have alerted trial
counsel that States exhibit 44-a was inadmissible.
Trial counsel did not argue that States Exhibit 44 was inadmissible at the
suppression hearing even after the petitioner testified that he had been assaulted
and that part of the tape should show him saying he was assaulted. In fact he only
argued that States exhibit was inadmissible. This showed the court and the
prosecutors that he had never listened, or watched states exhibit 44. Then at
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petitioner’s trial, trial counsel argued that the tape should not be played because it violated Miranda/Mosley:
Mr. Arnold: Your honor I ask it be cut off. Judge I ask it be cut off and we approach the bench.
The Court: Okay.
(At the bench)
Mr. Arnold: I may be wrong because as you know I don’t hear all that well; but I would have sworn I just heard my client say, I want to terminate this interview?
The Court: Really?
Mr. Arnold: Very last thing he says right there.
Mr. Wisner: If you want to rehear it, that’s fine. He may say a couple of times I want to terminate.
Mr. Arnold: First time he says it, it becomes effective.
The Court: That’s fine.
Mr. Wisner: That’s fine with us.
15 RR 81-82.
The trial court ruled that the petitioner had invoked his Miranda/Mosley rights during the trial and stopped playing the statement for the jury. However, this does not address the severity of this violation of petitioner’s rights. The Supreme Court ruled in Michigan v. Mosley that the admissibility of statements obtained after the person in custody decided to remain silent under Miranda depends on whether his
“right to cut off questioning was ‘scrupulously honored’.” 423 U.S. at 103-104.
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In Mosley, the Supreme Court found the following factors important to this analysis: 1) whether the suspect was informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was informed of his right to remain prior to the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police honored the suspects initial invocation of the right to remain silent. Thus Mosley created an ad hoc test in which “courts must evaluate the facts of each case to determine if the resumption of police interrogation was consistent with scrupulous observance of the right to cut off questioning.” 423
U.S. at 103-104 (footnotes omitted).
States exhibit 44 (or 44-A) had never been put to the test set out in Mosley.
Had prosecutors not presented false testimony in the form of Breck Mcdaniel this would have alerted trial counsel, Mack Arnold, that he had not in fact fully investigated States exhibit 44. He could have asked for a continuance and watched for the first time States exhibit 44, then made a proper argument that States exhibit
44 should not have been presented at petitioner’s trial.
This is equally important because the petitioner did not give one statement.
He gave two different statements, both of which were presented to the court at the suppression hearing. At the suppression hearing trial counsel, Mack Arnold, argued that the petitioner stated that he wanted to stop the statement when he stated “no sir” in response to a question as to whether he wanted to waive his rights. The trial court deemed petitioner’s testimony not credible and ruled against him allowing the
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second statement into evidence. But had trial counsel presented the argument that
he presented at the trial, he could have simply made the argument that States exhibit
45 was inadmissible because the State did not respect petitioner’s rights during the
taking of States exhibit 44, and a pattern of violating petitioner’s rights existed. The
trial court would have deemed 44 inadmissible, and then gave credibility to
petitioner’s suppression testimony, and deemed States exhibit 45 inadmissible as well.
The false testimony is material because had it not been presented, and the real facts been presented, it would have alerted trial counsel that States exhibit 44 was inadmissible. Which is what the prosecutor admitted to at the trial, and it would have not been played for the jury. This would have led trial counsel to make a more
persuasive argument that States exhibit 45 was inadmissible as well. Without both
petitioner’s statements petitioner would not have been convicted.
ii. Prosecutor Wisner withheld the fact that States exhibit 44 was inadmissible pursuant to Michigan v. Mosley.
“To make a Brady claim, [a petitioner] must prove: (1) that the evidence at
issue [is] favorable to the accused, either because it is exculpatory, or because it is
impeaching;” (2) that the ‘evidence [has] been suppressed by the state, either willfully
or inadvertently; and (3) that ‘prjeudice [has] ensued.’” Summers v. Dretke, 431 F.3d
861, 864 (5th Cir. 2005) (alterations in original) (quoting Strickler v. Greene, 527 U.S.
263, 281-82 (1999)). Under Brady, “[e]vidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense the result of the
proceeding would have been different.”’ Graves v. Dretke, 442 F.3d 334, 339 (5th Cir.
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2006) (quoting Kyles v. Whitley, 514 U.S. 419, 433(1995)). “[T]he materiality test is not a test of sufficiency of the evidence … rather a Brady violation is established by showing ‘that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.”’ Graves, 442
F.3d at 340 (quoting Kyles, 514 U.S. at 435; see also United States v. Bagley, 473 U.S.
667, 682 (1985); Duncan v. Cain, 278 F.3d 537, 539-40 (5th Cir. 2002)).
(1) Suppression statements by prosecutors about States exhibit 44.
Mr. Wisner: [W]e have a video taped statement and we are waiting to hear from counsel, assuming that you believe it’s admissible, in terms of what needs to be redacted out of this and we can get that done this after noon, just so you know what we are going.
The Court: Okay.
Mr. Wisner: And we would only ask that perhaps if we have, for instance, a States exhibit 44 we would be offering 44-A. Perhaps the court could tell the jury that there may be gaps in the sound. It’s because the court had ruled that certain parts were inadmissible. Otherwise it looks like we are offering something we have tampered with.
The Court: Okay.
13 RR 6-7.
The prosecutors then presented testimony at the suppression hearing regarding States exhibit 44 from Officer Breck McDaniel, the officer who conducted the interview with the petitioner. Prosecutors solicited evidence from McDaniel about
States exhibit 44, asking had the “tape been altered, changed, or deleted in any way shape or form”. 13 RR 20.
