IN THE CRIMINAL DISTRICT COURT NO. 3
OF DALLAS COUNTY, TEXAS

)
)
)
EX PARTE)
)Writ No. W96-39973-J
)(Trial Court No. F96-39973-J)
DARLIE LYNN ROUTIER)
)
)
)
)




APPLICANT DARLIE LYNN ROUTIER'S REPLY TO RESPONDENT'S
ORIGINAL ANSWER TO APPLICANT'S ARTICLE 11.071 APPLICATION
FOR WRIT OF HABEAS CORPUS



OF COUNSEL:

Michael F. Flanagan
(admitted pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C. 20036
(202) 955-8500

Richard A. Smith (SBN 24027990)
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
(214) 698-3100
Steven C. Losch (SBN 00789805)
906 Delia Drive
Longview, Texas 75601
(903) 234-1373

Counsel for Darlie Lynn Routier



TABLE OF CONTENTSPage


TABLE OF AUTHORITIESiv
INTRODUCTION1
I. Applicant Has Satisfied Her Burden of Establishing That She Was Deprived of Her Federal and State Constitutional Rights To Effective Counsel Because Her Trial Counsel Labored Under An Actual Conflict Of Interests That Prevented Him From Advancing Her Interests.3
A. Applicant's Actual Conflict Claim Is Cognizable on Habeas Corpus and Not Procedurally Barred as Respondent Erroneously Contends.4
B. Applicant's Trial Counsel Rendered Ineffective Representation Under Mickens and Strickland Because an Actual Conflict of Interests Foreclosed Him From Advancing Available Defenses.5
II. Applicant Has Satisfied Her Burden of Establishing Her Actual Innocence And That Her Conviction And Confinement Are Unconstitutional Under Schlup v. Delo.12
A. Respondent Has Not Adequately Answered Applicant's New Evidence That the June 6, 1996 Crime at 5801 Eagle Drive, Rowlett, Texas Was Committed by an Intruder.13
B. In Combination with the New Fingerprint Evidence, Applicant's Other Evidence in Support of Her Claim of Innocence Is More Than Sufficient to Satisfy Her Burden Under Schlup.17
III. Applicant Should Be Granted An Evidentiary Hearing On Her Other Claims For Relief Because She Has Met Her Burden of Demonstrating Unresolved Issues Of Material Facts As To Each Of Her Claims.19
A. This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That the Court Reporter's Record in This Case Is So Deficient as to Deprive Applicant of a Constitutional Review of Her Conviction.19
B. This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That She Was Denied Effective Assistance of Counsel Based on Trial Counsel's Failure to Conduct a Reasonable Investigation and Failure to Object to Prosecutorial Misconduct.21
1. Applicant's Trial Counsel Was Ineffective in Failing to Investigate a Defense Theory Implicating Applicant's Husband and in Abandoning Scientific Testing That Supported Applicant's Claim of Innocence.23
2. Applicant Was Denied Effective Assistance of Counsel by Her Trial Counsel's Failure to Object Timely to Improper Admissions of Evidence and Prosecutorial Misconduct.24
C. This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That She Was Denied Her Constitutional Right to Due Process and a Fundamentally Fair Trial Because of Prosecutorial Misconduct at Her Trial.26
D. This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That Respondent's Violation of Brady v. Maryland Denied Applicant Her Constitutional Guarantees to Due Process and a Fundamentally Fair Trial.29
1. The Police Reports in Possession of the Dallas County Police Department Constituted Favorable Impeachment Evidence That Directly Contradicted the Crime-Scene Analysis Testimony of Special Agent Alan Brantley.30
2. The History of Mental Illness of the Respondent's Trace Evidence Analyst Charles Linch Was Known to Respondent and Constituted Favorable Impeachment Evidence.32
3. Dr. Kenneth Dekleva's Representations to Respondent About Applicant's Propensity for Future Dangerousness Should Have Been Disclosed Under Brady.36
E. There Is an Issue of Fact as to Whether Knife No. 4 Was Contaminated With Fingerprint Powder or Some Other Contaminant.37
IV. The Texas Death Penalty Statute Is Unconstitutional On Its Face And As Applied In Applicant's Case.39
CONCLUSION41

TABLE OF AUTHORITIESPage


Cases
Brady v. Maryland, 373 U.S. 83 (1963)28
Brandley v. State, 691 S.W.2d 699 (Tex. Crim. App. 1985)23, 27
Brown v. State, 974 S.W.2d 289 (Tex. App. 1998)21
Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989)27
Caw v. State, 851 S.W.2d 322 (Tex. App.-El Paso 1993, pet. ref'd)32,33
Dallas County v. Halsey, 87 S.W.3d 552 (Tex. 2002)19
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)26
Durham v. State, 956 S.W.2d 62 (Tex.App.-Tyler 1997) 33
Ex parte Drake, 883 S.W.2d 213 (Tex. Crim. App. 1994)4
Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002)12, 38
Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997)4
Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989)28
Idaho v. Wright, 497 U.S. 805 (1990)24
In re American Airlines, 972 F.2d 605 (5th Cir. 1992)10
Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)25
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000)25
Kyles v. Whitley, 514 U.S. 419 (1995)29, 32,34
Lemaire v. Davis, 79 S.W.3d 592 (Tex. Ct. App.-Amarillo 2002, pet. denied)8
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)25
Mickens v. Taylor, 535 U.S. 162 (2002)4, 5, 12
Miller v. State, 757 S.W.2d 880 (Tex. App.-Dallas 1988, pet. ref'd)21
Moon v. Head, 285 F.3d 1301 (11th Cir. 2002)30
Munoz v. State, 763 S.W.2d 30 (Tex. App.-Corpus Christi 1988, pet. ref'd)33
Old Chief v. United States, 519 U.S. 172 (1997)24
Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000)5, 10, 11
Prigmore v. Hardware Mut. Ins. Co., 225 S.W.2d 897 (Tex. Civ. App.-Amarillo 1949, no writ)9
Ramirez v. State, 987 S.W.2d 938 (Tex. Ct. App. 1999)21
Ramirez v. State, 65 S.W.3d 156 (Tex. App.-Amarillo 2001, pet. ref'd)21
Riascos v. State, 792 S.W.2d 754 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd)21
Schlup v. Delo, 513 U.S. 298 (1995)12, 13,16
Sidney v. State, 753 S.W.2d 410 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd)33
SMWNPF Holdings, Inc. v. Devore, 165 F.3d 360 (5th Cir. 1999)8
State ex. rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994)38,39
Strickland v. Washington, 466 U.S. 668 (1984)5, 22
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)20
United States v. Antone, 603 F.2d 566 (5th Cir. 1979)30
United States v. Casiano, 929 F.2d 1046 (5th Cir. 1991)11
United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002)38
United States v. Quinones, 313 F.3d 49, (2d Cir. 2002)38, 39
United States v. Rusmisel, 716 F.2d 301 (5th Cir. 1983)21
United States v. Wiley, 57 F.3d 1374 (5th Cir. 1995)25
Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1987)33
Weathersby v. State, 627 S.W.2d 729 (Tex. Crim. App. 1982)24
Williamson v. State, 771 S.W.2d 601 (Tex. App.-Dallas 1989, pet. ref'd)21, 26
Rules
Tex. Code Crim. P. art. 11.071 82
Tex. Code Crim. P. art. 11.071 93
Tex. R. Evid. 404(a)(1)(A)26
Tex. R. Evid. 801(e)(2)(A)32



