Writ of Habeas Corpus

IN THE COURT OF CRIMINAL APPEALS

 

IN AUSTIN, TEXAS

 

AND

 

IN THE CRIMINAL DISTRICT COURT NO. 3

 

IN DALLAS, TEXAS

 

 

EX PARTE

 

DARLIE LYNN ROUTIER

          Writ No. W96-39973-J0000000

(Trial Court No. F96-39973-J)

 

 

 

FIRST APPLICATION

 

FOR POST-CONVICTION WRIT OF HABEAS CORPUS

PURSUANT TO TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 11.071

 

 

 

THIS IS A CAPITAL CASE

OF COUNSEL:

 

Michael F. Flanagan, Pro Hac Vice

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC  20036

(202) 955-8500

 

 

 

Rey Rodriguez (SBN 00791557)

Richard A. Smith (SBN 24027990)

GIBSON, DUNN & CRUTCHER LLP

2100 McKinney Avenue, Suite 1100

Dallas, TX  75201

(214) 698-3100

       

Steven C. Losch (SBN 00789805)

906 Delia Drive

Longview, TX 75601

(903) 234-1373

 

 

       

Counsel for Petitioner Darlie Lynn Routier

 

 

 

TABLE OF CONTENTS

 

Page

 

TABLE OF AUTHORITIES            vi

 

INTRODUCTION            1

 

STATEMENT OF FACTS            3

 

CLAIMS FOR RELIEF            13

 

I............ ........... Because Petitioner Is Innocent Of The Crime For Which She Was Convicted, Her Sentence And Conviction Are Unconstitutional Under Schlup v. Delo And Violate The Eighth Amendment And Petitioner’s Federal And State Constitutional Rights To Due Process And A Fundamentally Fair Trial............ 13

 

A............ Newly Discovered Evidence Supports The Defense’s Theory At Trial That The June 6, 1996, Crime At 5801 Eagle Drive, Rowlett, Texas Was Committed By An Intruder............ 16

 

1............ A Bloody Fingerprint Lifted From the Glass Table in the Family Room Establishes That an Unknown Adult Was in the Routiers’ Residence on the Morning of June 6, 1996 During or Right After the Attacks............ 17

 

2............ A Rowlett Woman Returning Home in the Early Morning of June 6, 1996 Observed Two Suspicious Men Walking from the Routier Neighborhood One of Whom Matched Petitioner’s Description of the Assailant............ 18

 

3............ In the Spring of 1996, Darin Routier Had Intentions to Have His Residence “Hit” to Collect Insurance Proceeds............ 19

 

B............ Preliminary Analyses by Forensic Experts Have Revealed Physical Evidence Inconsistent With The State’s Circumstantial Case............ 21

 

1............ Knife Number 4............ 21

 

2............ Petitioner’s Nightshirt............ 21

 

3............ Vacuum Cleaner............ 22

 

4............ Wine Glass............ 22

 

C............ Petitioner Must Be Given Access to Physical Evidence Not Tested at All or Not Adequately Tested by the State or Defense Counsel to Fully Present Her Claims for Relief............ 22

 

II............ The Manifestly Defective Reporter’s Record Renders Any Post-Conviction Review Inadequate, Denies Petitioner Her Federal and State Constitutional Rights to Due Process, and Prevents Effective Exercise of Petitioner’s Constitutional and Statutory Rights to Petition This Court for Habeas Corpus Relief............ 24

 

III............ The Ineffective Assistance of Defense Counsel Deprived Petitioner of Her Federal and State Constitutional Rights to Effective Counsel and a Fundamentally Fair Trial............ 27

 

A............ Defense Counsel had an Actual Conflict of Interest Under Mickens v. Taylor Because He Was Concurrently Representing Petitioner’s Husband, Darin Routier and as a Condition of His Retention by the Family Agreed to Petitioner’s Detriment not to Implicate Darin Routier............ 27

 

1............ Defense Counsel’s Attorney-Client Relationship with Darin Routier and Employment Arrangement with the Routier Family Prevented Defense Counsel From Presenting an Effective Defense for Petitioner and From Effectively Cross-Examining Darin Routier at Trial............ 28

 

2............ Petitioner Did Not Waive Her Right to Conflict-Free Representation of Counsel............ 34

 

B............ Defense Counsel Failed to Conduct and/or Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to Petitioner’s Defense............ 39

 

1............ Defense Counsel Failed to Pursue Critical Expert Testimony to Rebut the State’s Scientific Case Against Petitioner............ 40

 

2............ Defense Counsel Failed to Investigate Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense for Petitioner............ 53

 

C............ Defense Counsel Failed to Object to the State Mounting an Unfair Prosecution with Inadmissible Evidence............ 56

 

1............ The Prosecution Was Allowed to Build its Case for Guilt Substantially on the Basis of Character Evidence............ 58

 

a............ Propensity Evidence............ 58

 

b............ Admissions of the Prosecution’s Propensity Evidence Violated Petitioner’s Right to Due Process and Demonstrated that Her Defense Counsel was Ineffective............ 60

 

2............ The Prosecution Was Allowed to Introduce Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner............ 66

 

3............ The Prosecution Was Allowed to Introduce, Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner’s Conduct and State of Mind............ 70

 

a............ Medical Witnesses............ 70

 

b............ James Cron............ 74

 

D............ Defense Counsel Failed to Challenge the Constitutionality of the Interrogation of a Sedated Petitioner Confined in her Hospital Bed After Surgery............ 78

 

E............ Defense Counsel Failed to Object to the State’s Interfering with the Defense’s Access to Witnesses, Which Deprived Petitioner of Her Federal and State Constitutional Rights to Due Process............ 81

 

F............ Defense Counsel Failed to Offer Evidence from a Secretly Taped Police Video That Would Have Negated a Highly Prejudicial Videotape Offered by the State............ 84

 

IV............ The Cumulative Effect Of Defense Counsel’s Actions Deprived Petitioner Of Her State And Federal Constitutional Rights To Due Process And A Fundamentally Fair Trial............ 88

 

V............ Defense Counsel Failed to Challenge Prosecutorial Misconduct At Trial Depriving Petitioner of Her Right to a Fundamentally Fair Trial............ 89

 

VI............ The State Knowingly Withheld Impeachment Evidence Regarding Two of the State’s Primary Experts In Violation Of Brady v. Maryland and Petitioner’s Constitutional Guarantees To Due Process and a Fundamentally Fair Trial............ 100

 

A............ The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose Evidence of Similar Crimes that Would Impeach the Testimony of the State’s Crime Scene Analyst, Special Agent Alan Brantley............ 102

 

B............ The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose Known Impeachment Evidence Regarding the History of Mental Illness and Related Employment Problems of the State’s Trace Evidence Analyst, Charles Linch............ 104

 

1............ The Prosecution Failed to Disclose Charles Linch’s History of Mental Incapacity and Involuntary Psychiatric Commitment for Depression and Alcohol Dependence............ 105

 

2............ The Prosecution Failed to Disclose That Linch’s Desire for Recognition and Propensity to Testify in High-Profile Capital Murder Cases and Employment Problems at the Southwestern Institute of Forensic Sciences Biased His Testimony............ 106

 

3............ The Prosecution’s Failure to Disclose Evidence Regarding Charles Linch’s Chronic Depression, Alcohol Dependence, and Tenuous Employment Relationship Violated the Prosecution’s Duty Under Brady v. Maryland............ 109

 

C............ The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose the Expert Opinion of Psychiatrist Dr. Kenneth Dekleva that Petitioner Would Not Present a Future Danger............ 111

 

D............ The Multiple Failures of the Prosecution Under Brady v. Maryland Constitute a Material Error that Violated Petitioner’s Right to Due Process Under the Fourteenth Amendment to the United States Constitution and Art. 1, § 19 of the Texas Constitution............ 113

 

VII............ The State Failed To Correct The False Testimony of Charles Linch In Violation Of Petitioner’s Federal And State Constitutional Guarantees To Due Process And A Fundamentally Fair Trial............ 113

 

VIII............ The Cumulative Effect Of The State’s Misconduct Deprived Petitioner Of Her State And Federal Constitutional Rights To Due Process And A Fundamentally Fair Trial............ 116

 

IX............ The Texas Death Penalty Statute Is Unconstitutional On Its Face And As Applied In Petitioner’s Case............ 118

 

PRAYER FOR RELIEF            123

 

 

 

 

 

TABLE OF AUTHORITIES

 

Page

 

Cases

 

Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972)..... 59

 

Atkins v. Virginia, No. 00-8452, 2002 U.S. LEXIS 4648 (June 20, 2002)..... 122

 

Brady v. Maryland, 373 U.S. 83 (1963)..... passim

 

Brady v. United States, 397 U.S. 742 (1970)..... 35

 

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993)..... 60

 

Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200 (Tex. App. Dec. 6, 2001)..... 34, 38

 

Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986)..... passim

 

Callahan v. United States, 371 F.2d 658 (9th Cir. 1967)..... 81

 

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 2000)..... 99

 

Chessmen v. Teets, 354 U.S. 156 (1957)..... 26

 

Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996)..... 95

 

Cook v. State, 904 S.W.2d 623 (Tex. Crim. App. 1996)..... 101, 116

 

Darden v. Wainwright, 477 U.S. 168 (1986)..... 90

 

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)..... 75

 

Dennis v. United States, 384 U.S. 855 (1966)..... 82

 

Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992)..... 66

 

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)..... 90

 

Duffy v. State, 567 S.W.2d 197 (Tex. Crim. App. 1978)..... 96

 

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)..... 70

 

East v. Johnson, 123 F.3d 235 (5th Cir. 1997)..... 102

 

Ex Parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ..... 114

 

Ex Parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1990)..... 1, 95, 116, 117

 

Ex Parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993)..... 114

 

Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)..... 13, 14, 16

 

Ex Parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978)..... 40

 

Ex Parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996)..... 114

 

Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983)..... 56

 

Ex Parte Prejean, 625 S.W.2d 731 (Tex. Crim. App. 1981)..... 35

 

Ex Parte Smith, 561 S.W.2d 842 (Tex. Crim. App. 1978)..... 36

 

Ex Parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990)..... 46, 48

 

Florio v. State, 532 S.W.2d 614 (Tex. Crim. App. 1976)..... 82

 

Foster v. California, 394 U.S. 440 (1969)..... 116

 

Furman v. Georgia, 408 U.S. 238 (1972)..... 119

 

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)..... 27

 

Giglio v. United States, 405 U.S. 150 (1972)..... 101, 114

 

Glasser v. United States, 315 U.S. 60 (1942)..... 34

 

Gonzales v. State, 685 S.W.2d 47 (Tex. Crim. App. 1985)..... 98

 

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)..... 82

 

Guerra v. Collins, 916 F. Supp. 620 (S.D. Tex. 1995)..... 119

 

Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 837 (2000)..... 66

 

Hardy v. State, 71 S.W.3d 535 (Tex. App. 2002)..... 66

 

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)..... 27, 80. 87

 

Herrera v. Collins, 506 U.S. 390 (1993)..... 13, 14, 15, 16

 

Holloway v. Arkansas, 435 U.S. 475 (1978)..... 31, 39

 

Idaho v. Wright,  497 U.S. 805 (1990)..... 66

 

Jaubert v. State, No. 0260-01, 0261-01, 0262-01, 0263-01, 0264-01, 2002 Tex. Crim. App. LEXIS 82 (Tex. Crim. App. April 10, 2002)..... 58

 

Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)..... 81, 82

 

Koller v. State, 518 S.W.2d 373 (Tex. Crim. App. 1975)..... 90, 99

 

Kyles v. Whitley, 514 U.S. 419 (1995)..... 102

 

 

 

Landrum v. State, 356 S.W.2d 673 (Tex. Crim. App. 1962)..... 36

 

Linsey v. King, 769 F.2d 1034 (5th Cir. 1985)..... 114

 

Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)..... 40, 53

 

Martinez v. Wainwright, 621 F.2d 184 (5th Cir. 1980)..... 114

 

McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) (Amended June 10, 1993 and reported at 1993 U.S. App. LEXIS 9685)..... 60

 

Menefee v. State, 614 S.W.2d 167 (Tex. Crim. App. 1981)..... 92

 

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)..... 77

 

Michelson v. United States, 335 U.S. 469 (1948)..... 59

 

Mickens v. Taylor, 122 S. Ct. 1237 (2002)..... 27, 39

 

Mincey v. Arizona, 437 U.S. 385 (1978)..... 78, 80

 

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)..... 56

 

Muniz v. Johnson, 132 F.3d 214 (5th Cir. 1998)..... 78

 

Murray v. Carrier, 477 U.S. 478 (1986)..... 16

 

Napue v. Illinois, 360 U.S. 264 (1959)..... 113

 

Old Chief v. United States, 519 U.S. 172 2d 574 (1997)..... 56

 

Owens v. State, 827 S.W. 2d 911 (Tex. Crim. App. 1992)..... 59

 

Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000)..... 28, 30, 31, 32, 34

 

Planned Parenthood v. Casey, 505 U.S. 833 (1992)..... 123

 

Richardson v. State, 744 S.W.2d 65 (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914 (1989)..... 110

 

Rubin v. Gee, No. 01-6411, 2002 U.S. App. LEXIS 10740 (4th Cir. June 5, 2002)..... 28, 29

 

Schlup v. Delo, 513 U.S. 298 (1995)..... 14, 15, 16

 

Sellers v. Estelle, 651 F.2d 1074 (5th Cir. 1981)..... 101

 

Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988)..... 90

 

State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994)..... 13, 14

 

State v. Nkwocha, 31 S.W.3d 817 (Tex. App. 2000)..... 14, 16

 

Strickland v. Washington, 466 U.S. 668 (1984)..... passim

 

Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992)..... 95, 100

 

Trop v. Dulles, 356 U.S. 86 (1958)..... 122

 

United States v. Bagley, 473 U.S. 667 (1985)..... passim

 

United States v. Bontkowski, 865 F.2d 129 (7th Cir. 1989)..... 114

 

United States v. Cronic, 466 U.S. 648 (1984)..... 48

 

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)..... 34, 36, 37, 38

 

United States v. Greig, 967 F.2d 1018 (5th Cir. 1992)..... 36, 38

 

United States  v. LeQuire, 943 F.2d 1554 (8th Cir. 1991)..... 99

 

United States v. Matlock, 491 F.2d 504 (6th Cir. 1974)..... 81

 

United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997)..... 114

 

United States v. Quinones, 196 F. Supp. 2d 416, 2002 U.S. Dist. LEXIS 7320 (S.D.N.Y. 2002)..... 121, 122

 

United States v. Quinones, 2002 U.S. Dist. LEXIS 11631 (S.D.N.Y. July 1, 2002)..... 118, 120, 122

 

United States v. Ramirez-Benitez, No. 00-1497, 2002 U.S. App. LEXIS 10684 (1st Cir. June 4, 2002)..... 29, 32

 

United States v. Ring, 513 F.2d 1001 (6th Cir. 1975)..... 59

 

United States v. Scott, 518 F.2d 261 (6th Cir. 1975)..... 81

 

United States v. Wallach, 935 F.2d 445 (2d Cir. 1991)..... 114

 

United States v. White, 706 F.2d 506 (5th Cir. 1983)..... 36, 38

 

Viterbo v. Dow Chem. Co., 826 F.2d 420 (1987)..... 77

 

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)..... 59, 90

 

Williamson v. State, 771 S.W.2d 601 (Tex. App. 1989) ..... 92, 93

 

Winn v. State, 871 S.W.2d 756 (Tex. App. 1993)..... passim

 

Constitutional Provisions

 

Tex. Const. art. I, § 19..... passim

 

U.S. Const. amend. V..... passim

 

U.S. Const. amend. VI..... passim

 

U.S. Const. amend. XIV..... passim

 

Statutes

 

Tex Code Crim. Proc. art 1.05[3][4]..... 100

 

Rules

 

Rule 404(a)..... 58

 

Rule 404(b)..... 58

 

Tex. R. Evid. 403..... 68

 

Tex. R. Evid. 701..... 70, 71

 

Tex. R. Evid. 801(d)..... 67

 

Tex. R. App. Proc. 33.1..... 95

 

Other Authorities

 

Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html (last visited July 9, 2002)..... 119

 

Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html#state (last visited July 9, 2000)..... 120

 

Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002)..... 19, 20, 54

 

Holly Becka and Howard Swindle, Analyst Left Psych Ward to Testify:  County Forensic Expert Crucial in Murder Trials, Dallas Morning News, May 7, 2000 at 1A..... 105, 106

 

Holly Becka and Howard Swindle, Routier Trial Expert Cast Doubts on His Own Abilities:  Prosecutors Say Forensic Analyst Competent; Defense Questions Credibility of Testimony, Dallas Morning News, May 10, 2000 at 1A..... 105, 109

 

Holly Becka and Howard Swindle, Memos Detail Internal Struggle at Lab:  Reports Could Raise Questions About Reputations of Analyst, County Crime Office, Dallas Morning News, May 10, 2000, at 21A..... 109

 

James S. Liebman, Opting for Real Death Penalty Reform, available at http://www.law.ohio-state.edu/LawJournal/liebman.htm (last visited July 9, 2002)..... 119

 

Texas Defender Service Report, A State of Denial:  Texas Justice and the Death Penalty, Chapter 9:  Bitter Harvest, available at http://www.texasdefender.org/study/study.html (last visited July 9, 2002)..... 120

 

 

 

INTRODUCTION

 

On June 6, 1996, six-year old Devon Routier, five-year old Damon Routier, and their mother, Darlie Lynn Routier (“Petitioner”), were the victims of a horrible attack while they slept in the family room of the Routiers’ residence at 5801 Eagle Drive, Rowlett, Texas.  Devon and Damon were killed in the attack, and Petitioner came within millimeters of losing her life from a vicious cut across the front of her neck.  This crime outraged an entire community because the lives of two young children were lost.  That outrage, however, did not then, and cannot now, justify the complete subversion of justice that resulted in the capital conviction and sentence of Petitioner for a crime she did not commit. [1]

 

The State’s theory of the case was that Petitioner killed her own children to collect on their $5,000 burial insurance policies and then staged the crime scene and inflicted her own near-fatal injuries to cover up what she had done.  That case was built entirely upon circumstantial and character evidence; the most compelling of which was an irrelevant and unduly prejudicial videotape of Petitioner at a gravesite birthday celebration to honor the memory of Devon Routier, which the State – though in possession of a surveillance video showing this event was part of a several-hour tearful and solemn family visit to the children’s graves – introduced out of context.  In investigating and presenting this case to the jury, the State ignored significant evidentiary leads that not only were inconsistent with its own theory but consistent with the defense’s theory that an intruder committed the attacks, withheld exculpatory and impeachment evidence that it was constitutionally required to turn over to the defense, and violated explicit court rulings precluding the introduction of irrelevant and unduly prejudicial evidence.  Through such tactics, the State manufactured a conviction in which this Court should have little confidence.

 

The State’s misconduct is matched only by the unethical and unconstitutional actions of Petitioner’s own defense counsel, who, even though advised by her prior counsel that the husband was a possible perpetrator, agreed not to implicate Petitioner’s husband in her trial as a condition of being hired by the family to defend her.  By completely foreclosing this line of defense, her counsel never learned or presented to the jury evidence that Darin Routier had arranged to have his car stolen in 1994 to collect insurance proceeds and for a period of months before the events on June 6, 1996, had inquired of relatives and associates whether they knew of anyone who would “burglarize” his home so that he could collect the insurance proceeds.  That alone rendered defense counsel’s representation unconstitutional yet did not constitute the extent of the deficiencies in defense counsel’s representation.  Defense counsel, for example, never retained forensic experts to conduct scientific tests of the physical items removed from the Routier residence at 5801 Eagle Drive, Rowlett, Texas.  As a result, the State’s scientific evidence was never challenged at trial.  The jury thus was left with a factually erroneous impression of what that evidence showed, when in fact some of the physical evidence not only was inconsistent with a staged crime scene but indicated that Petitioner is innocent.

 

Thus, from start to finish, the process culminating in Petitioner’s capital murder conviction and death sentence was undermined by misconduct, omissions, and failures – not only by the State but by her own counsel – that deprived Petitioner of her federal and state constitutional guarantees to due process and a fundamentally fair trial.  Accordingly, Petitioner respectfully asks this Court to vacate her conviction and sentence and to issue the writ of habeas corpus.

 

STATEMENT OF FACTS

 

In the weeks before June 6, 1996, neighbors of the Routiers noticed a strange black car in the back alley behind and across the street from their residence at 5801 Eagle Drive, Rowlett, Texas – just watching the house.  C.R.R. Vol. 36, p. 136:5-15; C.R.R. Vol. 41, pp. 84:21-85:24.  Because the windows of the car were tinted, no one could identify what the driver looked like or whether any passengers were in the car.  These neighbors’ observations took on added significance after June 6, 1996.

 

In the early morning hours of June 6, 1996, Petitioner and her two older sons, Devon and Damon, were attacked with a knife in the family room, where earlier they had fallen asleep watching television.  C.R.R. Vol. 44, p. 4865:10-22.  Like most victims of violent crime, Petitioner does not remember many details from that morning.  She recalls being awakened by Damon’s hitting her right shoulder and saying “mommie,” and seeing a man walk from the family room couch into the kitchen.  C.R.R. Vol. 44, p. 4866:1-4, 8-9.  Petitioner believes that whomever she saw that morning killed Devon and Damon and came within millimeters of killing her as well.  Physical and circumstantial evidence corroborate Petitioner’s belief.

 

In the 2:00 a.m. hour on June 6, 1996, a Rowlett woman driving home along a stretch of Dalrock Road that is approximately a ten-minute walk from the Routiers’ neighborhood, observed two suspicious men.  See generally Darlene Potter Affidavit (“Potter Aff.”). [2]   As she approached the “S” curve on Dalrock Road, the Rowlett woman slowed down because a trailer was attached to the back of her vehicle.  Potter Aff. ¶ 3.  She then noticed a man in his late twenties, medium build, shoulder-length disheveled hair, and barefoot walking along the side of the road.  Potter Aff. ¶ 3.  She was surprised to see someone on the street at that hour.  Potter Aff. ¶ 4.  As she drove out of the curve, she then noticed for the first time a second man who appeared to be in his late twenties, wearing a baseball cap and white t-shirt.  Potter Aff. ¶ 6.  The second man stepped from the curve as if to approach her vehicle, but the first man motioned “no” to him.  Potter Aff. ¶ 5.  When the woman arrived home, she went to bed but did not fall asleep.  Potter Aff. ¶ 8.  Approximately forty-five minutes later, she noticed a small dark-colored car riding its brakes in the fields next door to her house.  Potter Aff. ¶ 8.

 

A similar car was sighted by one of the Routiers’ neighbors later that afternoon on Eagle Drive, after the Rowlett Police Department had secured the crime scene at the Routiers’ residence.  This neighbor informed Police Officer Jimmy Patterson about the peculiar car but neither he nor to his knowledge, anyone else from his department followed up on the information.  C.R.R. Vol. 42, pp. 25:15-26:5.

 

Only a few months before the first sightings of the black car in the Routiers’ neighborhood, Darin Routier devised a fraudulent scheme to have his house “hit” so that he could collect the insurance proceeds from the “burglary.”  See Darin Routier Affidavit (“Routier Aff.”) ¶¶ 3-4.  The “burglar” was supposed to enter the Routiers’ home, remove items from the home and store them until the insurance proceeds were paid, from which the “burglar” would be compensated.  Routier Aff. ¶ 3.  In the spring of 1996, Darin Routier asked Petitioner’s step-father, Robbie Kee, whether he knew anyone willing to commit such a burglary.  See Robbie Gene Kee (“R. Kee Aff.”) ¶ 2; see also Routier Aff. ¶ 3.  “Between March 1996 and May 1996, [Darin Routier] told multiple people of [this] planned insurance scam.”  Routier Aff. ¶ 4.  On at least two prior occasions, however, once in 1994 (see Routier Aff. ¶ 2) and then again in 1995, Darin Routier in fact executed schemes for his 1982 Jaguar and wallet to be stolen so that he could collect insurance proceeds.

 

The jury that convicted Petitioner never heard these facts and thus never had the opportunity to piece them to arrive at a more plausible explanation than the flimsy one offered by the State for why the events of June 6, 1996 might have happened – an insurance scam gone wrong.  Douglas Parks, Petitioner’s original appointed counsel intended to present this defense to the jury (see Douglas Parks Affidavit (“Parks Aff.”) ¶ 4; Routier Aff. ¶ 4) but, at her family’s urging, Petitioner accepted new defense counsel.  Thereafter, defense counsel did not investigate whether someone known to Darin Routier had committed the “hit” on his house; indeed, defense counsel never had any intention to do so because a condition of his retention by Petitioner’s family was that he not implicate Darin Routier in the crimes.  See Routier Aff. ¶ 7.  By agreeing to that condition – without Petitioner’s consent – defense counsel completely foreclosed that line of defense for her, a defense that offered a more plausible explanation of the crimes, including the near fatal attack on Petitioner. 

 

The jury also never heard exculpatory evidence that the State knowingly did not disclose to the defense – even though constitutionally required to do so – evidence that one of its key witnesses, Charles Linch, had a long history of depression and alcoholism, caused in part by job-related stress from working at crime scenes and testifying at capital trials.  The State also never corrected certain misimpressions created by or false statements made in the testimony of Linch, James Cron, and Alan Brantley.  Linch falsely testified that at the time he received the kitchen knives from 5801 Eagle Drive, only two had been dusted – neither of which was Knife Number 4 from which he recovered the fiber that he claimed came from the garage window screen.  C.R.R. Vol. 37, p. 144:17 – 145:6.  Linch now admits that, in fact, all of the knives had been dusted, before he received them for testing.  This constitutes further evidence that Knife Number 4 was contaminated in the course of dusting the scene for fingerprints, and thus the fiber is not evidence of a staged crime scene.

 

Alan Brantley gave the jury the misimpression that he had investigated whether there had been similar crimes in the area.  See C.R.R. Vol. 40, pp. 53:24-54:5.  In fact, a spree of crimes that started in December 1995 and ended around  the time of the attack at the Routiers’ residence was not disclosed to the jury.  The assailant’s modus operandi included using implements from the homes of his victim as weapons and using tube socks – like the one found three houses down from the Routier’s home (C.R.R. Vol. 32, p. 71:3-6) – to gag his victims.  Brantley misleadingly suggested that criminal offenders never use objects found in victims’ homes as weapons.  See C.R.R. Vol. 40, p. 84:5-9.

 

Implausible Theory Advanced By the State:

 

The jury also never heard any alternative explanations for critical aspects of the State’s case – even though such explanations were available to the defense.  The State’s case against Petitioner was entirely circumstantial, built primarily upon character evidence – some of which the trial court had ruled was inadmissible but the State presented anyway (see, e.g., C.R.R. Vol. 42, pp. 304-06) – that she was a materialistic woman who lived beyond her means and upon the testimony of witnesses Charles Linch, Tom Bevel, and James Cron who were offered as experts.  All three of these witnesses testified that the physical evidence at the crime scene indicated that it had been staged.

 

Fiber on Knife No. 4/Garage Window Screen:

 

Linch testified that a fiber recovered from Knife Number 4 was consistent with the material from a torn garage window screen:

Q.            []  Bottom line, from this comparison of the black rubbery material and the glass rods on the window screen and on this knife, what does that say to you as a trace evidence analyst?

 

A.            I couldn’t tell the difference between this debris and the debris found on the knife and, therefore, this knife could have been used to cause the cut, defect.

 

C.R.R. Vol. 37, p. 144:17-24.

 

Blood Spatter on Petitioner’s Victoria’s Secret Nightshirt:

 

Tom Bevel testified that blood spatter on the back of the Victoria’s Secret nightshirt that Petitioner wore on the morning of June 6, 1996 was consistent with “cast off” stains that would have been deposited when she brought the knife overhead in a stabbing motion:

Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . .  And then just simply did a motion such at this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the night of the attack].

