Opinion
Court of Appeals No. 01-3927, District Court Case No. C-1-01-698
November 29, 2001
REPORT AND RECOMMENDATIONS
This case was remanded to this Court by the Sixth Circuit Court of Appeals on October 9, 2001. In re John W. Byrd, Jr., 269 F. 3rd 585 (6th Cir. 2001) (Order of Remand). As required by the Sixth Circuit's Order, Chief Judge Rice appointed the undersigned on October 15, 2001, to conduct the factual inquiry commanded by the Order.
In compliance with the Order of Remand, the Magistrate Judge respectfully tenders the following Report, comprising the following sections:
1. Procedural Context
2. The Admissions of Co-Defendant John Brewer
3. The "New" Evidence Regarding Ronald Armstead
4. The Bobby Pottinger Story
5. New Evidence of Byrd's Guilt
6. Conclusion
PROCEDURAL CONTEXT
The Order of Remand requires the Magistrate Judge "to promptly conduct an appropriate factual hearing" which would "develop a record with regard to John Byrd's claim of innocence presented to the Ohio courts but on which no testimony of witnesses or evidence was taken." 269 F. 3rd at 586.
Petitioner presented his actual innocence claims to the Ohio courts in his Successive Post-Conviction Petition (under Ohio Revised Code § 2953.21) filed in the Hamilton County Common Pleas Court on April 9, 2001, setting forth three claims for relief. (Dist.Ct. Doc. Nos. 18-20.)
* In the First Claim he asserted that he is actually innocent of the death penalty because his co-defendant John Brewer stabbed the victim and has admitted doing so.
* In the Second Claim he asserted that Ronald Armstead's testimony, which named him as the principal offender, was the product of a conspiracy among Armstead, Virgil Jordan, and Marvin Randolph, all inmates at the Cincinnati Workhouse in April and May, 1983. Byrd asserts that because Armstead's testimony is false, Byrd is actually innocent.
* The third claim was pled only under Ohio law and does not assert actual innocence.
Thus the first two claims are those expressly referred to in the Order of Remand.
Scope of the Factual Inquiry
The scope of the record to be developed was not precisely defined. The Sixth Circuit expressly required the scope of the inquiry to include "testimony related to matters set forth in the affidavits of John Brewer, Dan Cahill, Darryl Messer, Roger Hall and Benny Fields" which are Exhibits 9, 10, 11, 12, 13, and 14 to the Proposed Second Petition for Writ of Habeas Corpus, filed with the Court of Appeals. The Sixth Circuit also provided the factual inquiry would include but not be limited to three categories of documents listed in the Order of Remand.
1. Documents prepared by the Hamilton County Prosecutor's Office and/or Hamilton County Sheriff's Department authorizing, directing or identifying Ronald Armstead, Virgil Jordan, Marvin Randolph, and Robert Jones to be questioned in matters relating to the issue of innocence raised in this matter.
2. Documents prepared or received by the Hamilton County Prosecutor's office or Hamilton County Sheriff's Department or Cincinnati Police Department relating to Ronald Arrnstead's incarceration, testimony, and parole revocation hearing and disposition.
3. Documents or reports received by the Attorney General's office or Hamilton County Prosecutor's Office from the Ohio Department of Corrections or its institutions, relating to this matter.
269 F. 3rd at 586.
In addition to the claims raised in the state court proceedings, Petitioner raised matters outside those proceedings in his Motion for Appointment of a Special Master before the Circuit Court. In particular, he sought
* access to transcripts of grand jury proceedings which resulted in the indictments of Byrd, Brewer, and Woodall, and
* evidence related to the claims Bobby Pottinger, Jr., made in a Channel 19 television interview on September 9, 2001, that he participated in the second ("U-Totem") robbery for which Byrd, Brewer, and Woodall were convicted, and that Byrd was passed out in the van at the time of that robbery.
While the Sixth Circuit did not in terms grant the Motion to Appoint a Special Master or refer anywhere in the Order of Remand to the grand jury proceedings or the Bobby Pottinger testimony, the Magistrate Judge permitted their development in the record by consent of the parties and for the sake of judicial economy, to obviate the need for any further remand.
To determine the appropriate scope of the hearing, the Magistrate Judge conducted a brief telephone conference on October 16, 2001, and a formal scheduling conference on October 18, 2001. The Agenda (with the parties' proposed agendas attached), the Transcript, and the resulting Scheduling Order are all of record (Dist.Ct. Doc. Nos. 3, 6, and 7). While not agreeing with each other on the appropriate scope of the factual inquiry, both sides proposed that the Magistrate Judge consider evidence beyond that expressly required by the Sixth Circuit. The Court determined to accommodate as much as possible of the parties' requested evidence, insofar as that evidence was reasonably gatherable by the time of the hearing (November 5, 2001), relatively directly related to the matters on which the Sixth Circuit expressly directed a hearing, and at least conceivably assimilable by this Court within the forty-five days allowed. These parameters resulted in limiting to some extent the subpoenas duces tecum sought by Petitioner's counsel; the limitations are spelled out and applied in the Scheduling Order (Dist.Ct. Doc. No. 7).
As the Court of Appeals is aware, Petitioner's counsel objected strenuously to these limitations. They filed in the Circuit Court a Motion to Clarify the Order of Remand which amounted to an effort at interlocutory mandamus. The essence of that Motion and Petitioner's counsel's interpretation of the "discovery" scope of the Order of Remand appears at page 2 of the Motion to Clarify:
The Magistrate Judge should err on the side of being over-inclusive as to all documents and testimony either party wishes to place in the record for this Court's subsequent review. Instead the Magistrate Judge has so unduly restricted factual development that this Court's ability to make a fair, impartial and meaningful evaluation of Byrd's claim of actual innocence of the death penalty will be materially abridged. (Emphasis added.)
In other words, Petitioner's counsel believed — and asked the Court of Appeals to rule — that they should have been allowed to issue subpoenas for any documents they wanted. The Court of Appeals denied this Motion without explanation. In re John W. Byrd, Jr., ___ F. 3rd ___, 2001 WL 1381204 (6th Cir. November 6, 2001).
Petitioner's counsel stated an even broader interpretation of the Order of Remand when, during the hearing on November 6, 2001, at this Court's insistence, they filed "John Byrd's Memorandum Concerning the Scope of Paragraph 3 of the Sixth Circuit's Order" (Dist Ct. Doc. No. 49). They interpreted the language "relating to this matter" in the Order of Remand as requiring the Attorney General to produce and provide them with copies, at some unspecified time before the hearing began, of the entire Department of Rehabilitation and Corrections files on every inmate they listed as a witness in this proceeding.
In contrast to these readings by Petitioner's counsel, the Magistrate Judge interpreted the Order of Remand as providing for 1) a hearing which would result in 2) fact finding and a recommendation, 3) preceded by a period of evidence gathering. Nothing in the Order of Remand suggests the en banc Court intended to provide for a period of expansive, party-driven discovery, particularly in light of
* The limitations on discovery in habeas corpus generally. A habeas petitioner is not entitled to discovery as a matter of course, but only upon a showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed. 2d 281 (1969).