INTRODUCTION

On the record before this Court, Applicant Darlie Lynn Routier is clearly entitled to relief as a matter of law on her ineffective assistance of counsel and innocence claims and therefore should be relieved of her unconstitutional conviction and death sentence. As Applicant demonstrated in her Application, she was represented at trial by counsel who as a condition of his employment agreed with Applicant's husband, Darin Routier, not to implicate him even though he was an obvious suspect in the attack on Applicant and her children. See First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071 ("First App.") 27-34. That employment condition completely foreclosed an available line of defense and investigation and caused Applicant's trial counsel to advance his interests and those of Darin Routier's over the interests of Applicant. A more obvious actual conflict of interest could not exist - and nothing in Respondent's Answer dispels that conclusion. See Respondent's Original Answer to Applicant's Article 11.071 Application for Writ of Habeas Corpus ("Resp. Ans.") 49-60. Because Applicant's trial counsel foreclosed to her a line of defense implicating her husband, her trial counsel failed to discover that Darin Routier had intentions in the spring of 1996 to have his residence "hit" as part of an insurance scam; her trial counsel failed to discover that Darin Routier had communicated his intentions to "multiple people" - any one of whom might have carried out the hit; and her trial counsel failed to discover that associates of Darin Routier had carried out an insurance scam involving his Jaguar just two years before the events on June 6, 1996. Further compounding the fact that Applicant's trial counsel, as a condition of his employment, foreclosed himself from discovering such information was his complete failure to conduct a thorough investigation of the physical evidence in Applicant's case. See First App. 39-56. Specifically, although it was clear that Respondent's circumstantial case would rest almost entirely on the testimony of experts, Applicant's trial counsel abandoned scientific testing that her original defense counsel1 had arranged for forensic experts Terry Laber and Barton Epstein to conduct - even though their early results were inconsistent with the State's theory of the case. Scientific testing conducted after Applicant's conviction proves that a bloody fingerprint left at the scene of the crime does not match the fingerprints of Applicant, any of the individuals who lived with her at 5801 Eagle Drive, or any of the individuals who were called to the scene after the events on June 6, 1996 were reported. This new evidence proves what Applicant has maintained all along - that she is innocent of the crime for which she was convicted. The jury never heard that an unknown individual left a bloody fingerprint at the crime scene because Applicant's trial counsel unreasonably elected not to test any of the physical evidence - instead relying on the findings of Respondent's experts and cross-examination of Respondent's witnesses. Her trial counsel's strategy was no strategy at all. As a result of the unconstitutional representation that Applicant received, she stands convicted of a crime that new evidence proves she did not commit. For these reasons, this Court should enter findings of fact and conclusions of law upholding the issues she raises, grant Applicant the relief she requests, and vacate her unconstitutional conviction and death sentence. See Tex. Code Crim. P. art. 11.071 8. Alternatively, Applicant requests that this Court grant her an evidentiary hearing and leave to conduct discovery so that she may present additional evidence in support of her claims. See Tex. Code Crim. P. art. 11.071 9.

I.

Applicant Has Satisfied Her Burden of Establishing That She Was Deprived of Her Federal and State Constitutional Rights To Effective Counsel Because Her Trial Counsel Labored Under An Actual Conflict Of Interests That Prevented Him From Advancing Her Interests. Applicant conclusively established in her Application that her trial counsel, Douglas Mulder, at the request of Applicant's husband, Darin Routier, agreed not to implicate him as a condition of his retaining Mr. Mulder to represent Applicant. See First App. Exh. 13. At the time he made this side agreement, Mr. Mulder concurrently represented Applicant's husband in a related matter. The obvious conflict this situation created deprived Applicant of an available defense strategy that could have been pursued, but for the condition placed on her trial counsel's employment. As a result, Applicant was deprived of her constitutional right to effective assistance of counsel. See generally First App. 27-39. Respondent's arguments to the contrary are not supported by either the record or case law. See Resp. Ans. 49-60. As such, this Court should grant habeas relief on Applicant's actual conflict claim. In the alternative, this Court should conduct an evidentiary hearing to resolve issues of material fact identified in the Application.

A.

Applicant's Actual Conflict Claim Is Cognizable on Habeas Corpus and Not Procedurally Barred as Respondent Erroneously Contends. Applicant's claim for relief based on her trial counsel's actual conflict of interests is properly before the Court. Respondent's assertion that this claim is procedurally barred because Applicant raised it on direct appeal, Resp. Ans. 49, fails because her claim here is based on new evidence and new law. It is well established that claims raised on direct appeal are also cognizable on habeas corpus review where additional evidence is introduced to substantiate those claims. See, e.g., Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). The Texas Court of Criminal Appeals has recognized that, by their very nature, ineffective assistance of counsel claims raised on direct appeal often will need to be re-raised on habeas corpus. See id. Because claims raised on direct appeal can be buttressed only by evidence contained in the trial record, "[i]n most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim." Id. Applicant has presented new, additional evidence that was unavailable on direct appeal: affidavits from Darlie Kee, Darin Routier and Douglas Parks prove Applicant's trial counsel had an actual conflict of interests. See First App. 27-39 (citing and quoting Darlie Kee, Darin Routier, and Douglas Parks Affidavits). Accordingly, as Applicant's ineffective assistance of counsel claim here is supported by evidence not in her trial record, her claim is not barred because she raised a similar claim on direct appeal.2

B.

Applicant's Trial Counsel Rendered Ineffective Representation Under Mickens and Strickland Because an Actual Conflict of Interests Foreclosed Him From Advancing Available Defenses. The applicable standard of review for Applicant's claim is set forth in her Application. See First. App. 27-28. In urging this Court to apply a different standard, Respondent completely ignores a line of cases that presume ineffective assistance of counsel where an actual conflict of interests exists. See Resp. Ans. 50. Mickens v. Taylor, 535 U.S. 162 (2002), established that, in some situations, prejudice can be presumed when counsel "actively represented conflicting interests" because "the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary." Id. at 166. "An 'actual conflict' exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client." Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 692 (1984)); see also Mickens, 535 U.S. at 172 n.5 (defining a "conflict of interest" as "a division of loyalties that affected counsel's performance"). The "guiding principle" in identifying a competing interest "is whether counsel's allegiance to the accused was compromised by competing obligations owed to other clients." Perillo, 205 F.3d at 798. Unrefuted evidence identified in the Application demonstrates that Applicant's trial counsel's competing obligations to Darin Routier compromised his loyalty to Applicant and rendered her trial counsel's representation ineffective. Specifically, Darin Routier sought - and obtained - an agreement from Douglas Mulder that "if hired to represent [Applicant], he would not argue as part of the defense that [Darin Routier] was in any way responsible for the death of [his] children." First App. Exh. 13 at 2; see also First App. Exh. 5 at 2 ("Mr. Mulder assured us that, if he was in charge of the case, he would not [advance the theory that Darin Routier was involved in the crime]."). Applicant's trial counsel entered that agreement fully aware that in the "professional opinion" of Applicant's original counsel, "a zealous defense of Ms. Routier necessarily involve[d] implicating her husband." First. App. Exh. 11 4. Indeed, Applicant's original counsel "fully intended to introduce evidence that would implicate Darin Routier at trial, such as, for example, a pair of Mr. Routier's undergarments stained with blood on the elastic waistband." First App. Exh. 11 4. Respondent makes no attempt to refute - or even address - Applicant's trial counsel's agreement not to implicate Darin Routier in Applicant's defense. Such evidence alone is sufficient to demonstrate that her trial counsel's allegiance to her was compromised by competing duties. Instead, Respondent focuses only on the second - and independent - basis for the asserted conflict: Douglas Mulder's representation of Darin Routier at the show-cause hearing. Specifically, Respondent contends that Applicant's trial counsel had no formal attorney-client relationship with Darin Routier, Resp. Ans. 50; that any such relationship was informal and insubstantial, Resp. Ans. 52; that the two matters were not substantially related, Resp. Ans. 52; that the presence of untainted trial counsel eliminates the conflict of interest, Resp. Ans. 56; and that the legal standard cited by Applicant does not apply to cases of successive representation, Resp. Ans. 52, 57. All of these contentions are meritless. First, the "corrected" trial record establishes that Applicant's trial counsel and Darin Routier entered into an attorney-client relationship on September 20, 1996. On that date, Applicant's trial counsel represented Darin Routier and Applicant's mother, Darlie Kee, during a show-cause hearing related to a gag order issued in connection with Applicant's trial. First App. 29; Resp. Ans. 50-51. The fact that Applicant's trial counsel voluntarily agreed to represent Darin Routier, forming an attorney-client relationship, is clear from the record:

THE COURT:  So, Mr. Mulder, it's my understanding for this hearing, you are representing both Darlie Kee and Darin Routier?
MULDER:  Yes, sir.
THE COURT:  You are retained to represent them; is that correct?
MULDER:  I am retained by Ms. Kee to represent her and she has asked me to represent Darin as well.  I didn't know until this morning.
THE COURT:  Is that correct, Ms. Kee?
MULDER:  Judge, I had asked Mr. Parks if he represented him and he said he didn't think he could, so I just volunteered to represent him.
Resp. Ans. 51 (emphases added).  