 

C.R.R. Vol. 39, p. 37:10-38:1.  He explained the significance of his findings to the jury as:

A.            I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.

 

C.R.R. Vol. 39, p. 38:3-6.

 

Broken Wine Glass:

 

Cron testified that a wine glass from a wine rack in the kitchen had been thrown to the floor to suggest a struggle:

Q.            []  While you were telling us what a rocket scientist could and couldn’t do, let me just ask you how you decided, that the wine glass was broken?

 

. . . .

 

A.            When I make my – walking through the kitchen the first time, I had no earthly idea.  I thought, well, maybe it was broken during the scuffle with the intruder.  After I finished the walk-through and went outside and came back inside, it looked to me like it had been broken there to simulate or stage an offense, a member of the household broke it and planted it there.

 

. . . .

 

A.            After I made the initial walk-through, where I first went through, I didn’t think anything of it.  I thought it was broken maybe in a scuffle.

 

. . . .

 

A.            After I went back outside the house, finishing all of the inside, going outside then coming back in, I based my opinion . . . that there was – no intruder and I could only conclude that the glass was broken as part of the staging of this offense to make it appear like there had been an intruder.

 

C.R.R. Vol. 35, pp. 2287:4-2288:4.

 

Hoover Vacuum Cleaner:

 

Bevel testified that a Hoover vacuum cleaner that police officers discovered knocked over actually had been rolled through blood, as indicated by wheel marks on the flooring, and was another effort to stage the crime scene:

A.            []  It is a motion just simply of the wheel rolling through the bloodstain.  However, they are not connected.  You then have another area and you would just about have to lift the vacuum cleaner and go over to another area and then proceed to roll again in a different direction from the original location or – and original direction.

 

Q.            Okay.  So there were differing directions to these movements; is that right?

 

A.            As well as not being connected, so there has to be some movement up from off of the floor with the vacuum cleaner.

 

Q.            The roll marks that you saw on the floor, sir, were they consistent with the State’s Exhibit No. 93 just simply being dumped over or knocked over in one motion?

 

A.            They would not, no, sir.

 

C.R.R. Vol. 38, pp. 227:13-228:4.

 

In its closing arguments, the State explained how this evidence supported its theory that Petitioner had murdered her son Damon:

Well, it doesn’t take Sherlock Holmes to figure out, that this vacuum cleaner was dumped on top of those bloody footprints after it was moved.  But why?  If the defendant did it, it’s because it’s staging.  You need to show some type of struggle occurred, something like that.

 

But what else didn’t make sense . . . The wine glass.  Supposedly . . . this intruder ran into this wine rack somehow and broke a glass.  Well, there’s glass on top of the bloody footprints, and the officer said they were careful not to step on blood, and not to step on glass.  The trouble is he checked the wine rack and it was real sturdy . . .

 

That is another indication that something wasn’t adding up . . . with this story . . . .

 

And when [Linch] tested [] that bread knife, he looked at it under the microscope and what did he find?  Glass rods, the same type of rubber material seen on the bread knife.  And that same type of rubber debris with the glass meshed in.  The same type of stuff that happens when you cut the screen.  And it adds up, that bread knife was used to cut that screen, and . . . that tells you they were trying to fake the crime scene.

 

. . . .

 

[what is the explanation for the blood stains on the back of the nightshirt,] the most consistent way it could happen is when the stabbing motion comes up and the knife is over the shoulder . . . .  That tells you that she was stabbing, and Devon’s blood winds up on her back.  It’s not going to wind up there if she is laying on the couch as a man wrestles at her neck.

 

C.R.R. Vol. 47, pp. 37:25-38.23, Vol. 47, pp. 16-24, Vol. 46 pp. 10-16.

 

As the State pointed out to the jury, defense counsel presented no scientific evidence to rebut the physical indications of a staged crime scene:

You know, here is the bottom line on Tom Bevel.  You know out there at SWIFS there is another expert, Terry Labor.  He is the DNA blood spatter expert who went out there on behalf of the defendant also, along with Bart Epstein.  And if they want to quarrel with Tom Bevel and tell you that he is wrong, and that he is a witch doctor of some sort, where is Terry Labor then?  Where is their blood spatter expert?  Don’t you know that if he had any criticism of the opinions rendered by Tom Bevel, that just like Bart Epstein, you would see them right up here, and he would be detailing for you what those criticisms are.  But he is not here either, is he?  And for a very good reason. 

 

C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4.  In fact, in October 1996 defense counsel was aware of contrary evidence.  But the jury never heard that evidence either.

 

Credible Alternative Explanations for the Physical Evidence at the Crime Scene

 

Through investigation of undersigned counsel, additional facts have surfaced about the physical evidence from 5801 Eagle Drive, Rowlett, Texas – again, none of which the jury heard.  A bloody fingerprint lifted from a glass table in the family room where the attacks occurred was described at trial by the State as lacking sufficient ridge details for identification.  See C.R.R. Vol. 35, p. 47:7-15.  Professor Richard Jantz from the University of Tennessee has since concluded otherwise and since determined that the latent fingerprint belongs to an adult.  See Richard Jantz Affidavit (“Jantz Aff.”).  The fingerprint has been compared to the fingerprints of Petitioner, Darin, Devon, and Damon Routier and all law enforcement personnel who responded to the scene.  None matched.  See generally Jantz Aff.  To leave a fingerprint before the blood on the family room table had dried, an unknown adult must have been in the Routiers’ home on the morning of June 6, 1996 during or right after the attacks.  This evidence supports what Petitioner has maintained all along:  She and her sons were attacked by the unidentified man that she saw leave through the kitchen on that morning.  See C.R.R. Vol. 44, p. 4866:8-9.

 

The jury never heard from forensic experts Terry Laber and Barton Epstein, who were retained by Petitioner’s appointed counsel – both of whom were identified by name in the State’s closing arguments as witnesses the defense never called to rebut Linch and Bevel’s testimony.  Laber and Epstein had reached conclusions contrary to the State’s experts before trial that could have been presented to the jury in Petitioner’s defense.  Substitute defense counsel, who was conflicted because of an agreement not to implicate Darin Routier (see Routier Aff. ¶ 7) , decided not to use the exculpatory evidence or to conduct further scientific tests – at a time when he was not familiar with the facts of the case.  At the time they were instructed to stop working on the case, Laber and Epstein had conducted a number of scientific tests on the physical evidence about which Linch and Bevel had testified at trial and had recommended additional testing on other physical evidence.  Laber and Epstein’s conclusions in October 1996 were that the physical evidence did not suggest a staged crime scene, which directly contradicted the testimony of Linch and Bevel.  See generally Terry L. Laber Affidavit (“Laber Aff.”).

 

Fiber on Knife No. 4/Garage Window Screen:

 

The jury never learned that before Linch tested Knife Number 4, the kitchen knives recovered from 5801 Eagle Drive already had been dusted for fingerprints using a fiberglass brush composed of the same material as the fiber removed from that knife.  No definitive tests were conducted to determine the source of the fiber.  Linch could testify only that the fiber was “consistent” with the garage screen window (See C.R.R. Vol. 37, pp. 144:17-145:6); he had reached a similar conclusion about a hair found in the same garage window screen that he opined was “consistent” with Petitioner’s hair.  See C.R.R. Vol. 37 p. 184:8-13.  In fact, DNA testing determined that he was wrong (See C.R.R. Vol. 37, pp. 183:22-184:2).  Laber and Epstein recommended that definitive testing be conducted on the fiber in October 1996See Laber Aff. ¶ 6.  Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

 

Blood Spatter on Victoria’s Secret Nightshirt:

 

Laber and Epstein concluded that Petitioner’s nightshirt indicated only minimal areas of blood spatter and that the critical areas of spatter were never subjected to genetic testing.  Bevel explained to the jury that one explanation for the absence of blood spatter was that Damon’s and Devon’s blood was covered by direct hits of Petitioner’s blood from her self-inflicted wounds.  In Laber’s expert opinion, that interpretation requires an extremely unlikely sequence of events.  Laber and Epstein recommended that the critical areas of blood staining be tested in October 1996See Laber Aff. ¶ 6.  Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

 

Broken Wine Glass:

 

Laber and Epstein concluded that the dispersal pattern of the broken wine glass that the jury was told had been dropped to suggest a struggle was not consistent with the State’s staging theory.  See Laber Aff. ¶ 11.  Broken glass shards discovered on the wine rack indicated that the glass had broken there.  See Laber Aff. ¶ 11.  Laber and Epstein made that finding in October 1996See Laber Aff. ¶ 11.  Conflicted defense counsel, however, never presented their finding to the jury.

 

Hoover Vacuum Cleaner:

 

Laber and Epstein concluded that the blood spatter indicated on the vacuum cleaner occurred after it had been knocked down and therefore was not consistent with Bevel’s theory that the vacuum cleaner had been pushed around by someone who was bleeding.  See Laber Aff. ¶ 11.  Laber and Epstein made that finding in October 1996See Laber Aff. ¶ 11.  Defense counsel, however, never presented their finding to the jury. [3]

 

The jury that convicted Petitioner on February 1, 1997, for the murder of Damon Routier never heard substantial evidence that undermines the State’s circumstantial case against her and supports her claim of innocence.  And the jury never heard the most likely explanation for the crimes because her counsel had agreed as a condition of retention by Petitioner’s family to protect a more plausible suspect, at the expense of Petitioner.  Petitioner seeks to have her conviction and sentence vacated and a writ of habeas issued because no court can have no confidence in such a tainted verdict.

 

CLAIMS FOR RELIEF

 

I.          Because Petitioner Is Innocent Of The Crime For Which She Was Convicted, Her Sentence And Conviction Are Unconstitutional Under Schlup v. Delo And Violate The Eighth Amendment And Petitioner’s Federal And State Constitutional Rights To Due Process And A Fundamentally Fair Trial.

 

Petitioner to this date maintains that she is innocent of the crime for which she was convicted and sentenced to death.  It is now well established that “the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution” and the corollary provisions of the Texas Constitution.  State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 397 (Tex. Crim. App. 1994); see also U.S. Const. amends. VIII; XIV; TX Const. art. I § 19; Tex. Code of Crim. Proc. art. 1.04[2][3].  Thus, Texas courts recognize “actual innocence” as “an independent ground for relief” in post-conviction applications for the writ of habeas corpus.  Ex Parte Elizondo, 947 S.W.2d 202, 204 (Tex. Crim. App. 1996); see also Herrera v. Collins, 506 U.S. 390, 417 (1993) (noting that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional”).  “[I]n order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.”  Holmes, 885 S.W.2d at 399.  Since Holmes, Texas courts have clarified the evidentiary showing a defendant must make to satisfy this standard.  See Ex Parte Elizondo, 947 S.W.2d at 209; State v. Nkwocha, 31 S.W.3d 817, 820-21 (Tex. App. 2000).  The requisite showing depends on whether the petitioner is advancing a Herrera-type claim or a Schlup-like claim.  Compare Herrera, 506 U.S. at 405 (describing petitioner’s claim as “not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place”) with Schlup v. Delo, 513 U.S. 298, 315 (1995) (describing petitioner’s innocence claim as “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits”). [4]

 

In Herrera, petitioner challenged his capital conviction and sentence for murder in a second federal habeas petition on grounds that he was “‘actually innocent’ of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law therefore forbid his execution.”  Herrera, 506 U.S. at 393.  In support of his second habeas petition, petitioner attached affidavits “tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime.”  Id.  Herrera claimed that this showing of innocence entitled him to habeas relief.  The Court disagreed.  “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”  Id. at 399.  Thus, the threshold showing for a claim of innocence “would necessarily be extraordinarily high” and in the Court’s opinion, the showing made by Herrera “falls far short of any such threshold.”  Id. at 417; see also id. at 418 (noting that petitioner’s “affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed”).  The Court has since explained that “the evidence of innocence would have had to be strong enough to make [petitioner’s] execution ‘constitutionally intolerable’ even if his conviction was the product of a fair trial.”  Schlup, 513 U.S. at 316.

 

In Schlup, after exhausting his state collateral remedies, petitioner challenged his capital conviction and sentence in a federal writ of habeas corpus on grounds that “his trial counsel was ineffective for failing to interview and to call witnesses who could establish Schlup’s innocence.”  Id. at 306.  Because he was denied relief on that application, Schlup filed a second federal habeas petition claiming that because he was innocent, “his execution would therefore violate the Eighth and Fourteenth Amendments.”  Id. at 307.  The Court held that because Schlup’s claim of innocence was accompanied by an assertion of constitutional error his “conviction may not be entitled to the same degree of respect as one, such as Herrera’s, that is the product of an error free trial.”  Id. at 316.  Thus, “Schlup’s evidence of innocence need carry less of a burden.”  Id.

 

The Court explained the difference in burden between a Herrera-type claim and a Schlup-type claim as follows:

If there were no questions about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup’s innocence.  On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup’s guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error, Schlup’s threshold showing of innocence would justify a review of the merits of the constitutional claims.

 

Id. at 317.  In other words, a petitioner raising a Schlup-like claim must “show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.”  Id. at 327 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).  “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”  Schlup, 513 U.S. at 327.

 

Texas courts unquestionably have adopted the Schlup standard for Herrera-type claims and, implicitly, also have adopted that standard for Schlup-like claims.  See Ex Parte Elizondo, 947 S.W.2d at 209 (“we adhere to the views of the Supreme Court, as expressed in Schlup, that in the case of a Herrera-type claim, the habeas court must be ‘convinced that [the] new facts unquestionably establish [the applicant’s] innocence”) (applying that standard to Elizondo’s Herrera-type claim); see also Nkwocha, 31 S.W.3d at 820-21 (applying the Schlup standard to Nkwocha’s Herrera-type claim).  Because Petitioner’s innocence claim is Schlup-like, she must show only that “it is more likely than not that no reasonable juror would have convicted [her] in the light of the new evidence.”  Schlup, 513 U.S. at 327.  Petitioner clearly can make that showing.

 

A.            Newly Discovered Evidence Supports The Defense’s Theory At Trial That The June 6, 1996, Crime At 5801 Eagle Drive, Rowlett, Texas Was Committed By An Intruder.

 

Since her conviction and sentence for the death of Damon Routier, Petitioner has discovered new evidence that supports her claim that she and her sons were attacked by an intruder and thus establishes her innocence of the crime for which she was convicted.

 

1.            A Bloody Fingerprint Lifted From the Glass Table in the Family Room Establishes That an Unknown Adult Was in the Routiers’ Residence on the Morning of June 6, 1996 During or Right After the Attacks.

 

Retired Rowlett Police Officer James Cron gave the jury the mistaken impression that a bloody fingerprint lifted from the glass table in the family room lacked “sufficient points of identification” to permit identification but was “consistent with having been left by a five or six year old child.”  C.R.R. Vol. 35, p. 47:7-48:11.  Specifically, Cron testified that:

A.            That there is ridge detail, a few points of comparison, but I can’t – couldn’t make any identification.

 

Q.            Okay.  Same thing as you had with the other sets that I have just shown you?

 

A.            Yes.  These are better prints but still lacked sufficient points of identification.

 

C.R.R. Vol. 35, p. 47:7-15.  The State then invited the witness to speculate as to the source of the latent prints:

Q.            Okay.  How would you classify the size of these two latents?

 

A.            Small.

 

Q.            Okay.  What do you mean by small?  What would that be consistent with?

 

A.            A juvenile, it could be.  It fits the criteria to be a younger person’s prints.

 

Q.            Okay.  What are those criteria?

 

A.            Small ridges.

 

Q.            Let me just ask you:  The two prints here, 85-I and J, would they be consistent with having been left by a five or six year old child?

 

A.            It’s possible, yes, sir.

 

C.R.R. Vol. 35, p. 48:2-11.  Based on this testimony, the jury likely dismissed the fingerprint evidence as belonging either to Devon or Damon Routier – a conclusion that subsequent scientific testing indicates was factually erroneous.

 

Contrary to Cron’s testimony, the latent fingerprint had sufficient points of identification for University of Tennessee Professor Richard Jantz to conduct an anthropological analysis of the fingerprint.  This analysis involves comparing the breadth of the ridges and size of the latent fingerprint with reference fingerprint samples of adult males, adult females, and children.  See generally Jantz Aff.  Based on such comparisons, Jantz concluded that the latent print belongs to an adult not a child.  He also compared the latent fingerprint with fingerprint samples from Petitioner, Darin, Damon, and Devon Routier, and all law enforcement personnel who responded to the residence at 5801 Eagle Drive, Rowlett, Texas.  See generally Jantz Aff.  None of the fingerprints from these individuals matched the latent fingerprint.  See generally Jantz Aff.  Thus, the bloody fingerprint is evidence that an unknown adult intruder must have been in the Routiers’ residence on June 6, 1996 at the time of the attack or shortly thereafter to leave a fingerprint in blood before it dried.

 

2.            A Rowlett Woman Returning Home in the Early Morning of June 6, 1996 Observed Two Suspicious Men Walking from the Routier Neighborhood One of Whom Matched Petitioner’s Description of the Assailant.

 

Eyewitness testimony from the morning of June 6, 1996 places two men in the vicinity of 5801 Eagle Drive around the time of the attacks, one of whom matched Petitioner’s description of the assailant.  Petitioner called the Police Department’s 911 number at 2:31 a.m. on the morning of June 6, 1996.  See C.R.R. Vol. 28, p. 38:18-20.  Darlene Potter, a Rowlett resident, was driving home on Dalrock Road in Rowlett, Texas “after 2 o’clock a.m. on June 6, 1996.”  See Potter Aff. ¶ 2.  Potter was driving North on Dalrock Road, along a stretch this is approximately a ten-minute walk from the Routier’s residence at 5801 Eagle Drive.  See Potter Aff. ¶ 9.  There, she saw two Caucasian men who were acting suspiciously walking along Dalrock Road in the direction she was traveling.  See Potter Aff. ¶¶ 3-5.  One of the men approached Potter’s car and “stepped from the side of the road as if he was walking towards [her] vehicle.”  See Potter Aff. ¶ 5.  The second man turned towards the first man and “sh[ook] his head as if to say ‘no.’”  Potter Aff. ¶ 5.  Approximately forty-five minutes after she arrived home, Potter saw a small dark car riding its brakes in the fields next to her home.  See Potter Aff. ¶ 8.  Potter’s recollections place both men near the scene of the attacks at 5801 Eagle Drive.  The first man’s physical description matches Petitioner’s description of the intruder.  Compare Potter Aff. ¶ 3 with C.R.R. Vol. 41, p. 41:3-12.

 

3.            In the Spring of 1996, Darin Routier Had Intentions to Have His Residence “Hit” to Collect Insurance Proceeds.

 

Since her conviction and sentence, Petitioner has discovered that her husband, Darin Routier, had intentions to have their residence “hit” to collect insurance proceeds.  See Routier Aff. ¶¶ 3-4; R. Kee Aff. ¶ 2.  Darin Routier inquired of Petitioner’s step-father in the spring of 1996 “whether [Kee] knew of anybody who would ‘burglarize’ his home so he could make an insurance claim.”  R. Kee Aff. ¶ 2; see also Routier Aff. ¶ 3.  Darin Routier intended “that he and his family would be gone from the house and that the ‘burglar’ would come to the house with a U-Haul truck and remove ‘gobs’ of stuff from the house and take the items somewhere.”  R. Kee Aff. ¶ 2; see also Routier Aff. ¶ 3.  After collecting the insurance proceeds, Darin Routier planned to “retrieve the items [stolen]” and “pay the ‘burglar’ out of the insurance proceeds.”  R. Kee Aff. ¶ 2; Routier Aff. ¶ 3.  Darin Routier has admitted that he had such a conversation with his step-father-in-law “a few days before the murder of his two children and attack on his wife.”  Richard Reyna Affidavit (“Reyna Aff.”) ¶ 5; Routier Aff. ¶ 3.

 

Although Darin Routier claims that he never followed through on this plan (Reyna Aff. ¶ 4), “[b]etween March 1996 and May 1996, [he] told multiple people of [his] planned insurance scam.”  See Routier Aff. ¶ 4; see also Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002).  Certain of Darin Routier’s associates who knew of those intentions had participated in an insurance scam two years earlier to have his Jaguar stolen from his residence.  “In 1994, [Darin Routier] spoke to a person about [his] Jaguar automobile.  In that conversation, [he] said ‘it wouldn’t bother me’ if the Jaguar was stolen.  That person then stole the Jaguar.”  Routier Aff. ¶ 2.

 

When combined with the numerous sightings of a mysterious black car in the Routier’s neighborhood around the time of the attack, such evidence is compelling evidence that an intruder murdered Petitioner’s two older sons.  See, e.g., Testimony of Barbara Jovell, C.R.R. Vol. 36, p. 136:5-15 (“Q.  Well, it was the earlier day she was working, whatever day that was?  A.  Right.  But she saw, yes, she did see a black car in a back alley.  And she, she – when he passed us by, really fast, or a black car passed us by, she said she saw the black car in the back alley.  When she was in the garage, he was like sitting and like waiting for somebody but he was looking into the garage.  Q.  Like he was watching the house?  That’s what your mother told you, wasn’t it?  A.  Something like that, yes.”); Testimony of Karen Neal, C.R.R. Vol. 41, pp. 84:21-85:24 (“A.  I came home from work about 3:00 o’clock in the afternoon, and I saw a small, black car that was stationed right in front of my sidewalk.  Q.  Okay.  And how was that small, black car parked in that area?  A.  It was against my curb, and the person in the car seemed to be angled towards the Routier home . . . .Q.  All right.  And you told the jury that he appeared to be focusing on the Routier house?  A.  Yes, sir.  A.  Okay.  Did that strike you as unusual?  Did you say anything to him or do anything or go in the house or  –   A.  When I got out of my car to approach him, he sped off very fastly.”).

 

B.            Preliminary Analyses by Forensic Experts Have Revealed Physical Evidence Inconsistent With The State’s Circumstantial Case.

 

Despite the State’s refusal to grant access to the physical evidence in the case for testing, forensics experts retained by Petitioner’s appointed counsel and the undersigned counsel have identified demonstrable flaws in the State’s circumstantial case against Petitioner that is further evidence of her innocence.

 

1.            Knife Number 4.

 

Defense experts have concluded that the State’s presentation of evidence related to Knife Number 4 is inconsistent with the physical evidence.  See, e.g., Samuel Palenik Affidavit (“Palenik Aff.”) ¶ 4.  Linch testified that the fiber recovered from Knife Number 4 was “consistent” with the material from the garage window screen.  This testimony invited the jury to infer erroneously that Petitioner had cut the screen herself to create the false exit for the alleged intruder.  Defense experts have concluded that the source of the fiber was fingerprint powder used to dust the knives recovered from the Routiers’ residence.  See, e.g., Palenik Aff. ¶ 4.

 

2.            Petitioner’s Nightshirt.

 

As part of the State’s case, Bevel testified that the reason that Damon and Devon Routier’s blood was not evident on Petitioner’s nightshirt was that it was covered by direct hits of her blood from her allegedly self-inflicted stab wound (an “overlay” theory).  C.R.R. Vol. 39, pp. 25:2-26:8.  Defense experts have concluded based on their extensive blood-spatter experience that Bevel’s testimony is inconsistent with the likely blood-spatter pattern in such a sequence of events.  See  Laber Aff. ¶ 11.  In addition, defense experts have concluded that the State’s theory that Petitioner allegedly used her right hand to stab her sons is also belied by the physical evidence.  The nightshirt evidenced only minimal blood on the back-right shoulder, but if the State’s theory were correct, cast-off blood would have been substantially evident in that area.

 

3.            Vacuum Cleaner.

 

Contrary to the State’s theory that the vacuum cleaner was pushed around by someone bleeding as part of staged crime scene (C.R.R. Vol. 38, pp. 227:13-228:4), defense experts have concluded that most of the bleeding occurred after the vacuum cleaner had been knocked over onto the floor.  See Laber Aff. ¶ 10.

 

4.            Wine Glass.

 

Contrary to the State’s theory that a wine glass had been removed from the wine rack and thrown onto the floor to make it appear as if a struggle had occurred as part of staged crime scene (C.R.R. Vol. 46, p. 38:7-24), the dispersal pattern of the glass shards is inconsistent with a person smashing or throwing the glass onto the floor.  See Laber Aff. ¶ 10.

 

C.            Petitioner Must Be Given Access to Physical Evidence Not Tested at All or Not Adequately Tested by the State or Defense Counsel to Fully Present Her Claims for Relief. [5]

 

Defense experts have concluded that scientific testing of physical evidence never done by defense counsel for the State is required for Petitioner’s claims for relief:

 

á        First, genetic testing of the several blood-stained areas of Darin Routier’s blue jeans will determine whether he, an obvious suspect overlooked by defense counsel as a condition of his retention by the family (Routier Aff. ¶ 7), was involved in the attacks on his wife and two sons.  See Laber Aff. ¶ 11.

 

á        Second, testing of the brush and powder used to dust the knives recovered from the kitchen will establish that the source of the fiber was fingerprint powder or some other contaminant deposited by the State in the course of securing the crime scene or testing the butcher block.  See Palenik Aff. ¶ 4.

 

á        Third, testing of all blood-stained areas of physical evidence recovered from 5801 Eagle Drive, Rowlett, Texas, including the Victoria’s Secret nightshirt, the Hoover vacuum cleaner, and all flooring samples will disclose additional evidence of the unknown adult intruder who left behind a bloody fingerprint on the glass table in the family room.  See Laber Aff. ¶ 11; Palenik Aff. ¶¶ 6-10.

 

á        Fourth, physical and visual examination of the garage window screen will refute the State’s suggestion at trial that the bend in the screen was a pre-existing defect caused by Damon and Devon Routier and not damage caused by an adult intruder on June 6, 1996.  See Laber Aff.11.

 

Undersigned counsel hereby renew their request for access to the physical evidence for such testing as it necessary for full presentation of Petitioner’s claims for relief and therefore reserve Petitioner’s right to supplement her Application with additional evidence.  See Order of July 5, 2002 (“If the access to certain evidence is necessary to resolve factual issues raised in the application for writ of habeas corpus, the Court will review the request for access to the evidence at that time.”).

 

II.        The Manifestly Defective Reporter’s Record Renders Any Post-Conviction Review Inadequate, Denies Petitioner Her Federal and State Constitutional Rights to Due Process, and Prevents Effective Exercise of Petitioner’s Constitutional and Statutory Rights to Petition This Court for Habeas Corpus Relief.

 

As the Court is aware, the original reporter’s “record” of the trial in this case was so riddled with errors and deficient that the Court made a finding of fact and issued an order that the entire record, though certified by court reporter Sandra Halsey, had to be replaced. [6]   Halsey’s “record” was functionally no record at all.  Accordingly, a new court reporter, who never attended Petitioner’s trial, was appointed by the Court to prepare and certify a replacement record.  Working only from unauthenticated and often poor-quality audio tapes and Halsey’s incomplete and inaccurate notes of the proceedings, Susan Simmons created a wholly new reporter’s record that, over defense objections, became the putative reporter’s record in the direct appeal.  Tellingly, Simmons was unable to certify the new reporter’s record in its entirety, and even those portions that are certified are manifestly defective and insufficient for any meaningful review on this petition for post-conviction relief.  According to Simmons, there are at least 20,000 word changes between the reconstructed record and the original Halsey record.  See Affidavit of J. Stephen Cooper (“Cooper Aff.”), Exh. 2 at 3.

 

In particular, Simmons refused to certify the first fifty-four pages of Volume 10, which contain a translation of Halsey’s stenographic notes from a hearing on October 21, 1996, at which Douglas Mulder was substituted as Petitioner’s trial counsel.  Simmons refused to certify that portion of the record because no audio tapes of the hearing existed, and she did not trust Halsey’s stenographic notes.  Cooper Aff. Exh. 2 at 4.  Simmons included an uncertified English translation of that hearing, based on Halsey’s stenographic notes, because the Court requested it.  Cooper Aff. Exh. 2 at 5.  However, Simmons does not believe that the transcript of that hearing should be in the record.  Cooper Aff. Exh. 2 at 5.  Simmons used the certificate that appears on the record because someone from the Court of Criminal Appeals sent it to her.  Cooper Aff. Exh. 2 at 7.  Simmons, who did not attend Petitioner’s trial, could not certify that any of the parenthetical descriptions of non-verbal acts that appear in the reconstructed record are true and correct and believes those descriptions should be deleted from the record.  Cooper Aff. Exh. 2 at 6.  Simmons is willing to testify before the Court about these matters.  Cooper Aff. at 3.