Petitioner’s attorney Marshall Mack Arnold then called petitioner. After direct examination, Prosecutor Colleen Barnett asked petitioner if there was anything
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wrong with States exhibit 44. Petitioner stated that he was assaulted by a big Indian guy (now identified as Officer Richard Moreno), and if that was not there, the tape was altered. After petitioner’s testimony the State, through Vic Wisner, then called
Officer McDaniel back to the stand and asked him, “if there was a claim that the tape had somehow been altered, the tape had been stopped, and while you left the room, a big-looking Indian officer along with a smaller officer some one came in the room, put the defendant in a corner and physically assaulted him, would that be true?” Officer
McDaniel answered, “no sir.” 13 RR 49, 61.
(2) The State prepared to play the entire tape for the jury.
Mr. Wisner: Nothing further from the state your honor. We plan on offering, assuming that the Court allows same into evidence, the entirety of the tape. We understand that there are certain portions, at least seven or eight, if not more portions that are going to have to be redacted and we can get with Counsel on that later on.
The Court: Okay.
Mr. Wisner: We have a transcript or the court could view the tape at the Court’s convenience. It is about an HOUR FORTY MINUTES. (emphasis added)
13 RR 23.
During her opening statement the prosecutor tells the jury that they would in fact be able to hear the entire statement:
Gerald Marshall gives a videotaped statement, a long video-taped statement, that you will be able to see and completely discounting any involvement in the Whataburger murder that happened on May 11th. He initially says that there were two individuals that participated in it named Black and Darrell and he tells the officers that he was not involved at all.
Now the officers have a photograph in front of them of Samuel Robinson. And Gerald tells the officer that that’s the man you are looking for.
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That’s the one. And he tries to blame the crime on Samuel Robinson, the Bo.
Now as the tape goes on, Gerald begins to tell the officers that he knows a little bit more than he initially said. And you will hear the tape for yourself. He claims to know the person who committed the robbery, that he spoke with the person before it happened. Spoke with the person afterhand. Saw the gun. Knew what was going to happen, but he was not there.
And the interview lasts about an HOUR AND 45 MINUTES (emphasis added), the officers check him back into the jail and they go about trying to find the other suspects and arrest them, Ronald Worthy, Kenny Calliham, and Greg Love.
14 RR 23-24.
iii. Judge Stricklin views States exhibit 44 and allows the State to publish States exhibit 44-a.
On the first day of Petitioners trial, Judge Stricklin stated, “Just before we get started, I just need to put something on the record. I reviewed States Exhibit 44 and
45, the video and audio taped statement, and I will find they were taken in compliance with 38.22 of the Code of Criminal Procedure, and overrule Marshall’s motion to suppress those statements.” 14 RR 9.
Judge Stricklin also wrote in her conclusions of Law:
(1) Houston police officers placed the defendant in custody on May 13, 2003, on an outstanding warrant issuance for a bad check.
(2) The defendant gave both recorded statements freely and voluntarily.
(3) The Recorded statements (states exhibit 44, 45, and 46) of the defendant Gerald Marshall were taken by Houston police officer Breck McDaniel and Curtis Scales, respectively, and in accordance with article 38.22 of the Texas Code of Criminal Procedure.
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(4) The taking of these statements did not violate the defendants rights under the 5th, 6th and 14th Amendments of the United States Constitution, and Art. 1, Sec. 10 of the Texas Constitution.
iv. Before States exhibit 44-a was played, head prosecutor Colleen Barnett again tells the court that there are parts redacted and why they were redacted.
Ms. Barnett: Our next witness is Breck McDaniel and Sid has the tape, the recorded tape we were going to use, gave to him.
Mr. Arnold: Can I get in the back on the cell phone and call Sid?
The Court: You mean the video tape?
Mrs. Barnett: The tape of his confession. A lot of references to being on probation. So we redacted all those…
14 RR 14.
v. Before the playing of the tape the Judge alerts the jury that certain parts had been redacted before playing States exhibit 44- a. The Judge alerts the jury that certain parts had been deleted at the request of Prosecutor Wisner.
Mr. Wisner: Judge I would ask to exhibit states exhibit 44-A to the jury and if the Court could be so kind to explain the laspees, why we have 44-A as to opposed to 44.
THE Court: Ladies and gentlemen, we are going to show a copy of States Exhibit 44-A. It is quite lengthy. So I am going to send you on a break before we go and look at that tape.
If you would step into the jury room, Mr. Wilkins will come and get you in just a minute.
(Brief Recess)
The Court: Would you be seated please. Mr. Wisner.
The Court: Ladies and gentlemen, I need to tell you that certain parts of this video tape have been deemed not relevant to this case. So, they have been deleted from the video tape, just in case you are wondering.
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Mr. Wisner: Thank you your honor.
14 RR 61-62.
vi. The States exhibit 44-a is stopped after trial counsel heard petitioner invoke his Miranda/Mosley rights.
Mr. Arnold: Your honor I ask it be cut off. Judge I ask it be cut off and we approach the bench.
The Court: Okay.
(At The Bench)
Mr. Arnold: I may be wrong because as you know I don’t hear all that well; but I would have sworn I just heard my client say, I want to terminate this interview.
The Court: Really.
Mr. Arnold: very last thing he says right there.
Mr. Wisner: If you want to rehear it, that’s fine. He may say a couple of times I want to terminate.
Mr. Arnold: First time he says it, becomes effective.
The Court: Thats fine.
Mr. Wisner: Thats fine with us.