* The short time period (forty-five days) allowed for gathering, hearing, and analyzing the evidence.
* The likelihood that seeking documents from third parties (particularly the hospital records of William Woodall's last illness and extensive informant files from the Federal Bureau of Investigation) would generate satellite litigation.
The Order of Remand does not explain the short time frame allowed. The Magistrate Judge assumes it is related to the requirement in 28 U.S.C. § 2244(b)(3)(D) requiring courts of appeals to decide motions for successive petitions within thirty days of filing. In any event, the Magistrate Judge has treated the 45-day limit as an "order" rather than a "suggestion."
In light of these considerations, the Magistrate Judge believes Petitioner's interpretation of the Order of Remand is unreasonably broad.
Given the hotly-contested interpretations of the Order of Remand, the en banc Court should understand that the only limitations the Magistrate Judge imposed were on subpoenas duces tecum. Every witness, without limitation, from whom oral testimony was sought by either party was subpoenaed or ordered produced by writ of habeas corpus ad testificandum. Not all of the evidence gathered by court order or subpoena was introduced at the hearing or even examined by Petitioner's counsel. Nevertheless, by agreement of counsel, all evidence obtained by subpoena duces tecum is being transmitted to the Court of Appeals with this Report. An index of the materials gathered is attached as an appendix.
Purpose of the Factual Inquiry
The stated purpose of the remand was to develop "a factual record sufficient to permit sua sponte consideration [by the Sixth Circuit en banc] of a request for leave to file a second petition for a writ of habeas corpus." In re John W. Byrd, Jr., 269 F. 3rd at 585. However, current habeas corpus jurisprudence and the record before the Sixth Circuit make clear there are several different sorts of request to file a second or successive habeas corpus petition. To understand what factual record we were to develop, this Court needed to understand what sort of request for leave to file a second petition is at issue.
28 U.S.C. § 2244(b)(3), as added to Chapter 153 of Title 28 by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"), requires any state prisoner who seeks to file a second or successive habeas corpus petition in the district court to receive permission to do so from the court of appeals. Congress provided:
* The applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the application. § 2244(b)(3)(A).
* Such a motion "shall be determined by a three-judge panel of the court of appeals." § 2244(b)(3)(B).
* The grant or denial of such an authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari. § 2244(b)(3)(E).
Petitioner did not file a motion purporting to seek permission to file a second habeas corpus petition. Instead, he commenced the present action in the Sixth Circuit by filing a "Motion to Determine Whether 28 U.S.C. § 2244(b) of the AEDPA Applies to His Case." Judge Suhrheinrich's opinion for the panel, however, treated the Motion as if it sought the permission to file which is required by § 2244(b)(3)(A). In re John W. Byrd, Jr., 269 F. 3rd 561 at 563 (6th Cir. 2001). The panel denied that permission. Judge Jones' dissent, which was apparently persuasive to a majority of the active judges of the Sixth Circuit, is not available to this Court. However, he embodied some of that dissent in his concurrence in the Order of Remand:
When a habeas petitioner wishes to file in the district court a second or successive habeas petition, AEDPA requires that he first obtain authorization from the federal court of appeals. Congress, therefore, vests in the appeals court a statutory duty to determine whether to authorize a second bite at the habeas apple. The statute then lays out various requirements the petitioner must satisfy before the court can certify the second or successive petition. If the petitioner is unable to satisfy the statutory requirements of the AEDPA, the court of appeals may yet authorize a second or successive filing if the court deems that this is necessary to prevent a miscarriage of justice. There is no disagreement on the court that Petitioner Byrd does not satisfy the statutory filing requirements of the AEDPA. However, a majority of judges in active service have agreed that the court is without an adequate factual record to determine whether a second filing is warranted under the miscarriage of justice exception. Therefore, a majority of the en banc court has remanded the case for a hearing on the evidence supporting Byrd's claim that he is entitled to a file a second petition under the statutory exception.
In re John W. Byrd, Jr., 269 F. 3rd 585, 587 (6th Cir. 2001) (Judge Jones concurring in the Order of Remand) (Emphasis added.)
The AEDPA contains no "miscarriage of justice" exception in its text. As authority for such an exception, Judge Jones writes:
The actual innocence/miscarriage of justice exception is articulated in Schlup v. Delo, 513 U.S. 298 (1995), in which the court held that a prisoner who fails to satisfy AEDPA filing requirements for a successive petition "may obtain review of his constitutional claims only if he falls within the `narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Id. at 314-15.
269 F. 3rd at 587, n. 3. However, Schlup v. Delo was handed down in January, 1995, more than a year before The AEDPA was enacted, and therefore does not purport to create an exception to the AEDPA. Since the statute does not contain a miscarriage of justice exception, this Court understands Judge Jones to be speaking of an inherent power or constitutionally-mandated miscarriage of justice exception. Although other judges concurred in this opinion, this Court is unable to determine whether they concurred on this precise point and the Magistrate Judge is unaware of any other authority recognizing such an exception to the statute. Therefore, this Court has not evaluated the evidence as it might relate to a free-standing miscarriage of justice exception to the AEDPA.
Judge Cole's concurrence in the Order of Remand also does not resolve the ambiguity as to the type of second petition before the en banc court. It speaks, rather, to the jurisdiction of an en banc court of appeals to review a panel decision and the need to avoid a construction of the AEDPA which would eliminate that power because such a construction would be of doubtful constitutionality. See Order of Remand, 269 F. 3rd at 592-93. But the jurisdictional question only arises as to a second or successive habeas petition under the AEDPA. Put differently, an en banc federal court of appeals has plenary authority to review any panel decision unless some statute intervenes. The only statute which is argued to intervene in this case is 28 U.S.C. § 2244(b)(3), but that statute only applies to successive petitions to which the AEDPA in general applies. Judge Cole's concurrence adopts an interpretation of the AEDPA under which an en banc court may sua sponte reconsider a panel decision granting or denying permission to file a successive petition under the AEDPA, but Byrd has not presented that case to the Sixth Circuit. Assuming Judge Cole's jurisdictional analysis commands a majority of the Sixth Circuit, it does not appear to govern this case because Byrd is not seeking to file a successive petition under the AEDPA. Instead, he seeks to show that his situation is not governed by the AEDPA.
Judge Jones states in his concurring opinion to the Order of Remand that all judges of the Sixth Circuit agree Byrd cannot satisfy the AEDPA standard. Byrd himself has conceded that point, both before the Sixth Circuit (Memorandum in Support at 17, cited at 269 F. 3rd at 566) and before this Court (Transcript of Scheduling Conference, Dist Ct. Doc. No. 6, at 5). This Court has accordingly proceeded on the presumption that it is not to consider this case as if it were an application for leave to file a second application under the AEDPA or sua sponte en banc consideration of that question: there is no need for fact finding on a proposition which neither Byrd nor any member of the en banc court believes he can satisfy.