 

This Court initially refused to permit Petitioner or her counsel to develop this crucial information and ultimately refused to allow Petitioner to do anything with these facts.  In 1988, the Court ordered all counsel in this case not to contact directly or speak with Simmons about her preparation of a new reporter’s record.  See Cooper Aff. at 1.  Instead, the Court ordered counsel to submit written questions for Simmons to the Court.  Cooper Aff. at 1.  That order remained in effect until June 30, 2000, when Petitioner’s appellate counsel filed a written Motion to Permit Appellant to Interview Susan Simmons (“Motion to Interview Simmons”).  Cooper Aff. at 2-3.  Shortly after filing the Motion to Interview Simmons, Petitioner’s appellate counsel was asked to return to Court to withdraw the motion.  Cooper Aff. at 2-3.  When Petitioner’s appellate counsel arrived in chambers, he was told by the Court that he could interview Simmons, and the file-stamped copy of the Motion to Interview Simmons was handed back to Petitioner’s appellate counsel.  Cooper Aff. at 3; see also Cooper Aff. Exh. 1 (original, file-stamped Motion to Permit Appellant to Interview Susan Simmons).

 

Despite authorizing Petitioner to interview Simmons, the Court ultimately denied Petitioner any opportunity to make use of the information disclosed in that interview, such as in an evidentiary hearing.  Petitioner was afforded nothing more than an off-the-record discussion among counsel in chambers.  See Cooper Aff. at 3.  After that discussion, both the Court and the State agreed that a new hearing was necessary to clarify Simmons’ testimony.  Cooper Aff. at 3.  A hearing was scheduled for September 7, 2000 but then canceled.  Cooper Aff. at 3-4.  As the Court’s records reflect, no further evidentiary hearing regarding the reporter’s record was held, and the Court permitted the submission of the reconstructed record to the Court of Criminal Appeals – with all its patent deficiencies. 

 

Such deficiencies have and will continue to prevent any effective appellate or habeas corpus review of Petitioner’s conviction, since meaningful and effective review necessarily requires a genuine record of the testimony, evidence, and arguments in Petitioner’s trial.  For example, the October 21, 2001 hearing in Petitioner’s case is critical to this habeas corpus proceeding because defense counsel’s actual conflicts of interest, see Part III.A., infra, is central to this Application.  In the absence of a complete, correct, and certified reporter’s record, Petitioner is necessarily denied her constitutional and statutory rights to petition for a writ of habeas corpus and to meaningful review.  See Chessman v. Teets, 354 U.S. 156 (1957).  Accordingly, Petitioner respectfully requests that the Court, with or without a hearing, enter findings of facts and conclusions of law that the reporter’s record does not permit effective review in violation of her federal and state constitutional rights and grant her a new trial. 

 

III.       The Ineffective Assistance of Defense Counsel Deprived Petitioner of Her Federal and State Constitutional Rights to Effective Counsel and a Fundamentally Fair Trial.

 

Strickland v. Washington, 466 U.S. 668 (1984), establishes the standard for evaluating whether defense counsel’s performance passed constitutional muster.  Texas courts have adopted this same standard for making that determination as a matter of Texas constitutional law.  See Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).  Under Strickland, the petitioner must “show that counsel’s performance was deficient.”  Strickland, 466 U.S. at 687.  In other words, petitioner must demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Id.  The petitioner also must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” in other words, that defendant was prejudiced by counsel’s deficient conduct.  Id.  The Texas corollary to the Strickland test requires that petitioner “demonstrate that (1) defense counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.”  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  Under both Strickland and the corresponding Texas standard, defense counsel’s performance in Petitioner’s case was both deficient and prejudicial.

 

A.            Defense Counsel had an Actual Conflict of Interest Under Mickens v. Taylor Because He Was Concurrently Representing Petitioner’s Husband, Darin Routier and as a Condition of His Retention by the Family Agreed to Petitioner’s Detriment not to Implicate Darin Routier.

 

In Mickens v. Taylor, the United States Supreme Court stated that, in some situations, prejudice can be presumed where “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.”  122 S. Ct. 1237, 1241 (2002).  The Court also noted that prejudice may be presumed when counsel “actively represented conflicting interests.”  Id.  The Court “presume[s] prejudice when counsel labors under an actual conflict of interest . . .  And . . .  use[s] ‘conflict of interest’ to mean a division of loyalties that affected counsel’s performance.”  Id. at 1244 n.5 (citations omitted).  “[A] conflict of interest has detrimental effects on representation because of what it tends to prevent the attorney from doing.”  Rubin v. Gee, No. 01-6411, 2002 U.S. App. LEXIS 10740, at *24 (4th Cir. June 5, 2002) (citations omitted).  That could not be more plain than in Petitioner’s case.

 

1.            Defense Counsel’s Attorney-Client Relationship with Darin Routier and Employment Arrangement with the Routier Family Prevented Defense Counsel From Presenting an Effective Defense for Petitioner and From Effectively Cross-Examining Darin Routier at Trial.

 

Defense counsel was twice conflicted in this case.  First, he represented Darin Routier in a matter substantially related to this case.  Although the State had evidence implicating Darin Routier in the crimes with which Petitioner was charged, that concurrent representation of Petitioner’s husband prevented defense counsel from investigating Darin Routier and pursuing a viable defense strategy for Petitioner.  Second, Darin Routier “told [defense counsel] that if we hired him, [he] did not want him to ‘go after’ [him].  [Defense counsel] agreed that, if hired to represent [Petitioner], he would not argue as part of the defense that [Darin Routier] was in any way responsible for the death of [his] children.”  Routier Aff. ¶ 7.  These obvious and irreconcilable conflicts of interest adversely affected his representation of Petitioner throughout her trial.

 

Failure to pursue an obvious defense strategy or investigation demonstrates adverse effect.  Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (finding an actual conflict that adversely affected the defendant’s representation from “evidence that ‘some plausible alternative defense strategy or tactic’ could have been pursued, but was not because of the actual conflict impairing counsel’s performance”); Rubin, 2002 U.S. App. LEXIS 10740, at *24 (same).  Showing that defense counsel “might plausibly have pursued an alternative defense strategy, and that the alternative strategy was in conflict with, or may not have been pursued because of, [counsel’s] other loyalties or interests” establishes the actual conflict of interest that adversely affected counsel’s performance.  United States v. Ramirez-Benitez, 292 F.3d 27, 30 (1st Cir. 2002). 

 

On October 21, 1996, Douglas Mulder became counsel-of-record for Petitioner, replacing her court-appointed attorney, Douglas Parks.  C.R.R. Vol. 10, p. 11:24-25.  Mulder had represented Petitioner’s husband, Darin Routier, on a matter substantially related to Petitioner’s case before he undertook her representation.  C.R.R. Vol. 8, p. 7:15-16.  There was an actual conflict between Mulder’s representation of Petitioner and Mulder’s representation of her husband, because Mulder owed a duty of loyalty to Darin Routier at the time that he represented Petitioner.  Mulder represented Petitioner’s husband and mother, Darlie Kee, during a show cause hearing on September 20, 1996, where the State alleged that they had violated a gag-order regarding Petitioner’s upcoming trial.  C.R.R. Vol. 8, p. 7:3-6, 9-16.  Accordingly, when Mulder undertook the representation of Petitioner on October 21, 1996, his previous representation of and on-going duty of loyalty to Darin Routier precluded him from providing her with full and unfettered representation.  Moreover, Mulder, as a condition of being retained to represent Petitioner agreed with her husband that her defense strategy would not implicate him.  See Routier Aff. ¶ 7 ; Darlie Kee Affidavit (“Kee Aff.”) ¶ 2.  Because of his on-going representation of Petitioner’s husband, Mulder was precluded from presenting a viable alternative defense theory on Petitioner’s behalf. 

 

Under the Texas Disciplinary Rules of Professional Conduct, “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or becomes adversely limited by the lawyer’s or law firm’s responsibilities to another client.”  Tex. Disciplinary R. Prof’l Conduct 1.06(b)(2).  Since Mulder’s professional relationship with Petitioner’s husband precluded defense counsel from implicating him in the crimes, defense counsel’s options for Petitioner’s defense were “adversely limited.”  Indeed, by explicit agreement with Petitioner’s husband it was adversely limited.  See Routier Aff. ¶ 7 (“I told Mr. Mulder that if we hired him, I did not want him to ‘go after’ me.  Mr. Mulder agreed that, if hired to represent my wife, he would not argue as part of the defense that I was in any way responsible for the death of my children.”).  Additionally, a lawyer confronted with a Rule 1.06(b)(2) violation must secure knowing waivers from all parties involved, Tex. Disciplinary R. Prof’l Conduct 1.06(c)(2), or promptly withdraw from the representation, Tex. Disciplinary R. Prof’l Conduct Rule 1.06(e).  The record does not indicate that Mulder ever “full[y] disclosure[d] . . . the existence, nature, implications, and possible adverse consequences of the common representation” to either Petitioner or her husband.  Tex. Disciplinary R. Prof’l Conduct 1.06(c)(2).  Nor did Mulder terminate his representation.  “Where the prior representation has not unambiguously been terminated . . . there is more likely to be a conflict arising from defense counsel’s representation of the first client.”  Perillo v. Johnson, 205 F.3d 775, 798 (5th Cir. 2000).

 

Mulder knew about his conflict of interest prior to October 24, 1996, yet he took no steps to erase the conflict or withdraw from representing Petitioner.  See Douglas Parks Affidavit (“Parks Aff.”) ¶¶ 7-8.  On that date, Petitioner’s former counsel-of-record, Douglas Parks, forwarded his files from her case along with a letter to Mulder raising that issue.  See Parks Aff. ¶¶ 7-8.  Parks expressly informed Mulder of a possible conflict of interest arising from his prior representation of Petitioner’s husband.  Parks Aff. ¶ 8. 

 

In addition, on November 12, 1996, the State filed a Notice of Possible Conflict of Interest with the trial court alleging that Mulder’s previous representation of Darin Routier created a conflict of interest that jeopardized Petitioner’s Sixth Amendment right to conflict-free counsel.  C.R.R. Vol. 22, p. 2671:17-22.  The State filed the Notice to “make real sure” that there was no constitutional violation since the State had found “some new evidence” implicating Petitioner’s husband.  C.R.R. Vol. 22, p. 2673:1-3.  That Notice stated in relevant part that the “investigation was ongoing with regards to the analysis of physical evidence [and r]ecent analysis of physical evidence suggests that Darin Routier may have participated . . . in the crime.”  CR.1A.56.  When the trial court addressed Petitioner in open court on November 12 and November 18, 1996 about the State’s Notice, Mulder did not state on the record his opinion about whether a conflict existed.  C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24.  Because Mulder was the conflicted attorney, he should have addressed the issue with the court.  See Holloway v. Arkansas, 435 U.S. 475, 485 (1978) (a defense attorney is in the best position to know if a conflict exists); cf. Perillo v. Johnson, 205 F.3d 775, 800 (5th Cir. 2000) (rejecting defense counsel’s post-trial affidavit that the other client revealed no confidential information prior to testifying against the defendant and establishing that where representation of “prior matters [for one client] are substantially related to the present case [involving another client], the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation”). 

 

Mulder’s conflicts of interest adversely affected his representation of Petitioner in two ways.  First, he could not put forward the best possible defense for Petitioner, without implicating his other client, her husband.  See Perillo, 205 F.3d at 781 (counsel failed to pursue a “plausible alternative defense strategy because of dual representation of a witness at defendant’s trial); Ramirez-Benitez, 292 F.3d at 29-30.  Second, the attorney-client privilege precluded Mulder from effectively cross-examining Petitioner’s husband at trial. 

 

First, Mulder did not pursue the theory of Darin Routier as a suspect.  Parks considered Petitioner’s husband a suspect and planned to introduce evidence against him at trial to create reasonable doubt about Petitioner’s guilt.  Parks Aff. ¶ 4.  Second, Mulder failed to talk to Robbie Kee, Petitioner’s stepfather, who had earlier informed Parks that he was suspicious of Darin Routier’s involvement in the crimes.  Third, Mulder was aware of several significant pieces of evidence implicating Petitioner’s in the crime:  (1) his hair on the murder weapon, CR.1A: 58-59, (2) the bloody sock found in the alley contained fibers from his sneakers, RR.38: 3127-8, 3144-5; CR.1A: 58, (3) inconsistent statements about his bloody jeans, HR.6: 488; Def.’s Ex. No. 5 at 3; Def.’s Ex. No. 3 at 3; RR.4: 124, (4) blood on his jockey shorts, Parks Aff. ¶ 4, and (5) his inconsistent statements and suspicious behavior at the crime scene and hospital, App. Br. pp. 17-20, 30.  Despite the suspicions expressed by Petitioner’s first attorney, Parks, and the evidence compiled by the State against Petitioner’s husband, Mulder was duty-bound not to pursue, let alone investigate, the possibility that Petitioner’s husband, his client, was a suspect. 

 

Before Mulder was retained to defend Petitioner, he informed Darin Routier and Darlie Kee that Parks intended to implicate Petitioner’s husband in the crimes as part of Petitioner’s defense.  Darin Routier Aff. ¶ 7; Kee Aff. ¶ 5.  Mulder promised Petitioner’s husband and Kee that if they retained him to represent Petitioner, he would not “go after” her husband as part of his defense strategy.  Darin Routier Aff. ¶ 7; Kee Aff. ¶ 5.  “Mr. Mulder agreed that, if hired to represent [Petitioner], he would not argue as part of the defense that [Petitioner’s husband] was the person responsible for the death of [the] children.”  Darin Routier Aff. ¶ 7.  Before he even obtained Parks’s records or the State’s evidence implicating Darin Routier, Mulder closed off this avenue of investigation.  The conflict due to Mulder’s representation of Petitioner’s husband and Mulder’s promise not to pursue a defense that implicated Darin Routier explain why.  

 

Mulder summarily dismissed Darin Routier as a suspect weeks before his representation of Petitioner began.  Parks Aff. ¶ 7.  Mulder did so despite the fact that Petitioner understood and accepted the possibility that her husband could be implicated during her trial.  She did not preclude her defense counsel from pursuing a trial strategy that suggested Darin Routier’s guilt and, but for the fact that he could not suggest Darin Routier’s guilt because he also served as Darin Routier’s lawyer, Mulder should at least have contemplated and investigated that trial strategy.

 

Mulder’s refusal to investigate Darin Routier, coupled with Petitioner’s acquiescence to the best trial strategy available to her, demonstrates that Mulder’s conflict was the but-for cause for Petitioner’s defense team not using evidence implicating Darin Routier to create reasonable doubt.  The only evidence that Mulder offered implicating Darin Routier was not introduced until the punishment phase of Petitioner’s trial – when the information could no longer be used to harm Petitioner’s husband because she had been convicted.  Compare C.R.R. Vol. 42, pp. 102:18-291:12 (Mulder’s non-adversarial questioning of Petitioner’s husband during the guilt phase of the trial) with C.R.R. Vol. 49, p. 48:10-16 (“You know, it’s curious to me, and I have never for a minute doubted the innocence of Darin Routier.  But, you know, he of all people, had the most to gain here.  She had a couple of hundred thousand dollars worth of insurance on her.”).

 

Second, Mulder’s representation of Petitioner also was adversely affected because he was unable to critically question Petitioner’s husband at her trial.  See Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200, at *12 (Tex. Ct. App. Dec. 6, 2001) (defense counsel could not critically cross-examine government witness who was a former client).  Mulder “would have been required to make a choice between advancing [Petitioner’s] interests and protecting confidential information [that] he [may have] acquired from a former client.”  Id.  Suggesting at trial that Petitioner’s husband was involved in the murders would have violated the attorney-client privilege owed by Mulder to Petitioner’s husband and the de facto attorney-client relationship they had.  See Perillo, 205 F.3d at 775. 

 

To ensure a fair trial and a reliable result, defense counsel must be free to pursue viable defense strategies.  Existing evidence against Darin Routier and the State’s contention that there was no intruder made implicating Petitioner’s husband an obvious strategy to create reasonable doubt about Petitioner’s involvement, especially given Petitioner’s wounds.  Mulder’s conflict of interest closed off this avenue to Petitioner’s defense, depriving her of her Sixth Amendment right to conflict-free counsel and leading to an unreliable conviction.

 

2.            Petitioner Did Not Waive Her Right to Conflict-Free Representation of Counsel.

 

The record reflects that neither Mulder, the trial judge, nor any other party responsible for ensuring Petitioner’s rights secured a knowing and intelligent waiver of her Sixth Amendment constitutional right to conflict-free counsel. 

 

“To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights”  Glasser v. United States, 315 U.S. 60, 70 (1942).  Valid waivers must “be voluntary [and] ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’”  United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).  For a valid waiver, the record must demonstrate that the defendant appreciated the conflict and understood that she had a right to retain other counsel.  Ex Parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981).

 

On October 21, 1996, the trial court conducted a conflict/waiver hearing to address the potential conflict between Mulder’s representation of Petitioner and his simultaneous representation of her mother.  C.R.R. Vol. 10, pp. 10:22-25, 11:1-10.  That hearing did not address the conflict between Mulder’s representation of Petitioner and his representation of her husband, C.R.R. Vol. 10, p. 10:22-24 (trial judge asks “[i]f there is any potential conflict with Mr. Mulder representing [Petitioner] and being a consultant to Ms. Kee”); C.R.R. Vol. 10, p. 11:4-5 (Mulder says that this applies to “any claim to a conflict, in so far as [he] represents [Petitioner’s] mother as a consultant”), as indicated by the State’s filing its Notice of Possible Conflict of Interest, C.R.R. Vol. 22, pp. 2671-73.  The State clearly believed that an unresolved and unwaived conflict regarding Petitioner’s husband still existed following the October 21 conflict/waiver hearing as to Mulder’s representation of Petitioner’s mother.  See C.R.R. Vol. 22, p. 2673:1-3.  The State, acting in good faith, should continue to be concerned about this conflict since there is no evidence that Petitioner knowingly or intelligently waived her rights.  

 

In Garcia, the Fifth Circuit established guidelines for identifying valid waivers.  To be valid, it must be “manifest on the face of the record” that the waiver was voluntary and done knowingly.  Garcia, 517 F.2d at 278.  The November 12 and November 18 colloquies following the State’s Notice of Possible Conflict of Interest do not constitute a waiver under the Garcia standard. 

 

[T]he . . . court should address [the] defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. It is, of course, vital that the waiver be established by ‘clear, unequivocal, and unambiguous language.’

 

Id.  (citation omitted).  

 

First, because there is no certified, official record of the October 21, 1996 hearing on the Motion to Substitute Counsel and the conflict/waiver discussion regarding Mulder’s representation of Petitioner’s mother, there is no certified, official record demonstrating a valid waiver.  Even assuming the October 21 hearing addressed Mulder’s conflict arising from his representation of Petitioner’s husband, the transcript from that hearing is uncertified and, therefore, unworthy of this Court’s reliance.  For a waiver to be “manifest on the face of the record,” there must be a trustworthy record.  See, e.g., Ex parte Smith, 561 S.W.2d 842, 843 (Tex. Crim. App. 1978); Landrum v. State, 356 S.W.2d 673, 674 (Tex. Crim. App. 1962).

 

Second, even assuming the uncertified record is sufficient for appellate review, the November 12 and November 18 exchanges between Petitioner and the trial court do not demonstrate a valid waiver.  See, e.g., United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) (finding a waiver invalid because the trial court did not inquire whether the defendant was aware of the conflict or understood its “potential hazardous effects”); United States v. White, 706 F.2d 506 (5th Cir. 1983) (same); Garcia, 517 F.2d at 272 (remanding a case to determine whether defendants knowingly and intelligently waived their rights and establishing the standard for valid waivers).

 

From the record, it is evident that the trial court believed that the issue of Mulder’s actual conflict of interest stemming from his representation of Petitioner’s husband had already been resolved and did not require his attention.  C.R.R. Vol. 22, pp. 2671:23-25, 2672:1-2.  The issue, however, had not been resolved and, as a result of the trial court’s mistaken belief that Mulder’s conflict of interest previously had been waived, the judge did not properly instruct Petitioner that Mulder’s representation of her husband could affect Mulder’s representation of her. [7]   C.R.R. Vol. 22, pp. 2671-73.

 

The trial court took none of the necessary steps to ensure that Petitioner understood and waived her right to conflict-free representation.  “It is vital, of course, that the waiver be established by clear, unequivocal, and unambiguous language.”  United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993) (citations omitted).  There is no indication in the record that Petitioner understood that she was waiving her Sixth Amendment right to conflict-free counsel.  C.R.R. Vol. 10, pp. 10-11 (hearing regarding conflict stemming from Mulder’s representation of Darlie Kee); C.R.R. Vol. 22, pp. 2671-73, 3323-24.  The trial court never inquired of or informed Petitioner about the conflict of interest that arose from Mulder’s representation of her husband.  C.R.R. Vol. 10, pp. 10-11; C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24.  And, the trial court never inquired whether she waived her right to conflict-free counsel with respect to that conflict.  C.R.R. Vol. 10, p. 10:22-25 (trial court inquires only whether there are conflicts arising from Mulder’s representation of Petitioner’s mother); C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24.   

 

A waiver cannot be “knowing” if the defendant is unaware of the potential conflict.  Petitioner was indeed unaware of the potential conflict.  During the October 21, 1996 conflict/waiver hearing, involving Petitioner’s “waiver” of any conflict of interest involving her mother, Petitioner stated there was “no conflict.”  C.R.R. Vol. 10, p. 11:6-7.  That exchange hardly demonstrated that Petitioner was aware of the adverse consequences of proceeding with conflicted counsel.  The trial court failed to satisfy his responsibility under Garcia to ensure that Petitioner understood the potential conflict.  See Garcia, 517 F.2d at 278.

 

There is no evidence in the record that either Mulder or the trial court discussed the issue of Mulder’s conflict of interest with Petitioner, C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24, as required by GarciaSee Garcia, 517 F.2d at 278; see also United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (describing United States v. White, 706 F.2d 506 (5th Cir. 1983), which held a waiver invalid where “neither the court, the defense attorney, nor the prosecutor informed the defendant of the precise manner in which he might be prejudiced . . . [and] the court placed complete reliance upon counsel’s statement that he had informed his client of the dangers of the conflict of interest”).  

 

Finally, it is questionable whether Petitioner alone could have waived the conflict arising from Mulder’s dual representation of her and her husband.  Texas Courts have held that when the conflict stemmed from counsel’s knowledge of a witness’s privileged communications, the court doubted the conflict of interest could have been unilaterally waived by appellant in any event.  Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200, at *13-14 (Tex. App. Dec. 6, 2001) (citing Tex. Disciplinary R. Prof’l Conduct 1.05(b)).  “The Texas Disciplinary Rules of Professional conduct prohibit the use of ‘confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.’”  Id. at 14.  In other words, both Petitioner and her husband had to waive the conflict before Mulder’s representation of Petitioner would be permissible.  There is no evidence in the record that Petitioner’s husband ever waived the conflict of interest created by Mulder’s concurrent representation of Petitioner.  The only exchange between the trial court and Petitioner’s husband followed the gag-order hearing when the trial court inquired if Petitioner had hired Mulder at that time.  C.R.R. Vol. 8, pp. 16:14-25, 17:1-11.  Petitioner’s husband informed the court that she had not hired Mulder.  C.R.R. Vol. 8, pp. 16:18, 16:22, 17:7, 17:11.

 

From this record, it is abundantly clear that Petitioner did not receive conflict-free representation in this case.  Mulder’s concurrent and dual representation of Petitioner and her husband precluded the advancement at trial and even the investigation of a viable defense strategy.  Under Holloway v. Arkansas, 435 U.S. 475 (1978), and Mickens v. Taylor, 122 S. Ct. 1237 (2002), that constitutes not only a conflict of interest, but an actual conflict that adversely affected Mulder’s performance.  As such, this Court should have no confidence in the process that resulted in her conviction.

 

B.            Defense Counsel Failed to Conduct and/or Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to Petitioner’s Defense.

 

Petitioner’s federal and state constitutional rights to counsel were violated by defense counsel’s decision to abandon an investigation into scientific evidence to rebut the State’s case which, apart from the assassination of Petitioner’s character, rested primarily upon the expert testimony of forensic experts Charles Linch and Tom Bevel, and his failure to pursue an investigation into whether Darin Routier committed or arranged the June 6, 1996 attack on his wife and children.  These failures of defense counsel clearly were unreasonable and unconstitutional under the Strickland standard.

 

It is well established that “[a]mong counsel’s duties is that of making an independent investigation of the facts of his client’s case.”  Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) (citing Ex Parte Ewing, 570 S.W.2d 941, 947 (Tex. Crim. App. 1978)).  Clearly “before [counsel] can render reasonably effective assistance of counsel,” he “has a responsibility to seek out and interview potential witnesses.”  Butler, 716 S.W.2d at 54.  Only “strategic choices made after thorough investigation of law and facts relevant to plausible options” are trustworthy and thus are “virtually unchallengeable.”  Id.  “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”  Id.  Where as here, defense counsel’s decision not to pursue crucial lines of investigation could not conceivably have been the result of reasonable professional judgment, no deference is due that decision.  See id.; see also Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992) (concluding that “defense counsel’s failure to pursue a crucial line of investigation in a capital murder case was not professionally reasonable”).  Instead, such failures properly must be regarded as ineffective assistance of counsel.  Defense counsel’s investigation in this case was constitutionally deficient in failing to investigate a scientific defense to rebut the State’s evidence and in failing to investigate evidence indicating that Darin Routier was involved in the alleged crime. 

 

1.            Defense Counsel Failed to Pursue Critical Expert Testimony to Rebut the State’s Scientific Case Against Petitioner.

 

Defense counsel’s failure to investigate scientific evidence to refute the State’s only evidence allegedly connecting Petitioner to Damon’s death constituted ineffective assistance of counsel.  As a result, this crucial part of the State’s case was not put “to that ‘adversarial testing process’ contemplated by the Strickland standard.”  Texas courts have previously found such failures to constitute “deficient performance” under Strickland.  For example, in Winn v. State, 871 S.W.2d 756 (1993), defendant was convicted of killing his live-in girlfriend with a single gunshot to the head using a gun that the two of them owned.  The State’s case against Winn was entirely circumstantial.  The primary evidence allegedly indicating that Winn – and not the decedent – had pulled the trigger was the testimony of a doctor and forensic scientist.  The doctor performed the autopsy and testified that “the bullet was fired from a distance greater than two feet and was not self-inflicted.”  Id. at 758.  The forensic scientist, an expert in blood spatter patterns, testified that “blood type similar to the victim’s was found on appellant’s jacket” including “high-velocity spatters . . . on the chest area of the jacket.”  Id.  Winn testified in his own defense “that he came home and found [his girlfriend] on the floor [and] thought she had fallen.  He picked their gun up off the floor and put it away . . . [only later] when [he] learned from Officer Thompson that [she] had a gun shot wound [did] he realize[] that he had touched the gun.”  Id. at 759.  Because Winn’s girlfriend “had talked about killing herself through the years,” Winn testified that he “believed [she] may have killed herself because she had kidnapped her son from a foster home, and that was causing problems.”  Id.  No other evidence was presented to refute the State’s scientific evidence that the gunshot wound was not self-inflicted.  See id. (“Counsel did not consult an independent expert regarding the scientific evidence, explaining that he neither had the funds, knew any experts ‘around here,’ nor thought that it was real important to the case.”).