Under Brady the State is required to disclose all favorable evidence. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of good faith of the prosecution. Brady v. Maryland, 372 U.S. at 87. The prosecution has an affirmative obligation to disclose evidence favorable to the defense.
The Supreme Court has extended Brady to involve a duty to disclose evidence to defense even if the defense has not requested it. United States v. Agurs, 427 U.S. 97,
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107 (1976), and to include both impeachment and exculpatory evidence. United States
v. Bagley, 1173 U.S. at 676.
In the instant case prosecutors withheld that States exhibit 44 was
inadmissible pursuant to Miranda/Mosley. At the suppression hearing Prosecutor
Wisner alerted that they would be redacting certain parts of the tape. 13 RR 6,7. He
then went on to present a case that the tape was admissible under Miranda, even
putting on Officer Breck McDaniel to testify about the veracity of States exhibit 44.
13 RR 20. At no time did Prosecutor Wisner admit to the judge that the petitioner had in fact invoked his right to terminate the interview under Miranda/Mosley. It was not until trial counsel–the same counsel who represented petitioner at the suppression hearing–stated that he heard petitioner invoke his right to terminate the interview that the Prosecutor finally admitted that the petitioner had in fact invoked his right to terminate the interview. Then agreed to stop playing that tape.
Mr. Arnold: Your Honor, I ask it be cut off. Judge I ask it be cut off and we approach the bench.
The Court: Okay.
(At the bench)
Mr. Arnold: I may be wrong because as you know I don’t hear all that well, but I would have sworn I just heard my client say, I want to terminate the interview.
The Court: Really?
Mr. Arnold. Very last thing he said right there.
Mr. Wisner: IF YOU WANT TO REHEAR IT THAT’S FINE. HE MAY SAY A COUPLE OF TIMES I MAY WANT TO TERMINATE. (emphasis added)
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Mr. Arnold First time he says it, it becomes effective.
The Court: That’s fine.
Mr. Wisner: That’s fine with us.
It constitutes a Brady violation because it is evident that petitioner’s trial
counsel–Mack Arnold–who represented him at the suppression hearing did not view
States exhibit 44 before the suppression hearing. Therefore he could not make a
proper argument that petitioner had invoked his Miranda/Mosley rights and that
the tape was inadmissible at the suppression hearing. As such it was imperative that
the prosecution uphold their duty under Brady, as well as Miranda. The Prosecution has a burden to prove that a confession is voluntary by a preponderance of the evidence. See Colorado v. Connelly,479 U.S. 157, 168 (1986). In addition, the Miranda
Court stated that “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda, 384 U.S. at 475.
In petitioner’s case the prosecutors did not meet this heavy burden, instead they withheld the fact that States exhibit 44 was inadmissible under
Miranda/Mosley, put on false testimony at petitioner’s suppression hearing and trial in order to conceal the fact it was inadmissible. In Strickler v. Greene, 527 U.S. 263,
280-82 (1999), the Supreme Court ruled that the prosecution cannot lie and conceal and the prisoner still has the burden to … discover the evidence.” Tr. Of Oral Arg. 35.
So long as the “potential existence” or of a prosecutorial misconduct claim might have been detected. Id. at 36. A rule thus declaring prosecutor may hide, defendant must
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seek, is not bound to accord defendant’s due process. See Bracy v. Gramley, 520 U.S.
899, 909 (1997).
In addition to withholding that States exhibit 44 was inadmissible, the State withheld the evidentiary fact that the petitioner sat alone in the room and stated
“That’s it. I ain’t saying shit else.” HPD file 273. When this portion of States exhibit
44-a came up on the tape prosecutor Wisner fast forwarded past it:
Q. I am going to fast forward: okay? Once you leave I will fast forward. Why do you leave?
A. To speak with other detectives about what statements they were getting from the other witnesses
(States exhibit No. 44-A fast forwarded)
Q. About how long are you gone?
A. I think about six minutes and 19 seconds.
Q. And the defendant does what while you are gone?
A. He just sits there.
(States exhibit 44-A continued)
Q. Lets go back to where you first come in.
(States exhibit 44-A rewound and continued)
A. It appears he lit a cigarette there.
(States exhibit 44-A continued)
14 RR 79-80.
Prosecutors fast forwarded past the part where petitioner sat in the room because it would likely have alerted trial counsel that States exhibit 44 was
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inadmissible. Trial counsel could have then filed a motion for continuance and asked for a mistrial based on entering inadmissible evidence into evidence. The Fifth Circuit has held, “if inadmissible evidence would give rise to discovery of other admissible evidence or witness, the State does have a duty to disclose that evidence.” Id. at 688
(citing United States v. Brown, 650 F. 3d 581, 588 (5th Cir. 2011).
As to materiality, had the fact that States exhibit 44 was inadmissible, and that the petitioner sat in a room saying, “That’s it. I ain’t saying shit else,” it would have undermined the State’s entire case because they would have not been able to use either statement against petitioner at his trial. “Reasonable probability” in the context does not mean “the defendant would more likely than not have received a different verdict with the evidence,” but instead means that having been deprived of the evidence, the defendant did not receive a fair trial, understood as resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). It is important to bear in mind that the materiality inquiry “is not a sufficiency of the evidence test.” Id. “A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. It is enough to establish a reasonable probability of a different result when the State’s evidentiary suppression undermines confidence in the outcome of the trail.
In this instant case, at the suppression hearing there was testimony from three witnesses, the petitioner, Officer McDaniel and Officer Scales. The credibility of one of those witnesses would be accepted by Judge Stricklin. The admissibility of States
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exhibit 45 was presented to the Judge. The question was whether Officer Scales had promised the petitioner a lesser charge in exchange for the statement, as well as whether Scales violated the petitioner’s rights by not immediately stopping the statement when petitioner refused to waive his Miranda rights.