Despite this colloquy, Respondent incredibly asserts that Applicant's trial counsel did not have a "formal attorney-client relationship with Darin [Routier]."3 Resp. Ans. 50. The existence of such a relationship could not be plainer. See SMWNPF Holdings, Inc. v. Devore, 165 F.3d 360, 365 (5th Cir. 1999) ("[a]n attorney-client relationship arises when an attorney agrees to render professional services for a client"); see also Lemaire v. Davis, 79 S.W.3d 592, 599 (Tex. App.-Amarillo 2002, pet. denied) ("[a]n attorney-client relationship exists if the attorney has agreed . . . to render legal services of a specified or general nature").4 In apparent recognition of the absurdity of that assertion, Respondent argues in the alternative that, even if an attorney-client relationship existed between Applicant's trial counsel and Darin Routier at the time of the show cause hearing, that relationship ended before Applicant's trial counsel replaced her original counsel. Resp. Ans. 51-56. That argument, however, is belied by Respondent's own conduct in this case.

On November 12, 1996, in an effort to "make real sure" that no constitutional violation arose from trial counsel's simultaneous representation of Applicant and her husband because "some new evidence" implicated Applicant's husband, Respondent on its own filed a Notice of Possible Conflict of Interest with the trial court. First App. 31 (citing C.R.R. Vol. 22, pp. 2673:1-3, 2671:17-22). That Notice stated that the "investigation was ongoing with regards to the analysis of physical evidence [but r]ecent analysis of physical evidence [indicates] that Darin Routier may have participated . . . in the crime." First App. 31 (quoting CR.1A.56). Respondent's position today is completely at odds with that representation. As was obvious at the time Applicant's trial counsel agreed to represent her, he continued to owe a duty of loyalty to Darin Routier. That duty precluded Applicant's trial counsel from pursuing a defense theory - factually supported5 - of Darin Routier as a suspect. Respondent also erroneously contends that no actual conflict of interests existed because Applicant's trial counsel did not have any confidential information disclosed to him by Darin Routier. Resp. Ans. 52. This argument fails because Applicant's trial counsel represented Applicant and her husband in connection with the same case. Where the 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." Perillo, 205 F.3d at 800. The Fifth Circuit has explicitly "refused to 'reduce the concerns underlying the substantial relationship test to a client's interest in preserving his confidential information.'" Id. at 801 (quoting In re American Airlines, 972 F.2d 605, 616-18 (5th Cir. 1992)). Although Darin Routier did not formally retain Applicant's trial counsel to represent him until September 20, 1996, Darin Routier began meeting weekly with Applicant's trial counsel throughout July and August 1996 to discuss "Mr. Mulder's potential representation of [Applicant] and [Darin Routier] in [Applicant's] criminal trial." First App. Exh. 13 at 2. Accordingly, at the time Applicant's trial counsel accepted representation of Darin Routier on September 20, 1996, he had already discussed with Darin Routier representing both him and Applicant. First App. Exh. 13 at 2. The representations of Applicant and Darin Routier were therefore closely associated in time and in substance. Respondent apparently as a fall back urges the Court to reject Applicant's ineffective assistance of counsel claim because she was also represented at trial by counsel not tainted by an actual conflict of interests. Resp. Ans. 56 (citing United States v. Casiano, 929 F.2d 1046, 1052 (5th Cir. 1991)). Respondent overstates the case law in this area. The mere presence of untainted counsel, without more, is insufficient to cure a Sixth Amendment violation where the applicant has demonstrated both an actual conflict of interests and an adverse impact upon representation. See, e.g., Perillo, 205 F.3d at 786 (finding an actual conflict of interest and an adverse effect despite the presence of untainted counsel). As discussed above and explained more fully in the Application, see First App. Pts. III.A. & III.B., this case satisfies both conditions. Therefore, even if her other counsel were not tainted by an actual conflict of interests, Applicant is entitled to relief on her claim. Respondent finally contends that in cases of successive representation Mickens requires Applicant to "demonstrate she was prejudiced," not "merely that her counsel's representation was adversely affected." Resp. Ans. 57. That is a misreading of Mickens. The Mickens Court expressly stated that its decision did not disturb the "adversely affect" standard in cases of successive representation and thus that rule's application in such cases "remains, as far as the jurisprudence of this Court is concerned, an open question." Mickens, 535 U.S at 176. Accordingly, Respondent's argument to the contrary is without merit. See Resp. Ans. 52, 57. For all of the foregoing reasons, Respondent has not refuted Applicant's evidence that her trial counsel's actual conflict of interests deprived Applicant of her constitutional right to effective assistance of counsel. On the basis of this evidence, the Court should grant Applicant relief from her unconstitutional conviction and death sentence. Alternatively, the Court should grant Applicant an evidentiary hearing so that she can present additional evidence in support of this claim.

II.

Applicant Has Satisfied Her Burden of Establishing Her Actual Innocence And That Her Conviction And Confinement Are Unconstitutional Under Schlup v. Delo. Respondent apparently misunderstands Applicant's innocence claim in erroneously urging this Court to apply a clear-and-convincing standard to that claim. Resp. Ans. 20 (contending that "claims such as Applicant's must be proved by clear and convincing evidence" (emphasis omitted)). Even the authority on which Respondent relies makes clear that a lower standard applies in this case because Applicant's "claim for relief depends critically on the validity of [her] Strickland [claims]." Ex parte Franklin, 72 S.W.3d 671, 676 (Tex. Crim. App. 2002). Applicant's innocence claim is integrally linked to her constitutional claim that she was denied the effective assistance of counsel because her counsel's actual conflict of interests and failure to investigate deprived the jury of critical evidence that would have established her innocence. Thus, as Applicant explained in her Application, her innocence claim is governed by Schlup v. Delo, 513 U.S. 298 (1995). Specifically, Applicant must demonstrate only that "it is more likely than not that no reasonable juror would have convicted [her] in the light of the new evidence." Id. at 327. Applicant has met this burden on her claim of innocence.

A.

Respondent Has Not Adequately Answered Applicant's New Evidence That the June 6, 1996 Crime at 5801 Eagle Drive, Rowlett, Texas Was Committed by an Intruder. The most compelling of Applicant's new evidence is the unidentified bloody fingerprint, State Exh. 85J, lifted from the glass table in her family room that does not match the fingerprints of any person who either lived at that residence or investigated the crime. At trial, Respondent invited the jury to disregard this evidence as belonging either to Devon or Damon Routier - and not, as Applicant contends, to the unknown intruder who attacked her and her sons. Specifically, Respondent introduced the testimony of retired Dallas Police Officer James Cron ("Lt. Cron") that although the latent fingerprint's ridge detail was "insufficient" for him to make an identification, that detail was "consistent with having been left by a five or six year old child." C.R.R. Vol. 35, p. 2266:8-11. That evidence, as even Respondent now concedes, was erroneous. See Resp. Ans. Exh. 2. As Applicant demonstrated in her Application, University of Tennessee Professor Richard Jantz conducted an anthropological analysis of the latent fingerprint and concluded that it most likely belonged to an adult and not a child as Respondent claimed at Applicant's trial. Unable to dispute that evidence, Respondent has changed courses and now claims that the bloody fingerprint is Applicant's. See Resp. Ans. Exh. 2 ("all of the people whose fingerprints were compared were excluded as the source of 85 J except Darlie Lynn Routier"). Respondent's new theory, however, fails as miserably as its theory at trial because an independent fingerprint expert previously had excluded Applicant as the source of the bloody fingerprint. See Exhibit 1 (Affidavit of Robert C. Lohnes) ("Lohnes Aff."), attached hereto. Latent fingerprint expert Robert Lohnes was retained by ABC News - not one of the parties to this proceeding - to analyze the latent bloody fingerprint in connection with a television broadcast on Applicant's case. Applying "the accepted standards of fingerprint analysis," Mr. Lohnes concluded that the latent fingerprint "was not made" by Applicant. Lohnes Aff. at 1 (emphasis added). Since everyone else who was identified as being in Applicant's residence on June 6, 1996 has been excluded as the source of the fingerprint, see Resp. Ans. Exh. 2, as Applicant demonstrated in her Application - and now reaffirms here - an unidentified 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." First App. 18. None of the other arguments Respondent makes in its Answer dispels that conclusion. First, Respondent claims that Professor Jantz's study is "flawed" because it is unreliable. See Resp. Ans. 22-24. In support of this claim, Respondent relies on the opinion of Pat Wertheim "an expert in fingerprint identification with the Arizona Department of Public Safety Crime Laboratory." Resp. Ans. 22. Mr. Wertheim's conclusion that "Jantz's conclusion falls outside the accepted bounds of fingerprint identification" is irrelevant and beside the point because Professor Jantz was not represented to be a fingerprint analyst. See First App. 18 (describing Prof. Jantz's "anthropological" study (emphasis added)). As the attached affidavit from Professor Jantz makes clear, the methodology he used to analyze the latent fingerprint is "commonly used by forensic anthropologists" and "therefore is in line with the standard practice of forensic anthropologists." Exhibit 2 (Affidavit of Richard Jantz), attached hereto (emphasis added). There is no basis in fact or law for holding Professor Jantz to the standard of a fingerprint analyst instead of a forensic anthropologist. Respondent's attempt to do that here should be rejected. Second, Respondent engages in a game of semantics to suggest that Applicant has misrepresented the Jantz report. Specifically, Respondent takes issue with Applicant's use of the word "identification." As discussed above, Lt. Cron testified at trial that the latent fingerprint did not have sufficient "points of identification" for him to identify its source, thereby inviting the jury to disregard the evidence of the latent fingerprint entirely. Applicant demonstrated in her Application, however, not only why that evidence should not be ignored but why it is critical to her claim of innocence. See First App. 18. Contrary to the misimpression that Lt. Cron left with the jury, the latent fingerprint did indicate certain characteristics about the person who left the print. In other words, it was not the case that the latent fingerprint provided no information whatsoever. Instead, as the Application explains, "[c]ontrary 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." First App. 18. The point is, there was significant information that could be learned from the latent fingerprint that was never presented to the jury. Rather than address this issue directly, Respondent provides a technical discussion of the term "identification." At trial, Lt. Cron never explained to the jury that he was using "identification" in a technical, not ordinary sense. Indeed, Lt. Cron has never explained what his testimony meant. Although Respondent presumably could have attached to its Answer an affidavit from Lt. Cron explaining that he did not mean to convey - as he undoubtedly did - that the latent fingerprint was uninformative, Respondent chose instead to support its argument with an affidavit from Pat Wertheim, who is a stranger to this case. In any event, Mr. Wertheim's understanding of what Lt. Cron meant when he testified that there were "insufficient points of identification" is beside the point and likely bears no resemblance whatsoever to the jury's understanding. For these reasons, this Court should reject Respondent's claim that Applicant's fingerprint evidence "is flawed and does not support her actual innocence claim." Resp. Ans. 21.