In their dissents from the Order of Remand, Judges Boggs, Suhrheinrich, and Batchelder also provide no guidance for what fact finding is to be done, because they believe the en banc court had no jurisdiction to enter the remand. Judge Boggs expressly states that the only proper way for Byrd to obtain a determination that The AEDPA does not apply to him was to file in the first instance in the district court. 269 F. 3rd at 594. Although Judges Surhheinrich and Batchelder concurred in this dissent, they did not, when writing as the majority of the original panel, dismiss Byrd's action or order him to refile it in the district court. Indeed, they recognized in their opinion that the question whether the AEDPA applies to Byrd's case "must be decided by this Court, and not the district court." 269 F. 3rd at 566-67, n. 5, citing In re Hanserd, 123 F. 3rd 922, 934 (6th Cir. 1997), and In re Sonshine, 144 F. 3rd 1133, 1134 (6th Cir. 1997).
In the original panel opinion, the Sixth Circuit panel held that Byrd did not satisfy the AEDPA standard for a successive petition, and apparently the entire Sixth Circuit agrees, per Judge Jones' concurrence in the remand. See 269 F. 3rd at 587. The original panel also held that Byrd could not satisfy the pre-AEDPA standard for a successive petition. See 269 F. 3rd at 572. Presumably, it is this ruling by the panel which a majority of the en banc court has rejected implicitly by entering the Order of Remand.
Or at least not yet accepted. Sixth Circuit Rule 35 provides that "The effect of the granting of a rehearing en banc shall be to vacate the previous opinion and judgment of this Court, to stay the mandate and to restore the case on the docket as a pending appeal." There is no order of the Sixth Circuit which this Court has seen expressly granting hearing or rehearing en banc. It appears to be the intention of the Sixth Circuit to do so, however, or there would be no need for the factual hearing. Thus this Court must treat the panel opinion as vacated and not providing the law of the case. See Judge Cole's concurring opinion at n. 9. (The Magistrate Judge is aware that the Sixth Circuit has held, since the Order of Remand was entered, that the law of the case doctrine does not apply to habeas corpus cases. Carballo v. Luttrell, ___ F. 3rd ___, 2001 WL 1194699 (6th Cir. 2001). However, that decision relates to the law of the case as between successive habeas petitions, not within the same habeas proceeding. It is at least clear that the proceeding in this Court on remand and the proceeding before the Sixth Circuit are the "same" proceeding.
Therefore the Magistrate Judge has understood that the purpose of fact finding on remand is to determine whether Byrd can satisfy the pre-AEDPA standard for a successive petition.
By obeying the Order of Remand, the Magistrate Judge implies no opinion on whether the en banc court has jurisdiction to reconsider the panel opinion sua sponte. The en banc court has concluded that it does have such jurisdiction and this Court is bound by that determination. Judge Suhrheinrich's dissent refers to the magistrate judge to be appointed as "presumably one who will do the bidding of the En Banc Court." Since inferior courts are bound as a matter of the rule of law to obey superior court orders, presumably any magistrate judge would obey such an order, so long as it did not compel conduct very plainly outside the boundaries of federal court jurisdiction. Here, the jurisdictional question is a question of first impression and arguable among reasonable jurists. I have, therefore, attempted to obey the Order of Remand, supported by Justice Stevens' denial of a stay of these proceedings until the Supreme Court decides the pending petition for writ of certiorari. See Bagley v. Byrd, 584 U.S. ___, 122 S.Ct. 419, 2001 WL 1380523 (November 6, 2001) (Opinion of Stevens, J., at chambers).
Relevance of the Factual Inquiry
This factual inquiry is relevant because the en banc court must decide whether the AEDPA applies to Byrd's case or not, using the retroactivity jurisprudence it has developed with respect to the AEDPA. This Court's understanding of that jurisprudence and its application here is as follows.Byrd was convicted in 1983 for acts committed that same year, thirteen years before the AEDPA was enacted and became effective on April 24, 1996. His initial federal habeas corpus case, Byrd v. Collins, Case No. C-1-94-167 on the docket of this Court at Columbus, was pending on the effective date. The AEDPA does not state in terms whether Congress intended that it have any effect on pending cases or cases related to events which occurred before its effective date, but the Supreme Court decided in Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), that Congress did not intend the AEDPA to apply to pending cases.
To determine whether the AEDPA gatekeeping rules apply to cases which arose before its enactment, the Sixth Circuit has applied the general retroactivity analysis of Landgraf v. USI Film Prods., 511 U.S. 244, 280-81, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994).
When a case implicates a federal statute enacted after the events in suit, and Congress has not expressly prescribed the statute's proper reach, the court must determine whether the new statute would have a retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.
In re Carl Green, 144 F.3d 384, 386 (6th Cir. 1998), citing Landgraf. "The Sixth Circuit has already determined that Congress has not expressed any clear intent as to the statute's proper reach. See In re Hanserd, 123 F.3d 922, 924 (6th Cir. 1997). Thus, the court must resort to Landgraf's default rules to decide whether The AEDPA may be applied to this case. Id." In re Carl Green, 144 F.3d at 386.
Thus the question before the Sixth Circuit to which the factual inquiry is relevant is whether the AEDPA would impair rights Byrd possessed — to file a second or successive habeas corpus petition — when he failed to file such a petition before April 24, 1996, the AEDPA effective date. In other words, the Sixth Circuit must decide whether Byrd would have had the right to file a second habeas petition raising the grounds he now seeks to raise before the AEDPA was enacted.
The Pre-AEDPA Standard for Successive Petitions
Petitioner seeks to present four claims in his new Petition for Writ of Habeas Corpus:
Note that in his post-hearing Memorandum Concerning the Applicable Burden of Proof, Petitioner has changed his theory of actual innocence from "innocence of the death penalty" to "innocence of the underlying crime." Petitioner has not advised this Court how that will affect his proposed second petition.
Ground One: John Byrd, Jr.'s, convictions and sentence are constitutionally infirm. The State of Ohio impermissibly used jail house informants to solicit inculpatory statements from him.
Ground Two: John Byrd's convictions and death sentence are constitutionally infirm because the trial prosecutors knowingly used false testimony and, instead of correcting the testimony, cited to this testimony as a factual basis for convicting John Byrd, Jr.
Ground Three: John Byrd, Jr.'s, convictions and sentences are constitutionally infirm because trial counsel failed to provide him with reasonable effective assistance of counsel.
Ground Four: John Byrd's conviction and death sentence are constitutionally infirm because he is actually innocent of the only capital specification.
(Proposed Petition, Exhibit to Motion to Determine Whether 28 U.S.C. § 2244(b) Applies.)