The Texas Court of Criminal Appeals adopted Officer Scales’ testimony from the suppression hearing as to the writing:
Scales testified at the suppression hearing that he never promised appellant that he would be charged only with aggravated robbery. Scales also testified at the suppression hearing that after appellant’s initial response of “no sir” to the question of whether appellant wanted to waive his rights, he continued questioning appellant for the purpose of clarifying whether appellant really wanted to waive his rights since it was appellant who re-initiated the police interview.
Q. [Defense] And after having just read him all of his rights, you said, Okay, do you voluntarily waive your rights and agree to talk to us again; do you not?
A. [Scales] Mmh’m.
Q. And what was his response?
A. No Sir.
Q. And why did you not terminate the interview at that point in time?
A. Well he contacted us to talk to us. So, I restated the question to make sure he understood.
Q. And did you make some type of assumption that he was not invoking his rights because of that?
A. No I don’t think so, because he contacted us to reiniate the interview.
Q. You understand he has the right to change his mind at any time; do you not?
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A. Correct.
Q. How did you know that he was not just changing his mind about wanting to talk to you when he said No Sir, in answer-when you asked him if he wanted to voluntarily waive his rights?
A. That’s why I asked him again, to make sure that was true.
Q. When you-do you know what your function becomes should a person refuse to voluntarily waive his rights?
A. Yes.
Q. What are you supposed to do?
A. Stop the Interview, if that’s what they really want to do yeah.
Q. You asked him a simple question and he gave you a direct answer when he said, No, sir; did he not?
A. I asked him again to make sure that he understood what I was asking. We do that yes.
The record supports that Scales did not promise the appellant that he would be charged only with aggravated robbery. In addition, federal constitutional law does not prohibit the police from clarifying whether an arrestee wishes to waive his rights under circumstances like those here. Assuming that appellant unambiguously invoked his right to remain silent, Scales did not proceed to question appellant regarding the offense. Cf. Davis v. United States, 512 U.S. 450 , 458 (1994) (Suspect who has unambiguously invoked his right to counsel cannot be questioned “regarding the offense” unless an attorney is present); see Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (Police must cut off questioning when accused unambiguously invokes right to remain silent.
In addition under the circumstances here where appellant re-initiated contact with the police to tell his side of the story, the trial court could reasonably have found that any invocation by appellant of his right to remain silent was ambiguous thereby permitting Scales either to
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continue questioning regarding the offense or to stop this questioning and clarify whether appellant really wanted to remain silent. Cf. Davis, 512 U.S. at 459 (suspect must invoke his right to counsel “sufficiently clearly that a reasonable police officer in the circumstance would understand the statement to be a request for an attorney”) and at 461- 62 (when suspect makes amigious request for counsel, police may, but are not required, to calrify whether he actually wants an attorney); Dowthitt, 931 S.W.2d at 257. Points of Error Four and Five are overruled.
Marshall v. State, Slip Op. at 6 & 7.
Had the prosecutor not withheld the fact States exhibit 44 was inadmissible
because of a Mosley violation, it would have alerted the court that the petitioner in
fact understood his right to terminate an interview. The court would have been able to assess the entirety of petitioner’s testimony about being assaulted, it being on the tape, his being promised a charge of aggravated robbery, and his saying, “No sir” in response to whether he waived his Miranda rights. Without the full circumstances surrounding the violation of Petitioner’s Miranda/Mosley rights being presented at the suppression hearing, prosecutors have robbed the petitioner of the chance to have both of the statements used to convict him deemed inadmissible. They did so because having these statements deemed inadmissible severely undermines the outcome of the trial.
During the trial, after Prosecutor Barnett alerted the jury that they would have been able to see the entire 1 hour 45 minute videotaped statement, Prosecutor
Wisner presented the tape to the jury. His strategy was to show the inconsistencies in States exhibit 44, versus 45, and prove the petitioner’s guilt. Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004) (intent may also be inferred from circumstantial
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evidence such as acts, words and the appellant’s conducts.). Attempts to conceal incriminating evidence, inconsistent statements, and implausible explanations are also probative of wrongful conduct and are circumstances of guilt. Id. at 50. See also
Gear v. State, 340 S.W.3d 7743, 747 (Tex. Crim. App. 2011) (Recognizing factfinder can consider a defendant’s untruthful statements as affirmative evidence of guilt);
Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010) (holding that rational factfinder can consider a defense guilt); Couchman v. State, 3 S.W.3d 155, 163-64 (Tex.
Crim. App. 1999) (reasoning that a jury can infer that a defendant demonstrated consciousness of guilt by lying about events surrounding alleged crime).
The Testimony presented to the jury during the playing of states exhibit 44-A:
Q. [Wisner] He tells you a story. We met three girls. We lost them, we call them later from a pay phone. We drive by. And all of a sudden Greg starts to make a plan. I am drunk with someone he doesn’t know, to rob him three days later. Does that sound plausible to you?
A, [McDaniel] No, not really.
Q. So why don’t you say, Hey, you are lying to me. I am not going to even waste my time with you if you keep up with this nonsense. Why are you drawing out this story that appears implausible?
A. Because like I said earlier, we always like to get the first version of a suspects statement or any witness, but especially a suspect who is more likely to be lying, get it recorded, get it down, let them say what they are going to say the first time and then we go – can go back and attack problems with the story.