B.

In Combination with the New Fingerprint Evidence, Applicant's Other Evidence in Support of Her Claim of Innocence Is More Than Sufficient to Satisfy Her Burden Under Schlup. Applicant's evidence of her innocence was not limited to the unknown fingerprint left behind at her residence. Rather, Applicant has identified other compelling evidence of her innocence, including:

* An affidavit from Darlene Potter who on the morning of June 6, 19966 observed two men in the vicinity of Applicant's residence, one of whom matched her description of her attacker. Compare First. App. Exh. 14 at 1 with C.R.R. Vol. 41, p. 3951:3-12.
* An affidavit from Darin Routier who admits that in the spring of 1996 he had intentions to arrange a burglary of his residence "as part of an insurance scam" and told "multiple people of [his] planned insurance scam." First App. Exh. 13.
* An affidavit of forensic scientist Terry Laber who was precipitously fired shortly after Applicant's trial counsel was retained even though at that time it was Mr. Laber's professional opinion "that there were numerous pieces of physical evidence . . . that were not consistent with a staged crime scene." First App. Exh. 7 11.


The only evidence Respondent offers to counter these facts is an affidavit from Lt. David Nabors who determined that the "S" curve referenced in Ms. Potter's affidavit is at least 1.23 miles from Applicant's residence - a distance, Respondent suggests, is too far for Applicant's attacker to have walked in the time between the attacks and when Ms. Potter observed the suspicious men. That fact, however, in no way refutes Ms. Potter's placement of an individual matching Applicant's description of her attacker near the scene of the crime sometime after 2:00 a.m. on June 6, 1996. In an effort to bolster its argument, Respondent resorts to personal attacks on Ms. Potter, suggesting that if she really were "so worried about these two men that she could not sleep," Ms. Potter would have reported the information sooner. Resp. Ans. 29. This unsupported assertion is no response at all to Applicant's new evidence. Respondent's other "responses" to Applicant's evidence of her innocence are equally unfounded. For example, rather than directly address Applicant's evidence that her husband had intentions to have their residence "hit" and communicated such intentions to "multiple people" - any one of whom might have carried out the hit - Respondent incredibly suggests that this evidence is inculpatory to Applicant. That contention is illogical. Clearly the evidence of her husband's intentions in combination with the unidentified fingerprint at the scene, the sighting of an individual matching Applicant's description of her attacker on the morning of her attack near the crime scene, and the record evidence of the mysterious black car that had been "casing" Applicant's residence in the days before her attack cannot be dismissed out of hand as Respondent urges this Court to do. This evidence is more than sufficient to demonstrate that Applicant's trial more likely than not resulted in the conviction of someone who is innocent. At the very least, the Court must find that there are unresolved factual issues as to Applicant's innocence and accordingly grant her an evidentiary hearing so that she can present further evidence in support of her claim of innocence.

III.

Applicant Should Be Granted An Evidentiary Hearing On Her Other Claims For Relief Because She Has Met Her Burden of Demonstrating Unresolved Issues Of Material Facts As To Each Of Her Claims. Even if this Court does not conclude on this record that Applicant is entitled to relief, she clearly has established issues of unresolved material facts or law as to each of her claims, and thus should be granted an evidentiary hearing so that she may present additional evidence in support of them. See Exhibit 3 (Chart Identifying Issues of Disputed Fact), attached hereto.

A.

This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That the Court Reporter's Record in This Case Is So Deficient as to Deprive Applicant of a Constitutional Review of Her Conviction. Contrary to Respondent's suggestion, this claim is not procedurally barred in this habeas corpus proceeding. Although Applicant's direct appeal also raised questions regarding the reporter's record, this proceeding involves issues that were not and could not have been at issue in her direct appeal, including Applicant's actual innocence, ineffective assistance of counsel, and prosecutorial misconduct. Applicant is constitutionally entitled to a complete and accurate record of the testimony and events at trial so that she may present those claims on habeas corpus review. The Application demonstrated that the reporter's record in this case is so deficient that it will prevent any effective habeas corpus review of Applicant's conviction. As the Court is aware, the original record in this case, prepared by court reporter Sandra Halsey, was so patently defective that Bill Hill, the Dallas County Criminal District Attorney in whose name the Respondent's Answer was submitted, has filed a lawsuit against Ms. Halsey for fraud, deceptive trade practices, and breach of contract. See Exhibit 4 (Plaintiff's First Amended Petition, Dallas County v. Halsey, No. 99-09032-C), attached hereto; see also Dallas County v. Halsey, 87 S.W.3d 552 (Tex. 2002) (affirming the right of Dallas County to sue Ms. Halsey in connection with the preparation of the record in this case). Moreover, the sworn affidavit of Susan Simmons establishes the myriad defects in the record as produced by Ms. Halsey and even as "reconstructed" by Ms. Simmons. These defects include at least 20,000 word changes between the Halsey transcript and the Simmons transcript; the inability of Ms. Simmons to certify any of the hundreds of parenthetical descriptions of non-verbal acts by witnesses and trial counsel; and Ms. Simmons' refusal to certify the first 54 pages of Volume 10.7 Respondent does not even attempt to contradict these fundamental deficiencies. Nor does the Simmons affidavit submitted in support of Respondent's Answer contradict any of the statements in her affidavit submitted by Applicant. Applicant should be given the opportunity to demonstrate that these fundamental failings in the court reporter's record preclude a constitutional review of her conviction and death sentence.

B.

This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That She Was Denied Effective Assistance of Counsel Based on Trial Counsel's Failure to Conduct a Reasonable Investigation and Failure to Object to Prosecutorial Misconduct. Respondent urges this Court to reject this claim out of hand simply because Applicant did not submit an affidavit from her ineffective counsel in support of her Application. That suggestion is absurd on the record before this Court.8 Respondent cannot require Applicant to explain the inexplicable: Why her trial counsel failed to investigate obvious lines of defense or to object to Respondent's repeated introductions of inadmissible and unduly prejudicial evidence. Respondent has identified no authority - nor has Applicant found any - requiring the submission of an affidavit from ineffective counsel explaining his "trial strategy" before the court will consider such a claim. See, e.g., Brown v. State, 974 S.W.2d 289, 293-94 (Tex. Ct. App. 1998) (finding ineffective assistance without reference to counsel's trial strategy where there was "no reasonable explanation" for counsel's omissions); Riascos v. State, 792 S.W.2d 754, 758 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd) (same); Miller v. State, 757 S.W.2d 880, 884 (Tex. App. 1988) (same). Indeed, Texas courts consistently have found ineffective assistance of counsel in the absence of such an affidavit for failures like those of Applicant's trial counsel, including the failure to object to inadmissible hearsay, improper evidence of character or prior bad acts, inflammatory closing arguments, and unconstitutional interrogations. See, e.g., Ramirez v. State, 65 S.W.3d 156, 159-60 (Tex. App.-Amarillo 2001, pet. ref'd) (failure to object to improper characterization of defendant in closing argument); Ramirez v. State, 987 S.W.2d 938, 946 (Tex. App. 1999) (failure to object to inadmissible hearsay); Williamson v. State, 771 S.W.2d 601, 607-08 (Tex. App.-Dallas 1989, pet. ref'd) (failure to object to unconstitutional interrogation and improper bolstering of the credibility of state's witnesses); United States v. Rusmisel, 716 F.2d 301, 314-15 (5th Cir. 1983) (failure to object to evidence of prior bad acts and inflammatory remarks in closing argument). Accordingly, Applicant's claim is not barred merely because she did not submit an affidavit from her ineffective counsel attesting to his ineffectiveness.9

1.