 

At the evidentiary hearing on Winn’s application for writ of habeas corpus, Winn presented the testimony of a doctor who, after reviewing the trial records, autopsy report, crime reports, and photographs, “opined that [the victim’s] death was more consistent with suicide than homicide.”  Id. at 760.  This doctor further concluded “that blood spatter on appellant’s jacket may have been the result of aspirated blood from [the victim’s] nose or mouth when appellant picked up her head.”  Id.  Winn contended that counsel’s failure to seek out witnesses like that doctor “constituted deficient performance by leaving him unprepared to fully develop the defense of suicide.”  Id.  The Texas Court of Appeals agreed.  Although reluctant to conclude that defense “counsel’s failure to locate a witness such as Dr. Stone . . . necessarily constituted deficient performance” given defense counsel’s thirty-seven years of practice and his belief that “it was more important to get people to testify that [the victim] had suicidal tendencies over a period of years,” the court concluded that “[defense counsel] could have developed a better defense had he taken the time to contact other experts and thereby impeach the State’s experts who concluded the death was homicide.”  Id. at 761.  Indeed, the court had “a difficult time understanding how getting evidence of [the victim’s] alleged suicidal tendencies . . . would be more important than attempting to secure favorable expert testimony regarding physical evidence.”  Id.  Accordingly, the court concluded that “counsel rendered deficient performance in this regard.”  Id.

 

That same conclusion of deficient performance is compelled by the facts of this case.  To this day, Petitioner maintains that she and her sons Devon and Damon were the victims of an attack at the hands of an intruder.  See Part I, supra.  The State’s case to the contrary was based largely on the testimony of forensic scientists Linch and Bevel who testified that the physical evidence was consistent with a staged crime scene.  Linch, an expert from the Southwestern Institute of Forensic Sciences (“SWIFS”), testified that microscopic debris recovered from a bread knife found in the kitchen at the Routiers’ residence was “consistent” with material from the garage window screen and therefore likely was the instrument used to create the “T-shaped defect in it” [8] (C.R.R. Vol. 37, p. 110:14-18):

 

Q.            . . . Bottom line, from this comparison of the black rubbery material and the glass rods on the window screen and on this knife, what does that say to you as a trace evidence analyst?

 

A.            I couldn’t tell the difference between this debris and the debris found on the knife and, therefore, the knife could have been used to cause the cut, defect. 

 

Q.            . . . are you saying that the material that you found on this knife blade is consistent with the material that makes up this screen right here?

 

A.            That’s right.

 

Q.            You couldn’t see any difference?

 

A.            That’s right.

 

C.R.R. Vol. 37, pp. 144:17 – 145:6.  In closing arguments, the State argued the significance of this testimony to the jury as “when [Linch] tested cutting that bread knife, he looked at it under the microscope and what did he find?  Glass rods, the same type of rubber material seen on the bread knife.  And that same type of rubber debris with the glass meshed in.  The same type of stuff that happens when you cut the screen.  And it adds up, that the bread knife was used to cut that screen, and Charles Linch found the evidence.  And that tells you they were trying to fake the crime scene.  You aren’t going to have an intruder somehow get in the house and then take the knife out and then cut the window.”  C.R.R. Vol. 45, p. 5226: 13-24.

 

The other primary physical evidence allegedly inconsistent with the defense’s intruder theory came through the testimony of the State’s blood expert, Bevel.  Bevel said he conducted several experiments to determine the type of pattern a bloody knife would leave if, as according to Petitioner, it had been dropped by the intruder when he exited through the garage.  When asked to compare photograph of the patterns created in his experiments with photographs of the crime scene, Bevel testified:

 

Q.            . . .  Now, looking at State’s Exhibits 38-A through 38-D, Mr. Bevel, do you see any bloodstain pattern in any of these four photographs that correspond to the types of blood patterns that you saw during your test on November 26th, 1996?

 

A.            No, sir.

 

Q.            The blood drops that we see in 38-A through 38-D are they consistent or inconsistent with a bloody knife being dropped or thrown on to the utility room floor on June 6th, 1996.

 

A.            They would be inconsistent.

 

C.R.R. Vol. 38, p. 214:7-17.  After reminding the jury in closing arguments that “defendant’s testimony is that this man ran off with a knife and dropped it in the utility room,” the State argued that Bevel’s experiments demonstrated that “when you drop that knife, it leaves a mark, its leaves cast off.  And you don’t see any cast off or any mark left in that utility room . . . [t]hat let’s you know that she is lying about that.”  C.R.R. Vol. 45, p. 5228:2-8.

 

Bevel also said he conducted experiments to determine the type of blood patterns that would be created on the clothing of the attacker.  He told the jury that:

 

Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . .  And then just simply did a motion such as this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the morning of the attack].

 

C.R.R. Vol. 39, pp. 37:10-38:1.  When asked to explain the significance of his findings, Bevel testified:

 

A.            I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.

 

C.R.R. Vol. 39, p. 38:2-6.  In closing arguments, the State told the jury that these experiments “tell[] you that she was stabbing, and Devon’s blood winds up on her back.  It’s not going to wind up there as she is laying on the couch as the man wrestles at her neck.”  C.R.R. Vol. 45, p. 5230:11-14.

 

Defense counsel presented no contrary scientific evidence to refute this testimony or the obvious misimpressions it left with the jury.  The State capitalized on every opportunity to reinforce those misimpressions in closing arguments – none as effective as the suggestion that defense counsel presented no contrary scientific evidence because none existed.  See C.R.R. Vol. 46, p. 153:7-16 (“if [the defense] want[ed] to quarrel with Tom Bevel and tell you that he is wrong . . . that you would see them right up here, and he would be detailing for you what those criticisms are.  But he is not here either, is he?  And for a very good reason.”). 

 

Trial counsel was aware that such evidence existed but simply failed to investigate it.  At the time that defense counsel became involved in the case, Petitioner had been represented for several months by appointed counsel Douglas Parks and Wayne Huff.  Parks and Huff retained forensic scientists Terry Laber and Barton Epstein to consult with the defense on some of the physical evidence in the case.  See Laber Aff. ¶5.  Laber and Epstein were then given access to Petitioner’s nightshirt, photographs of the blood spatter in the garage and utility room, the garage window screen, and the bread knife from which the fiber was recovered  –  all of the physical evidence underlying the above-referenced testimony of Linch and Bevel.  See Laber Aff. ¶ 5-6.  Their preliminary findings were that the numerous pieces of evidence that they viewed were not consistent with a staged crime scene.  See Laber Aff. ¶10; see also Affidavit of Barton Epstein in Support of Petitioner Darlie Lynn Routier’s Renewed Request for Access to State’s Evidence and Reply to State’s Opposition (“Epstein Aff.”) ¶7 (“At the time that our work was stopped on the Routier case, our preliminary findings were that at least some of the physical evidence we reviewed was not consistent with a staged crime scene.”) (emphasis added).  Despite these findings, Mulder, after he replaced Parks and Huff in October 1996, wholly failed to pursue additional testing by Laber and Epstein, see Laber Aff. ¶10, or to hire any other forensic experts to conduct scientific testing.

 

Shortly after assuming the responsibilities of defense counsel, Mulder and his investigator had a perfunctory meeting with Laber to discuss the scientific analyses he and Epstein had done to date.  See Laber Aff. ¶¶8-10.  During the meeting, Laber provided only a general overview of their work.  See Laber Aff. ¶9.  Mulder and his investigator asked virtually no questions about the work and generally were not interested in the analysis.  In total, the meeting lasted less than two hours.  See Laber Aff. ¶ 9.  Laber, therefore, fully expected that Mulder or someone from his defense team would follow-up with him because “the time in the introductory meeting was not sufficient time to explain in necessary depth what forensic analysis Barton Epstein and I had done or believed was appropriate.”  Laber Aff. ¶ 10.  Thus, under the circumstances, Mulder’s decision to forego additional scientific analysis was unreasonable.  He clearly had not been involved long enough in the case to “have a firm command of the facts of the case as well as the governing law.”  Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  Thus, it was not possible at that juncture for Mulder to have made an “informed rational decision” not to pursue additional testing by Laber and Epstein, or any other forensic scientist.  See id. (“It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision.”). 

 

In closing arguments to the jury, the State highlighted the defense’s failure at trial to call either Laber or Epstein. 

 

. . . [W]e know that back in August of last year, that there was an expert by the name of Bart Epstein, a trace evidence analyst there at SWIFS on behalf of the defendant.  And we know that back there in August that Charlie Linch said, “Here, I will show you everything that I am doing out here.”  He let him look at the slides, let him examine the evidence.  Basically, he looked over Charlie Linch’s shoulder and graded his work out there at SWIFS.  And don’t you know, don’t you know, that if Bart Epstein had any disagreement whatsoever with the findings of Charles Linch, that you would have seen him up here on this witness stand?  . . . 

 

You know, here is the bottom line on Tom Bevel.  You know out there at SWIFS there is another expert, Terry Labor.  He is the DNA blood spatter expert who went out there on behalf of the defendant also, along with Bart Epstein.  And if they want to quarrel with Tom Bevel and tell you that he is wrong, and that he is a witch doctor of some sort, where is Terry Labor then?  Where is their blood spatter expert?  Don’t you know that if he had any criticism of the opinions rendered by Tom Bevel, that just like Bart Epstein, you would see them right up here, and he would be detailing for you what those criticisms are.  But he is not here either, is he?  And for a very good reason. 

 

There is one other thing that we need to ask also.  Where are the samples from the T-shirt taken by Terry Labor?  Where are they?  You remember those first dibs samples that Terry Labor took from the defendant’s T-shirt back in August?  Before Tom Bevel even had a chance to look at the T-shirt.  Terry Labor, the defendant’s expert, went to Dallas and was given an opportunity to take several samples from that T-shirt.  Did you see those samples in this courtroom at any point in this trial?  No, you didn’t.  Don’t you wonder why?  You really don’t have to wonder long about that question.  It’s obvious to you.

 

C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4.  Such inflammatory and misleading arguments obviously were intended to and did create doubt in the jury about Petitioner’s intruder testimony.  Defense counsel should have anticipated that the State would use his failure to present any scientific case in this way; it was inexcusable and unreasonable that defense counsel did not.  Cf. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (“Counsel should [] have anticipated the State’s pointing out to the jury that appellant’s assertion that he was talking to his sister in Wichita Falls near the time of the robbery was uncorroborated by either the sister’s testimony or phone company records.”).

 

No reasonable defense strategy would have allowed such critical portions of the State’s case to go completely unanswered.  Cf. Winn v. State, 871 S.W.2d 756, 761 (Tex. App. 1993) (concluding that defense counsel’s performance was deficient under Strickland where “it appears that [counsel] could have developed a better defense had he taken the time to contact other experts and thereby impeach the State’s experts who concluded the death was homicide”).  “Counsel has a duty to bring to bear such skill and knowledge as will render the trial a “reliable adversarial testing process.”  Welborn, 785 S.W.2d at 393 (quoting Strickland, 466 U.S. at 688) (emphasis added).  Prejudice to the defendant is presumed where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.”  United States v. Cronic, 466 U.S. 648, 659 (1984).

 

Petitioner clearly was prejudiced by defense counsel’s failure to provide any evidence to counter the State’s scientific evidence.  See First Charles Linch Affidavit (“First Linch Aff.”) (“It is my professional opinion, that if Bart Epstein and Terry Laber were released from their retention as expert witnesses for Darlie Routier’s defense, such release constituted a grave error on the part of Darlie Routier’s defense counsel.”)  The unanswered scientific evidence of the State was the primary evidence allegedly connecting Petitioner to Damon’s death.  Without any contrary evidence, the only explanation the jury was given for the blood stains on the back of the Victoria’s Secret nightshirt Petitioner wore on the evening of the events of June 6, 1996 was that the stains were “cast off” from the knife as she allegedly stabbed Damon.  See C.R.R. Vol. 39, p. 38:2-6. 

 

Likewise, the jury was given no evidence regarding a possible alternative source of the fiber Charles Linch said he recovered from Knife Number 4.  Linch testified that the fiber was “consistent” with the material from the garage window screen.  This testimony invited the jury to infer erroneously that Petitioner had cut the screen herself to create the false exit of the alleged intruder.  It was more plausible that the source of the fiber was fingerprint powder used to dust the window screen and then knives found in the kitchen.  See Palenik Aff. ¶ 4; Second Linch Aff. ¶ 7 (admitting that Knife Number 4 was dusted with fingerprint powder before he tested it).  Defense counsel never pursued available scientific analysis to test Linch’s microscopic examination of the origin of the fiber.  Undersigned counsel attempted to have the fiber tested to determine its source and composition in time for this filing, but the State refused counsel access to the sample, and the Court last week held that it lacked jurisdiction over Petitioner’s motion seeking access to that evidence.  See Order of July 5, 2002 (“After having reviewed applicant Petitioner’s expedited motion for access to State’s evidence, the State’s response, and applicant’s renewed request for access, as well as having considered the argument of counsel, the court finds that it does not have jurisdiction to consider applicant’s request at this time.”).

 

If defense counsel had presented evidence demonstrating that the knives had been contaminated by the fingerprint dusting that was done before Linch received the knives for testing, counsel could have eliminated the significance attached to that otherwise dramatic piece of scientific evidence.  Defense counsel certainly was aware that more precise testing might deflate Linch’s testimony that the knife fiber was “consistent” with the garage window screen.  Linch had given similar testimony with respect to a hair that was found in the torn garage window screen which he testified was “microscopically identical” to Petitioner’s hair, further inviting the inference that Petitioner had cut the screen to stage the crime scene.  DNA testing, however, determined that the hair found in the screen belonged to Police Officer Sarah JonesSee Charles Linch Testimony, C.R.R. Vol. 37, pp. 183:22-184:2 (“Q.  And so, what that shows is, that your microscopic evaluation, although done with the highest technology and with the greatest expertise, later proved, or it was later proved that that head hair was not in fact Darlie Routier’s?  A.  That’s right.”).  In light of Linch’s erroneous conclusion as to the source of the hair recovered from the screen, reasonable defense counsel would have conducted more reliable testing on the knife fiber.  Petitioner’s defense counsel did not.

 

The jury also was given no other explanation for the “four defects” in the right shoulder of the Victoria’s Secret nightshirt.  Linch testified that these cuts were “hesitation” punctures that Petitioner made when she inflicted her own neck injuries.  On the contrary, these cuts, because of their location, could not have made by Petitioner.  See Laber Aff. ¶ 6.  Defense counsel never conducted microscopic examination of the cuts, though Laber and Epstein had recommended such, to determine if a different instrument caused those defects.  Undersigned counsel attempted to have the nightshirt tested in time for this filing, but the State refused counsel access to the sample, and the Court last week held it lacked jurisdiction over Petitioner’s motion seeking access to that evidence.  See Order of July 5, 2002.

 

In addition, had defense counsel investigated the physical evidence recovered from the Routiers’ home, he would have discovered other evidence that the crime scene was not staged, [9] most significant of which was a bloody fingerprint lifted from the glass table in the family room that does not match the fingerprints of Petitioner, Darin, Damon, or Devon Routier or any of the law enforcement personnel who responded to the scene.  Retired Rowlett Police Office James Cron gave the jury the glaring misinformation that a bloody fingerprint lifted from the glass table in the family room lacked “sufficient points of identification” to identify but was “consistent with having been left by a five or six year old child.”  C.R.R. Vol. 35, p. 47:7-48:11.  Specifically, Cron testified:

 

A.            That there is ridge detail, a few points of comparison, but I can’t – couldn’t make any identification.

 

Q.            Okay.  Same thing as you had with the other sets that I have just shown you?

 

A.            Yes.  These are better prints but still lacked sufficient points of identification.

 

C.R.R. Vol. 35, p. 47:7-15.  The State then invited the witness to speculate as to the source of the latent prints:

 

Q.            Okay.  How would you classify the size of these two latents?

 

A.            Small.

 

Q.            Okay.  What do you mean by small?  What would that be consistent with?

 

A.            A juvenile, it could be.  It fits the criteria to be a younger person’s prints.

 

Q.            Okay.  What are those criteria?

 

A.            Small ridges.

 

Q.            Let me just ask you:  The two prints here, 85-I and J, would they be consistent with having been left by a five or six year old child?

 

A.            It’s possible, yes, sir.

 

Based on this testimony, the jury likely dismissed the fingerprint evidence as belonging to either Devon or Damon Routier – a conclusion that subsequent scientific testing indicates was erroneous.

 

Contrary to Cron’s testimony predicated on his abilities, the latent fingerprint had sufficient points of identification for University of Tennessee Professor Richard Jantz to conduct an anthropological analysis of the fingerprint.  This analysis involves comparing the breadth of the ridges and size of the latent fingerprint with reference fingerprint samples of adult males, adult females, and children.  Based on such comparisons, Jantz concluded that the latent fingerprint belongs to an adult not a child.  He also compared the latent fingerprint with fingerprint samples from Petitioner, Darin, Damon, and Devon Routier and all law enforcement personnel who responded to the Routiers’ residence.  None of the fingerprints from these individuals matched the latent fingerprint.  Thus, the bloody fingerprint is strong evidence that an unknown adult intruder was in the Routiers’ residence during the June 6, 1996 attack.

 

In addition, defense counsel failed to investigate and introduce evidence that other physical evidence was inconsistent with the prosecution’s theory of a staged crime.  In particular, contrary to the notion that Petitioner staged the crime scene, forensic experts Epstein and Laber formed the opinion, and observed, that “numerous pieces of physical evidence were not consistent with a staged crime scene.”  Laber Aff. ¶ 11.  Contrary to the notion that the vacuum cleaner was pushed around by someone bleeding as part of staged crime scene, they have concluded that most of the bleeding had occurred after the vacuum cleaner had been knocked down.  See Laber Aff. ¶ 10.  Contrary to the State’s theory that a wine glass had been removed from the wine rack and thrown onto the floor to make it appear as if a struggle had occurred as part of staged crime scene, Laber and Epstein concluded that “the placement of shards of glass below the location of the wine glasses suggested that the wine glass had broken numerous feet away next to the wine glasses in a manner not consistent with a person smashing or throwing the glass onto the floor.”  Laber Aff. ¶ 10.  None of this evidence was presented to the jury which necessarily undermines confidence in the outcome of Petitioner’s trial.

 

Thus, defense counsel’s failure in Petitioner’s case to seek out and produce witnesses to refute the State’s physical evidence was clearly deficient and prejudicial to Petitioner and constituted ineffective assistance of counsel in violation of Petitioner’s state and federal constitutional rights to counsel.

 

2.            Defense Counsel Failed to Investigate Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense for Petitioner.

 

Defense counsel also failed to investigate leads suggesting that Darin Routier had arranged the June 6, 1996 attack on his residence.  That failure was unreasonable under Strickland and thus also constituted ineffective assistance of counsel in violation of Petitioner’s federal and state constitutional rights to counsel.  See Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992) (concluding that “defense counsel’s failure to pursue a crucial line of investigation in a capital murder case was not professionally reasonable”). 

 

When defense counsel took over for Parks and Huff, Parks specifically advised new counsel of Darin Routier’s possible involvement in the deaths of his sons.  By letter of October 24, 1996, Douglas Parks advised Douglas Mulder of a possible conflict because he concurrently represented Darin Routier.  See Parks Aff. ¶ 8.  Parks explained that “[he] continued to believe that Darin Routier was a possible perpetrator of the offense.”  Parks Aff. ¶ 8.  Parks further advised defense counsel “that the court had not addressed the possible conflict of interest generated by simultaneous representation of Darlie and Darin Routier.”  Parks Aff. ¶ 8.

 

The physical evidence in the case also suggested Darin Routier’s involvement.  In addition to the evidence detailed supra, the blue jeans that he was wearing contained considerable blood staining that was consistent with contact type blood staining.  See Laber Aff. ¶ 11.  Two areas on the blue jeans also contained blood spatter which suggests that Darin Routier was present at the time of the stabbings.  See Laber Aff. ¶ 11.

 

In light of this evidence and the information conveyed by Parks, reasonable defense counsel at least would have investigated – if not pursued – a defense strategy that implicated Darin Routier or someone known to him.  Petitioner’s defense counsel did not.

 

Undersigned counsel since has learned that in the spring of 1996, Darin Routier was contemplating an insurance scam that involved staging a burglary of his residence.  See Routier Aff. ¶ 3; R. Kee Aff. ¶ 2.  Darin Routier asked Petitioner’s stepfather whether he “knew anyone who would agree to burglarize [his] home as part of an insurance scam.”  Routier Aff. ¶ 3; see also R. Kee Aff. ¶ 2Darin Routier explained that “he and his family would be gone from the house and that the ‘burglar’ would come to the house with a U-Haul truck and remove ‘gobs’ of stuff from the house” which he would retrieve “after his insurance company paid off.”  Id.  Darin Routier has admitted that he had this conversation with Robbie Kee only days before the attack on his wife and children.  See Affidavit of Richard Reyna ¶ 5.  Moreover, two years prior to that attack, Darin Routier arranged to have his Jaguar “stolen” so that he could collect the insurance proceeds.  See Routier Aff. ¶ 3; Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002).  That “crime” was executed by a person known to Darin Routier.  See Routier Aff. ¶ 2 (“In 1994, I spoke to a person about my Jaguar automobile.  In that conversation, I said that ‘it wouldn’t bother me’ if the Jaguar was stolen.  That person then stole the Jaguar.”)

 

In light of Darin Routier’s intention in 1996 to stage a burglary at his house, the mysterious black car that numerous witnesses testified they saw in the neighborhood around the time of the attacks at the Routiers’ home is additional exculpatory evidence.  See, e.g., Testimony of Barbara Jovell, C.R.R. Vol. 36, p. 136:5-15 (“Q.  Well, it was the earlier day she was working, whatever day that was?  A.  Right.  But she saw, yes, she did see a black car in a back alley.  And she, she – when he passed us by, really fast, or a black car passed us by, she said she saw the black car in the back alley.  When she was in the garage, he was like sitting and like waiting for somebody but he was looking into the garage.  Q.  Like he was watching the house?  That’s what your mother told you, wasn’t it?  A.  Something like that, yes.”); Testimony of Karen Neal, C.R.R. Vol. 41, pp. 84:21-85:24 (“A.  I came home from work about 3:00 o’clock in the afternoon, and I saw a small, black car that was stationed right in front of my sidewalk.  Q.  Okay.  And how was that small, black car parked in that area?  A.  It was against my curb, and the person in the car seemed to be angled towards the Routier home . . . .Q.  All right.  And you told the jury that he appeared to be focusing on the Routier house?  A.  Yes, sir.  Q.  Okay.  Did that strike you as unusual?  Did you say anything to him or do anything or go in the house or  –   A.  When I got out of my car to approach him, he sped off very fastly.”). 

 

The same is true of the Rowlett woman who “after 2:00 o’clock a.m. on June 6, 1996” observed two suspicious men – one of whom fit Petitioner’s description of her assailant – walking along a stretch of Darlock Road that was approximately a 10-minute walk from the Routiers’ home.  Potter Aff. ¶ 3.  None of this information was presented to the jury because defense counsel failed to pursue a line of investigation to uncover such evidence.  See Butler, 716 S.W.2d at 56 (expressing “concern[] . . . not with counsel’s failure to present the testimony of these witnesses, but with his decision not to perform the investigation that would have uncovered the testimony”).  That failure is not a tactical decision entitled to deference.  See id. (concluding that “[c]ounsel made no tactical decision not to present [] evidence” that ‘[h]e didn’t know [] existed”).

 

These facts are more than sufficient to establish that Petitioner was denied effective assistance of counsel for defense counsel’s failure to investigate this crucial line of defense.  “[C]ounsel [] has a responsibility to seek out and interview potential witnesses and failure to do so is . . . ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced.”  Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983).  Through counsel’s failure to investigate, no evidence implicating Darin Routier or his associates was placed before the jury.  That clearly was prejudicial to Petitioner and necessarily undermines confidence in the jury’s verdict.

 

Thus, on this alternative ground, Petitioner was deprived of her federal and state constitutional rights to counsel.

 

C.            Defense Counsel Failed to Object to the State Mounting an Unfair Prosecution with Inadmissible Evidence.

 

“There is . . . no question that propensity would be an ‘improper basis’ for conviction.”  Old Chief v. United States, 519 U.S. 195, 182 (1997).  Thus, when evidence “is not ‘relevant’ apart from supporting an inference of ‘character conformity,’ it is absolutely inadmissible” and the balancing test required under Rule 403 “is obviated.”  Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990).

 

Yet, from its opening statement, the State made clear its intention to ground improperly its case on “character conformity” attacks:  “the real Darlie Routier” was “a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children.” C.R.R. Vol. 28, p. 31 (emphasis added).  And, despite the obvious impropriety in proving a person has the sort of character that would permit them to commit capital murder, the defense failed to object as time and again the State fulfilled its promise to use Petitioner’s alleged character as proof of criminal guilt – prosecutorial behavior that was in total contravention of Texas Rules of Criminal Evidence 404 and 405 (hereinafter referred to as “Rules” 404 and 405).  Trial counsel also compounded this failure by allowing the State to support its character strategy with a host of other irrelevant and unfairly prejudicial evidence, such as Petitioner’s flat emotional affect in the hospital, to establish, directly or by innuendo, that Petitioner was a cold and materialistic person with a temper who therefore must have acted in accordance with her character and killed her children.  As such fundamental violations of the evidentiary rules designed to ensure a fair trial process occurred repeatedly, defense counsel remained silent, allowing the State to convict Petitioner on the basis of wholly inadmissible and non-probative character evidence.

 

The prosecution had carte blanche to build a prohibited character case against Petitioner that portrayed her to the jury as materialistic woman with a temper who did not care about her children.  Trial defense counsel’s complete failure to use the rules of evidence to protect Petitioner from this unfair personal attack was compounded by repeated failures by defense counsel to object to inadmissible “evidence,” much of which was used either to establish inappropriate character allegations or to provide building blocks for the State’s circumstantial case – building blocks that should not have been considered by the jury.  In a case built on many small pieces of circumstantial evidence, the failure of the defense counsel to stop the steady stream of unreliable, non-probative and irrelevant character evidence ultimately resulted in a flood of improper and unfairly prejudicial evidence that extinguished any possibility for a fair trial for Petitioner and created a real and palpable danger that she was convicted on the basis of improper and inadmissible evidence.

 

1.            The Prosecution Was Allowed to Build its Case for Guilt Substantially on the Basis of Character Evidence.

 

a.            Propensity Evidence.

 

The State was allowed to introduce at trial opinion evidence that Petitioner was “materialistic” and had a “temper,” including specific examples of these alleged character traits.  The prohibition against this tactic under Rules 404 and 405, however, are clear.  Rule 404(a) provides that “Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”  Although Rule 404(a)(1)(A) permits the accused to offer evidence of a “pertinent character trait” and allows the prosecution then to rebut that evidence, the prosecution is not permitted to strike the first blow or to set the stage for a battle on the accused’s character unless, as in this case, defense counsel fails to curb that abuse.  Rule 404(a)(1)(A).  See generally Jaubert v. State, 2002 Tex. Crim. App. Lex. 82 (Tex. Crim. App. 2002). 

 

Opinion testimony is not admissible under Rule 404(b) to establish something other than character because that rule governs the admissibility of acts not opinions.  Thus opinion testimony must be character testimony and when offered to show that an accused was likely to commit a crime is pure propensity evidence prohibited by Rule 404(a).  On the other hand when character evidence is admissible under Rule 404(a) (i.e., only after the accused places a particular character trait in issue), Rule 405 provides that such evidence may only be offered in the form of  “reputation or . . . opinion” testimony, and that inquiry into specific instances of conduct is only permitted on cross-examination.  Rule 405.  Accordingly, the admission of both opinion testimony regarding a character trait and specific instances supporting that opinion also violates Rule 405.  Clearly, defense counsel had at their disposal rules that should have prevented the prosecution’s misuse of  character evidence in this case, but failed to use them.