14 RR 71.
Q. Let me just ask you something. Do you know, yourself, from the offense report that the time sequence of what he’s talking about, the fight between him and Tamara is wrong?
A. Yes, I have an idea of a time frame at that point yes.
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Q. Why didn’t you just stop him and say, hey, we got the offense report here. You are lying to me, man?
A. There again I was wanting to get as much of the facts as he is going to put out, down.
(States Exhibit no 44-A continued)
Q. Is that true at all?
A. No, sir, there is no sketch.
Q. So why didn’t you just say, you are lying to me. There is no sketch of this guy. This guy wasn’t even there?
A. Same reason I wanted to get the whole story and then come back and attack the problems.
14 RR 74-75.
Q. Now did you really have any reason to believe that DNA sampling wouyld lead you to any suspect in this case?
A. It is unlikely. However I believe some cigarette butts were collected at the scene and so, it is a possibility that they could have smoked a cigarette, left it there, and we could match that to the defendants DNA.
Q. But I mean even if they were – have any reason to believe that the shooter himself had been cut or injured?
A. No Sir.
Q. Spit or shed some hair or anything like that? And when did you – did you know when the defendant was telling you about broke Julia’s window before the capital murder, that that was not so?
A. Yes I did.
Q. Was that significant at this time?
A. Yes, another one of his lies.
14 RR 76-77.
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While playing the tape, and questioning Officer Mc. Daniel the strategy used by the prosecutor was to show the inconsistencies made in petitioner’s videotaped statement – States exhibit 44. The Texas Court of Criminal appeals recognized in
Gear v. State that a factfinder can consider a defendant’s untruthful statement. In
Gears, two implausible and inconsistent statements by appellant were presented as affirmative evidence of guilt. See Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim.
App. 2010).
The prosecutors went further and used States exhibit 44-a during closing arguments even though it had been deemed inadmissible during the trial; to argue the petitioners guilt.
There has never been anything established that Sammy Denny Robinson even knows about Gerald or knows Bo. He is not involved with this case at all. But it didn’t stop Gerald from trying to put it on him. Because if you remember the DEFENDANTS FIRST STATEMENT (emphasis added) to the police officer, Gerald sitting across from Breck McDaniel and Gerald says who – whose pictures is that? Who is that? And he says, this is the guy that did that (indicating). This is the guy that did it. And we know he is lying. It is the act of a desperate man in the hours following a brutal killing to try and blame some one else from something that he did. And if you listen very carefully to that statement, you will see that Gerald Marshall attributes his own actions to a man by the name of black, a man that he identifies in States exhibit no 58 as black.
Gerald Marshall Says that this is the man that did it. This is the man that did it., I saw him before. I saw him after. He had a silver gun. He put it to my head. He robbed the store. He killed the clerk. He didn’t get any money through out Gerald’s entire first statement. He blames everything on this man that we don’t even know he knows. That there hasn’t been anything established that he has a relationship with this man at all.
19 RR 67.
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Materiality cannot be questioned as the prosecutors blatantly withheld the fact
that States exhibit 44 was inadmissible so that they could use it to convict the
petitioner. Had they presented the evidence that the petitioner had invoked his right
to terminate the interview the tape would have had to be put to the test set out in
Mosley:
1) Whether the suspect was informed of his right to remain silent prior to the initial questioning
2) Whether the suspect was informed of his right to remain silent prior to subsequent questioning
3) The length of time between initial questioning and subsequent questioning;
4) Whether the subsequent question focused on a different crime; and
5) Whether the police honored the suspects initial invocation of the right to remain silent
Because the state withheld the Mosley/Miranda invocation States exhibit 44
has never been put to the analysis set out in Mosley. Had they done so it would have seriously undermined their case and the jury’s verdict because the statement would have been deemed inadmissible, as would have States exhibit 45.
vii. Why Judge Stricklin was biased against the petitioner.
1. Judge Stricklin knew that the petitioner had in fact invoked his right to remain silent as well as sat alone in the room and stated, “That’s it. I ain’t saying shit else.” She then allowed the prosecutor to fast forward past that part, and present false testimony to the jury. Because the Judge, prosecutor and the police officer on the stand knew of an evidentiary fact that the petitioner’s trial counsel did not know about they were working together.
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Trial judges are the sole trier of fact and judge of credibility of the witnesses
and may disbelieve or believe any witness who testifies at the suppression hearing.
This is particularly true where the suppression motion is based on the voluntariness
of a confession. Delao v. State, 235 S.W.3d 235, 238-39 & n. 6, 7 (Tex. Crim. App. 2007)
(citing Cases). This principle was reinforced by the decision in Guzman v. State, 955
S.W.2d 89, 95 (Tex. Crim. App. 1997), which held that a trial court must be afforded
“almost total deference” to its determinations of historical fact, especially when those
determinations turned upon an evaluation of credibility and demeanor. And the
decision in State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), held that a trial
court was free to disbelieve a witness even when the testimony is uncontroverted.
In the instant case, the prosecutors presented evidence that they would make
a second version of States exhibit 44, states exhibit 44-a, because the petitioner had
“referenced to being on probation.” 14 RR 14. There were “at least seven or eight, if
not more portions that are going to have to be redacted,” according to the state. 13
RR 23. However, they never alerted the court that the petitioner had invoked his
Miranda/Mosley rights at the trial or suppression hearing. Then during the trial,
trial counsel stated that, “I just heard my client say I want to terminate the interview.”
And the prosecutor admitted that he had done so: “If you want to rehear it that’s fine.
He may say a couple of times I may want to terminate the interview.” 15 RR 81-82.