Applicant's Trial Counsel Was Ineffective in Failing to Investigate a Defense Theory Implicating Applicant's Husband and in Abandoning Scientific Testing That Supported Applicant's Claim of Innocence. As discussed above and explained more fully in her Application, Applicant was denied effective assistance of counsel because her counsel foreclosed any investigation into a defense strategy implicating Darin Routier by agreeing as a condition of employment not to implicate him. That decision was unreasonable under Strickland given that Applicant's trial counsel was aware at the time he made the agreement, that certain physical evidence implicated Darin Routier. See First App. Exh. 11. The new evidence that undersigned counsel - who was not conflicted as Applicant's trial counsel - has discovered by pursuing that line of investigation bolsters that conclusion. See First App. 54-56 (discussing new evidence of Darin Routier's plans to stage a "hit" at his residence). Applicant was also denied effective assistance of counsel by her trial counsel's failure to conduct any scientific testing to support her defense, and, more importantly to counter Respondent's scientific evidence. See First App. 40-53. Respondent dismisses this claim by suggesting that Applicant "failed to prove that her experts actually had favorable testimony to give." Resp. Ans. 66. That suggestion is belied by the affidavit of forensic expert Terry Laber that Applicant submitted in support of her Application. See First App. Exh. 7. In his affidavit, Mr. Laber explains that after a cursory meeting with Applicant's trial counsel, her counsel abandoned the testing that Mr. Laber and Barton Epstein had begun even though their findings "were not consistent with a staged crime scene." First App. Exh. 7 11 (emphasis added). The decision to abandon scientific testing that was favorable to Applicant is obviously not trial strategy but incompetence. On the record before this Court, Applicant has clearly demonstrated that she was denied her constitutional right to counsel and is entitled to relief from her conviction and death sentence. Alternatively, she is entitled to an evidentiary hearing so that she can present further evidence in support of this claim.10

2.

Applicant Was Denied Effective Assistance of Counsel by Her Trial Counsel's Failure to Object Timely to Improper Admissions of Evidence and Prosecutorial Misconduct. Respondent defends Applicant's trial counsel's failure to object to Respondent's repeated introductions of inadmissible, irrelevant, and highly prejudicial evidence by asserting that Applicant's trial counsel could "decide to forgo objecting to evidence in the exercise of reasonable trial strategy." Resp. Ans. 86. But such failures in this case, where they are so numerous and their effects so prejudicial, cannot be dismissed as trial strategy. See Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982). Rather, as is clear from the record before this Court, such conduct amounted to ineffective assistance of counsel. In her Application, Applicant identified numerous instances where competent defense counsel would have objected, including:

* Although the law is clear that "propensity" evidence is "an 'improper basis' for conviction," Old Chief v. United States, 519 U.S. 172, 182 (1997), Respondent improperly injected such evidence into its case in chief. See First App. 61-65. Respondent's trial-by-character started with the second paragraph of its opening statement, when it told the jury 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, pp. 31:23-32:1 (emphasis added). Throughout the trial, Respondent injected character into the trial before the defense put on any evidence. See First App. 61-65.
* Although hearsay is "presumptively unreliable and inadmissible for Confrontation Clause purposes," Idaho v. Wright, 497 U.S. 805, 817 (1990), Respondent relied on many inadmissible hearsay statements as part of its strategy to portray Applicant as a bad mother, particularly the unsworn statements of two Child Protective Services witnesses who were never called to testify or subjected to cross-examination. See First App. 66-70.11
* Medical personnel, although qualified to testify about medicine, opined on matters outside their expertise. First App. 70-74. Specifically, despite the testimony of Applicant's attending physician that nothing could be extrapolated from the allegedly "flat affect" exhibited by Applicant in the hospital, C.R.R. Vol. 30, p. 816, Respondent introduced the testimony of medical support personnel that her "flat" emotional affect was inconsistent with a grieving mother. First App. 70-74.
* Relying only on his "common sense," Lt. Cron offered subjective and conclusory opinions about how he believed typical intruders behave under the guise of "expert opinion."12 See First App. 74-78. When "[an] expert 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). Lt. Cron's "expert" opinion amounted to nothing more than his testifying, "I don't believe the defendant."
* Respondent imposed unconstitutional restrictions on Applicant's access to its witnesses.13 Specifically, Respondent dictated that the prosecutor be involved in all such interviews, which necessarily allowed the prosecutor to anticipate defense strategy, avoid any surprise at trial, and ensure that government employees would be reluctant to speak openly with Applicant's trial counsel.
Applicant's trial counsel did not object to any of this misconduct. On these facts, the denial of Applicant's constitutional right to counsel is evident, and this Court should grant her the relief she seeks. Alternatively, this Court at a minimum should conclude that there is an issue of material fact on this claim and grant Applicant an evidentiary hearing at which she can present additional supporting evidence.

C.

This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That She Was Denied Her Constitutional Right to Due Process and a Fundamentally Fair Trial Because of Prosecutorial Misconduct at Her Trial. Respondent acknowledges that prosecutorial misconduct can "so infect[] [a] trial with unfairness as to make the resulting conviction a denial of due process," see Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), but denies that such occurred in Applicant's trial. On the record before this Court, that position is at best, an issue of material fact - if not, factually unsupported. See Pt. III.B.2., supra;14 see also Exh. 3, attached hereto. First, Respondent contends that its repeated introductions of "bad character" evidence was proper rebuttal of Applicant's "good mother" defense. Resp. Ans. 110-11. However, to constitute proper rebuttal, Respondent's evidence necessarily must come after Applicant's introduction of character evidence - in this case, it did not. See Tex. R. Evid. 404(a)(1)(A). Rather, Respondent introduced character evidence during its case in chief, before Applicant had put on any defense at all. Second, as explained in the Application, Respondent improperly vouched for its witnesses in a manner held improper by the court in Williamson v. State, 771 S.W.2d 601, 608 (Tex. App.-Dallas 1989, pet. ref'd). See First App. 93.15 Specifically, Respondent repeatedly and improperly bolstered the credibility of its witnesses with statements such as "[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. 5213:15-16, and "[Barbara Jovell] came and told you the truth," C.R.R. Vol. 46 p. 5235:10. Third, Respondent improperly tried to invoke sympathy in the jury during closing arguments. Respondent defends this conduct by claiming that its argument was a proper plea for law enforcement. Here, again, Respondent's own conduct - specifically its closing argument - betrays it: 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. . . . 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, pp. 5322:5-5323:22. This clear invocation for sympathy was improper. See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985). Fourth, although conceding that it is reversible error if a prosecutor injects new and harmful facts into a trial during closing arguments, Respondent excuses its doing so at Applicant's trial as "invited argument" under Bush v. State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989). See Resp. Ans. 118. Unlike in Bush, the evidence Respondent improperly injected during closing arguments was unknown to the defense. Applicant's trial counsel was entitled to make arguments based on evidentiary omissions in Respondent's case but Respondent could not correct such arguments by introducing through closing arguments new evidence that it never presented to the jury. Finally, Respondent several times violated motions in limine by introducing evidence that the trial court expressly excluded but dismisses such misconduct as proper or innocent mistakes. For example, Respondent claims it innocently elicited testimony from Rowlett Police Officer David Maynes that marijuana was found during a search of Applicant's residence. That claim is doubtful, at best, given that Office Maynes was prepared on four separate occasions for his trial testimony. See C.R.R. Vol. 34, pp. 1966, 1969-70. The cumulative effect of such misconduct - particularly since ignored by Applicant's trial counsel - undermined the fairness of Applicant's trial and thus compel consideration of her claim at this stage. See Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989) (en banc) (holding that when prosecutorial misconduct "is so prejudicial that an instruction to disregard . . . could not cure the harm . . . neither a timely objection nor an adverse ruling is required to preserve the error for review").