Rule 9(b) of the Rules Governing Section 2254 Cases as in effect prior to adoption of the AEDPA provides:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Rule 9(b) thus distinguishes between successive petitions which raise the same grounds as previously pled and those which raise new grounds. The first portion of the Rule applies to those grounds which have been previously raised and decided on the merits, so-called "same claim successive petitions," while the second portion refers to new claim successive petitions.
While the language of Rule 9(b) appears to be discretionary, the Supreme Court has interpreted the abuse of writ doctrine, which applies to new claim successive petitions, as follows:
When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes the petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard.
McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
The panel opinion points out, "Byrd's case is the quintessential abuse of the writ — as Byrd readily concedes, he deliberately withheld his actual innocence claim [based on the 1989 Brewer Affidavit] from his first federal habeas petition." In re John W. Byrd, Jr., 269 F. 3rd 561, 572 (6th Cir. 2001). This constitutes an abuse of the writ under the definition in Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed. 2d 148 (1963):
Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.
quoted In re John W. Byrd, Jr., 269 F. 3rd at 572.
Petitioner appears to admit — or at least does not contest — that his new petition is an abuse of the writ under McCleskey. Nor does Petitioner purport to show cause or prejudice.
However, McCleskey also recognized an actual innocence exception to the cause and prejudice requirement:
Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation has probably resulted in the conviction of one innocent of the crime.499 U.S. at 494. Petitioner relies on this actual innocence exception and the en banc court has ordered development of a factual record to enable it to evaluate that claimed exception. The same actual innocence exception applies to both same claim and new claim successive petitions. Schlup v. Delo, 513 U.S. at 318.
What must Petitioner show to establish his actual innocence claim? He has asserted since filing this matter in the Court of Appeals that the standard is provided by Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), but the original panel majority held the correct standard was provided by Sawyer v. Whitley, 505 U.S. 333, 348-49, 112 S.Ct. 2514, 2524, 120 L.Ed.2d 269 (1992). In re John W. Byrd, Jr., 269 F. 3rd 561, 574 (6th Cir. 2001). The Order of Remand does not discuss the applicable standard, but Petitioner has continued to assert in this Court that Schlup provides the correct standard without suggesting why the original panel majority's analysis is wrong.
Judge Jones' concurrence cites Schlup as recognizing a fundamental miscarriage of justice/actual innocence exception to the AEDPA. As pointed out earlier in this Report, that cannot be the holding of Schlup since it was handed down a year before the AEDPA was enacted. Judge Cole's concurrence does not cite Schlup.
After the hearing, the Court requested both parties to file memoranda on the applicable legal standard, which they did on November 16, 2001 (Dist.Ct. Doc. Nos. 63, 65). Respondent Warden argues at length that the AEDPA does apply to Byrd's Motion. (Warden's Memorandum on the Relevant Standards, Dist. Ct. Doc. No. 65 at 2-5.) That is a pure question of law on which the en banc court apparently reached a tentative conclusion before remand. The Magistrate Judge does not understand that to be a question on which the en banc court seeks a recommendation from this Court and accordingly none is offered.
If Petitioner is limited to the actual innocence claim he made before the Sixth Circuit, the original panel majority is correct: Sawyer rather than Schlup provides the correct standard. The Supreme Court distinguished between the two standards in Calderon v. Thompson, 523 U.S. 538, 559-560, 118 S.Ct. 1489, 1503, 140 L.Ed. 2d 728 (1998):
Although demanding in all cases, the precise scope of the miscarriage of justice exception depends on the nature of the challenge brought by the habeas petitioner. If the petitioner asserts his actual innocence of the underlying crime, he must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. [Schlup], 513 U.S. at 327, 115 S.Ct., at 867. If, on the other hand, a capital petitioner challenges his death sentence in particular, he must show "by clear and convincing evidence" that no reasonable juror would have found him eligible for the death penalty in light of the new evidence. Sawyer, supra, at 348, 112 S.Ct., at 2523.
The Sawyer standard has a broader application than is at first apparent. As the Court explained in Schlup, when a capital petitioner challenges his underlying capital murder conviction on the basis of an element that "functions essentially as a sentence enhancer," the Sawyer "clear and convincing" standard applies to the claim. Schlup, supra, at 326, 115 S.Ct., at 866-867. Thus, to the extent a capital petitioner claims he did not kill the victim, the Schlup "more likely than not" standard applies. To the extent a capital petitioner contests the special circumstances rendering him eligible for the death penalty, the Sawyer "clear and convincing" standard applies, irrespective of whether the special circumstances are elements of the offense of capital murder or, as here, mere sentencing enhancers.
Although the Supreme Court split 5-4 in Calderon, the dissenters (Justices Souter, Stevens, Ginsburg, and Breyer), who constituted the plurality in Schlup, did not disagree with the distinction Justice Kennedy drew for the majority between the Schlup and Sawyer standards.
Byrd admits that Sawyer rather than Schlup applies to an actual-innocence-of-the principal-offender specification precisely because of the explanation of those two cases given in Calderon v. Thompson (Memorandum Concerning the Applicable Burden of Proof, Dist. Ct. Doc. No. 63 at 3-4).
However, after the evidentiary hearing in this Court, Byrd attempted to change the actual innocence claim he was litigating:
* When he initially filed in the Sixth Circuit, Petitioner Byrd claimed to be "actually innocent of the death penalty," and not of the underlying offense. John Byrd's Motion [to] Determine Whether 28 U.S.C. § 2244(b) of the AEDPA Applies to His Case, filed in the Sixth Circuit September 4, 2001, at 1. * That was the claim he had made in his successive state post-conviction petition. (Dist. Ct. Doc. Nos. 18-20.)
* That was the claim the original panel thought it was deciding. See 269 F. 3rd at 574 ("Byrd is not challenging his underlying conviction, but only his sentence. See Byrd's Memorandum in Support, at 1-2, 46 n. 20.").
* That was the claim the en banc court thought it was remanding. Order of Remand, 269 F. 3rd at 586, (referring to "John Byrd's claim of innocence presented to the Ohio courts. . . .")
* That was the claim Petitioner consistently and on numerous occasions represented he was litigating after the Order of Remand was entered. (See, e.g., Transcript of Scheduling Conference, Dist. Ct. Doc. No. 6 at 20, 28; Motion to Clarify filed in the Sixth Circuit October 31, 2001, at 1 ("factual innocence of the death penalty"); Petitioner's Pre-Hearing Proposed Findings of Fact, Dist. Ct. Doc. No. 45, at 1 (referring to "John Byrd's claim of actual innocence presented to the Ohio courts. . . ."))
However, in his post-hearing Memorandum Concerning the Applicable Burden of Proof (Dist.Ct. Doc. No. 63), Petitioner Byrd completely changed his theory of the case. Admitting that he previously challenged only his "principal offender/death specification" verdict (Id. at 1, 3), he now asserts:
Byrd's Previous Challenge was Incorrectly Constrained to Only the Capital Specification: Byrd is Actually Innocent of the Underlying Aggravated Murder Conviction Because He Did Not Purposely Cause Mr. Tewksbury's Death.