Judge Stricklin was biased against the petitioner because of her duty to try the facts and credibility of the witnesses at the suppression hearing. She saw the petitioner testify about the legality of States exhibit 44, and then viewed the
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petitioner’s attorney fail to present that Miranda/Mosley argument to the jury. She learned then that the petitoner’s attorney did not view states exhibit 44, and then she “reviewed States exhibit 44 and 45, the video and audio taped statement, and found them taken in compliance with 388.22 of the Code of Criminal Procedure… .”
After Judge Stricklin watched the petitioner testify at the suppression hearing, as well as the officers who testified that States exhibit 44 was taken in compliance with state and federal laws, she then viewed States exhibit 44 herself and learned that their testimony was not true. After Judge Stricklin learned of this evidentiary fact she allowed the statement into evidence, and then allowed the State to play a second tape. By doing so she became an agent for the state. Neder v. United States, 527 U.S.
1, 8 (1999) (“This is clearly a case in which the absence of an impartial judge on the bench affected the entire trial process robbing applicant of her basic protections and undermining the ability of the criminal trial to reliably serve its function as a vehicle for the determination of guilt or innocence.”).
To further show the court that the prosecutor and Judge Stricklin were working together to convict the petitioner the court only has to look at HPD file 273 and view what the petitioner says. He states “That’s it. I ain’t saying shit else.” Judge
Stricklin either heard this on States exhibit 44 or she read it in the transcript, when she did she learned of an evidentiary fact that should have been brought up at petitioners suppression hearing. In Kniatt v. State, 239 S.W.2d 910, 920, 922 (Tex.
Crim. App. 2007), it reads:
From the history of Rule 18b(2)(a) [of the Texas Rules of Criminal Procedure] and from Liteky and its progeny, we are persuaded that Rule
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18b(2)(a) does not require a showing of bias (partiality) arising from an extrajudicial source that is outside judicial proceeding. Rather, when judicial conduct or remarks serve as a basis for a recusal motion, the movant is required to show a ‘deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555 [].
. . .
And under Rule 18b(2)(b), the movant must show that the judge’s possession of personal knowledge of disputed evidentiary facts either was wrongfully obtained or led to a wrongful disposition of the case. Sommers, 20 S.W.3d at 258-59[]. An unfavorable predisposition towards a party arising from events occurring during judicial proceedings may nonetheless support recusal if “it is so extreme as to display a clear inability to render a fair judgement.” Sommers, 20 S.W.3d at 44 (quoting Liteky, 510 U.S. at 552[]).
Had the statement that the petitioner made been brought up at the
suppression hearing it would have alerted trial counsel that States exhibit 44 needed
more investigations. Trial counsel could have asked for the tape to be played for the
judge at the suppression hearing, and argued that the petitioners Miranda/Mosley
rights had been violated. Also there would have been the argument that the police
had a pattern of violating the petitioner’s constitutional rights making States exhibit
45’s admissibility come under question as well. Because Judge Stricklin allowed the
State to hide the statement the petitioner made she was working with them to convict the petitioner. Because she was, the petitioner should be granted a new suppression hearing and trial.
2. Judge Stricklin was biased against the petitioner because she lied to the jury about what was redacted and illegally commented on the weight of the evidence.
Before States exhibit 44-a was played for the jury Prosecutor Wisner asked Judge
Stricklin if she would explain to the jury the lapses in sound, to which Judge Stricklin
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responded: “ladies and gentlemen, [of the jury], I need to tell you that certain parts
of this video tape have been deemed not relevant to the case so they have been
deleted.” 14 RR 62.
The Texas Code of Criminal procedure article 38.05 says a “Judge shall not
Discuss Evidence.” In ruling upon the admissibility of evidence, the judge shall not
discuss or comment upon the weight of the same or it’s bearing in the case, but shall
simply decide whether or not it is admissible; nor shall he at any stage of the
proceedings previous to the return of the verdict, make any remark calculated to
convey to the jury his opinion of the case. See Sharp v. State, 707 S.W.2d 611 (Tex.
Crim. App. 1986) (reason for rule prohibiting a judge from commenting on the weight
of evidence is that erroneous instruction by the trial judge to the jury on the weight
of the evidence reduces the State’s burden of proving guilt beyond a reasonable doubt
to the jury’s satisfaction.)
In determining whether a trial court’s comments are improper, the test is
whether the remark was reasonably calculated to prejudice the defendant’s rights.
Valera v. State, 561 S.W.2d 186, 192 (Tex. Crim. App 1975); Ables v. State, 519 S.W.2d
464 (Tex. Crim. App 1975). The focus in the test is whether or not the defendant’s rights were prejudiced, not the rights of his counsel.
To the jury the language and conduct of the trial court have a special and peculiar weight. See Livingston v. State, 782 S.W.2d 12, 14 (Tex. App-Dallas 1989).
The trial court comments on the evidence or other remarks by a trial court constitute
reversible error only if they are reasonably calculated to benefit the State or prejudice
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the defendant’s rights. Tex. Code Crim. P. art. 38.05; Davis v. State, 651 S.W.2d 787,
798 (Tex. Crim. App. 1983).
There is no question Judge Stricklin’s erroneous comment to the jury about the
State redacting petitioner invoking his right to terminate the interview prejudices
his rights. First, Judge Stricklin knew that the tape should have never been admitted
into evidence, then she worked with prosecutors by turning a blind eye to the fact
that they would fast forward past the petitioner sitting in the room stating, “That’s
it. I ain’t saying shit else,” and the fact that the statement violated Miranda/Mosley.
Lastly, had it not been for petitioner’s lawyer wearing a hearing aid, this claim would have gone undetected.