D.

This Court Should Conduct an Evidentiary Hearing to Resolve the Issues of Material Fact Surrounding Applicant's Claim That Respondent's Violation of Brady v. Maryland Denied Applicant Her Constitutional Guarantees to Due Process and a Fundamentally Fair Trial. Respondent argues at length that the Brady impeachment evidence it improperly withheld from Applicant would have been so insignificant as not to have affected the outcome in her case. That argument misses the point. See Brady v. Maryland, 373 U.S. 83 (1963). In establishing a Brady violation, Applicant need not show by a preponderance that disclosure of the suppressed evidence would have resulted in her acquittal. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence [she] received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. In other words, where "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Brady is violated. Id. at 434-35. In making that determination, this Court should not consider Applicant's three Brady claims in isolation, as Respondent suggests. By law, collective consideration of Respondent's misconducts is appropriate. See id. at 436.

1.

The Police Reports in Possession of the Dallas County Police Department Constituted Favorable Impeachment Evidence That Directly Contradicted the Crime-Scene Analysis Testimony of Special Agent Alan Brantley. Special Agent Alan Brantley proffered expert testimony in support of Respondent's theory that the crime scene was staged. Agent Brantley based his conclusion on, among other things, his uncorroborated testimony that (1) criminal intruders rarely use a weapon found inside the victim's house; and (2) no similar crimes had been committed in the region near Applicant's neighborhood. In direct contradiction of Agent Brantley's testimony, a series of similar crimes had occurred in Dallas County in the year immediately preceding the attack on Applicant, and Respondent never disclosed such evidence before her trial. Respondent urges this Court to excuse this conduct because the Dallas County crimes were so dissimilar from the attack on Applicant and her children as to render the police reports irrelevant and unhelpful - i.e., not Brady evidence. Notwithstanding certain dissimilarities, the obvious similarities between the withheld crimes and the attack on Applicant and her children contradict Agent Brantley's testimony - particularly his assertion that criminal intruders are unlikely to use objects from the victim's house as weapons. For example, two of the Dallas County crimes Respondent withheld involved an intruder who used a kitchen utensil obtained from the victim's home as a weapon. Another three crimes involved an assailant who used a tube sock, similar to the one found behind Applicant's residence, to gag his victims. The circumstances of these crimes clearly undermine Agent Brantley's assertions regarding typical criminal behavior and elements of a staged crime scene. Thus, that evidence should have been disclosed to Applicant. Respondent's contention that knowledge of these Dallas County incidents cannot be imputed to the Dallas County Prosecutor's Office is simply not credible. Although the Rowlett Police Department was the primary investigatory agency in this case, both the Rowlett Police Department and Dallas Police Department are located in Dallas County, and work in close conjunction with the Dallas County Prosecutor's office. As Respondent points out, the Fifth Circuit has adopted the position that there is no per se rule to determine whether information possessed by one government agency should be imputed to another; rather, a "case-by-case analysis of the extent of interaction and cooperation between the two governments" is required. United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979). This case is hardly like Moon v. Head, 285 F.3d 1301 (11th Cir. 2002), on which Respondent relies, which involved the law enforcement agencies of two different states - Georgia and Tennessee - which clearly would not be expected to share resources. See Resp. Ans. 132-34 (citing Moon). In contrast, the Dallas Police Department works in conjunction with, and has daily interaction with, the Dallas County Prosecutor's Office which prosecuted Applicant's case. Thus, the knowledge of the Dallas Police Department should be imputed to the Dallas County Prosecutor's Office.

2.

The History of Mental Illness of the Respondent's Trace Evidence Analyst Charles Linch Was Known to Respondent and Constituted Favorable Impeachment Evidence. Since Applicant's trial, it has become widely publicized that Respondent's trace evidence analyst Charles Linch had numerous employment problems during his employ at the Southwestern Institute of Forensic Scientists ("SWIFS"), that Mr. Linch himself raised questions about the adequacy of his training, and, most significantly, that Mr. Linch has a history of severe depression and alcoholism, for which he was involuntarily committed to a psychiatric unit in 1994.16 On the record before this Court, there is an issue of disputed fact as to when Respondent became aware of this information. If, as Applicant contends, Respondent was in possession of this information before her trial, Respondent was required under Brady to disclose the information. As demonstrated in the Application, articles published in the Dallas Morning News suggest that prosecutor Toby Shook had direct knowledge of Mr. Linch's involuntary psychiatric commitment prior to Applicant's trial.17 See First App. 106 & Exh. F. Mr. Linch also testified for the State of Texas in a murder trial in the midst of his 1994 commitment; thus it is not implausible that Respondent became aware of Mr. Linch's psychiatric problems at that time. Respondent denies that is the case. Resp. Ans. 155-56 & Exh. 13. Thus, on this critical point, there is an issue of material fact to be resolved by this Court. Alternatively, even if Respondent did not have direct knowledge of Mr. Linch's history of psychiatric problems, SWIFS's knowledge of that history should be imputed to Respondent. As even Respondent concedes, it had an affirmative duty to seek out any favorable, material evidence possessed by others who are "acting on the government's behalf." Kyles, 514 U.S. at 437. Respondent has not demonstrated that SWIFS was not acting on its behalf.18 Rather, the authorities on which Respondent relies hold only that SWIFS employees are not "law enforcement personnel" for purposes of the Texas Rules of Evidence--not that SWIFS cannot be regarded as a member of the prosecution team for purposes of Brady. See Resp. Ans. 158-160 (citing Caw v. State, 851 S.W.2d 322 (Tex.App.-El Paso 1993, pet. ref'd); Durham v. State, 956 S.W.2d 62 (Tex.App.-Tyler 1997)). Accordingly, Respondent has not answered Applicant's claim that Respondent had imputed knowledge of Mr. Linch's mental health history and thus was obligated to disclose it under Brady. Respondent also contends that, even if it had been knowledge Mr. Linch's history of psychiatric problems at the time of Applicant's trial, it had no duty to disclose this information to her because such evidence is inadmissible. To the contrary, impeachment based on impairment of mental capacity is clearly established in Texas case law.19 See Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987). Evidence of a witness's past or present mental illness is generally admissible if it has a bearing on the witness's credibility.20 Id.; see also Sidney v. State, 753 S.W.2d 410, 413 (Tex. App.-Houston [14th Dist.] 1986) (holding that trial court erroneously refused to allow defendant to cross-examine witness with "'a long standing history of a serious mental illness'" because cross-examination could affect jury's determination of the witness's credibility). The determination of whether to admit such evidence is a fact-specific inquiry for the trial judge. See Virts, 739 S.W.2d at 28; Munoz v. State, 763 S.W.2d 30, 31 (Tex. App.-Corpus Christi 1988, pet. ref'd). Respondent therefore could not properly withhold evidence of Mr. Linch's history of mental illness based on Respondent's own determination that this evidence was inadmissible.21 Respondent also erroneously contends that Mr. Linch's testimony was insignificant in the scope of its case and therefore that the withheld evidence was not material under Brady. To the contrary, Respondent drew heavily from Mr. Linch's testimony in closing argument to support, among other things, Respondent's theory that Applicant staged the crime scene by cutting the garage window screen with her own bread knife. See C.R.R. Vol. 46, pp. 5226:3-5227:1, 5227:9-5227:20; C.R.R. Vol. 46, p. 5227:3-8. Even if that were not the case, to establish her Brady claim, Applicant is not required to show that had Mr. Linch's testimony been impeached, there would have been insufficient evidence to sustain her conviction. See Kyles, 514 U.S. at 434-35. Rather, she need only show - as she has done here and in her Application - that this Court cannot have confidence in the jury's verdict because such critical evidence that would have impeached the testimony of one of Respondent's key witnesses was withheld.

3.