The use of the word "constrained" is particularly troublesome. "To be constrained" means to be forced, i.e., by forces beyond one's own control. See Garner, A Dictionary of Modern Legal Usage, 2nd ed., at 209. So far as the Magistrate Judge is aware, no one besides Byrd's lawyers chose what to plead and what claims to make. So who "constrained" Byrd's claim incorrectly except his own attorneys? Was it a "strategic" choice to wait to change theories until after the evidence was complete, as it is claimed to have been a strategic choice to withhold the 1989 Brewer Affidavit until 2001?
Id. at 4. Petitioner states his change of position succinctly as follows:
Byrd has previously claimed his innocence as to the Ohio Revised Code § 2929.04(A)(7) aggravating circumstance with regard to the element of "principal offender" in that capital specification. He has not previously claimed his innocence as to the "underlying crime" of aggravated murder under Ohio Revised Code § 2903.01(B). See Thompson, 523 U.S. at 359. Principal offender is not an element of the felony murder charge under Ohio Revised Code § 2903.01(B). Thus the issue of whether to apply Sawyer or Schlup was previously settled by the distinction between Byrd's conviction of the aggravating circumstance (which Byrd had challenged) and his conviction of the substantive felony murder offense (which Byrd had not challenged).
Id. at 3. In other words, Petitioner now concedes that the panel majority was correct in applying Sawyer to his claim as he made it before the panel. Now, however, he makes a different claim of actual innocence — innocence of the underlying crime of aggravated murder — and claims to be guilty only of involuntary manslaughter. Id. at 4.
This is emphatically not the claim of actual innocence Petitioner presented to the state courts. It could not possibly have been the theory of actual innocence the Sixth Circuit ordered this Court to examine, since it was never adumbrated before the Circuit Court. It was apparently adopted by Byrd's counsel now because they recognized that the Sawyer clear-and-convincing-evidence standard applies to death specification innocence claims and that Schlup's laxer more-likely-than-not standard applies to innocence of the underlying crime claims.
As Respondent points out in her Memorandum in Response (Dist.Ct. Doc. No. 66), Byrd's new theory has very little relationship to the evidence presented in this Court. It has nothing whatsoever to do with the evidence attempting to show that Ronald Armstead was lying at trial, because that testimony was offered to prove Byrd wielded the knife. It also has little connection with Brewer's basic admission of being the knife-wielder. It relies solely on Brewer's assertion that he stabbed Tewksbury in a panic and therefore did not have an intention to cause his death. In other words, Byrd now claims to be actually innocent of the underlying aggravated murder because he says Brewer lacked the requisite mens rea for that offense.
This post-hearing change of theories is not permissible. Respondent's counsel were entitled to know what case they were trying. It is as if a products liability plaintiff, having tried his case on a negligence theory, sought to argue strict liability to the jury. To adopt a Fed.R.Civ.P. 15 analogy, a complaint may be amended after trial, but only if the issues have actually been tried by consent of the parties. Here there was no mention of an actual innocence of the underlying crime until well after hearing.
Since Petitioner concedes that the Sawyer standard is applicable to actual-innocence-of-the-death-penalty claims and that is the claim which was tried, the Court analyzes the evidence under the Sawyer standard.
Ethical Matters
Several ethics matters which arose during the hearing received press attention. The Magistrate Judge comments on them here briefly for sake of completeness. However, no findings or recommendations are made in that regard as it appears very important to keep the remanded issues separate from ethical concerns.
Ethical concerns first surfaced when Dayton attorneys Lawrence Greger and Sharon Ovington entered their appearances for Bodiker, Porter, and Vickers on Wednesday, November 7, 2001. They were apparently retained to protect the attorney-client communication and work product privileges. However, Greger, immediately upon taking the floor, advised the Court that it was necessary to correct the testimony of John Brewer (Hearing Tr. 586-587). Brewer had testified that he had signed two affidavits and Greger had learned that Brewer had signed four. Id. It appeared to the Court that Greger was fulfilling his clients' obligations as attorneys to correct testimony they knew to be untruthful. See DR 7-102(B). By the time the correction was made, Brewer had been returned to state custody and was no longer available to be cross-examined on any inconsistencies among the affidavits, a matter about which Respondent's counsel was very concerned (Hearing Tr. 598-605).
David Bodiker is the Ohio Public Defender; Gregory Meyers, Randall Porter, Richard Vickers, Jane Perry, and Kathryn Sandford are Assistant Ohio Public Defenders. Vickers represented Byrd from sometime in 1988 until late 2000, but never appeared on the pleadings in this Court. Ms. Perry was designated as trial attorney for Byrd, but took no role in the presentation of evidence, which was done by Meyers and Bodiker. Porter and Sandford were on the pleadings and at counsel table throughout the hearing, but neither presented any evidence.
Then, late on the afternoon of November 8, 2001, Respondent's counsel received yet a fifth Brewer affidavit, signed in 1988, which Bodiker and Vickers furnished to Governor Taft's Office in August, but never revealed to the Court, despite the fact that both of them had testified personally that there were only four affidavits (Hearing Tr. 783, 794, 803), as well as permitted Brewer to testify that there were only two, and despite the fact that the Greger-induced correction only spoke of four. Angered by this revelation, the Magistrate Judge ordered Bodiker to find out just how many affidavits there were and ordered Vickers to return to court the next morning. When he did so, Vickers refused to testify on Fifth Amendment grounds. Finally, on the morning of November 9, 2001, Bodiker presented additional, never-before-disclosed affidavits of William Woodall.
Ohio Public Defender David Bodiker and his assistants Gregory Meyers, Jane Perry, Randall Porter, and Kathryn Sandford represented Byrd and were present in the courtroom throughout the hearing; Richard Vickers is an Assistant Ohio Public Defender who represented Byrd between 1988 and 2000. Vickers and Bodiker both testified. The extent to which any of these attorneys testified untruthfully or allowed untruthful testimony to be presented to the Court obviously raises ethical concerns under DR 7-102(A) and (B), but those concerns should be dealt with apart from the merits of the Order of Remand. The ethical matters will be dealt with separately. Of course, to the extent Petitioner relies on the factual assertions of his own counsel, the Court will consider their credibility.
The Court is advised that the Ohio Public Defender Commission has referred these ethical concerns about how this case has been handled to the Ohio Supreme Court's Disciplinary Counsel for investigation. The Magistrate Judge expects to cooperate with that investigation and/or to pursue separate sanctions if they appear to be appropriate.
On the last day of the hearing, Bodiker moved to withdraw the entire Ohio Public Defender's Office from representing Byrd. He was quoted in a number of press articles as saying, "This case has become focused not on John Byrd's innocence, but on the conduct of his lawyers. By our actions, we have dug a hole and pulled John Byrd down into it." However, the rationale Bodiker offered for withdrawing was that several of the lawyers had become material witnesses. Since only Bodiker had been called on to testify, only he was permitted to withdraw. The fact that lawyers may have angered a court by lack of candor or worse is not grounds for allowing all of them to withdraw on the last day of a trial, declaring a mistrial, and starting over.