 

The prosecutor’s theory of the case that Petitioner was cold enough and materialistic enough to murder her own children is a direct assault on the “fundamental rule of evidence . . . that a defendant’s ‘bad character’ cannot be used to argue that the defendant committed the crime for which he is being tried, or had the propensity to commit that crime.”  Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir. 2000); see also Michelson v. United States, 335 U.S. 469, (1948) (stating that improper character evidence “weighs too much with the jury and . . . overpersuades them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge”); Owens v. State, 827 S.W. 2d 911, 914 (Tex. Crim. App. 1992) (stating that extraneous offense evidence and evidence of “bad character” is not admissible to prove a general propensity to commit criminal acts.); United States v. Ring, 513 F.2d 1001, 1004 (6th Cir. 1975) (stating that in jury trials, evidence of a criminal defendant’s bad acts or prior misconduct is inadmissible to show criminal propensity because it “tends to confuse the issue of guilt or innocence of the specific offenses charged and to weigh too heavily with the jury”).  In fact, a prosecutor who dwells on a defendant’s alleged bad character in this prohibited manner may be found to have engaged in prosecutorial misconduct.  See Hofbauer, 228 F.3d at 699 (6th Cir. 2000).

 

Indeed, in a related context, the Texas Court of Criminal Appeals has recognized that “[a]n accused is entitled to be tried on the accusation made in the state’s pleading and he should not be tried for some collateral crime nor for being a criminal generally.” Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).  This limitation is “imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.”  Id.  The same arguments apply with even greater force to the rule against convicting a person on character evidence – a rule “rooted in fundamental fairness and due process concerns” and the violation of which “necessitates habeas relief when it results in grievous wrong to a defendant at the hands of the state.” McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993) (Amended June 10, 1993 and reported at 1993 U.S. App. LEXIS 9685) (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1713 (1993)).  Thus, just as the Texas courts have recognized that uncharged misconduct impermissibly requires an accused to defend against charges of which he has not been notified, the violation of the rule on character evidence, when made an integral part of the prosecution’s case, impermissibly requires an accused to disprove the character traits asserted by the State.  That is exactly what happened in this case as the defense repeatedly was forced to have its witnesses deny that Petitioner was materialistic, selfish, and self-centered.  See e.g., C.R.R. Vol. 41, p. 18.

 

b.            Admissions of the Prosecution’s Propensity Evidence Violated Petitioner’s Right to Due Process and Demonstrated that Her Defense Counsel was Ineffective.

 

Because of the lack of a “‘weighty’ case against [Petitioner], and pervasiveness of the erroneously admitted evidence throughout the trial, . . . it [is] “highly probable that the error had substantial and injurious effect or influence in determining the jury’s verdict.” McKinney, 993 F.2d at 1386.  Thus, defense counsel’s failure to object to this assault by the prosecution was both deficient and prejudicial as required for relief under Strickland.  The record is so replete with inadmissible character evidence or irrelevant evidence intended to buttress this character evidence that it is impossible to be certain that all of it has been cataloged here, but the following list of evidence offered without objection from defense counsel provides ample support to establish that Petitioner’s trial was fundamentally unfair:

*     

 

Trial defense counsel failed to object when the prosecutor stated in his opening statement, “The evidence will show you that the real Darlie Routier is, in fact, a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children.”  C.R.R. Vol. 28, p. 31.

 

*     

 

Trial defense counsel failed to object as Barbara Jovell, a long-time acquaintance of Petitioner, was permitted to testify, providing specific examples, on direct examination by the prosecution as to her opinion that Petitioner became more materialistic over the years.  C.R.R. Vol. 36, pp. 39-42.

 

*     

 

Trial defense counsel failed to object as Jovell was allowed to testify that, in her opinion, Petitioner had a temper and was the dominant personality vis-à-vis her husband.  C.R.R. Vol. 36, p. 47.  Jovell was then permitted to describe specific examples of Petitioner’s temper in response to the prosecutor’s question asked “what kind of things would get her mad,” [10] to which Jovell replied “mostly money.”  C.R.R. Vol. 36,  pp. 47-48.  Further compounding the clear prejudice, the prosecution then introduced through this witness character evidence about how good the victims were, which also violated Rule 404.  C.R.R. Vol. 36, pp. 79-80.

 

*     

 

Trial defense counsel failed to object when the prosecutor intentionally disregarded the motion in limine granted by the judge and asked Darin Routier about the fact that Petitioner had received breast implants.  C.R.R. Vol. 42, pp. 304-06. [11]

 

*     

 

Trial defense counsel failed to object as the pastor who presided over the funeral of the slain children was asked irrelevant questions about whether pocketknives and tarot cars were placed in the casket with the boys and that the song Gangster’s Paradise, was played at the funeral.  C.R.R. Vol. 40, pp. 248-58.

 

 

 

¯     Trial defense counsel failed to object as the prosecutor asked a neighbor of the Routiers, Karen Neal, wholly irrelevant questions about the lyrics to Gangster’s Paradise.  Defense counsel offered no objection to admissions of the irrelevant lyrics to this song through this neighbor.  Defense counsel even went so far as to flippantly state in front of the jury, “We have no objection, if he’ll sing it.” C.R.R. Vol. 41, p. 117. 

 

¯     On cross examination of Luann Black, the prosecutor questioned her about the appropriateness of the lyrics to Gangster’s Paradise, the first song played at the children’s funeral.  Even though the witness proclaimed not to know what the song was about, the prosecution was allowed to ask, “so you are not aware that it is about violent crimes?” C.R.R. Vol. 41, p. 68.  The prosecutor also was allowed to question Petitioner’s parenting when he asked, “You mean that she let her five and six year old children listen to Gangster’s Paradise by Coolio?”  C.R.R. Vol. 41, p. 68.

 

¯     On cross examination of Darin Routier, the prosecution was allowed to go line-by-line through the highly inflammatory and irrelevant lyrics of Gangster’s Paradise.  C.R.R. Vol. 43, pp. 83-86.

*     

 

Trial defense counsel failed to object as the prosecutor asked Darin Routier about the fact that he and Petitioner bought jewelry at pawn shops and even took the children to these pawn shops on occasion.  C.R.R. Vol. 43, p. 82.  This evidence was then offered in more detail during the punishment phase of the trial, where character was relevant.

 

*     

 

Trial defense counsel failed to object as the prosecutor pointed out on Petitioner’s cross-examination that she did not take her children to church regularly.  C.R.R. Vol. 44, p. 174. 

 

*     

 

Trial defense counsel failed to object as the prosecutor inquired into irrelevant conduct in questioning Petitioner about her tradition of going out with her girlfriends on the night before Mother’s Day.  C.R.R. Vol. 44, pp. 173-74.  This evidence was then offered in more detail during the punishment phase of the trial, where character was relevant.

 

*     

 

Trial defense counsel failed to object as the prosecution, in order to establish that the Petitioner was materialistic, repeatedly emphasized the material possessions owned by the Routiers. [12]   See, e.g., C.R.R. Vol. 41, pp. 25-26 (questioning by the prosecutor on cross examination of defense witness regarding the various pieces of property the Routiers owned including a “28 foot boat out there on the lake” and “new, very nice . . . spa in the backyard”).

 

*     

 

Trial defense counsel failed to object as witnesses with very limited access to Petitioner were allowed to testify about Petitioner’s apparent cold attitude toward Drake, her infant son, after the crime occurred, without establishing any relevance to the murders.  For example, nurses who attended to Petitioner were allowed to testify that she, even though fitted with IV tubes and had wounds to her neck would not hold Drake, her infant son while she was in the hospital.  See, e.g., C.R.R. Vol. 31, pp. 201, 266.  A paramedic, Brian Korschak, was also permitted to testify that Petitioner did not ask about her infant son while the paramedic attended to her.  C.R.R. Vol. 32, p. 311.  Such testimony by individuals who were in fact mere passersby, was clearly lacking in any probative value, and was introduced by the prosecution to buttress its effort to portray Petitioner as cold, uncaring, and self-centered.

 

*     

 

Trial defense counsel failed to object as Darin Routier was questioned about irrelevant hearsay statements he had made to a radio show host about people getting caught up in materialism and losing sight of what is important, permitting the prosecutor to ask, “That’s right.  That is something that you all forgot in ‘96, isn’t it?  You and the defendant.  You got off the track, you got on the material side of life, and you lost sight of your two children for a while, didn’t you?”  C.R.R. Vol. 42, pp. 320-21.  

 

*     

 

Trial defense counsel failed to object when the prosecutor told the jury in closing arguments that they had

 

 

 

heard from Barbara Jovell, who was this woman’s maid of honor, who has known this woman almost 10 years, who had worked with her every day, there at their work place, their one employee . . .  and what did she tell you . . . a few years ago [Petitioner] was a very different person.  But their business took off and her attitude started changing.  She started thinking about money, and became more self-centered.  You know she wears the 10 rings on every finger, all the rings and earrings.  She started becoming more self-centered, shopping all the time.

 

C.R.R. Vol. 46, pp. 49-50. 

*     

 

As to a suicide gesture Petitioner allegedly made in May 1996, the prosecutor was allowed to testify, “You know, I don’t think the defendant was going to kill herself.  I think she loves herself too much.”  C.R.R. Vol. 46, p. 51.  Also, in referring to the tape that was made of Petitioner after the murders at a graveside birthday celebration, the prosecutor disclosed the real reason for offering the video: [13] I think it gives you a lot of insight into this woman.  You see, this is not a picture of a grieving mother, and I don’t care how many excuses you can come up with, and how many doctors you can bring in here and say this is some type of Christian ceremony, or she was on some Xanax or people were giving her valiums, no.  You can see how she is acting.  She is enjoying herself out there.  She likes the attention.  . . .  She is enjoying it, and it gives you insight into her true character.”  C.R.R. Vol. 46, pp. 51-52 (emphasis added).

 

 

 

Additionally, Petitioner requests relief for the admission of propensity evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process. 

 

2.            The Prosecution Was Allowed to Introduce Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner.

 

Compounding the onslaught of irrelevant evidence that the prosecution used without opposition to show Petitioner’s “true character” in the findings portion of the case, was the defense counsel’s repeated failure to recognize and/or object to harmful hearsay evidence, much of it directed at supporting the character pillar of the prosecution’s case.  Hearsay evidence is a statement made out of court that is offered to prove the truth of the matter asserted.  Tex. R. Crim. Evid. 804(d); Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999).  Its receipt into evidence in a criminal proceeding allows unreliable evidence to be considered by the finder of fact and violates the Confrontation Clause of the Sixth Amendment to the United Stated Constitution.  See Hardy v. Texas, 71 S.W.3d 535, 537  (Tex. Ct. App. 2002) (citing Guidry, 9 S.W.3d at 149).  Hearsay statements that do not fall within a deeply-rooted hearsay exception are “presumptively unreliable and inadmissible for Confrontation Clause purposes.” Idaho v. Wright,  497 U.S. 805, 817 (1990).  In a highly circumstantial case such as Petitioner’s case, where any piece of evidence could ultimately affect the trial outcome, each piece of inadmissible evidence has the potential to be the one piece that pushes a juror beyond reasonable doubt.  Thus, these failings by defense counsel must be considered in the context of their cumulative effect on the fairness of the trial.  Because so many pieces of inadmissible evidence were allowed to be admitted without objection, defense counsel’s failure to act “so infused the trial with unfairness as to deny due process of law.”  See Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992); id. (“series of events none of which individually violated  defendant’s constitutional rights” may violate a defendant’s constitutional rights).

 

Trial defense counsel failed to object to the prosecutor’s questions to Petitioner’s husband about his conversations with Jamie Johnson, a Child Protective Service (“CPS”) worker, about what Petitioner had said to him in 1995 about being “sick of everything” and having trouble keeping the house clean and about Petitioner being a “cleanaholic.”  The prosecutor implied through his question that Darin Routier told this individual, “It’s kind of an obsession.  She will clean and clean, but the kids would be right behind her making bigger messes.”  C.R.R. Vol. 42, pp. 298-300.  Such questions clearly called for hearsay:  Although what Petitioner told her husband may have been admissible, what he told the CPS worker (who was never called as a witness) clearly was not.  A statement made by a testifying witness is not admissible merely because he said it to someone else.  Instead, only certain prior statements of a witness are admissible for substantive purposes.  See Tex. R. Evid. 801(d), 801(e)(1).  Moreover, such testimony was not relevant and could only be used by the jury to improperly speculate that Petitioner allegedly was motivated to kill her children because she wanted a clean house. 

 

Trial defense counsel’s failure to recognize and challenge the impropriety of this testimony allowed the prosecutor to refer to a number of irrelevant and prejudicial questions about hearsay statements apparently obtained from the CPS worker.  For example, the prosecutor was allowed to ask, without a proper objection, a series of irrelevant and prejudicial questions seeking to have Petitioner’s husband verify hearsay statements without satisfying any of the exceptions permitting the admission of a prior statement:  That Petitioner told him that she was disappointed Drake was not a girl, C.R.R. Vol. 42, p. 302; that Petitioner’s husband had said “there was no time for me and Mommy to be sexy or run around in the house naked” C.R.R. Vol. 42, p. 305; that in May 1996 “a light went on in my head saying she needs help,” C.R.R. Vol. 42, p. 309.  None of these questions was relevant and it is clear the questions were made not for the answer that was expected – the CPS worker never testified.  Instead, the questions were designed to introduce at trial to hearsay statements allegedly made by Darin Routier.  This series of questions could have been terminated or an error preserved for appeal by an objection.  Even if this series of questions did not involve hearsay, it should have been excluded as irrelevant, misleading, and unfairly prejudicial as its only apparent purpose was to support the prosecution’s overt character assassination described above.  See Tex. R. Evid. 403.  Similarly, the prosecutor was allowed to cross-examine Petitioner’s husband about the murders on the basis of hearsay statements apparently made by this CPS worker and another CPS employee, Corrine Wells, who also did not testify at trial, regarding what Petitioner’s husband told him about the events on the night of the murders.  C.R.R. Vol. 43, pp. 69-71. 

 

Further contributing to the harm is the fact that the jury was not instructed (or requested to be instructed) not to consider as evidence questions containing hearsay that were denied, thus the prosecutor was able to expose the jury to alleged statements of Ms. Johnson and Ms. Wells without either of them ever being subject to cross examination.

 

Another piece of hearsay smuggled into the courtroom was the rumor that a police officer was almost bitten by the Routier’s Lilliputian dog in the home.  This hearsay evidence was allowed in twice.  First, a neighbor, William Gorush was permitted to testify as to double hearsay when he stated without objections, “what Karen [Neal] said, also was that  –  a police officer had almost been bitten by the dog at some point.  The dog was in the home, and they wanted the dog out.  They were afraid to do anything with the dog.  And they wanted to know if anybody thought they could get it.”  C.R.R. Vol. 28, p. 244.  Then again, when Karen Neal was asked by the prosecutor, “Okay, Police officers had been kind of nipped at, I guess, earlier?”  To which she replied, “Yes, so they told me.  I did not observe that.”  C.R.R. Vol. 41, p. 105.  Trial defense counsel did nothing to cure the admission of this evidence even though no police officer testified that the tiny lapdog, which was upstairs and too small to even navigate the stairs by himself, bit anyone.  See C.R.R. Vol. 41, pp. 105-06.  The first officer on the scene, Officer Waddell, did not even mention observing the dog.  Lieutenant Walling, who arrived later, only mentioned the dog being upstairs barking.  C.R.R. Vol. 29, p. 241.  In its closing arguments, the State emphasized the presence of this tiny caricature of a dog as a deterrent to a criminal intruder.  C.R.R. Vol. 46, pp. 47, 55.

 

Hearsay evidence was also allowed to serve as a conduit for critical pieces of information about the crime scene without objection from defense counsel.  For example, the prosecutor was permitted to ask Darin Routier whether he had heard that kids were coming in and out of the garage window through which the defense alleged the perpetrator probably entered and left the Routier home.  C.R.R. Vol. 42, pp. 336-37.  This testimony was critical because it allowed the prosecutor to posit to Petitioner’s husband that the kids caused the bend in the screen.  C.R.R. Vol. 42, pp. 336-37.  Thus, even though Petitioner’s husband answered he had never seen the kids go through the window, the State was able to use this hearsay to explain away potential exculpatory evidence.  In fact, the prosecution felt this piece of evidence was so important that it mentioned it prominently in its closing statement.  In his closing argument, the prosecutor stated this testimony in a way to give it even more credence, “You remember the question Mr. Davis asked Petitioner’s husband:  ‘Didn’t your children go through that window to get popsicles?’  Well, yeah, my neighbor told me they did that, but I was not aware of it at the time.”  C.R.R. Vol. 46, p. 40.

 

Additionally, Petitioner requests relief for the introduction of unreliable hearsay evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process. 

 

3.            The Prosecution Was Allowed to Introduce, Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner’s Conduct and State of Mind.

 

Without any objection, medical personnel and a retired police officer, James Cron, were allowed to offer opinions that lacked any reliable foundation and amounted to nothing more than “subjective belief or unsupported speculation” that should have been challenged by defense counsel as “unreliable evidence that is of no assistance to the trier of fact and . . . inadmissible under Rule 702.”  See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).  Moreover, such speculative testimony was not “rationally based on the perception of the witness” nor “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”  Tex. R. Evid. 701.

 

a.            Medical Witnesses.

 

Much of this evidence was offered by medical support personnel who spent very short periods of time observing Petitioner in the hospital recovering from her wounds.  Although these witnesses were permitted to testify that Petitioner’s “flat” emotional affect was inconsistent with that of a grieving mother, none of  the witnesses were proffered as experts trained in judging the response of others to tragic circumstances, none of the witnesses knew Petitioner’s ordinary demeanor or how she reacts to trauma, and none claimed to have treated other mothers who were injured at the same time their children were killed.  In fact, neither the medical personnel involved nor the jury could do more than speculate about the meaning of Petitioner’s demeanor.  Indeed, the first witnesses to testify about Petitioner’s flat affect were attending physicians who acknowledged that nothing could be extrapolated from the flat affect exhibited by Petitioner in the hospital.  C.R.R. Vol. 30, p. 280.  Yet, witness after witness was allowed to express the conclusory and unfounded opinion that Petitioner’s flat affect made her different from other mothers who had lost their children.  The prosecution’s use of this evidence was intended to show that because she did not act in a hysterical manner, Petitioner must have killed her children – a point the prosecutor would ultimately drive home to the jury in closing argument.  C.R.R. Vol. 46, pp. 30-34. 

 

In spite of the State’s clear objective to demonize Petitioner, defense counsel made no objection as medical attendants were repeatedly permitted to opine that Petitioner failed to act in a manner that they would have expected from someone in her situation.  This is not the sort of “rationally based” perception or “specialized knowledge” permitted to be shared with the jury under Rules 701 and 702.  Tex. R. Evid. 701, 702.

 

This improper use of inflammatory and meaningless testimony was compounded by the fact that Petitioner’s flat affect in the hospital served to further advance the prosecution’s improper assault on Petitioner’s character as a person “cold enough” to kill her children.  In the face of the State’s improper attack, the defense had a duty to object to, inter alia, the following inadmissible testimony and argument:

á        Santos, one of the attending physicians was permitted to testify that “most of the time mothers” when they are made aware, or told that a child has died, “get hysterical.”  C.R.R. Vol. 30, p. 212.  He further testified that “they cry” and “usually tell me I am wrong.”  C.R.R. Vol. 30, p. 212.  He testified that there is a “lot of anger and a lot of pain.”  C.R.R. Vol. 30, p. 212.  He was allowed to testify that “as far as all the mothers [he had] ever dealt with in this same situation,” he had not seen anyone react with a “flat affect” as Petitioner did.  C.R.R. Vol. 30, pp. 214-15.  The jury was then left to speculate about what sort of patients Santos had treated, and what to make of the fact that Petitioner had a flat effect, particularly in light of his later acknowledgement that you “can’t make any extrapolation from” the fact that someone has a flat affect and that it may be an indicator of someone who is “deeply depressed and grieving.”  C.R.R. Vol. 30, p. 280.  Thus, the evidence was irrelevant and wholly devoid of probative value and the jury should not have been exposed to it.

á        Christopher Weilgoss, an ICU nurse, was allowed to testify that, while he had expected to be prepared for a “patient that was in an emotional state,”  he found instead a “flat affect.”  C.R.R. Vol. 31, p. 101.  Astoundingly, he was permitted to describe the “type of tears” he saw Petitioner cry.  Once again the jury was left to speculate, and in fact invited by the prosecution to find, that this observation meant that Petitioner killed her children.

á        Jody Cotner, a nurse supervisor, was permitted to testify that Petitioner “was kind of withdrawn” and “didn’t cry very often,”  that she “wasn’t very emotional” and that this was “not the emotions that you usually see with a mother.”  C.R.R. Vol. 31, p. 211. 

á         Dianne Hollon, a nurse supervisor, was permitted to testify that at the hospital “[Petitioner] was calm.  She really wasn’t  –  she didn’t show a whole lot of emotions.  Occasionally she would get tearful, as I charted that.  But she just, she never did actually burst out crying, sobbing, nothing like that.”  Asked “When you say ‘sobbing,’ what do you mean?,” she answered, “Like a loud cry.  Loud crying.  She never cried.”  C.R.R. Vol. 31, p.260. [14]

á        Even though she had written in the medical record that Petitioner was “very tearful,” at trial, Paige Campbell, an ICU nurse, was permitted to testify that, “[Petitioner] was whining.  She was saying ‘My babies.  My babies.’  And I never saw a tear run down her face.  I never saw anything like that.  She never asked for a Kleenex.  I never felt the need to offer her a Kleenex.  She was just whining.”  C.R.R. Vol. 31, p. 325.

á        Denise Faulk, a nurse who had attended to Petitioner on the night of the 7th of June, was allowed to testify that she had “dealt with people before that have lost loved ones, or close relatives.” In response to the question “Did Darlie Routier’s reaction differ from what you had seen in your experience?” she was allowed to opine that “it was different in that she didn’t portray those characteristics.”  Thus, the witness was allowed to share her subjective belief that that Petitioner wasn’t exhibiting the usual reaction of someone who had lost a close family member.  C.R.R. Vol. 32, pp. 20-21.

á        As a result of the unobjected to admission of this damaging and irrelevant testimony, the prosecutor was allowed to argue: 

You remember Dr. Santos told you that, of course, he checked on her.  He deals with this situation all the time.  People that have been seriously injured, people that lose their relatives, I mean, that is part of his job.  He said he was expecting her to go crazy.  Mothers, many times when they lose their children, they don’t accept that fact.  They want to know where they are.  They won’t accept it when you tell them they are dead.  But not this woman.  She wasn’t of the demeanor he thought she would be.  Flat affect is what he called it.  Flat affect. 

C.R.R. Vol. 46, pp. 30-31.

Jody Cotner, who is the trauma coordinator . . . .  She had been there 11 years.  One of her jobs is to work with people, to inform people that their loved one has died.  She has had to do that hundreds of times.  She has had to deal with mothers that lose their children, and what did she tell you?  There is nothing like it.  The bond between a mother and a child.  A grief that is inconsolable.  They do it in different ways, but they all show it.  And she never saw that reaction from this woman.  Never saw the reaction she has always seen before.  The same with the other nurses who deal with this stuff every day.  They have never seen a reaction like that.  It was more of a whining, no real tears, I think you-all know what they are talking about now, now that all of the evidence is in. 

C.R.R. Vol. 46, pp. 33-34.

 

b.            James Cron.

 

As with the medical testimony, Cron’s (referred to at trial as “Lieutenant Cron” although he was retired from the Dallas police department) opinion testimony constituted a significant part of the prosecution’s case that should have been objected to on grounds that it failed to meet the requirements of either Rule 701 or Rule 702.  As was the case with the nurses, the prosecutor made Petitioner pay for her counsel’s failure to object by emphasizing Cron’s “opinion” in closing arguments, reminding the jurors that he had testified that intruders do not enter homes as argued by the defense and specifically calling the jury’s attention to the fact that the crime scene did not make sense to Cron.  C.R.R. Vol. 46, pp. 36-39.  Cron’s wholly subjective and conclusory opinions about the crime scene and what he believed an intruder would have done were offered without any proffer or evaluation of his testimony under Daubert and its Texas progeny, and without objection or testing the foundation for his opinion.  This reality is made clear by reviewing the “expert” testimony the jury was allowed to hear from Cron:

á        After being proffered as an expert with 39 years of law enforcement training, Cron was permitted to testify that after his initial walk-through of the crime scene, which lasted 25-30 minutes, he had formed a belief that “there had not been an intruder entry through the window.”  C.R.R. Vol. 34, pp. 300-01.  When asked by the prosecutor why he formed this opinion after his initial walk-through, Cron said only that “It’s sort of a big picture.  It’s not any one thing.  It was the overall scene which, primarily, is the lack of evidence in many cases.  But the entire scene indicated to me there had not been an intruder.  There wasn’t any one object or any one situation there.”  C.R.R. Vol. 34, pp. 300-01.  After cross-examination, Cron was once again asked by the prosecutor, “your opinion about no intruder came into this house, has that opinion changed, sir?” to which Cron replied that it had not.  C.R.R. Vol. 35, p. 79.  Later when Cron was asked to summarize the factors he used in reaching this opinion, his testimony revealed that what he had testified to was not fit for expert testimony because in his own words, “This is all common sense.”  C.R.R. Vol. 35, p. 199.

á        Cron was also allowed to speculate as to what he believed a typical intruder would do when asked, “Based on your experience, would you expect that intruder to very carefully straddle or climb through this window in an effort to exit that house,” to which he replied “not at all.”  C.R.R. Vol. 35, p. 85.  He was then permitted to ask how he “would you expect that intruder to leave,” to which he replied, “He would probably go through there so fast, it didn’t matter if the screen was cut or not.”  C.R.R. Vol. 25, pp. 85-86.

á        Cron was also allowed to provide his subjective opinion that a glass from the wine rack in the Routier kitchen that was broken at the crime scene was not dislodged by an intruder but instead that, “it looked to me like it had been broken there to simulate or stage an offense, a member of the household broke it and planted it there.”  C.R.R. Vol. 25, p. 169.  He testified that in his opinion, an intruder couldn’t have dislodged the glass because “with everything else in the scene, it would have been such a large series of coincidences and unusual things and inconsistent things, that I didn’t believe that occurred.”  C.R.R. Vol. 25, p. 170.

á        Cron was also allowed to testify as an expert as to the fact that he would not expect an intruder to shut the gate to the backyard when fleeing because the Routier’s gate was hard to close.  C.R.R. Vol. 25, 197:3-9. [15]  

á        At the end of his testimony Cron also was permitted to make several bald and unsupported assertions about the conduct of criminals:  “criminals normally are not concerned with their footprints, footprints or heel prints or cloth prints from their clothing” and “are not aware that we can make weave and cloth pattern comparisons,”  C.R.R. Vol. 25, p. 199:11-15; “I have never worked an offense where somebody was fighting with a live victim, especially a man against a woman, to where vulgarity was not used, as well as a lot of threats, that was not there,” C.R.R. Vol. 25, p. 200:16-19; “It’s just inconsistent with somebody fleeing a murder with a living witness that is armed . . . .  I have never known someone to arm their victim, which is what this would have been equivalent to.”  C.R.R. Vol. 25, p. 203:6-8.

á        Finally, Cron was allowed to summarize his opinion as follows: “in my opinion, no intruder committed these offenses.”  C.R.R. Vol. 25, p. 203:10-11. 

á        In his closing arguments, the prosecutor made full use of Cron’s subjective evaluation of the crime scene and the mind of an intruder, stating,  “Cron tells you, ‘Well, the first thing about that is, that is not how intruders get in homes.  They just take the screen off.  They cut a little slit and take it off.”  C.R.R. Vol. 46, p. 36:9-12.  The prosecutor reminded jurors again and again that the crime scene did not make sense to Cron.  C.R.R. Vol. 46, pp. 36:9-39:15.

 

When, as here, “[an] expert witness brings to court little more than his credentials and a subjective opinion this is not evidence that will support a judgment.”  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421-22 (5th Cir. 1987)) (emphasis added).  Cron’s expert opinion was supported by no empirical studies, was unverifiable and his “methodology” was incapable of being challenged because Cron had none – he testified purely based on his subjective instincts.  Such testimony amounted to nothing more than an investigating police officer testifying, “I don’t believe the defendant’s story makes sense” and, accordingly, defense counsel should have objected to that testimony. 