Dr. Kenneth Dekleva's Representations to Respondent About Applicant's Propensity for Future Dangerousness Should Have Been Disclosed Under Brady. Respondent concedes that Dr. Kenneth Dekleva, the forensic psychiatrist it retained but did not call to testify at Applicant's trial, expressed his opinions to Respondent about Applicant's future dangerousness. Resp. Ans. Exh. 8 at 2. There is an issue of fact, however, as to the substance of those opinions and whether Respondent had an obligation to disclose them to Applicant. On the one hand, Respondent has submitted affidavits from Dr. Dekleva and prosecutor Toby Shook stating that Dr. Dekleva did not opine to Respondent regarding his conclusion on the ultimate issue-whether Petitioner would pose a future danger to society. Resp. Ans. Exh. 13 at 3. On the other hand, Dr. J. Douglas Crowder, a professional acquaintance of Dr. Dekleva's, has submitted an affidavit to the contrary: Dr. Crowder attests that "Dr. Dekleva informed me that he opined to the Prosecutors in that case that, in his professional opinion, Darlie Lynn Routier is not likely to constitute a future danger in prison." First. App. Exh. 3 4 . Dr. Dekleva acknowledges that he spoke with Dr. Crowder regarding his analysis of Applicant but does not "recall specifically discussing 'ultimate issue' [future dangerousness] questions with Dr. Crowder." Resp. Ans. Exh. 13 at 3. Clearly, his failure to "recall" is not the same as a denial that the conversation that Dr. Crowder describes occurred. An issue of material fact therefore remains regarding Dr. Dekleva's precise communications to Respondent and, correspondingly, Respondent's failure to disclose this favorable evidence to Applicant.

E.

There Is an Issue of Fact as to Whether Knife No. 4 Was Contaminated With Fingerprint Powder or Some Other Contaminant. Respondent has failed to show that the testimony of Charles Linch regarding the source of the debris found on the serrated bread knife from Applicant's kitchen ("Knife No. 4") was not false.22 Rather, Respondent merely has created an issue of fact as to whether Knife No. 4 was contaminated by law enforcement personnel who responded to the crime scene. On the one hand, there is the testimony of Respondent's own witness Officer Charles Hamilton that when he responded to the crime scene he conducted a thorough dusting of Applicant's kitchen area. C.R.R. Vol. 34, pp. 1976:24 - 2013:8, 2073:2-2075:11. Indeed, Respondent's own exhibit in support of its Answer acknowledges that two knives from the butcher block "had been processed for latent prints prior to being received." Resp. Ans. Exh. 23. That evidence combined with Applicant's new evidence from Mr. Linch himself at a minimum raises an issue as to whether his testimony that the debris came from the garage window screen was false.23 Mr. Linch now attests that all of the knives in the butcher block had been dusted for fingerprints prior to his forensic analysis of Knife No. 4. First App. 115 Exh. 9 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.").24 On the other side of this issue is the challenged false trial testimony of Mr. Linch and inconclusive exhibits that Respondent attached to its Answer, specifically, the report of Roger Smith and an Evidence Receiving/Releasing Form. Neither document dispels the conclusion that the debris recovered from Knife No. 4 is not screen from the garage window screen. For example, although dated June 11, 1996, Mr. Smith's report does not indicate when he dusted the butcher block and its contents for fingerprints. Respondent asserts - without support - that Mr. Smith conducted his testing on June 11, 1996 and therefore when Mr. Linch received the knives on June 8, 1996 (as reflected on Resp. Ans. Exh. 22), Knife No. 4 had not been tested. Respondent's Exhibit 24, an Evidence Receiving/Releasing Form dated June 12, 1996, is likewise inconclusive. Although the form contains the notation "#4 screen residue?", the question mark at the end of that notation suggests that whoever authored the note was not certain about his conclusion. In other words, the notation is helpful, not harmful, to Applicant's claim. On this record, the Court cannot dismiss either the significance or uncertainty surrounding Knife No. 4. Accordingly, this Court should grant Applicant an evidentiary hearing on this issue as well as permit her access to conduct scientific testing on the debris recovered from Knife No. 4.25

IV.

The Texas Death Penalty Statute Is Unconstitutional On Its Face And As Applied In Applicant's Case. The Court of Criminal Appeals repeatedly has stated that the execution of an innocent person would violate due process. See, e.g., Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing State ex. rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 397 (Tex. Crim. App. 1994)). For the reasons set forth in Petitioner's First Application, the Texas death penalty statute creates an unreasonable probability that innocent persons will be executed and therefore is unconstitutional. First. App. 118-20. Applicant reaffirms this argument notwithstanding the Second Circuit's reversal since her Application was filed of United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002). In reversing Quinones, the Second Circuit rejected the district court's conclusion that the Federal Death Penalty Act is facially unconstitutional because there is no fundamental right of innocent persons sentenced to death to demonstrate their innocence. United States v. Quinones, 313 F.3d 49, 68-69 (2d Cir. 2002). In the present case, Applicant has demonstrated that the Texas death penalty statute is unconstitutional for reasons that the Second Circuit did not even consider, let alone reject in Quinones. First, Applicant has demonstrated that the unreasonably high probability that innocent persons will be executed violates due process because innocent persons have a fundamental right not to be put to death. To hold otherwise would fly in the face of clear precedent from the Texas Court of Criminal Appeals. See State ex. rel. Holmes, 885 S.W.2d at 397 (holding that execution of an innocent person would violate "a constitutional or fundamental right"). Second, Applicant has demonstrated that the Texas death penalty statute would be unconstitutional as applied to her. Here, Applicant's due process argument is not "based solely on a statistical or theoretical possibility that [she] might be innocent" - which the Second Circuit rejected in Quinones. See Quinones, 313 F.3d at 63. Rather, Applicant has pointed to compelling evidence that she has been sentenced to death for a crime that she did not comment. See Pt. II, supra. That evidence, combined with the high baseline error rate associated with the death penalty in general, creates an unconstitutionally high probability, indeed a virtual certainty, that Applicant, an innocent person, will be executed if not relieved of her unconstitutional conviction and death sentence.

CONCLUSION

For the foregoing reasons and those explained for more fully in Darlie Lynn Routier's First Application for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071, Applicant respectfully requests that this Court issue a writ of habeas corpus to have her brought before the Court so that she may be discharged from her unconstitutional confinement and restraint and relieved of her unconstitutional conviction and sentence. Alternatively, Applicant requests that the Court grant her an evidentiary hearing so that she may present additional evidence in support of the above-referenced claims.
February 28, 2003
Respectfully submitted,


__________________________________
Steven C. Losch (SBN 00789805)
906 Delia Drive
Longview, Texas 75601
(903) 234-1373

Michael F. Flanagan (admitted pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C. 20036
(202) 955-8500

Richard A. Smith (SBN 24027990)
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
(214) 698-3100

Counsel for Darlie Lynn Routier

CERTIFICATE OF SERVICE

I hereby certify that I caused a copy of the foregoing Applicant Darlie Lynn Routier's Reply to Respondent's Original Answer to Applicant's Article 11.071 Application for Writ of Habeas Corpus to be served by first-class U.S. mail, postage prepaid, upon the following:

John R. Rolater
Assistant District Attorney
Appellate Division
133 N. Industrial Blvd. LB-19
Dallas, Texas 75207-4399




_____________________________
Richard A. Smith
70235257_1.DOC

FOOTNOTES


1Applicant was originally represented by Douglas Parks and Wayne Huff ("original counsel"). On October 21, 1996, her original counsel were replaced by Douglas Mulder, Curtis Glover, Richard Mosty, and S. Preston Douglass.
2Additionally, and alternatively, changes in the law permit claims to be raised on habeas corpus review that also were raised on direct appeal. See Ex parte Drake, 883 S.W.2d 213, 215-16 (Tex. Crim. App. 1994). Applicant's direct appeal was briefed and argued before the United States Supreme Court's decision in Mickens v. Taylor, 535 U.S. 162 (2002), which governs ineffective assistance of counsel claims arising from actual conflicts of interest. Thus, Applicant alternatively may raise her ineffective assistance of counsel claim here in light of Mickens. See First App. 27-28 (discussing Mickens).
3This is not the first time Respondent has misrepresented record facts; such misrepresentations appear throughout its Statement of Facts:

* Respondent cites to nothing in the record to support its assertion that Applicant said she saw more than one intruder or that she found the knife in the living room. Resp. Ans. 4.
* Respondent also characterizes Applicant's statement during the 911 call about picking up the knife and the possibility that fingerprints were lost as "bizarre," even though those comments were in direct response to the 911 operator's admonition "There's a knife. Don't touch anything." Resp. Ans. 3, 36.
* And while it is uncontested that Applicant's sons were killed in a brutal attack, Respondent attempts to heighten the drama by claiming their stab wounds "penetrated through bone into the floor beneath their bodies." Resp. Ans. 4. No testimony or evidence supports this contention, and even a cursory examination of the autopsy reports shows that there were no exit wounds on the bodies of the two children.
* Respondent insinuates that a blood stain inside the cabinet door beneath the kitchen sink was evidence that Applicant tried to clean up the crime scene because the cabinet contained cleaning supplies. Resp. Ans. 8-9. No blood, however, was reported inside the cabinet or on any of the cleaning supplies.
* Respondent further claims that "washed out" blood stains inside the kitchen sink were "consistent with someone washing blood off their hands." Resp. Ans. 8. Respondent neglects to mention that the witness who gave this testimony conceded that the stains were also consistent with a person wetting wash towels or wringing out rags when there is blood in the kitchen sink. C.R.R. Vol. 36, p. 2750:11-18.
* Respondent asserts that DNA testing on the sock belonging to Darin Routier and found some 70 yards away from Applicant's residence revealed that the sock contained the DNA of both victims but not Applicant. Resp. Ans. 9. In fact, the sock did contain Applicant's DNA consistent with either her skin cells or saliva, suggesting that the intruder used the sock as a gag. C.R.R. Vol. 38, p. 3141:19-3142:17. Respondent also failed to mention that unidentified arm or leg hairs were also found on the sock, along with a deer hair. C.R.R. Vol. 37, pp. 2840:4-2845:7.
Although Respondent is entitled to rely on the record evidence that supports Applicant's conviction, Respondent is not entitled to misrepresent the record. Thus, the Court should not accept at face value Respondent's factual representations.
4Nor would it matter that Applicant's trial counsel represented her husband free of charge. The existence of an attorney-client relationship "does not depend upon the payment of a fee," and thus "[m]ay exist as a result of rendering services gratuitously." Prigmore v. Hardware Mut. Ins. Co., 225 S.W.2d 897, 898 (Tex. Civ. App.-Amarillo 1949, no writ). Thus, an attorney-client relationship inarguably arose between Applicant's trial counsel and Darin Routier on September 20, 1996.
5Applicant has identified substantial evidence that implicates Darin Routier in her attack, including: (1) his hair on the murder weapon, CR.1A:58-59; (2) a bloody sock found in the alley with fibers from his sneakers, C.R.R. Vol. 38, pp. 3127-28, 3144-45; CR.1A: 58; (3) inconsistent statements about his bloody jeans, Def.'s Ex. No. 5 at 3; Def.'s Ex. No. 3 at 3; C.R.R. Vol. 4, p. 124; (4) blood on his jockey shorts, First App. Exh. 11 4; and (5) his inconsistent statements and suspicious behavior at the crime scene and hospital, First App. 17-20, 30.
6Respondent erroneously suggests that Ms. Potter's affidavit places the suspicious men walking "away from the Routier house, almost half an hour prior to the 911 call." Resp. Ans. 28. In fact, there is no time discrepancy between these events: Applicant's 911 call was placed at 2:31am on June 6, 1996 and Ms. Potter observed the two suspicious men "after 2:00 am."
7Respondent submits four affidavits, executed five years after the uncertified October 21, 1996 hearing "transcribed" in Volume 10, that purport to confirm that the first 54 pages of Volume 10 accurately represent what generally occurred during the hearing. Respondent provides no authority for the preposterous contention that these after-the-fact recollections are an acceptable substitute for an accurate, certified reporter's record, and Applicant is aware of no such authority.
8Clearly the proper forum for any explanation by ineffective counsel is at an evidentiary hearing which "provide[s] an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions." Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). If, as Respondent suggests, an affidavit from trial counsel were required to obtain an evidentiary hearing, such hearings rarely would occur because defense attorneys who cared at all about their professional reputations would have no incentive to provide the required affidavit, particularly in cases where their performance was most deficient. Indeed, it would be manifestly unreasonable to place upon habeas corpus applicants the heavy burden of convincing their ineffective counsel to jeopardize their reputations and careers by admitting under oath that their representation was incompetent.
9Clearly, if Respondent had any doubt about Applicant's allegations, Respondent could have obtained an affidavit from her trial counsel in support of Respondent's Answer.
10Applicant also claims that she was denied effective assistance of counsel through her trial counsel's failure to introduce specific evidence such as the testimony of experts on bruising and disassociative disorders. See Exh. 3 (identifying other such failures). Respondent accuses undersigned counsel of ethical violations because Applicant's trial counsel did present the testimony of Drs. Lisa Clayton, Richard Croons, and Vincent Dimaio. Although these individuals are experts in their respective fields, none is an expert on these two specific subjects. Accordingly, Respondent's claim that undersigned counsel violated the Texas Rules of Disciplinary Conduct is meritless. Resp. Ans. 79.
11Respondent asserts that Applicant must prove that the prosecution could not elicit such testimony through another witness, and demonstrate that the evidence could not properly be introduced by other means. Resp. Ans. 87. No authority is provided in support of this assertion.
12Contrary to Respondent's assertion, Lt. Cron's admitted reliance on his "common sense" is not a proper basis for expert opinion. Resp. Ans. 94. It is well established that an expert may not supplant the "jury's independent exercise of common sense." United States v. Wiley, 57 F.3d 1374, 1389 (5th Cir. 1995); K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex. 2000).
13"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).
14Respondent answers this argument, in part, by noting that Applicant's trial counsel failed to object to the conduct about which she complains. Resp. Ans. 107. As discussed in the preceding section, Applicant contends that her trial counsel's repeated failures to object to Respondent's misconduct constituted ineffective assistance of counsel. Because the argument here and in the preceding section are premised on the same facts, Applicant will not repeat them here but instead refers the Court to Pt. III.B.2, supra.
15Respondent erroneously claims that Applicant "does not compare [Respondent's conduct] to the authorities she cites." See Resp. Ans. 112.
16Respondent devotes substantial space in its Answer refuting an assertion that Applicant never makes - that Linch has a pro-prosecution bias. See Resp. Ans. 144-47. Applicant contends rather that Linch has a pervasive need for recognition in high-profile cases, whether retained as an expert for the prosecution or the defense. See First App. 106-09.
17Respondent argues that the newspapers articles submitted by Applicant in support of her Brady argument constitute inadmissible hearsay. However, the statements of Toby Shook are admissions of a party opponent and therefore admissible. See Tex. R. Evid. 801(e)(2)(A). Alternatively, the newspaper reporter can be called to testify at an evidentiary hearing as to what she was told, which again would be admissible as a party-opponent admission.
18Although SWIFS employees are not within the definition of "law enforcement," SWIFS, as an institution, performs the vast majority of its work in criminal investigations on behalf of the State of Texas. As Respondent points out, "[e]ighty to eight-five percent of the lab's work is for law enforcement agencies." Caw v. State, 851 S.W.2d 322, 324 (Tex. App. -El Paso 1993, pet ref'd).
19Applicant also had a right to be informed of Mr. Linch's potential bias, which is unquestionably a ground for impeachment. See First App. 110 n.26.
20Respondent complains that Applicant has provided no evidence that Mr. Linch's psychiatric problems affected his testimony. For obvious reasons, that is asking the impossible of Applicant - especially in the absence of a reliable record of her trial.
21That argument is at best speculative and at worst disingenuous, as Applicant was denied any opportunity to argue its admissibility at her trial.
22Mr. Linch testified on redirect examination (C.R.R. Vol. 37, p. 3036:13-15) that the debris was not fingerprint powder:

Q. [] 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.
23As the Court will recall, Mr. Linch conducted a microscopic comparison of the debris recovered from Knife No. 4 and garage window screen and concluded that they were consistent. He conducted a similar examination of hair removed from the garage window screen and concluded that the hair was consistent with Applicant's. Subsequent and more reliable testing established that his "consistency" conclusion as to the hair was false. Although Applicant has petitioned the Court for access to the debris recovered from Knife No. 4 so that she can conduct more reliable testing of it, her requests have been denied. Applicant renews her request for access to this evidence to conduct scientific testing.
24Based on the record before the Court, the most accurate method of resolving this debate is to re-test the debris recovered from Knife No. 4 as recommended by numerous experts including Mr. Linch himself. See First App. Exh. 10 10; First App. Exh. 7 12.c; First App. Exh. 9 8 ("However, while I was asked only to perform microscopic tests on these samples, microscopic comparison is not the most discriminating method available to determine the source of this debris. If the rubber dust particles and fiberglass rod fragment can be located and removed from the mounting media for testing, more discriminating chemical testing can be performed on this evidence to determine if the debris found in Knife #4 is in fact consistent with the debris from the window screen material.").
25Respondent incredibly suggests that Mr. Linch's testimony regarding Knife No. 4 is not material. Nothing could be further from the truth. Knife No. 4 was central to Respondent's staged crime-scene theory because it allegedly evidenced that Applicant had cut her own garage window screen to give the appearance that an intruder had exited through the garage.