Vickers was never of record as counsel in this case.
Quality of Evidence
The Supreme Court has instructed trial judges regarding the quality of evidence to be considered on actual innocence "gateway" claims:
In assessing the adequacy of petitioner's showing [of actual innocence], therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial. Indeed, with respect to this aspect of the Carrier standard, we believe that Judge Friendly's description of the inquiry is appropriate: The habeas court must make its determination concerning the petitioner's innocence "in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after trial."
Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed. 2d 808 (1995), quoting Henry J. Friendly, Is Innocence Irrelevant?: Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970).
Fed.R.Evid. 1101(e) provides that the Rules of Evidence are to be applied to habeas corpus proceedings "to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other Rules prescribed by the Supreme Court pursuant to statutory authority. . . ." The Rules Governing § 2254 Cases do not adopt any special rules of evidence for habeas corpus proceedings, but Rule 7(b) provides:
The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as part of the record.
Instructed by Schlup and the cited Rules, the Magistrate Judge did not strictly apply the Rules of Evidence at the hearing, aside from the rule against leading witnesses identified with one's own side of the case, which is designed to prevent attorney testimony masquerading as that of a witness.
Although the Habeas Rules permit affidavits as part of the record for decision, they do not require that affidavits be weighed as heavily as live testimony. The classic statement for the difference in treatment is in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed. 2d 458 (1962):
It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury. . . ."
Affidavits are not only hearsay, they are uncross-examined hearsay. As the record in this matter makes particularly clear, affidavits are advocacy documents, readily constructed by counsel or others interested in a particular outcome, rather than in having the whole truth told. The contrast between the story purportedly told by affidavits and the truth as it appears after the hearing fully justifies Dean Wigmore's encomium to cross-examination as "the greatest legal engine ever invented for the discovery of truth." Wigmore on Evidence (Chadbourn Revision) § 1367.
Evidence Submitted
Petitioner requested that the following persons be subpoenaed for testimony or that their presence be obtained by writ of habeas corpus ad testificandum: John E. Brewer, Roger Hall, Abdul Mughni, Benny Fields, Darryl Messer, Elwood Jones, Leon Jones, Denver Nicely, Robert Pottinger, Jr., Robert Ashbrook, Henry O'Hara, Oliver Duff, John Lee Fryman, Dan Cahill, Doris Jordan, Watson Jordan, William Breyer, Daniel Breyer, and Marvin Randolph. All these witnesses were served, but Petitioner determined not to present testimony from William Breyer, Doris and Watson Jordan, John Lee Fryman, Dan Cahill, and Marvin Randolph.
Respondent listed as witnesses John W. Byrd, Jr., Randall Porter, David Bodiker, Richard Vickers, Jay Denton, Kim Hamer, Jena Thomas, Peter Rosenwald, Daniel Breyer, Lt. Howard W. Hudson, Rex Russell, Leonard Kirschner, David Bright, Gary Bailey, Martin Dillard, Martin Yant, Mark Piepmeier, Robert Pottinger, Sr., Juanita Pottinger, and Melody Meyers. All of these witnesses were served and appeared as ordered, except for Jena Thomas. The Magistrate Judge ruled that Byrd's Fifth Amendment privilege against self-incrimination prevented his being compelled to testify and he decided not to do so. Respondent did not present testimony from Hamer, Hudson, Pottinger, Sr., Meyers, Porter, Denton, Russell, Kirschner, Bright, Bailey, Dillard, Yant, or Piepmeier.
When the Court indicated it would, if requested, issue a bench warrant for her arrest on contempt charges, Respondent declined and withdrew her request to examine Thomas.
There is authority that the Fifth Amendment privilege may not be claimed on nonincriminating matters such as the reason why a claim was not made in a prior petition. Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988). Out of an abundance of caution, however, the Magistrate Judge did not compel Byrd to testify on any matter.
Before any witness listed by a party was permitted to be excused by that party, the Magistrate Judge allowed the other party an opportunity to call the witness if desired. Of particular interest in this regard is the grand jury transcript and Petitioner's failure to examine William Breyer. In seeking remand, Petitioner asserted he had consistently sought but been denied access to the grand jury transcript. The Magistrate Judge ordered it produced for in camera inspection and then ordered all of the portions delivered released to Petitioner (See Dist Ct. Doc. No. 33).
Richard Vickers, Petitioner's attorney from 1988 until 2000, pled the Fifth Amendment and refused to testify when recalled to the stand the last day of trial. A week later, represented by new counsel, he withdrew his refusal. At a telephone conference on November 16, 2001, both parties declined to reopen the evidence to examine Vickers further. See Dist. Ct. Doc. Nos. 60, 61).
Petitioner insisted that the production of grand jury transcripts must be incomplete because no transcript of testimony by Ronald Armstead was produced and Assistant Hamilton County Prosecutor William Breyer had stated at the clemency hearing, in response to a question, that Armstead had in fact testified before the grand jury. William Breyer filed a Response to the Court's Order for Grand Jury Transcript (Dist.Ct. Doc. No. 22), stating the Hamilton County Prosecutor's Office had no such transcript and that all of the still-living members of the grand jury that his office's investigator could find (seven of the nine) did not remember Armstead's testifying. Unsatisfied, Petitioner filed a motion to compel production of the Armstead transcript which essentially accused Breyer of lying to the Court (Dist.Ct. Doc. No. 27). That Motion concluded:
Assistant Hamilton County Prosecutor William Breyer has handled this case on appeal for his office, apparently since appeal was taken in the 1980's. His brother, Daniel "Woody" Breyer, was one of the Assistant Hamilton County Prosecutors who tried this case.
The Court should now compel counsel for the Warden to deliver the prosecuting attorney's entire file on the Byrd, Brewer, and Woodall cases to the Court for in camera review. . . .
Given Assistant Prosecutor Breyer's public statement to the Parole Board that Armstead did testify before the grand jury, given the state's failure to deny Byrd's assertions that Armstead testified before the grand jury, and given the state's current inability to produce a transcript of Armstead's testimony, it is appropriate for the Court to compel counsel for the Warden and for the Hamilton County Prosecutor's office to appear in court to explain their failure to produce the transcript of the grand jury testimony they themselves said that Ronald Armstead gave.
(Motion to Compel, Dist. Ct. Doc. No. 27, at 6.) William Breyer was in fact present throughout the hearing. Despite the inflated rhetoric of the Motion to Compel, Petitioner never called him to the stand to ask about the supposed Armstead grand jury testimony.