Prosecutor Vic Wisner stated, “Perhaps the court could tell the jury that there may be gaps in the sound. It’s because the court had ruled that certain parts admissible. Otherwise it looks like we are offering something that we have tampered with.” 13 RR 6-7. Before petitioner’s suppression hearing and trial the prosecutor elicited the help of Judge Stricklin in instructing the jury what was redacted. When
Judge Stricklin viewed states exhibit 44 she knew petitioner invoked his rights to terminate the interview and why, yet she made the biased decision to work with prosecutors to convict petitioner.
Because Judge Stricklin worked with prosecutors in convicting petitioner and lied to the jury about what was redacted Petitioner deserves a new trial in front of an impartial judge.
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3. Judge Stricklin was biased against the petitioner when she allowed prosecutors to withhold evidence.
The State withheld the fact that the petitioner invoked his right to terminate the interview. The defense filed a motion for disclosure of detailed exculpatory evidence as required under Brady, thus the State was supposed to alert counsel about petitioner invoking his right to remain silent. Especially because Miranda places a burden on the state to prove the police did not violate the petitioner’s rights. Instead they withheld the fact the statement was inadmissible.
The State produced at the suppression hearing a transcribed version of States exhibit 44. The transcribed version of States exhibit 44 did not show that petitioner invoked his right to terminate the interview. Prosecutors withheld that fact from the transcription so they could argue the tape was admissible. Petitioner’s trial attorney read the transcription to argue that States exhibit 45 was inadmissible instead of looking at the video and listening to the audio tape, and was misled as to what was on those tapes. 13 RR 20, 23.
The State then argued the tape was admissible, Judge Stricklin agreed and it was allowed into evidence. The parts that were supposed to be redacted were parts that talked about “probation”. 14 RR 14. But at the petitioner’s trial, Prosecutor Vic
Wisner stated on record that petitioner “may say a time or two that he may want to terminate the interview.” 15 RR 81, 82.
When Judge Stricklin viewed States exhibit 44 she knew petitioner invoked his right to terminate the interview yet she allowed prosecutors to withhold that
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evidence. Because she did so petitioner should be given a new trial in front of an impartial judge.
4. Judge Stricklin allowed the state to sponsor perjured testimony during petitioner’s suppression hearing and trial sabotaging petitioner’s suppression hearing and subsequent trial.
In a suppression hearing the trial court is the sole trier of fact and judge of credibility of witnesses and weight to be given their testimony. See State v. Ballard,
987 S.W.2d 889, 891 (Tex. Crim. App 1999) (at suppression hearing the “burden of proof is initially on the defendant to raise the exclusionary issue and to prove facts to support his assertion, then the burden shifts to the state to prove that it complied with the law’s requirement.”); Pham v. State, 175 S.W.2d 767, 772 (Tex. Crim. App
2005).
The Petitioner brought up the fact that he was assaulted by officers and stated if that was not on the tape, the tape had been stopped. 13 RR 49-61. When petitioner brought up the assault and the stopping of the tape, the burden shifted to the State to prove it complied with the law’s requirement. Id. To do so the State recalled
McDaniel to the stand and asked him “if there was a claim that that tape had somehow been altered, the tape had been stopped and while you left the room a big- looking Indian officer along with a small officer somehow came in the room and put the defendant in a corner and physically assaulted him, would that be true?” Officer
McDaniels answered, “No sir.” 13 RR 61-63. At no time did Officer McDaniel or prosecutor Wisner state that the petitioner had invoked his Miranda/Mosley rights.
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During the trial the prosecutor then asked Officer McDaniel to lie about what happened during the time the petitioner sat in the room. He lied about the petitioner’s actions as well as the amount of time the petitioner sat in the room alone. This is important because had this not been hidden and lied about by the officer it would have led to evidence that would have discredited the credibility of the officer’s testimony at the suppression hearing. Also it would have called into question the admissibility of States exhibit 45.
Because Judge Stricklin did not do her judicial duty and preside impartially over petitioner’s suppression hearing, petitioner is entitled to a new trial and suppression hearing in front of an impartial judge to determine the admissibility of all his statements.
(ii) The judicial bias claim was preserved for federal review.
1. Motion to recuse Judge Stricklin
The petitioner filed two motions to recuse Judge Debbie Stricklin, the first one was before his trial.
1. On October 12, 2004 the petitioner filed a pro se recusal motion to remove Judge Stricklin from his case. The motion was referred to Judge Belinda Hill where a hearing was held on October 14, 2004. That day, Judge Hill also denied petitioner’s recusal motion.135
135 A copy of the initial pre-trial recusal motion is labeled States exhibit 1.
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The basis of the recusal motion is that the petitioner was not happy with his
court-appointed attorneys, he felt like they would not do their jobs, forcing him to go
to trial with ineffective attorneys.
On July 9, 2001, three months before petitioner’s trial he filed a motion to fire his court-appointed attorneys, there was a hearing held in front of Judge Stricklin and petitioner complained about his attorneys’ lack of communication and lack of
investigation into his defense that he did not kill the complainant. Judge Stricklin
failed to remove these attorneys, Marshall Mack Aronold and Sid Crowley. See RR
V2-pretrial hearing. Still worried his attorneys would not properly represent him and
that Judge Stricklin was forcing him to go to trial with these attorneys, the petitioner
filed the October 12 recusal motion in response. The motion was denied.
2. Post-trial recusal motion on March 28, 2008, pursuant to the Tex. Civ P. 18(2)(a)(b): petitioner filed a recusal motion against Judge Stricklin alleging her impartiality might be reasonably questioned because she allowed prosecutors to redact him invoking his right to stop the interview with police and because she allowed his statement into evidence when it violated his constitutional rights.