 

Additionally, Petitioner requests relief for the introduction of unreliable and speculative expert testimony independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant, inadmissible, unfair and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process. 

 

D.            Defense Counsel Failed to Challenge the Constitutionality of the Interrogation of a Sedated Petitioner Confined in her Hospital Bed After Surgery.

 

At 6:00 a.m. on June 6, 1996 – one hour after Petitioner emerged from surgery and only a few hours after her stabbing and the death of her two sons – Detectives Jimmy Ray Patterson and Chris Frosch interviewed Petitioner.  C.R.R. Vol. 4, p. 188:10-13.  The State introduced the substance of that interview into evidence (albeit through the testimony of nurse Christopher Wielgosz rather than the testimony of the two officers) without objection by defense counsel.  C.R.R. Vol. 31, p. 90:12.  Defense Counsel’s failure to seek to exclude that evidence constitutes ineffective assistance of counsel under the Sixth Amendment. 

 

The Supreme Court in Mincey v. Arizona, 437 U.S. 385 (1978), in circumstances remarkably similar to the case at bar, held that a statement taken when the defendant is unable to exercise “rational intellect and free will” is involuntary, and introducing such a statement at trial constitutes a denial of due process of law.  See id. at 398; see also Muniz v. Johnson, 132 F.3d 214, 219 (5th Cir. 1998) (citing Mincey, 437 U.S. at 398, for the proposition that “[a] confession is voluntary if it is the product of a rational intellect and a free will”).  The Mincey Court set aside the conviction despite the fact that the conviction was supported by evidence other than the defendant’s statement.  See id. 

 

In Mincey, as in the instant matter, the defendant had been seriously wounded only a few hours earlier.  See id.  Mincey was in the intensive care unit of the hospital at the time of the police questioning.  See id.  He was confused and unable to think clearly about the critical events that had transpired several hours earlier.  See id. at 398-99.  While questioned by police, the defendant was lying on his back on a hospital bed, encumbered by tubes, needles, and a breathing apparatus.  See id. at 399.  He expressed a wish not to be interrogated.  See id.  Noting that “[i]t is hard to imagine a situation less conducive to exercise of a rational intellect and a free will,” see id. at 398, the Mincey Court held that Mincey’s statement was involuntary – and his will overborne – because he “was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious” during police questioning.  See id. at 401-02.

 

Petitioner, like Mincey, was “weakened by pain and shock, [and] isolated from family, friends, and legal counsel,” when questioned by Detectives Patterson and Frosch at 6:00 a.m. on the morning of June 6.  C.R.R. Vol. 4, p. 188:10-13.  Petitioner’s exploratory surgery had ended at 4:49 a.m.  C.R.R. Vol. 30, p. 265:4.  Her last dose of anesthetic had been given at 5:00 a.m.  C.R.R. Vol. 30, p. 265:5.  She was lying in an intensive care unit.  C.R.R. Vol. 30, p. 200:13.  The general anesthetic administered only an hour before police arrived rendered Petitioner susceptible to confusion, disorientation, and temporary memory loss, C.R.R. Vol. 30, p. 268:9-15 – effects likely to continue for up to three hours after it was administered.  C.R.R. Vol. 30, pp. 267: 23-268:4.  At 6:00 a.m., Petitioner was given a dose of Demerol, C.R.R. Vol. 30, p. 266:23, a drug which causes drowsiness, C.R.R. Vol. 30, p. 267:4-10, and aggravates the effects of a general anesthetic.  C.R.R. Vol. 30, p. 267:11-22. 

 

Santos, Petitioner’s treating physician at the time – and a Prosecution witness – acknowledged that any statements made by Petitioner at that time were likely to be unreliable.  C.R.R. Vol. 30, p. 268:16-23.  Moreover, Petitioner had no friend or advocate in the room at the time of the police questioning.  Only the two police officers and nurse Christopher Wielgosz were present.  C.R.R. Vol. 31, pp. 88:25-89:14.  The cumulative effect of these factors – the medication, lack of sleep, major surgery, traumatic injury to herself and the death of her children only hours before – prevented Petitioner from exercising the rational intellect and free will required to render a statement voluntary, and her statement is therefore inadmissible as a matter of due process.

 

Failure to raise this issue to the trial court – or on direct appeal – constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).  Defense counsel’s performance was deficient under the first prong of Strickland because any use of an involuntary statement in a criminal trial is a denial of due process of law, Mincey, 437 U.S. at 398, and no competent attorney would knowingly engage in a strategy that would violate the due process rights of his own client.  Defense counsel’s performance was prejudicial under the second prong of Strickland because use of an involuntary confession requires a conviction to be set aside, even if there is ample other evidence to support it.  See id.  So grave a violation renders the result of Petitioner ‘s trial fundamentally unfair and unreliable, and therefore constitutes prejudice under the second prong of Strickland.  This failure, without more, demonstrates constitutionally ineffective assistance of counsel and requires that Petitioner’s conviction to be set aside.

 

Additionally, Petitioner requests relief for the admission of evidence from her hospital-room interrogation independent of any claims for ineffective assistance of counsel on grounds that the introduction of evidence from that involuntary and inadmissible interview violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process. 

 

E.            Defense Counsel Failed to Object to the State’s Interfering with the Defense’s Access to Witnesses, Which Deprived Petitioner of Her Federal and State Constitutional Rights to Due Process.

 

During pretrial proceedings, defense counsel complained to the trial judge that “it is my understanding, your Honor, that this particular witness [Lt. James Cron], [16] along with the other witnesses about whom I will speak, have either been instructed, or have indicated that they will not talk to the defense, unless a representative of the district attorney’s office is present.  Which we consider to be a refusal to speak to us at all.  We don’t follow the district attorney around, and we wouldn’t expect him to follow us around.”  C.R.R. Vol. 5, pp. 150:21-151:4.  The prosecutor admitted this fact to the Court, stating, “The State has made an offer to the defense, on more than one occasion, to make paramedics, police officers and the like available to the defense for interviews, with a stipulation that some employee of the district attorney’s office be present.  On each occasion where we have made that offer, that has been refused, and turned down by the defense.”  C.R.R. Vol. 5, pp. 151:8-14 (emphasis added).  Although defense counsel initially objected to the limitation, defense counsel ultimately agreed to the prosecution’s interview conditions.  C.R.R. Vol. 5, p. 163:3-5.

 

“The equal right of the prosecution and the defense in criminal proceedings to interview witnesses before trial is clearly recognized by the courts.”  Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981) (citing United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975)); United States v. Matlock, 491 F.2d 504, 506 (6th Cir. 1974); Callahan v. United States, 371 F.2d 658, 660 (9th Cir. 1967).  “When the free choice of a potential witness to talk to defense counsel is constrained by the prosecution without justification, this constitutes improper interference with a defendant’s right of access to the witness.  Justification on the part of the prosecution to interfere with that right can be shown only by the clearest and most compelling considerations.  Kines, 669 F.2d at 9 (citing Dennis v. United States, 384 U.S. 855, 873 (1966)).

 

In 1976, the Texas Court of Criminal Appeals held that Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966) was not authoritative under the facts of that case, a non-capital rape case.  See Florio v. State, 532 S.W.2d 614 (Tex. Crim. App. 1976).  This case, like Gregory, is a capital murder case and involved not just one witness as in Florio, but numerous witnesses as in Gregory.  Accordingly, Gregory should serve as a guidepost for determining whether an accused facing the death penalty may be arbitrarily and capriciously denied access to critical witnesses without the presence of the prosecutor and still receive a fundamentally fair trial.  In Gregory, the prosecutor’s instructions to eyewitnesses to the homicide not to talk to defense counsel unless the prosecutor was present were held to constitute a denial of a fair trial in that the prosecutor’s acts were “unquestionably a suppression of the means by which defense could obtain evidence.”  Gregory, 369 F.2d 185 at 189.  In Petitioner’s trial, there were no eyewitnesses to the crime, but the witnesses to the crime scene and the events that followed the crime were off-limits to the defense unless it was willing to allow the prosecutor to eavesdrop on defense theories and mental processes articulated during witness interviews.

 

The inherent unfairness of the unequal treatment afforded the defense in Petitioner’s case were revealed at the bond hearing, where the issue arose, and continued to have an impact throughout the trial.  While the prosecutor had unfettered access to all the witnesses, including Darin Routier, and used his prior alleged statements during the trial for impeachment, see e.g., C.R.R. Vol. 42 p. 322-26, 24; C.R.R. Vol. 43, p. 37, defense counsel was, as a result of lack of access to the witnesses, unable to make a proffer sufficient to persuade the Court to allow it to call numerous government witnesses who later testified at trial.  In response to a defense request to call certain witnesses, the Court stated:

 

Well, the defense request to call persons that were not called by the State, that apparently were at or near the crime scene at relevant times, at this point in time, this has been declined by the Court. 

 

See C.R.R. Vol. 5, pp. 163:15-19, 149:1-163 (granting the prosecution’s requests to prevent the defense from calling critical government witnesses: Lt. James Cron, Sergeant Matt Walling, Detective Chris Frosch, Paramedic Brian Koschak, and Sergeant David Nabors).

 

Thus, while on multiple occasions the prosecutor was able to meet and rehearse privately with government employees who would testify against Petitioner in her capital murder trial, the defense counsel was limited to either an oral deposition or a supervised interview in the presence of prosecutors.  See C.R.R. Vol. 5, p. 162:7-22.  Compare C.R.R. Vol. 32, pp. 252:8-253:24 (prosecutor met with witness four times including rehearsal in the presence of other police officers and paramedics) with C.R.R. Vol. 32, pp. 256:7-257:3 (defense counsel interview termed by prosecutor as a “cross-examin[ation]” that was transcribed and made available to the prosecution).  By this practice, the prosecutor was able to listen to any question posed by defense counsel to the government witnesses so as to enable it to anticipate the defense strategy, avoid any surprise at trial, and by its presence, ensure that government employees would be chilled so as not to talk openly about issues that they might have divulged if not under the watchful eye of the district attorney. 

 

The failure of defense counsel steadfastly to object to the prosecution’s restrictions on its witnesses and counsel’s ultimate acquiescence in the State’s demands, necessarily hindered the defense investigation, denied Petitioner equal access to evidence, and arguably failed to preserve for purposes of the direct appeal a glaring deprivation of due process and fundamental fairness.

 

Additionally, Petitioner requests relief stemming from the State’s denial of access to witnesses independent of any claims for ineffective assistance on grounds that this practice denied her a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process. 

 

F.            Defense Counsel Failed to Offer Evidence from a Secretly Taped Police Video That Would Have Negated a Highly Prejudicial Videotape Offered by the State.

 

Over a defense objection, the State was permitted to introduce a videotape of a local news broadcast of the graveside birthday party that occurred on June 14, 1996, a day that would have been Devon Routier’s seventh birthday.  In the videotape, Petitioner is shown singing “Happy Birthday,” shooting Silly String, chewing gum, and laughing.  See State’s Exhibit 101.  The videotape offered to “give . . . insight into this woman” was admitted into evidence during the testimony of Barbara Jovell, who also had provided what should have been inadmissible character testimony that Petitioner was materialistic and had a temper.  See C.R.R. Vol. 36, pp. 22:7-27:7 (objections to the video tape and judge’s ruling), See C.R.R. Vol. 36, pp. 39-42, 47-48 (character testimony given by Barbara Jovell).  The prosecution thus sought to have the jury find Petitioner guilty of murder because her conduct at a graveside birthday party did not seem appropriate for someone who had suffered her loss.

 

Once this prejudicial and irrelevant tape was admitted as allegedly incriminating, the defense was obliged to confront it with evidence that could be deemed exculpatory.  But inexplicably, the defense counsel failed to show the jury a four-hour video tape that placed the admitted video (which highlighted few minutes of celebration with the camera focused primarily on Petitioner) into true perspective as part of a day long tribute by family and friends to the murdered children. 

 

That videotape, filmed secretly by the Rowlett Police Department on June 14, 1996, was not introduced by the prosecution allegedly because it violated wiretap statutes.  The more likely explanation the complete videotape was not introduced was that it showed a solemn prayer service held earlier in the day that Petitioner attended where she and her family members went through a range of emotions.  More importantly, it showed that Petitioner’s family orchestrated the birthday celebration and brought the party favors and balloons to the grave site.  The secret police surveillance tape also shows Petitioner as just one of many people engaging in various activities at the grave site, that included not only a very brief birthday celebration with children, family, and friends present, but also in mourning and remembering the children. [17]  

 

This secretly recorded videotape thus showed the birthday celebration in context but the jury was never afforded an opportunity to see it.  According to Mulder, lead defense counsel, this was because he “didn’t really have any idea at that time that the Silly String incident would play such a major part for the jury.” [18]   Yet, at trial, another defense counsel, Richard Mosty, in response to the trial judge’s comment that he thought everyone in country had seen the new videotape, pointed out to the court,

 

well, you know what they didn’t see, was the funeral service.  The State has illegally intercepted the funeral service where they all stand around and pray.  The State offers the Silly String part of the day, and they have the prayer there, where the first part of it is the prayer service . . . and we can’t offer that?

 

C.R.R. Vol. 43, p. 17:2-12.  After this exchange, the prosecutor agreed to allow the defense to offer the videotape, and the Court concurred.  C.R.R. Vol. 43, pp. 17:19-18:9. [19]   Yet, in spite of defense counsel’s own protestations about the importance of showing the rest of the days’ activities to put the Silly String incident in perspective, the jury was never shown this crucial piece of evidence.  This error was made even more glaring by the fact that during direct examination of Detective Jimmy Patterson, the existence of this secretly recorded “second” tape was made known to the jury.  C.R.R. Vol. 42, pp. 118:21-120:14.  The failure of the defense to introduce the tape left the jury with only one possible conclusion – that the vignettes of Petitioner shown in the news videotape represented how Petitioner mourned her children.  Yet, the true facts remained hidden on a secret video that the jury was never shown.  And the evidence clearly indicates that this was not a strategic decision, but rather a grave oversight.

 

The prejudice caused to Petitioner by defense counsel’s failure to introduce the police tape is made more evident by the sworn affidavit of Charles Samford, a juror in the case.  See generally Charles Samford Affidavit (“Samford Aff.”).  Samford states that “[t]he videotape was one of the main reasons I voted to convict Mrs. Routier of murder because I didn’t know what to make of her behavior . . . .  After the trial, I was shown another videotape that I was told was taken by police at the grave site that same day.  This second videotape showed a prayer service that happened before the birthday party.  Had we been shown this other tape so that we had been able to see the whole picture of what happened that day, I believe I would not have voted to convict Ms. Routier.” [20]   Samford Aff. ¶¶ 3-4.

 

Accordingly, even without the other significant failings of defense counsel, his failure to introduce the police tape is “sufficient to undermine confidence in the outcome” of Petitioner’s capital murder trial.  Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

 

Additionally, Petitioner requests relief for the admission of propensity evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

 

IV.       The Cumulative Effect Of Defense Counsel’s Actions Deprived Petitioner Of Her State And Federal Constitutional Rights To Due Process And A Fundamentally Fair Trial.

 

Although not every one of the above-referenced instances of deficient defense counsel performance by itself rises to the level of ineffective assistance of counsel under Strickland, certainly their cumulative effect is more than sufficient to meet that standard.  “In Texas, whether this standard has been met is to be judged by ‘the totality of the representation,’ rather than by isolated acts or omissions of trial counsel.”  Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); see also Winn v. State, 871 S.W.2d 756, 760 (Tex. Ct. App. 1993) (“Whether the Strickland standard has been met is to be judged by the totality of the representation.”). 

 

The facts of this case plainly establish that defense counsel’s omissions and actions resulted in no defense at all for Petitioner.  Defense counsel failed to pursue critical forensic testing to rebut the State’s scientific case against Petitioner, and thus left completely unchallenged a substantial portion of the State’s circumstantial case against her.  Throughout trial, defense counsel failed to object to the State’s admission of irrelevant and unduly prejudicial evidence against Petitioner; all of which improperly cast her in an unfavorable light.  Perhaps most egregious of all was defense counsel’s agreement not to pursue any defense implicating Darin Routier as a condition of his retainer.  Routier Aff. ¶ 7.  That agreement – made without Petitioner’s consent – completely foreclosed what evidence then and now suggests was a viable defense for Petitioner.  Taken together, defense counsel’s representation failed to pass constitutional muster and deprived Petitioner of her federal and state constitutional right to counsel.

 

Additionally, Petitioner requests relief for the admission of propensity evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

 

V.        Defense Counsel Failed to Challenge Prosecutorial Misconduct At Trial Depriving Petitioner of Her Right to a Fundamentally Fair Trial.

 

The State, in keeping with its promise during opening statement to portray “the real Darlie Routier” as “a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children,”  C.R.R Vol. 28, 31:23-32:1, introduced at trial a myriad of evidence and arguments designed solely to prejudice the jury against Petitioner as a cold, self-centered woman who did not care about her children, bought breast implants, kept sex toys and marijuana in her home, and played the murdered boys favorite rap song at their funeral.  See generally §III.C. The prosecution went so far as to include improper opinion testimony that Petitioner was materialistic and had a temper and supported this testimony with specific examples of this behavior elicited on direct examination, all in total disregard for the rules of evidence, see id., and also violated a motion in limine that had been granted by the trial judge. C.R.R. Vol. 43, pp. 25:11 – 26:15.

 

As powerful as this strategy was, it was equally improper, as it resulted in the trial of Petitioner on the basis of her alleged character and the propensity of a person with such a  character to kill her own children.  The Court need look no further than the opening statements and closing arguments and the irrelevant evidence offered with no possible explanation but to prejudice the jury against Petitioner in order to find that the misconduct of the prosecutor “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).  Yet, as detailed below the prosecutor’s misconduct at trial extended well beyond the illicit propensity strategy.

 

Because the Texas Court of Criminal Appeals has never established a general test for all types of prosecutorial misconduct such claims are examined on a case-by-case basis.  Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988)Among the nonmandatory and nonexclusive factors the Texas Court of Criminal Appeals has considered are whether (1) the defendant objected to the conduct of the prosecutor; (2) the prosecutors were deliberately violating an express court order or (3) the prosecutorial misconduct is “so blatant as to border on being contumacious.”  Id. at 831; see also Koller v. State, 518 S.W.2d 373, 378 (Tex. Crim. App. 1975) (reversible error when the “conduct of the prosecutor could have served no other purpose than to deprive the appellant of a fair trial by prejudicing the jury against him”). The United States Supreme Court has held that prosecutorial misconduct may violate a defendant’s right to federal due process under the U.S. Constitution.  Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (a prosecutor’s comments “may so infect[] the trial with unfairness as to make the resulting conviction a denial of due process”).

 

Character AssassinationRather than repeat here the all of prejudicial, irrelevant, and inadmissible evidence and arguments introduced by the prosecution in support of its propensity theory that Petitioner was materialistic, self-centered, and cold enough to murder her children, Petitioner hereby incorporates by reference the law, facts, and arguments set forth in Part III.C, supra.  Suffice it to say that any criminal trial founded on propensity and bad character evidence is “so infected . . . with unfairness as to make the resulting conviction a denial of due process.” See Donnelly, 416 U.S. at 643.  “When a prosecutor dwells on a defendant’s bad character,” a court “may find prosecutorial misconduct.” Washington v. Hofbauer,  228 F.3d 689, 699-700 (6th Cir. 2000) (finding error when prosecutor introduced character evidence of bad character admissible for some purposes, but argued the defendant was a “‘self-serving, illogical selfish non-compassionate, no emotional interest in a family type of person,’ who acted irrational due to ‘drugs and alcoholism and a general not caring about other people’”).

 

One specific example of misconduct in the prosecution’s pervasive character assassination of Petitioner serves to highlight its total disregard for her right to a fair trial and the motions in limine that were on file.  During the cross-examination of Darin Routier, Petitioner’s husband, the prosecution blatantly disregarded an order granting motion in limine by eliciting testimony from him that Petitioner had breast implants.  See  C.R.R Vol. 1, p. 43. [21]   Specifically, the prosecutor asked Petitioner’s husband, “y’all had spent five thousand dollars for breast implants, hadn’t you?”  To which he replied, “Yes, sir, we did.”  The prosecutor then demonstrated his reason for pressing this point:  “So appearance was very, very important to your wife, wasn’t it?”  C.R.R. Vol. 42, pp. 305:12-16.

 

Prosecutor’s testimony and argument expressing opinions on the credibility of witnesses. “Argument that injects the prosecutor’s opinion of a witness’ credibility is improper, and efforts to bolster a witness’ credibility by unsworn testimony can constitute reversible error.”  See Williamson v. State, 771 S.W.2d 601, 608  (Tex. App. 1989) (citing Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (emphasis added)).  In Williamson, the court held that “trial counsel was deficient” for “failing to object” to argument in which the prosecutor said, “[T]he officers told you that they saw him touching it when they drove up and they’ve had not [sic] reason to come down here and lie to you.  They have nothing to lose by telling you the truth or by telling you a lie, they have nothing to gain. They just came in here to tell you the truth . . . .  They are being paid by your tax money and they are doing a good job.”  Williamson, 771 S.W.2d at 608.  The court found that, had trial counsel objected, “he would arguably have been entitled to at least an instruction to disregard.” Id.  The Court found that additional harm was inflicted because, as was the case in Petitioner’s trial, “the prosecutor’s statement was made in the context of disparaging appellant’s credibility.”  

 

During closing argument, the prosecutor repeatedly and improperly bolstered the credibility of the State’s witnesses in much the same manner as the prosecutor did in Williamson, stating, “[t]hey are just doctors, surgeons, emergency room surgeons. And they have no reason to lie or be biased in this case,”  C.R.R. Vol. 46. p. 29:15-16; “These nurses have no reason to lie,” id. at 35:13; “She [Barbara Jovell] came and told you the truth,”  C.R.R. Vol. 46, p. 51:10;  “she is telling the nurses, that the man was standing over me.  And they have no reason to lie.  You see, they might be more believable if they said, ‘You know, we suggested that some man was standing over her.  We told her that.  She is just trying to believe it.’” [22]

 

In rebuttal argument on closing, the prosecutor bolstered the Rowlett Police Department  in a manner quite similar to that held unlawful in Williamson.  There, the prosecutors stated:

I’m not ashamed at all of the good people from the Rowlett Police Department who are still down here in this courtroom today. You know, these are the men and women who protect us.  These are the men and women who, when they got that call on June the 6th of ‘96, they are the ones that we sent over there to 5801 Eagle Drive, aren’t they?  And they had to walk into literally hell that morning at 2:35 in the morning and start dealing with that hell and start dealing with this woman right over here, Darlie Lynn Routier. They didn’t ask to do that, you see that is their job, and that is what they did in this case, and they have got absolutely nothing to be ashamed of and I am proud that they are a part of our case, and I am proud that they are sitting in here where you can see them this morning. 

 

C.R.R. Vol. 46, pp. 137:11-138:2.

 

The prosecutor also impermissibly testified during his cross-examination of Darin Routier for the purposes of commenting negatively on Darin Routier’s credibility. During the prosecutor’s effort to show Darin Routier to be untruthful, the prosecutor resorted to personal testimony by stating, “[w]ell, you know, I noticed that you were trying to cry up there in front of this jury,” suggesting his personal opinion that Darin Routier was faking his tears for the benefit of the jury.”  See C.R.R. Vol. 42, 340:20-341:11. Once again, no objection was made by defense counsel to this improper tactic.

 

Similarly, during closing argument, the prosecutor stated about Petitioner: “she tried to cry, she tried to cry when she was on direct, and just like she tried to cry at the grave site, but those tears weren’t streaming down her face.  Those tears didn’t start up until she got caught in a lie . . .  And that is when you finally see the real tears. Those tears started rolling down, that voice started shaking, those hands started shaking. Those were the real tears.”  C.R.R Vol. 46, p. 59:7-12; 60:18-23.   Whether Petitioner was untruthful or cried “real tears” was an issue for the jury to decide without the improper personal observation of the prosecutor injecting his own opinion as to her truthfulness. 

 

Finally, in a flagrant  injection of the prosecutor’s personal observations regarding Petitioner’s character, the prosecutor stated:

It’s been a textbook, almost on what does a guilty woman do when she comes to trial in Kerr County? The first thing she does is, she tries to deceive you.  Mr. Mulder used that word, misleading, misleading, misleading.  If there is anybody in this courtroom who has tried to mislead you throughout these past four weeks, it’s this woman over here. Just like her husband, trying to materially alter her appearance for you.  She doesn’t want you to know who she really is.  That is why she sits over there like she is today with this plaintive little look on her face, “Poor me, I am the victim,” kind of look.  Hoping that just one of you, because it only takes one of you, one of you will buy into that game.

 

C.R.R. Vol. 46, pp. 138:22-139:12.

 

Prosecutor’s inflammatory comments in closing rebuttal.  An attempt to invoke sympathy for the victims of a crime is improper argument and must be reversed if “manifestly improper,”  See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985).  When, as here, an accused faced capital punishment and the victims are so likely to invoke sympathy and a desire for vengeance, resorting to sympathy for those children as a weapon against an accused in closing argument is fundamentally unfair and manifestly improper. Yet, in the rebuttal portion of the argument, the Prosecutor was allowed to argue just that, without objection from defense counsel:

I am very, very, proud most of all in this case, to be the voices for Damon and Devon Routier.  You know the two little boys, we almost forget them.  You know, the pictures were put over here, I suppose after Mr. Shook’s argument.  I don’t think it takes a genius to figure that out. You know, these two little boys right there don’t have voices any more, do they?  They are dependent on us, Mr. Shook, Ms. Wallace and myself, and I will guarantee you, I am going to use my voice this morning to the best of my ability to talk for these two little boys, who never had a chance as their mother slaughtered them there on June the 6th, 1996. May we never forget these two precious children.  May they always be a part of this case. You know this case, I think, shows a very distinct difference in good and bad.  It shows you a very distinct difference in what the guilty do and what the innocent do.

 

C.R.R. Vol. 46, 138:2-24.

 

Notwithstanding all of these prejudicial errors, for a defendant to preserve his right to appeal, he must show that he objected to the conduct at trial and pursued his objection to an adverse ruling.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Tex. R. App. Proc. 33.1. [23]   In addition, for error to be preserved with regard to the subject matter of the motion in limine it is necessary that an objection be made at the time when the subject is raised during the trial.  See e.g., Thomas v. State, 477 S.W.2d 881 (Tex. Cr. App. 1972).  Trial counsel’s failure to do so in the face of repeated prosecutorial misconduct was deficient and prejudicial.

 

Independent Claim of Prosecutorial Misconduct.  Additionally, Petitioner requests relief stemming from the denial of her right to due process resulting from prosecutorial misconduct independent of any claims for ineffective assistance because the conduct of the prosecutor both objected to and not objected to cumulatively denied her a fundamentally fair trial and resulted in a clear miscarriage of justice.  As part of this independent claim, Petitioner also alleges the following:

 

Injection of new and harmful facts during argument.  Jury argument constitutes “reversible error,” if it “inject[s] new and harmful facts before the jury.”  Duffy v. State, 567 S.W.2d 197 (Tex. Crim. App. 1978).  One of the primary defenses in this case was the citing of a suspicious person matching Petitioner’s description of the intruder who murdered her two children and seriously wounded Petitioner.  See C.R.R. Vol. 46, 101:23-102:21.  At trial, Detective Jimmy Patterson testified that the morning after the murders, a caller named Reggie Salter reported seeing a man in a black baseball cap, black shirt, and dark jeans in the town of Rowlett.  C.R.R. Vol. 42, pp. 109:18-111:3.  During the trial, no evidence was introduced about any investigation conducted into this call.  Then, during rebuttal argument in the guilt-innocence phase of trial, the prosecutor unexpectedly and improperly revealed for the first time his version of the facts related to the investigation into this potential suspect, suggesting that the jury should disregard this potential suspect and also contradicting the testimony of Detective Patterson that the call had been received in the morning (rather than the afternoon):

MR. GREG DAVIS:

 

 . . . [A]s a last resort then, what do you do?  You go for this man in the dark T-shirt and dark cap that was talked to, not the morning of June the 6th, but the afternoon of June the 6th, some 14 hours after this thing happened. And you see, it’s kind of like that Paul Harvey  show.  You didn’t hear the rest of the story. Mr. Mulder knows his name as I do.  His name is Wilford Davis. And Mr. Mulder told you something that wasn’t true.  Maybe inadvertently he did that.  But he said to you, we didn’t get his fingerprints and match them to the ones on that window out there on Eagle Drive. And I’ll stand before you right now, and I will tell you that the State of Texas did, when we called –

 

MR. RICHARD C. MOSTY:  That is outside the record, your Honor.