On the Court's order, Respondent's counsel searched for stenographer's notes of any such testimony on the unlikely possibility that Armstead testified but his testimony had, for some reason, not been transcribed. No such notes were found. (See Warden's Response to Court's October 30, 2001, Order, Dist. Ct. Doc. No. 42).
The evidence presented to this Court was arranged around three pieces of the story of April 17-18, 1983: the admissions of John Brewer which grounded the "new" actual innocence claim first presented to the Ohio and federal courts this year; the new evidence on the claim that Ronald Armstead perjured himself at trial; and the September, 2001, admissions of Bobby Pottinger, Jr., about his involvement with the crimes. The evidence is most intelligible if considered in connection with each of those themes, and the following analysis follows that pattern.
The Admissions of Co-Defendant John Brewer Evidence Presented
On April 17, 1983, Monte Tewksbury was working alone as the night attendant at a King Kwik convenience store in Hamilton County, Ohio. Two men entered the store wearing masks, one of them carrying a knife with a five-inch blade. After taking cash from the register and personal property from Tewksbury, one of the men stabbed Tewksbury in the side, inflicting a wound that caused massive internal bleeding. Tewksbury managed to place a phone call to his wife and told her he had been robbed and hurt, and that she should call the police and an ambulance. At about that same time, a customer happened by and helped Tewksbury back into the store, lying him on the floor. The customer returned to the phone and called the police. Soon thereafter, Tewksbury was transported to Providence Hospital where he later bled to death. Witnesses to a later robbery at a U-Totem store described the robbers there as two masked men, one of whom was carrying a knife. At both robberies, witnesses described two men running from the convenience stores and driving away in a large red van.
Byrd, John Brewer, and William "Dannie" Woodall were arrested on April 18, 1983, about an hour after the U-Totem crime, and charged with robbing the King Kwik, the U-Totem, and Tewksbury's person, and with the aggravated murder of Monte Tewksbury. Only Byrd was charged with any capital specifications, those being two specifications that Tewksbury's murder was committed while Byrd was "committing, attempting to commit, or fleeing immediately after committing or attempting to commit" the aggravated robberies of (1) the King Kwik store, and (2) Tewksbury's person, and that Byrd was "the principal offender in the commission of the aggravated murder." See Ohio Rev. Code § 2929.04(A)(7). Brewer and Woodall were separately tried and convicted of aggravated murder and three counts of aggravated robbery. In Byrd's case, the U-Totem robbery was severed for trial and he was convicted of aggravated murder and two counts of aggravated robbery. Nothing in the record shows that Byrd was ever tried on the U-Totem robbery. Byrd was also found guilty of both death penalty specifications. The aggravated murder counts and attendant death penalty specifications were merged for purposes of sentencing. Following deliberation, the jury recommended the death sentence in Byrd's case, and the trial court adopted the jury's recommendation.
Byrd's claim of actual innocence of the death penalty specification includes an argument that he was not the principal offender in Tewksbury's murder, and that instead, Brewer was the one who stabbed Tewksbury. Byrd supported his claim in both the state court (in his Successive Petition for Post-Conviction Relief, Dist. Ct. Doc. Nos. 18-20), and in the Circuit Court (in his Motion to Determine Whether 28 U.S.C. § 2244(b) of the AEDPA Applies to His Case), with two affidavits executed by Brewer on May 16, 1989, and January 24, 2001, respectively. This Court has been ordered by the Sixth Circuit Court of Appeals to make factual findings and recommendations respecting those two Brewer affidavits. 269 F. 3rd at 586. To do so, however, it is necessary to examine Brewer's statements made both before and since execution of those affidavits. It is to that task the Court now turns its attention.
In the early morning hours of April 18, 1983, Officer Joel Mast of the Forest Park Police Department was preparing to effect a stop of the red cargo van in which Byrd, Brewer, and Woodall were riding after the King Kwik and U-Totem robberies. (Brewer Trial Tr. at 650.) Before Officer Mast could exit his vehicle, however, Brewer emerged from the van and approached the patrol car. Id. Officer Mast requested identification from Brewer, but Brewer denied he had any and gave his name as "David Yreary." Id. When asked about his activities that night, Brewer told Officer Mast that he and his companions had just finished working; on further questioning, he changed his story and said he and his friends had been out drinking and trying to pick up women. (Brewer Trial Tr. at 651.) After asking the remaining two occupants to exit the van and looking inside the van and seeing various indicia of criminal activity, Officer Mast arrested Byrd, Brewer, and Woodall. (Brewer Trial Tr. at 658.)
The three were held at the Hamilton County Sheriff's Office, where they were interviewed by Sergeant Phillip A. Endres. When Brewer was interviewed at 7:16 am on April 18, 1983, he stated that he and his friends, Byrd and Woodall, had borrowed the red van, that they were in sole possession of the van from the time they borrowed it until they were apprehended, that at no time during the interim did they have any other persons with them or let anyone out of the van, and that they and only they had been in the van while it was in their possession. (Investigation Report of Sgt. Endres, attached to Successive State Post-Conviction Relief Petition.) Brewer then requested a lawyer, and questioning ceased. Id.
According to the report of Detective Thomas Simmons, also of the Hamilton County Sheriff's Office and who interviewed the three suspects with Endres, Brewer stated he and his friends had been out drinking together. (Synopsis of Interviews by Detective Thomas Simmons, attached to Successive State Post-Conviction Relief Petition.) According to Detective Simmons' summary of the Brewer's interview, Brewer and the other two men picked up a boy identified only as "Bobby" (later determined to be Bobby Pottinger, Jr.) and dropped him off at his house at some point in their travels on the night of April 17, 1983. Id. Brewer further stated he did not remember stopping anywhere other than to buy more drinks. Id. In spite of his mention of picking up Bobby, Brewer stated that at no time was there anyone in the van with him, Byrd, and Woodall. Id. Detective Simmons reported that Brewer then asked for an attorney. Id.
John Brewer was tried in August of 1983, and testified in his own defense. On direct examination, Brewer denied ever participating in the killing or injury of anyone, and he testified that the statement he gave to Detective Simmons was true to the best of his recollection. (Brewer Trial Tr. at 874-75). Almost immediately upon commencement of cross-examination, Brewer refused to answer the prosecutor's questions. Id. at 876. Brewer was instructed by the trial judge to answer the prosecutor's questions, but after denying ever being near a King Kwik store the night of the murder, Brewer again refused to be cross-examined. Id. at 877.