The state filed a response to this motion and the motion was referred to Judge
Olen Underwood, the Judicial Administrative Judge, who convened a hearing on
June 5, 2008 to determine if recusal was warranted.
At the hearing Judge Olen Underwood determined petitioner failed to present
sufficient evidence to warrant the recusal of Judge Stricklin, stating no extrajudicial
evidence had been presented. 1 RR 7-8 (motion to recuse hearing).
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Because petitioner filed two recusal motions and had two hearings on Judge
Stricklin’s partiality the issue is preserved for federal review. It is also part of the
state court’s record.136
The hearing that was held in front of Judge Olen Underwood did not give the
petitioner the chance to fully argue that Judge Stricklin was biased and how. When
the petitioner presented his argument Judge Underwood cut him off:
Defendant: Okay at the suppression hearing there were two tapes that were let into evidence, one was labeled 44, the second 44a.
The Court: (Judge Underwood) Let me share with you if I may, Marshall. All of the information that you have put in your motion will not be grounds for recusal. Recusal primarily is used for circumstances that take place outside the court room. Nothing done within the courtroom during trial. Admission of evidence all that’s an Appellate issue, not a recusal one. I have reviewed your motion and I find nothing in your motion that discusses extrajudicial evidence. Extrajudicial meaning something that happened outside of the trial, outside the courtroom.
See 1 RR 7-8.
Judge Underwood failed to allow the petitioner the chance to prove that Judge
Stricklin was biased at the suppression hearing and trial, and his ruling was an unreasonable application of clearly established federal law, as determined by the
Supreme Court. See Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
The Supreme Court grappled with the extrajudicial source in Liteky v. United
States, 510 U.S. 540 (1997). Id. at 555 (events occurring in the course of current
136 The state court record consists of the allegations of the habeas corpus petitioner and any manner of the case. See Cullen v. Pinholster, 131 S. Ct. 14, 16 (quoting In re Hockberh, 2 Cal.3d 870, 874 n.2 [](1970) (some internal marks omitted)).
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proceedings may constitute basis for recusal motion if they established deep seated favoritism or antagonism that makes fair judgment impossible.).
The petitioner was attempting to establish that Judge Stricklin knew that
States exhibit 44 was taken in violation of Miranda/Mosley and that the State had presented false testimony at the trial and suppression hearing. Had he been allowed to do so, it would have been possible to prove that Judge Stricklin was biased against the petitioner.
The fact that the petitioner invoked his right to terminate the interview constituted an evidentiary fact that Judge Stricklin withheld from petitioner’s attorney. She then allowed the State to present a different tape into evidence, and instructed the jury as to what was illegally redacted. Because she did so she robbed the petitioner of the right to have a fair trial in front of an impartial judge. Petitioner should be given a new trial based on the evidence presented in this claim.
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PRAYER FOR RELIEF
WHEREFORE, Gerald Marshall, requests that this Court consider his Petition
for Writ of Habeas Corpus and grant the following remedies and such other relief as
the Court deems appropriate:
1. Issue a writ of habeas corpus to have him brought before it, to the end that he
may be discharged from his unconstitutional confinement and restraint and be
relieved of his unconstitutional sentence of death;
2. Allow Petitioner leave to conduct discovery pursuant to Rule 6 of the Rules
Governing 28 U.S.C. § 2254 Cases to more fully develop the factual bases
demonstrating the constitutional infirmities in his conviction and sentence;
3. Conduct an evidentiary hearing pursuant to Rule 8 of the Rules Governing 28
U.S.C. § 2254 Cases; and
4. That this Court grant such other relief as law and justice require.
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Respectfully submitted,
/s/ Nicole DeBorde JASON D. HAWKINS NICOLE DEBORDE Federal Public Defender Federal ID No. 16839 TBA No. 00787344 /s/ Jeremy Schepers 3515 Fannin Street Jeremy Schepers (TX 24084578) Houston, Texas 77004 Supervisor, Capital Habeas Unit Telephone: (713) 526-6300 Facsimile: (713) 808-9444 Jennifer Giddings (TX 24096284) [email protected] Jessica Graf (TX 24080615) Assistant Federal Defenders
Office of the Federal Public Defender Northern District of Texas 525 S. Griffin St., Ste. 629 Dallas, TX 75202 214-767-2746 [email protected]
Counsel for Petitioner Gerald Marshall
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VERIFICATION BY ATTORNEY
I, the undersigned, am an attorney at the office appointed by this Court
pursuant to 18 U.S.C. § 3599 to represent Petitioner Gerald Marshall in these
proceedings. I have met with Marshall, consulted with other staff in the Federal
Defender’s Office regarding the case and our co-counsel, and directed experts and investigators regarding the circumstances of Marshall’s conviction and sentence of death. It is in that capacity that I verify this Petition. I declare under penalty of perjury that the foregoing allegations in this Petition are true and correct to the best of my knowledge and that this Petition for Writ of Habeas Corpus is being filed using this Court’s CM/ECF system on February 28, 2020.
Subscribed by me February 28, 2020, in Dallas, Texas.
/s/ Jeremy Schepers Jeremy Schepers
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Amended Petition for a Writ of Habeas Corpus has been served by CM/ECF upon counsel for Respondent on February 28, 2020:
Adham Bissar Assistant Attorney General Criminal Appeals Division Office of the Attorney General P.O. Box 12548 Austin, TX 78711-2548 [email protected]
/s/ Jeremy Schepers Jeremy Schepers
355