 

MR. DOUGLAS MULDER:  Judge, if they did, they haven’t told us.

 

MR. GREG DAVIS:  That is not exculpatory evidence. 

 

C.R.R. Vol. 46, pp. 141:19-142:15 (emphasis added).

 

The judge’s curative instruction that “[b]oth sides are ordered to stay within the record, and the jury is ordered to remember the testimony as they heard it,” was wholly inadequate since it failed to properly admonish the jury that it may not consider what was clearly extra record information. See C.R.R. Vol. 46, p. 143:10-12. 

 

The prosecutor orchestrated the introduction of evidence that marijuana was found in the Routier home during the guilt-innocence phase of trial.  Even though a motion in limine was on file to preclude the introduction of any evidence of controlled drug possession, C R.R. vol. 1, pp. 43, and the judge had ordered the State to provide notice of other crimes, wrongs, or acts it intended to offer under Rule 404(b), C.R.R. Vol. 6, p. 6:6-11, the prosecutor elicited testimony from Rowlett Police Officer David Mayne that marijuana was found during a search of the Routier home.  Although the prosecutor denied eliciting this testimony, indicating he expected to get the answer that “No, I didn’t retrieve anything else.” C.R.R. Vol. 33, p. 180:12-14.  However, the record is clear that the prosecutor got the negative answer he was allegedly looking for, but sought testimony for some other evidence collected even after getting that answer – the only thing left was the marijuana.  Moreover, the fact that the witness had been rehearsed repeatedly by the prosecutor before trial makes it wholly implausible that such a clearly improper fact was accidentally introduced into trial.  The evidence was introduced as follows:

Q.            Okay.  And, again, Officer, the papers that we just read, were they also included in the  bags that were out there in the open, on top of that blue or green box?

 

A.            Yes, sir.

 

Q.            Let me ask you:  On the June 6th, 1996, did you collect any more evidence out there than what we have just seen?

 

A.            Yes, sir.

 

Q.            Okay.  Any other papers, for instance?

 

A.            No, sir.

 

Q.            Okay.  What other evidence did you retrieve out there on June 6th?

 

A.            Some marijuana.

 

C.R.R. Vol. 33, p. 174:4-17 (emphasis added).

 

At trial, it was also clear that the Officer Mayne had been thoroughly rehearsed for his testimony by the prosecutor on four separate occasions before trial and two more occasions during trial, including the night before his testimony.  C.R.R. Vol. 34, pp. 74:21-75:1; 78:3-22.  Thus, there is no reasonable doubt that the prosecutor orchestrated this “inadvertent” disclosure of highly prejudicial evidence.  Although the jury was instructed “to disregard the last answer by the witness,”  the defense motion for mistrial was denied.  C.R.R. Vol. 33, pp. 182:7-11; 187:14-16.  Whether a jury instruction is sufficient to cure an error, the facts of each particular case must be noted.  Gonzales v. State, 685 S.W.2d 47, 49  (Tex. Crim. App. 1985).  In a capital case such as this one, the willful violation of rights of the accused and the intentional efforts to prejudice the jury was fundamentally unfair and perpetrated the miscarriage of justice involving the character assassination of Petitioner. 

 

Introduction of irrelevant evidence intended to prejudice the jury.  During the testimony of Barbara Jovell, who provided exhaustive inadmissible character evidence in the State’s case-in-chief, see  §III.C,  defense counsel objected to the admission of proffered testimony that Petitioner had sex toys in her home and that she was embarrassed about those being found by the police.  C.R.R. Vol. 36, p. 12:15-24.  The basis for the objection was that the testimony was “going to be misleading to the jury . . .it certainly couldn’t have any relevancy or any bearing, on whether or not . . . or any significance as to whether she committed the offense.”  C.R.R. Vol. 36, p. 21:10-15.  Additionally, defense counsel argued that “Rule 404-B applied  . . . [a]nd . . .it’s conduct that casts only a bad light on the defendant . . . .they want to cast a shadow on the defendant on areas that are simply irrelevant.”  Id. at pp. 21:16-24.  Although Petitioner’s concern over exposing embarrassing details of her private life had nothing to do with the charged offense, the trial judge refused to evaluate the testimony under Rule 404(b) and, without explaining the relevance of the proffered testimony summarily stated, “It’s not an offense.  I’ll overrule that.”  C.R.R. Vol. 36, p. 21:3-4.  The introduction of this evidence by the prosecutor could have served no other purpose than to deprive Petitioner of a fair trial by prejudicing the jury against her.  See Koller v. State, 518 S.W.2d 373, 378 (Tex. Crim. App. 1975

 

Cumulative Impact.  Although the various incidents of misconduct committed by the prosecutor in this case individually warrant a new trial, considered cumulatively the impact on the fundamental fairness of Petitioner’s trial was so devastating and such a miscarriage of justice that a new trial is the only way to preserve the integrity of the judicial system.  See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 2000) (citing Stahl, 749 S.W.2d at 832 (holding individual acts of misconduct may be ameliorated by an appropriate instruction; yet, those same improprieties may “escalate[] into cumulative harm.”); United States  v. LeQuire, 943 F.2d 1554, 1571 (8th Cir. 1991) (While “isolated instances of prosecutorial misconduct” could be cured by instructions from the bench “there are some matters that cannot be removed by curative instructions; five instances reflecting on the character of Anders is more than enough to fall into the latter category”).

 

VI.       The State Knowingly Withheld Impeachment Evidence Regarding Two of the State’s Primary Experts In Violation Of Brady v. Maryland and Petitioner’s Constitutional Guarantees To Due Process and a Fundamentally Fair Trial.

 

Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, suppression of material, favorable evidence by the prosecution violates the due process rights of the accused under the Fourteenth Amendment to the United States Constitution, Art. I, § 19 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.  See Thomas v. State, 841 S.W.2d 399, 401-04 (Tex. Crim. App. 1992) (specifically adopting Brady and subsequent Supreme Court precedent).  The Supreme Court has identified “three components of a true Brady violation.”  Strickler v. Greene, 527 U.S. 263, 281 (1999).  First, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching.”  Id. at 281-82.  Second, “that evidence must have been suppressed by the State, either willfully or inadvertently.”  Id. at 282.  Third, “prejudice must have ensued.”  Id.  The third component is typically referred to as the materiality component. 

 

The first prong of Brady is satisfied where the evidence at issue “if disclosed and used effectively . . . may make the difference between conviction and acquittal.”  United States v. Bagley, 473 U.S. 667, 676 (1985).  Brady applies to both impeachment evidence as well as other exculpatory evidence.  Id.; Thomas, 841 S.W.2d at 403.  Suppressed police reports may meet the favorability requirement.  See, e.g., Strickler, 527 U.S. at 282 (withheld police notes containing descriptions of the crime that contradicted witness’s testimony violated Brady); Cook v. State, 904 S.W.2d 623, 628 (Tex. Crim. App. 1996) (failure of prosecution to disclose police report resulting in the inability to develop a potential defense theory based on alternative suspect violated Brady); Sellers v. Estelle, 651 F.2d 1074, 1076-77 (5th Cir. 1981) (suppressed police reports were favorable to defendant because they could have been used to develop defense’s theory of the case).  

 

The suppression prong of the Brady test is met where the state failed to diligently research and provide evidence of similar crimes.  “In order to comply with Brady . . . the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf . . . including the police.”  Strickler, 527 U.S. at 281; see also Kyles, 514 U.S. at 438.  In Kyles, the Supreme Court rejected squarely the State’s argument “that [the State] should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor,” declaring that “[t]o accommodate the State in this manner would . . . amount to a serious change of course from the Brady line of cases.”  Kyles, 514 U.S. at 438.  Rather, because “procedures and regulations can be established the carry [the prosecutor’s] burden and to ensure communication of all relevant information on each case to every lawyer who deals with it,” the State is held to a standard of disclosure based on what all State officers knew at the time.  Id. (quoting Giglio v. United States, 405 U.S. 150 (1972)).  The prosecution’s duty to disclose Brady evidence applies irrespective of whether the accused has requested this evidence.  Thomas, 841 S.W.2d at 403-04 (citing Bagley, 473 U.S. at 682). 

 

The materiality component of the Brady test is met where the evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”  Kyles v. Whitley, 514 U.S. 419, 435 (1995).  Thus, the determination “turns on the cumulative effect of all such evidence suppressed by the government.”  Id. at 421.  Withheld evidence has been determined to be material where the undisclosed evidence involves the impeachment of a key witness or a witness presenting evidence without strong corroboration.  See, e.g., East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997).

 

A.            The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose Evidence of Similar Crimes that Would Impeach the Testimony of the State’s Crime Scene Analyst, Special Agent Alan Brantley.

 

The State violated the Brady doctrine and deprived Petitioner of her due process rights by failing to provide impeachment evidence within its possession that would have contradicted the testimony of Supervisory Special Agent Alan Brantley, the State’s crime scene analyst.

 

Special Agent Brantley testified that “this particular crime scene . . . had been staged, and . . . whoever killed both Devon and Damon, was someone that they knew, and someone that they knew very well.”  C.R.R. Vol. 40, p. 52:11-15.  He justified that opinion, in part, by claiming that there were no similar crimes in the area.  He testified that “first and foremost . . . I always ask the question:  Are there any similar or related events in the area?” C.R.R. Vol. 40, p. 53:20-22.  He answered his own question in the negative – that “it was a very low crime rate area . . . certainly no other homicides like this . . . and the homicides that had occurred had been resolved, or had been effectively . . . ruled one way or the other.”  C.R.R. Vol. 40, pp. 53:24-54:5.  Brantley noted that “most offenders that go to a residence to commit a homicide . . . take a weapon with them, something that they are comfortable with, something that they can use to commit the homicide.”  C.R.R. Vol. 40, p. 84:5-9.  Using this assumption, Brantley concluded that the use of a kitchen knife from the residence is further evidence that a stranger did not commit the murders.  In Brantley’s words, “[t]he fact that nothing apparently was taken to the scene, but the offender goes to the scene, obtains a weapon there, uses that weapon, and then leaves it behind, is important.”  C.R.R. Vol. 40, p. 84:10-13. 

 

At the time that Brantley was testifying, however, police had records of other crimes that resembled the Routier murders.  On December 8, 1995, an intruder entered a nearby residence, obtained a small kitchen knife, and held that knife against the throat of a victim in preparation for a sexual assault.  Exh. B.  On March 28, 1996, an unknown assailant threatened a child with a kitchen fork.  Exh. A.  In a series of other crimes, an unknown assailant used a single tube sock – similar to the sock found in the alley behind the Routier residence – to gag his victims and to conceal fingerprints.  Exh. B (using a sock from the victims drawer as a gag) (December 8, 1995);  Exh. C (same) (February 1, 1996); Exh. D (assailant used a tube sock to cover his hands) (April 7, 1996); Exh. E (using a sock from the victims drawer as a gag) (May 7, 1996).  Had defense counsel been given this information, they would have been able to impeach Brantley with evidence that his investigation into similar crimes was inadequate, and that his conclusions were not based on inaccurate assumptions. 

 

The failure of the prosecution to provide such information is a patent violation of the Brady doctrine.  First, the evidence is favorable.  The State’s theory was that Petitioner had stabbed herself and moved a number of objects with the express intent of “staging” a crime scene.  Evidence that would directly undermine that theory – and discredit one of the State’s key expert witnesses – would have unquestionably assisted the defense. 

 

Second, the evidence was suppressed.  The State “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”  Kyles, 514 U.S. at 437.  By eliciting Agent Brantley’s opinion testimony that there were no “similar or related events in the area,” C.R.R. Vol. 40, p. 53:21-22, and that offenders entering a residence to commit a homicide rarely rely on weapons to be found therein, C.R.R. Vol. 40, p. 84:5-9, the State undertook an obligation to search for and disclose evidence that may contradict these assumptions. 

 

Third, the evidence was material.  Agent Brantley’s testimony was unique and uncorroborated:  he alone pulled all of the evidence together to create a “scientific” basis for the State’s theory of the case.  The State, in its closing argument, contended that Brantley “looks at these things, hundreds of these cases every year, and he kind of told you how they do the analysis.”  C.R.R. Vol. 46, p. 46:19-21.  The State repeated Brantley’s assertion that the crime scene was staged, and reiterated the steps of Brantley’s analysis.  C.R.R. Vol. 46, pp. 46:22-47:17.  Thus, this evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”  Kyles, 514 U.S. at 435. 

 

B.            The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose Known Impeachment Evidence Regarding the History of Mental Illness and Related Employment Problems of the State’s Trace Evidence Analyst, Charles Linch.

 

The State violated its duty under Brady to provide evidence favorable to the Petitioner by withholding known impeachment evidence regarding the State’s trace evidence analyst Charles Linch, specifically, that he had a history of chronic depression, alcohol dependence and employment problems that weighed heavily on his credibility and reliability as an expert witness.

 

Favorable evidence is defined for purposes of Brady disclosures as “any evidence that if disclosed and used effectively . . . may make the difference between conviction and acquittal.”  Thomas, 841 S.W.2d at 404 (internal quotations omitted).  Because the definition of favorable evidence includes both exculpatory and impeachment evidence, id., the prosecution has a duty under Brady to provide evidence which would allow the accused the opportunity to impeach a State’s witness.  In the present case, evidence available to the prosecution regarding Charles Linch’s history of chronic depression, alcohol dependence, and employment issues constituted favorable evidence that, if disclosed, could have been used by Petitioner’s defense counsel to impeach Linch’s reliability as an expert and consequently, his critical testimony regarding fiber analysis.

 

1.            The Prosecution Failed to Disclose Charles Linch’s History of Mental Incapacity and Involuntary Psychiatric Commitment for Depression and Alcohol Dependence.

 

Unbeknownst to Petitioner’s defense counsel, significant impeachment evidence was available against the State’s trace evidence expert Charles Linch.  Linch’s history of mental health difficulties and alcoholism, long known to his employer Southwestern Institute of Forensic Sciences (“SWIFS”) and to the Dallas County prosecutor’s office, was revealed publicly in May 2000.  See Holly Becka and Howard Swindle, Analyst Left Psych Ward to Testify:  County Forensic Expert Crucial in Murder Trials, Dallas Morning News, May 7, 2000 at 1A (Exhibit F); Holly Becka and Howard Swindle, Routier Trial Expert Cast Doubts on His Own Abilities:  Prosecutors Say Forensic Analyst Competent; Defense Questions Credibility of Testimony, Dallas Morning News, May 10, 2000 at 1A (Exh. L).

 

This newly-discovered impeachment evidence shows that Linch suffered from alcoholism and deep depression brought about by his employment as a forensic scientist at SWIFS, a job which included on-site investigation of numerous violent murder scenes.  Linch’s depression and drinking problems reached a critical point in February 1994 when he called SWIFS and informed the Institute he was planning to quit because of job-related stress.  Following Linch’s phone call indicating intentions to terminate his employment, two of Linch’s colleagues arrived at Linch’s home and escorted him to a hospital to obtain mental health treatment.  Upon Linch’s arrival at the hospital, he was taken involuntarily into custody at the Doctor’s Hospital in Dallas, where he was diagnosed with chronic depression and alcohol dependence and involuntarily committed for approximately two weeks.

 

In the midst of his involuntary commitment, while under the influence of anti-depressant medication, Linch testified regarding forensic analysis in two high-profile capital murder cases.  In at least one of theses cases, the murder trial of Texas serial killer Kenneth McDuff, Linch was called on to testify for the State of Texas by his supervisors at SWIFS.

 

Had the prosecutor not known of Linch’s involuntarily psychiatric commitment, the knowledge of SWIFS as an agency of the State would be imputed to the prosecution.  Strickler, 527 U.S. at 281 (“[i]n order to comply with Brady . . . the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf”); Kyles, 514 U.S. at 438 (prosecution is held to a standard of disclosure based on what all State officers knew at the time).  In Petitioner’s trial, however, the prosecution’s suppression of Linch’s involuntary commitment and depression was especially egregious because prosecutor Toby Shook had direct knowledge of Linch’s mental health problems.  Shook learned of Linch’s psychiatric commitment through a friend at Doctor’s hospital, prompting Shook to ask Linch about his mental health history.  See Becka and Swindle, Analyst Left Psych Ward to Testify, May 7, 2000 (Exhibit F).

 

2.            The Prosecution Failed to Disclose That Linch’s Desire for Recognition and Propensity to Testify in High-Profile Capital Murder Cases and Employment Problems at the Southwestern Institute of Forensic Sciences Biased His Testimony.

 

Charles Linch’s involuntary psychiatric commitment sparked a series of employment problems with his superiors at SWIFS that began with Linch’s temporary resignation and continued throughout the time of Petitioner’s trial.  Initially, a mere two months after his release from Doctor’s Hospital, Linch resigned from SWIFS, citing his recent mental illness, a lack of training provided by SWIFS, and SWIFS’ unwillingness to allow Linch to move from the field of trace evidence into the area of DNA typing.  Linch expressed his reservations regarding his history of depression in a letter to his supervisor:  “Continuing attitudes make it necessary that I seek other employment . . . .  If I remain in this crime lab . . . I predict the ugly head of depression to rear itself again.”  April 28, 1994 Letter from C. Linch to Dr. Stone re Personnel Recruitment for Trace Evidence, Exhibit G (emphasis added).  Ultimately, Linch did not obtain other employment, and was re-hired at SWIFS in September 1994 – on the condition, however, that he not perform DNA testing.  See September 28, 1994 Letter from I.C. Stone to Jeffrey Barnard re Return of Charles Linch, Exhibit H (“As you know, Mr. Charles Linch has been rehired as Trace Evidence Analyst (Hair and Fiber Examiner) . . . .  It is agreed that Mr. Linch will have no interest in performing any of the DNA tests.”).

 

The circumstances surrounding Linch’s resignation demonstrate two points relevant to his testimony as an expert witness.  First, in spite of his doubts about his own practice, Linch thrived on the professional recognition that he received from testifying in capital murder cases.  Second, Linch himself acknowledged that he received insufficient training in his field, and that he did not believe the hair and fiber methodology to which he testified to be an accurate science.  Even while disparaging SWIFS and his field, Linch drew attention to his “achievements” as an expert witness in helping to convict capital defendants:

 

I am announcing [my resignation from SWIFS] in order that recruitment for the Trace Evidence successor(s) may be focused appropriately.  After all, anyone with experience can recognize a hair or fiber and have similar successes in [the criminal murder trials of] Albright, McDuff, Blair, Jason Massey, Jackie Wilson, Ricky Bell, Kevin Hailey, Cheryl Gunitorius, Carol Spaete, Theresa Murphy, or Brenda Brach . . . where hair and fiber evidence was critical.  Accomplishments worthy of a 3% raise (although I understand this was contested as being too much) . . . .  [S]ome get all the training and travel money while some get none.  (I have received no money from Dallas County for training or travel.)....There is the understanding that Charles Linch should receive no training.  Therefore the incentive for me “hanging around” no longer exists.

 

April 28, 1995 Letter from C. Linch to Dr. Stone.

 

Linch’s pride in his professional accomplishment is reflected by the fact that, prior to Petitioner’s trial, he testified in a disproportionate number of high-profile capital cases, including, for example, State v. Albright (December 1991); Texas v. McDuff (February 1994); a sensational Arkansas triple murder case commonly known as the Robin Hood Hills murders; State v. Baldwin (March 1994); and State v. Blair (September 1994).  His pervasive need for recognition is well-documented:  on several occasions while employed at SWIFS, Linch requested and ensured that letters of commendation regarding his testimony became part of his personnel file.  See, e.g., October 17, 1994 Letter from Clay Strange to Charles Linch re State of Texas v. Jason Eric Massey (thanking Linch for testimony, with Linch’s handwritten notation “personnel file?”) (Exhibit I); August 28, 1995 Letter from Mike Androvett to Charlie Linch (thanking Linch for assisting with Texas News Channel 5 O.J. Simpson broadcast, with similar handwritten notation from Linch) (Exhibit J). [24]

 

The above materials, all contained in Linch’s personnel file and therefore attributable to SWIFS, evidence a professional insecurity and need for recognition on Linch’s part that cloud his objectivity as a witness and, therefore, cast doubt on the reliability of his testimony. [25]   It is also indicative that, following Petitioner’s trial, Linch cast doubt on his own abilities and inadequate training received at SWIFS.  See Holly Becka and Howard Swindle, Memos Detail Internal Struggle at Lab:  Reports Could Raise Questions About Reputations of Analyst, County Crime Office, Dallas Morning News, May 10, 2000, at 21A (Exhibit K).

 

 

 

3.            The Prosecution’s Failure to Disclose Evidence Regarding Charles Linch’s Chronic Depression, Alcohol Dependence, and Tenuous Employment Relationship Violated the Prosecution’s Duty Under Brady v. Maryland.

 

The State’s suppression of the above impeachment evidence constitutes a violation of the prosecution’s duty under Brady, and consequently, a violation of Petitioner’s federal and state constitutional rights to due process.  Under the first requirement of Brady, the evidence is favorable in that it could have been used to undermine the credibility and reliability of one of the State’s critical expert witnesses.  As discussed above, Charles Linch provided key testimony regarding his findings that debris found in the serration grooves of a knife in the Routier kitchen was microscopically consistent with debris from the garage window screen.  The prosecution relied on this evidence in its closing argument to suggest that the garage window screen could only have been cut by someone in the Routier household, thereby discrediting Petitioner’s consistent claim that an intruder had broken into her house:

 

But [Linch] found some other evidence because the police confiscated these knives.  In those knives was a bread knife, and he looked at those under the microscope, and he found a glass rod and he found some rubber material and some rubber debris with glass crushed in it and that wasn’t on any of the other knives.  And he had one of the screens from the garage, and he quickly found that that screen was composed of fiberglass rods with plastic covering over it.  And he found that if he used that bread knife and you cut it all the way across, that that screen was cut with a serrated knife, and could be cut in the same fashion with that particular bread knife.  And when he tested cutting that bread knife, he looked at it under the microscope and what did he find?  Glass rods, the same type of rubber material seen on the bread knife.  And that same type of rubber debris with the glass meshed in.  The same type of stuff that happens when you cut the screen.  And it adds up, that bread knife was used to cut that screen, and Charles Linch found the evidence.  And that tells you they were trying to fake the crime scene.  You aren’t going to have an intruder somehow get in the house and then take the knife out and then cut the window.

 

C.R.R. Vol. 46, pp. 42:3-43:2. 

 

Linch’s testimony was utilized by the prosecution to directly refute Petitioner’s testimony that an intruder had broken into her house.  The evidence suppressed by the prosecution, however, is demonstrative of both Linch’s psychological instability and his motivation to offer misleading testimony favorable to the State in high-profile murder cases.  These issues are directly relevant to Linch’s credibility and potential bias in favor of the prosecution. [26]

 

The impeachment evidence meets the second prong of Brady because it was unquestionably suppressed by the prosecution.  As discussed above, prosecutor Toby Shook had direct knowledge of Linch’s hospitalization for alcoholism and depression.  Even in the absence of such knowledge, however, the knowledge of SWIFS as an agency of the State would be imputed to the prosecution.  Strickler, 527 U.S. at 281; Kyles, 514 U.S. at 438.

 

Finally, the suppression of favorable impeachment evidence regarding Charles Linch was material under Brady.  Had Linch been discredited as an unreliable witness, the prosecution would have been hard-pressed to rely on the invaluable inference suggested by Linch that a member of the Routier household had cut the garage window screen, thereby contradicting Petitioner’s testimony that an intruder had broken into her house.  Without the State’s critical evidence of a “staged” crime scene, the “case is [placed] in such a different light as to undermine confidence in the verdict.”  Kyles, 415 U.S. at 435.  Although the prosecution’s suppression of this impeachment evidence is itself material in that such evidence would have undermined the credibility of a key expert witness, the ultimate determination of materiality “turns on the cumulative effect of all [favorable] evidence suppressed by the government” in Petitioner’s case.  Id. at 421.

 

C.            The Prosecution Violated Its Duty Under Brady v. Maryland by Failing to Disclose the Expert Opinion of Psychiatrist Dr. Kenneth Dekleva that Petitioner Would Not Present a Future Danger.

 

During the course of its investigation, undersigned counsel also learned that the State withheld material, exculpatory evidence on the question of Petitioner’s future dangerousness.  Specifically, the State consulted a forensic psychiatrist, Dr. Kenneth Dekleva, to evaluate Petitioner’s future dangerous.  Although Dr. Dekleva concluded that Petitioner would not pose a future danger to society, the prosecution did not provide the results of Dr. Dekleva’s evaluation to Petitioner’s defense counsel in clear violation of Brady v. Maryland.

 

Dr. J. Douglas Crowder is a forensic psychiatrist and a long-time acquaintance of Dr. Kenneth Dekleva, also a forensic psychiatrist, who was identified on the list of potential witnesses provided by the State.  During the summer of 2000, Crowder had lunch with Dekleva during which the two men discussed Petitioner’s trial.  J. Douglas Crowder Affidavit (“Crowder Aff.”) ¶ 4.  During the course of this lunch, Dekleva informed Crowder that he had served as a psychiatric consultant for the prosecution in connection with Petitioner’s trial and that he had advised the prosecution that, in his professional opinion, Petitioner would pose no danger to society after incarceration.  Crowder Aff. ¶ 4.  Failure to provide such evidence is a clear violation of the Brady doctrine.  It is favorable to the Petitioner on the question of punishment, it was directly available to prosecutors, and it was clearly material as no psychiatric evidence on this question was offered either by the State or by Defense Counsel. [27]

 

D.            The Multiple Failures of the Prosecution Under Brady v. Maryland Constitute a Material Error that Violated Petitioner’s Right to Due Process Under the Fourteenth Amendment to the United States Constitution and Art. 1, § 19 of the Texas Constitution.

 

When evaluating materiality under Brady, evidence is to be considered collectively.  Kyles, 514 U.S. at 43.  Considering the suppression of impeachment evidence against Special Agent Brantley and Mr. Linch – together with the State’s failure to divulge the opinion of Dr. Dekleva – clearly undermines confidence in the outcome of the trial.  Both Linch and Brantley provided unique testimony, not duplicated by other witnesses.  Both witnesses provided testimony central to the State’s theory that the crime scene was staged, and that no outsider murdered Damon.  Both would have been severely discredited had defense counsel had the opportunity to introduce the impeachment evidence that should have been made available.  Moreover, no psychiatric evidence during the punishment phase was offered by either side.  Consequently, the failure of the State to produce such evidence is material, and Petitioner’s conviction is reversible on this basis alone. 

 

VII.     The State Failed To Correct The False Testimony of Charles Linch In Violation Of Petitioner’s Federal And State Constitutional Guarantees To Due Process And A Fundamentally Fair Trial.

 

The prosecution has a constitutional duty to correct the testimony of a witness when it knows or believes that the testimony given was false and “could . . . in any reasonably likelihood have affected the judgment of the jury.”  Napue v. Illinois, 360 U.S. 264, 271 (1959).  That is true even when the prosecutor did not solicit or foresee the false testimony.  Giglio v. United States, 405 U.S. 150, 154 (1972) (“whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor”); Linsey v. King, 769 F.2d 1034, 1040 (5th Cir. 1985).  Generally, even when defense counsel elicits such testimony from a prosecution witness on cross-examination, the prosecution has the duty to correct it.  United States v. Wallach, 935 F.2d 445, 457 (2d Cir. 1991); United States v. Bontkowski, 865 F.2d 129, 133 (7th Cir. 1989).  However, under the authority of the Fifth Circuit precedent, when false testimony is elicited by defense counsel on cross-examination the prosecution has a duty to correct the testimony only if it is material to the outcome of the trial.  See United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir. 1997).

 

In determining whether the prosecution has knowledge of testimony’s falsity, the prosecutor is charged with constructive knowledge of every fact of which any member of the prosecution team is actually aware.  Ex Parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989) (finding it immaterial that only one member of the prosecution team had knowledge of fact because knowledge imputed to entire team).  Members of the prosecution team include other employees of the office of the district attorney working on the case and all law enforcement officers involved in its investigation.  Ex Parte Fierro, 934 S.W.2d 370, 371 (Tex. Crim. App. 1996); Ex Parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App. 1993).  Experts who are retained by or testify for the prosecution are also considered part of the team and thus the “prosecutor may be deemed to have been in possession” of any information the experts possess.  Martinez v. Wainwright, 621 F.2d 184, 188 (5th Cir. 1980) (medical examiner considered part of prosecution team).

 

During Petitioner’s trial, the prosecution failed to correct false testimony elicited from the State’s trace evidence analyst, Charles Linch, on cross-examination.  Linch testified extensively regarding fiber analysis he performed on debris found on a serrated bread knife in the Routiers’ kitchen.  When asked by defense counsel at trial whether the serrated bread knife (Knife No. 4”) had been dusted for fingerprints before Linch analyzed it at his laboratory, he testified that Knife No. 4 had not been dusted for prints:

 

Q.            Let me ask you, when you looked at the butcher block and the eight knives were still in the block, correct?

 

A.            Right.

 

Q.            When you looked at it?  Did you ever find any black fingerprint powder inside the butcher block?

 

A.            Not inside.  The only fingerprint powder I observed was on the knives on either side of the open slot.  None of the other knives had been printed.

 

Q.            Okay.  The Number 4 knife that you tested where you found the fiberglass and the rubbery material, was there any fingerprint powder on that knife?

 

A.            No, sir.

 

C.R.R. Vol. 37, p. 257:3-13.

 

Linch now admits that this testimony was false.  If subpoenaed to testify under oath, he would testify that both the butcher block and the knives it contained, including Knife No. 4 from which Linch recovered a microscopic fiber, had been dusted for fingerprints when that evidence was received at the Southwestern Institute of Forensic Sciences (“SWIFS”) Laboratory.  See Second Linch Aff. ¶ 7 (“At the time I received the butcher block and knives at the SWIFS Laboratory, both the butcher block itself and all of the knives in it had been dusted for fingerprints.  This includes a serrated bread knife which I later designated as “Knife #4.”).

 

By failing to correct the above-referenced false testimony on cross-examination, the prosecution violated Petitioner’s right to due process and a fundamentally fair trial.  As a member of the investigatory team in Petitioner’s case and expert witness for the State, Linch’s knowledge of his false testimony was imputed to the State.  Linch’s testimony regarding fingerprint dusting of the butcher block and knives was unquestionably material:  Linch’s assertion that Knife No. 4 had not been dusted for fingerprints directly refuted the defense position that the knife was contaminated when the crime scene was dusted for fingerprints..  See Part II.B., supra (further chemical testing on microscopic debris on serrated bread knife may prove exculpatory if fibers on serrated knife originated from location other than garage window screen); Palenik Aff. ¶ 10 (“It is my opinion that if Knife Number 4 was dusted using a brush and fingerprinting powder, and if the knives in the same block were also dusted using a brush and fingerprint powder, then it is possible that the fibers in Knife Number 4 came from the brush used to dust the knives in the kitchen, rather than from the garage window screen.”).

 

VIII.    The Cumulative Effect Of The State’s Misconduct Deprived Petitioner Of Her State And Federal Constitutional Rights To Due Process And A Fundamentally Fair Trial.

 

Although not every one of the above-referenced instances of prosecutorial misconduct itself rises to the level of a constitutional violation, collectively they deprived Petitioner of her federal and state constitutional rights to due process and a fundamentally fair trial.  It is well settled that “the State’s conduct may amount to a denial of due process, judged by the totality of circumstances,” Foster v. California, 394 U.S. 440, 442 (1969); Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996) – particularly in a circumstantial case like this one.  See Ex Parte Brandley, 781 S.W.2d 886, 892 (Tex. Crim. App. 1990) (“State misconduct is more likely to affect the outcome of the trial based upon circumstantial evidence than one in which there is direct evidence, untainted by State misconduct, linking a defendant to the crime.”).  The State’s misconduct in this case unquestionably affected its outcome and rose to the level of a due process violation. 

 

After prematurely singling out Petitioner as the only suspect, the State started down an investigatory path that ignored leads that were inconsistent with its theory that Petitioner murdered her son Damon.  The State, for example, never tested the latent bloody fingerprint lifted from the family room table which scientific testing since has determined belonged to an unknown adult who was obviously in the residence at 5801 Eagle Drive, Rowlett, Texas on June 6, 1996.  See, e.g., Charles Hamilton Testimony, C.R.R. Vol. 34, p. 138:17-22 (“Q.  All right.  When you actually finished your lifting process, what did you do with the latent cards that you have identified here in court?  Did you do any sort of comparison or analysis yourself?  A.  I did no comparison or analysis.”).  The State also did not follow up on the numerous reports of a suspicious black car around the Routier residence, including on the day of the attackSee, e.g., Jimmy Patterson Testimony, C.R.R. Vol. 42, pp. 25:15-26:5 (“Q.  Okay.  You made a note of that in your report, did you, your conversation with the lady?  A.  Yes, sir.  Q.  Did you later on that afternoon, have an occasion to – you or one of the police officers there, to talk with a Karen Neal in regards to a small, black car that had passed through the neighborhood that afternoon?  A.  I did not.  Q.  Do you know if anybody else did?  A.  No, sir.  I do not.  Q.  Would it be your responsibility, as the primary officer in charge of this case, to find those things out?  I mean, would you be the center where the information is funneled into?  A.  Yes, sir.”).  An investigation so contrived at this one itself can rise to the level of a due process violation.  Cf. Ex Parte Brandley, 781 S.W.2d at 890 (noting that that “trial court found that the murder investigation was so contrived . . . that the investigation failed to follow any leads which did not comport with the preconceived, premature notion that applicant committed the murder”). 

 

However, here, the State’s misconduct continued through to the trial whereby the State withheld material Brady evidence relevant to the punishment phase from the defense.  See, e.g., Crowder Aff. ¶ 4.  The State committed blatant violations of pretrial rulings and on a number of occasions, introduced improper character evidence against Petitioner.  See, e.g., C.R.R. Vol. 42, pp. 304-06.  Such tactics clearly were designed to prejudice the jury against Petitioner.

 

Although each of these instances of misconduct itself may not constitute a due process violation, certainly taken together, they deprived Petitioner of her federal and state constitutional rights to due process and a fundamentally fair trial. 

 

IX.       The Texas Death Penalty Statute Is Unconstitutional On Its Face And As Applied In Petitioner’s Case.

 

The Texas death penalty statute is unconstitutional on its face because it violates the Due Process Clause of the Fifth Amendment to the United States Constitution and Article I, Section 19 of the Texas Constitution.  U.S. Const. amend. V, Tex. Const. art. I, § 19.  Available data indicate that innocent people are sentenced to death with greater frequency than was previously supposed and convincing proof of their innocence often does not emerge until long after their convictions or executions.  United States v. Quinones, 2002 U.S. Dist. LEXIS 11631, *2 (S.D.N.Y. July 1, 2002).  The death penalty in Texas, therefore, deprives innocent people of the opportunity to prove their innocence, thereby violating procedural due process.  Additionally, the Texas death penalty statute creates an undue risk of executing innocent people, thereby violating substantive due process.  Id. 

 

The number of innocent defendants released from death row throughout the United States has been steadily increasing over the last twenty to thirty years.  On average, 2.75 innocent defendants were released per year between 1973 and October 1993.  Since October 1993, the average has increased to five innocent defendants released per year.  Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html (last visited July 9, 2002).  Other studies indicate that “[o]ver decades, exonerations of innocent death row inmates have persistently occurred at a rate of about one for every seven executions.”  James S. Liebman, Opting for Real Death Penalty Reform, available at http://www.law.ohio-state.edu/LawJournal/liebman.htm (last visited July 9, 2002).

 

Of the death row inmates that have been exonerated since 1973, seven have been defendants from Texas.  See Death Penalty Information Center, Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/innoc.html#state (last visited July 9, 2000).  The case of Ricardo Aldape Guerra provides one example. 

 

In 1982, Ricardo Aldape Guerra was convicted of the murder of a police officer and sentenced to death.  A federal judge ruled in 1994 that Guerra should either be retried in thirty days or released, stating that the actions of the police and prosecutors in the case were “intentional, were done in bad faith, and are outrageous.”  Guerra v. Collins, 916 F. Supp. 620, 637 (S.D. Tex. 1995).  The ruling of the district court was upheld, and the Houston District Attorney dropped all charges against Guerra in April 1997.  Guerra, an innocent man, sat on death row for fifteen years before he was exonerated. The development of new forensic techniques and technologies and the increased availability of DNA testing indicate that more exonerations of death row inmates will occur in the future.  Indeed, “[t]here has been an ‘incredible lag’ between the development of modern scientific methods of investigation and their application to criminal cases.”  Furman v. Georgia, 408 U.S. 238, 368 n. 158 (1972) (Marshall, J., concurring).  This point is well-illustrated by the DNA testing that has exonerated at least twelve death row inmates since 1993.  Quinones, 2002 U.S. Dist LEXIS at *22.  In each of the twelve cases of DNA-exoneration referenced by the court in Quinones, the defendant had been found guilty beyond a reasonable doubt by a unanimous jury, each conviction was affirmed on appeal, and in each case collateral challenges were rejected.  Quinones, 2002 U.S. Dist. LEXIS at *22-23.  Even so, the result in each of these cases was that an innocent person would have been executed “were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases.”  Id. at *23.  “What is certain is that, for the foreseeable future, traditional trial methods and appellate review will not prevent the conviction of numerous innocent people.”  Id.  It is an unconstitutional violation of due process to execute innocent individuals thereby effectively depriving them of the opportunity to prove their innocence.

 

The exoneration of defendants such as Ricardo Aldape Guerra points to the unmistakable inference that many other individuals have been executed before newly-discovered evidence or newly-discovered scientific techniques established their innocence.  While Guerra and the other six defendants released from Texas’ death row were fortunately exonerated, there are substantial doubts about the guilt of many who have been executed in Texas.  The case of Gary Graham is illustrative. 

 

Gary Graham was seventeen when he was charged with the 1981 robbery and shooting of an individual outside a Houston supermarket.  He was convicted primarily on the testimony of one eyewitness who said that she saw the killer’s face for a few seconds through her car window from a distance of thirty to forty feet, and who made her identification after suggestions by the police that Graham was the shooter.  Two witnesses who worked for the grocery store claimed to have gotten a good look at the assailant and said that Graham was not the killer.  Unfortunately, these witnesses were never interviewed by Graham’s attorney and were not called to testify at trial.  The .22 caliber pistol taken from Graham at the time of his arrest was tested by the police crime lab and was determined not to have been the same weapon that fired the fatal bullet. This important exculpatory evidence was also not presented at trial.  Graham was executed on June 23, 2000.  See Texas Defender Service Report, A State of Denial:  Texas Justice and the Death Penalty, Chapter 9:  Bitter Harvest, available at http://www.texasdefender.org/study/study.html (last visited July 9, 2002); see also James C. Harrington, Does Real Innocence Count in Review of Capital Convictions?, 1 Tex. F. on C.L. & C.R. 38 (1994).

 

The undue threat of innocent people being executed violates due process.  In 2000, a comprehensive study of modern American capital appeals was released.  This study “concluded that the overall rate of prejudicial error in the American capital punishment system is a remarkable 68%.  No system so persistently and systematically fraught with error can warrant the kind of reliance that would justify removing the possibility of future exoneration by imposing death.”  United States v. Quinones, 196 F. Supp. 2d 416, 2002 U.S. Dist. LEXIS 7320, *6 (S.D.N.Y. 2002) (quoting James S. Liebman, et. al., A Broken System:  Error Rates in Capital Cases, ii (2000) (internal quotation marks omitted).  The death penalty statute in Texas is unconstitutional because it creates an undue risk that a meaningful number of innocent persons, by being put to death before the emergence of the evidence that will establish their innocence, are deprived of the opportunity to prove their innocence and thereby deprived of due process.

 

The application of the death penalty to Petitioner’s case is unconstitutional because it creates an undue risk that she, an innocent person, by being put to death before the “emergence of the . . . evidence that will establish [her] innocence, [will] thereby effectively deprived of the opportunity to prove [her] innocence – and thus deprived of [due process].”  United States v. Quinones, 196 F. Supp. 2d 416 (S.D.N.Y. 2002). 

 

Just as the Supreme Court has held that the Eighth Amendment’s prohibition of cruel and unusual punishment must be interpreted in light of “evolving standards of decency,” Atkins v. Virginia, 2002 U.S. LEXIS 4648, *4 (June 20, 2002) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)), so too has the Court held that the Fifth Amendment’s guarantee of due process must be interpreted in light of evolving standards of fairness and ordered liberty.  See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846-51 (1992).  The death penalty in Texas can no longer be considered fair and should be held unconstitutional by the Court because it violates the due process clauses of both the Texas and United States Constitutions.

 

 

 

 

PRAYER FOR RELIEF

 

Wherefore, Petitioner, Petitioner, prays that this Honorable Court:

 

1.            Issues a writ of habeas corpus to have her brought before it, to the end that she may be discharged from her unconstitutional confinement and restraint and relieved of her unconstitutional conviction and sentence of death and the verdict against her;

 

2.            Grants her an evidentiary hearing at which she may present evidence in support of the above-referenced claims, and allow her a reasonable period of time subsequent to any hearing this Court determines to conduct testing in which to brief the issues of fact and of law raised by this petition or such hearing;

 

3.            Grants her leave to conduct discovery, including the authority to obtain subpoenas in forma pauperis for witnesses and discovery of documents and other information, including but not limited to the physical evidence in the custody of the State, necessary to prove the facts alleged in this petition;

 

4.            Grants her the right to amend her First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071 within 60 days after the State’s production of materials in response;

 

6.            Grants such other relief as law and justice requires.

 

 

 

 

       

 

Respectfully submitted;

 

OF COUNSEL:

 

Michael F. Flanagan, Pro Hac Vice

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, DC  20036

(202) 955-8500

 

 

 

Rey Rodriguez (SBN 00791557)

Richard A. Smith (SBN 24027990)

GIBSON, DUNN & CRUTCHER LLP

2100 McKinney Avenue, Suite 1100

Dallas, TX  75201

(214) 698-3100

       

 

__________________________________

Steven C. Losch (SBN 00789805)

906 Delia Drive

Longview, Texas 75601

(903) 234-1373

 

 

       

Counsel for Petitioner Darlie Lynn Routier

 

 

 

CERTIFICATE OF SERVICE

 

I hereby certify that I caused a copy of the foregoing First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code Of Criminal Procedure Article 11.071 to be served by first-class U.S. mail, postage prepaid, upon the following:

John R. Rolater, Jr. (SBN 00791565)

Assistant District Attorney

Appellate Division

133 N. Industrial Blvd. LB-19

Dallas, Texas (7520704399

Tel. (214) 653-3625

Fax (214) 653-3643

 

Troy O. Bennett, Jr., Clerk

Court of Criminal Appeals

P.O. Box 12308

Capitol Station

Austin, Texas 78711

 

 

_____________________________

            Richard A. Smith

 

 

 

70211125_4.DOC

 

 

------------------------------------------------------------------------

 

   [1]    Judge Berchelmann made a similar plea in Ex Parte Brandley, 781 S.W.2d 886, 894 (Tex. Crim. App. 1989) (“Our outrage over [Cheryl Ferguson’s] murder, however, cannot justify the subversion of justice that took place during the investigation, which ultimately affected the trial of her accused perpetrator.”).

 

 

   [2]    All affidavits referenced herein are attached hereto in alphabetical order by the affiant’s last name.

 

 

   [3]       Undersigned counsel has requested access to the State’s physical evidence to conduct now those scientific tests that Laber and Epstein recommended in October 1996.  The State has refused that access and the Court deemed Petitioner’s report as premature in an Order dated July 5, 2002. 

 

 

   [4]    Unlike in the instant case, both Herrera and Schlup involved innocence claims that had not been presented in the petitioner’s first application for writ of habeas corpus and thus were procedurally barred.

 

 

   [5]    See Petitioner Darlie Lynn Routier’s Expedited Motion for Access to State’s Physical Evidence (filed May 29, 2002); Respondent’s Response to Applicant’s Expedited Motion for Access to State’s Physical Evidence (filed June 21, 2002); Petitioner Darlie Lynn Routier’s Renewed Request for Access to State’s Evidence and Reply to State’s Opposition (filed July 2, 2002); Order of July 5, 2002.

 

 

   [6]    Without waiver of any objection or challenge on appeal or otherwise, the Court is respectfully requested to take judicial notice of all of its files, orders, findings and rulings related to the preparation and recreation of the reporter’s record from Petitioner’s trial.

 

 

   [7]    As a general matter, the trial court did not adequately address the conflicts of interest.  Even in the October 21, 1996 conflict/waiver hearing regarding the conflict stemming from Mulder’s representation of Petitioner’s mother, the judge failed to inform Petitioner of the dangers and potential consequences of waiving her right to conflict-free counsel.

 

 

   [8]    According to Petitioner, the intruder exited the house through that torn window screen.

 

 

   [9]    There are numerous other experts defense counsel should have consulted to present a proper defense for Petitioner.  For example, defense counsel should have consulted and presented testimony of an expert in disassociative symptoms, who could have explained that victims of a crime such as that experienced by Petitioner often cannot recall the details of the incident and might even misremember events of the crime.  Defense counsel should have consulted a bruise expert, who could have explained to the jury how and when bruises develop to deflate the State’s suggestion that Petitioner self-inflicted bruises after her release from the hospital.  In addition, defense counsel should have consulted a psychiatrist who could have explained the mourning process to the jury to refute the State’s lay opinion testimony that Petitioner did not act appropriately at the hospital. 

 

 

  [10]    Although defense counsel objected on relevancy grounds, counsel failed to object on the additional grounds that this testimony violated both Rule 404 and Rule 405.  C.R.R. Vol. 36, p. 47.

 

 

  [11]    Although the defense counsel had filed a motion in limine on this point, counsel should have been aware that he had to object to preserve the error.  Counsel’s failure to do so was ineffective.  In any event, the prosecutor’s conduct also violated Petitioner’s due process rights.

 

 

  [12]    While a family who has accumulated nice things over the years might tend to show a materialistic outlook, it clearly does not establish motive for murder, lest every person charged with murder be required to account for all their worldly possessions.

 

 

  [13]    The tape of the birthday party could not have been admissible on findings for lack of remorse as alleged by the prosecutor because remorse is only relevant if one is guilty.  Nor did it establish consciousness of guilt. 

 

 

  [14]    Tellingly, Dianne Hollon admitted that nurses in ICU are not necessarily the best judges of patient behavior because “More of our patients are usually completely out of it,” that is that “[t]hey’re not awake.  They’re not alert.”  C.R.R. Vol. 31, p. 260.

 

 

  [15]    Trial defense counsel did finally object to testimony of Cron as to how an intruder would have gone through the window, but the objection was overruled.  C.R.R. Vol. 35, p. 197.  This isolated objection was “too little, too late,” coming near the late in the second day of testimony.  The failure to object to the previous hours during which Cron was allowed to speculate and the failure to either limit his testimony or make a timely objection preserving the matter for appeal is made even more inexcusable by this all-too-late recognition that Cron’s testimony was improper and unfairly prejudicial.  C.R.R. Vol. 35, p. 37:2.

 

 

  [16]    Cron was a retired police officer serving as a consultant to the police.  C.R.R. Vol. 5, p. 147:15-25.

 

 

  [17]       Additionally, there is considerable audio detail that is difficult to hear.  Defense counsel should have investigated and enhanced the audio on this tape in order to determine whether any of the dialogue could have rebutted the tape offered by the State.  Although most of the four hours of tape includes the presence of family and friends, the rough timeline for the events on the video (as shown on the video timer rather than the actual time) is as follows:

 

¤         Family members decorate the gravesite and Petitioner’s sister speaks to Devon’s and Damon’s graves telling them that she bought Silly String and snaps for them

(~ 8:00)

 

¤         Gathering for prayer service (~22:00)

 

¤         Prayer service  followed by lengthy and quiet gathering of family and friends (~34:00)

 

¤         Majority of family and friends begin to arrive at gathering for birthday party 

(~ 1:41.00)

 

¤         Birthday celebration (~2:03)

 

¤         News interview begins (~2:04)

 

¤         News interview ends; the Routiers, friends and family remain at the site discussing various matters, including reminiscing about the Routier children  (~2:30)

 

¤         A person who appears to be Petitioner’s sister describes that she obtained Silly String and “poppers” for the boys. (~3:52)

 

 

  [18]    Douglas Mulder, Interview with A&E Television Networks, American Justice: Mother on Death Row.

 

 

  [19]    This exchange occurred as a result of the judge’s refusal to allow the defense to call the police officers who recorded the tape to conduct impeachment regarding the taping and its suggestions about the police investigation.  See C.R.R. Vol. 43, pp. 13:18 – 16:22.

 

 

  [20]    The Affidavit of Samford is not offered to impeach the verdict in as prohibited by Rule 606(b), but rather is offered for the sole purpose of establishing prejudice.

 

 

  [21]    It is unclear from the record whether the motion in limine specifically addressing breast implants was ruled upon.  The judge did, however, order the State to provide notice of other crimes, wrongs, or acts it intended to offer under Rule 404(b), vol. 6, p. 6:6-11.  Moreover, the prosecution did not contest the defense counsel’s complaint made at a later portion of the trial that the question violated the motion in limine.  C.R.R. Vol. 43, pp. 25:11 – 26:15.  Even had no motion in limine been in place, that would not have made Petitioner’s breast implants any more relevant to the murder Petitioner was charged with--it is clear from this inquiry the prosecution was attempting to improperly prove Petitioner was a vain and self-centered woman who was capable of murder.  Moreover, to the extent that defense counsel failed to ensure the motion limine was ruled upon, this further demonstrates the ineffectiveness of counsel. The colloquy at trial was as follows:

 

      MR. RICHARD C. MOSTY:  Well, there is also, for instance, a motion in limine prohibiting going into breast implants that Mr. Davis went right through yesterday without bothering to say, “Is the door open? Can I go into this?” And now we’re supposed to abide by these things and the State doesn’t have to?

 

      THE COURT:  No.  You all abide by whatever motions are in the file. . . . Both sides are instructed to stay within the motions of limine that are in there.

 

      MR. DOUGLAS MULDER:  Well, they understood that, Judge.  We went into it before the Court.  You understood it, they understood it, but they barged right in.

 

      THE COURT:  All right.  Well, the Court will instruct both sides to remain within the motions in limine.  You both know what they are.  Let’s stay with it.  If anybody does anything against it, well, let’s stand up and object.  There was no objection yesterday.

 

      MR. RICHARD C. MOSTY:  Well, of course not.

 

      MR. DOUGLAS MULDER:  All that would do is call attention to it.  That is why we filed the motion in limine, so we don’t have to object.

 

      THE COURT:  All right.

 

      MR. RICHARD C. MOSTY:  And that is why Mr. Davis did it that way.

 

 

  [22]    In Williamson, the Court concluded that harm was also established because, as in this case, the bolstering of the State’s witnesses was, s here, made in the context of attacking the defendant’s credibility. Williamson, 771 S.W.2d at 608. 

 

 

  [23]    Specifically, the proper method of preserving error in cases of prosecutorial misconduct is to 1) object on specific grounds, 2) request an instruction that the jury disregard the comment, and 3) if such instruction is granted, move for a mistrial.  Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). 

 

 

  [24]    Linch’s all-encompassing need to seek recognition for his professional “accomplishments” continued through Petitioner’s trial and beyond.  Ultimately, Linch resigned from SWIFS following the unsuccessful filing of an employee grievance proceeding in which Linch raised issues regarding his salary and training.  In a memorandum to his supervisor, Bob Poole, Linch stated:  “The attachments are an example of how the crime lab has become such a hostile work environment...Permission is sought to write the Commissioners Court and ask why the ones who have a direct role in ‘putting people on death row’ are getting 7%.”  September 28, 1998 Memorandum from C. Linch to Bob Poole re Proposed Pay Increase (Exhibit O) (emphasis in original).  Linch was formally reprimanded by his supervisor regarding this statement:  “The comment might lead some to believe we are strictly advocates for the Prosecution or the police rather than being an independent scientific service organization.”  September 29, 1998 Memorandum from Robert Poole to Charles Linch re Communicating with Commissioner’s Court.

 

 

  [25]    Both Linch’s history of chronic depression and the unreliability of his testimony have come into sharp focus in recent months, as subsequent DNA testing on hairs analyzed by Linch has proven Linch’s analysis in capital cases to be incorrect.  See Holly Becka and Howard Swindle, Tests Casting Doubt on Guilt in Girl’s Death:  DNA Won’t Change Verdict in ‘93 Plano Case, DA Says, Dallas Morning News, June 18, 2000 at 1A.

 

 

  [26]    It is well-established that a party must be afforded ample opportunity to attack the credibility of a witness by proving his ill feeling, bias or motive.  See, e.g., Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998); Richardson v. State, 744 S.W.2d 65, 79 (Tex. Crim. App. 1987) (counsel is offered “great latitude in showing any fact which would tend to establish ill feeling, bias or motive for fabrication on the part of any witness testifying against the accused”), vac’d on other grounds, 492 U.S. 914 (1989).  The right to expose a witness’s partiality to the factfinder is so fundamental as to be constitutionally protected under the Confrontation Clause.  See, e.g., Hoyos v. State, 982 S.W.2d 419, 420-21 (Tex. Crim. App. 1998) (“Without question, a witness’ bias is a relevant issue at trial, and the Confrontation Clause gives a criminal defendant the right to explore potential biases of an accusing witness through cross-examination.”).

 

 

  [27]    Rather, the State used the punishment phase of the trial as another opportunity to continue its assault on Petitioner’s character, offering evidence of Petitioner’s alleged moral failings and inadequacies as a mother.  Allison Hennessey testified that Petitioner had bought cigarettes for her 16-year-old babysitter, permitted her to drink a Zima, and gave her some marijuana.  C.R.R. Vol. 48, pp. 16:9-19:4.  Eileen Schirmer testified that Petitioner did not appear to wear undergarments or a bra, and did not make her sons wear life jackets while on the Routiers’ boat.  C.R.R. Vol. 48, pp. 41:9-12, 44:6-13.  Schirmer further testified that Petitioner had once shoved a piece of cake in Devon’s face when he sprayed her with a water gun at his birthday party.  C.R.R. Vol. 48, p. 48:8-25.  Nelda Watts testified that Petitioner and Darin Routier had, twelve days after the murders, played catch in their front yard with some of the stuffed animals from the boys’ memorial wreaths. [27]   C.R.R. Vol. 48, pp. 66:22-71:3.  Kay Norris testified that Petitioner had been rude to her in the pawn shop where she worked, and used foul language when telling her sons to behave.  C.R.R. Vol. 48, pp. 88:23-89:8, 91:14-95:4.  Halina Czaban testified that she had been present during a single day when Petitioner had been inattentive to the needs of the baby Drake.  See, e.g., C.R.R. Vol., pp. 108:4-113:4, 115:20-117:22.  No other witnesses testified for the State during the sentencing phase of the trial, and none of this testimony had the slightest bearing on a defendant’s future dangerousness.