After a recess of undetermined length, Brewer resumed the stand and was successfully cross-examined by the prosecutor. Id. at 878. Brewer explained that he had given Officer Mast a false name the night he was arrested because he had outstanding warrants for a probation violation. Id. Brewer testified that he met up with Byrd and Bobby at Bobby's apartment at about 5:00 p.m. on the evening of April 17. Id. at 880-81. Woodall and his employer, Leroy Tunstall, showed up about one-half hour later. Id. at 880. Eventually, the group of men ended up at a bar or tavern over which Woodall's apartment was located. Id. at 883. Sometime near dusk, Brewer, Woodall, Byrd, and Pottinger, Jr., went across the Ohio River into Kentucky where they continued to drink. Id. at 884. Brewer testified that the group dropped Pottinger, Jr., off at about 11:00pm, then returned to Kentucky and spent their time shooting pool, drinking, and talking with people they knew. Id. at 886. Brewer also testified, however, that he did not know where they had been because he was unfamiliar with the roads and was not the one driving that night. Id. He denied telling Officer Mast he had just gotten off work after approaching the officer's patrol car, and testified that he and his friends had pulled over because they suspected trouble with one of the tires on the van. Id. at 887. According to Brewer, when he tried to explain the trouble with the tire to Officer Mast, the officer pulled his revolver and said "Well, get the fuck in front of the car." Id. Brewer denied any knowledge of how Sharon Tewksbury's credit card ended up in the red van, and speculated that the loose change on the floor of the van had come from a cup of coins Woodall's young son liked to play with in the van. Id. at 887-88. Brewer could not explain how the cash drawer from the U-Totem store came to be in the van, and he disputed that the Converse All-Stars shoe print on the counter at the King-Kwik was from his own Converse All-Stars shoes. Id. at 888. In fact, Brewer denied ever committing any crime of violence, and testified that he knew nothing about either of the robberies, and by extrapolation, Tewksbury's murder. (Brewer Trial Tr. at 873, 893.)
After being convicted and sentenced to prison, John Brewer was visited several times by Byrd's attorney at the time, Richard Vickers. One such visit, on May 16, 1989, nearly six years after his conviction, resulted in Brewer's executing an affidavit. The text is as follows:
Vickers' visit on that date actually resulted in the execution of two affidavits, Brewer's and one by Byrd and Brewer's accomplice, William "Dannie" Woodall. Woodall's affidavits are the subject of another part of this Report and Recommendations.
I John E. Brewer, after being duly sworn according to law, state the following:
1) That I am acquainted with John Byrd, Jr. and was acquainted with him on April 17, 1983.
2) That John Byrd, Jr. and I were together in the late afternoon and throughout the night of April 17, 1983.
3) That I observed John Byrd, Jr. drinking large quantities of beer and Screwdriver and taking narcotic drugs during the late afternoon and evening of April 17, 1983.
4) That John Byrd, Jr. appeared to be highly intoxicated during the evening of April 17, 1983.
5) That at approximately 11:15 p.m. on April 17, 1983, John Byrd, Jr. and I entered the King Kwik store located on 9870 Pippin Road, Cincinnati, Ohio; John Byrd, Jr. staggered as he walked into the store and was having a hard time standing up.
6) That I carried a hunting knife with a five inch, highly polished blade and bone handle when I entered the King Kwik Store.
7) That I ran to the front of the store where I leaped onto the front counter and then off the counter in order to subdue the store clerk, Monte Tewksbury.
8) That I grabbed Tewksbury by the arm and ordered him to give me all the money contained in the store's register.
9) That when he gave me the money from the register, I then ordered him to open the store's safe.
10) That I became distracted by lights which flashed through the front windows in the store.
11) That while I was distracted I loosened my grip on Tewksbury's arm, whereupon Tewksbury grabbed at me.
12) I reacted to Tewksbury's action by stabbing him.
13) Tewksbury fell striking his head on the counter.
14) I went around the counter in order to leave the store.
15) While I was behind the counter with Tewksbury, John Byrd, Jr. remained in front of the counter; John Byrd, Jr. had no physical contact of any sort with Tewksbury while Byrd and I were in the King Kwik store; John was so drunk and stoned that he leaned against a wall in the front of the store to stand up.
16) Upon leaving the King Kwik store, Byrd and I entered the van that William Woodall had driven to the King Kwik store.
17) I then threw the knife I used to stab Tewksbury out of the van after leaving the King Kwik store.
18) That I was never personally contact [sic] by John Byrd, Jr.'s trial attorneys or by his appellate attorney regarding John's case.
Further Affiant saith naught.
/s/ John Brewer
Sworn to and subscribed in my presence on this 16th day of May, 1989. /s/ Joanne Bour-Stokes Notary Public
(Petitioner's Hearing Exhibit 2.)
On January 24, 2001, almost twelve years later Brewer executed another affidavit in which he stated the following:
I, John E. Brewer, after being duly cautioned and sworn according to law, state the following:
1) I am acquainted with John Byrd, Jr. and was on April 17, 1983.
2) That John Byrd, Jr. and I were together on the late afternoon of April 17, 1983 and early morning hours of April 18, 1983.
3) That I observed John Byrd, Jr. drink large quantities of beer and Screwdriver and taking narcotic drugs in the late afternoon and evening of April 17, 1983.
4) We bought beer and alcohol at Drive-thrus and liquor stores earlier that evening.
5) That John Byrd, Jr. appeared to be highly intoxicated and generally fucked up during the evening of April 17, 1983.
6) That at approximately 11:00 pm on April 17, 1983, John Byrd Jr. and I entered the King Kwik store.
7) I carried a hunting knife with a five-inch highly polished blade and bone handle when I entered the King Kwik.
8) While in the King Kwik I leaped onto the front counter and off the counter in order to subdue the clerk, Tewksbury. I grabbed the clerk by the arm and he grabbed me by my arm and we tussled behind the counter. While we were tussling I became distracted by lights outside the store and lost control of Tewksbury's arm. Tewksbury slung me to the side. I freed my left arm and got my knife from my waist and stabbed him in the side. I did not think that he was seriously hurt because I did not see any blood.
9) When I turned around I saw the cash drawer was open and I snatched the money.
10) Then I panicked and went back over the counter and left the store. John Byrd, Jr. was right behind me when I left.
11) John Byrd, Jr. and I got back in the van that we had gone to the King Kwik in. When I got back in the van I said to Danny Woodall "Man, I stabbed a guy, take off".
12) When we got a little ways away from the store I threw the sheath and knife, but not together, out the passenger side window.
13) I knew who Virgil Jordan was from a prior time in the County Jail. Virgil testified at my trial that I was charged with rape in the past but I have never been charged with or investigated for rape.
14) I didn't know Ronald Armstead and didn't know who he was before being in the workhouse for this incident on April 17, 1983.
15) Other than John Byrd, Jr. and Danny Woodall I never spoke to nobody about the King Kwik case, not one word.
16) At our initial appearance on this case in Municipal Court my attorney Mr. Blackmore advised all three of us not to talk about the case with anybody. I would not talk to a black guy about anything serious, that is ridiculous that I would talk to a black guy about a serious matter.
17) Virgil Jordan had a reputation for being a snitch, everyone knew that.
18) Since I had thrown the knife out of the van I would have had no reason to ask anyone about bloodstains on the knife.
19) I did not want to take the stand at my trial. Mr. Blackmore, my attorney, advised me that it would be in my best interest to testify on my behalf to defend myself against the lies testified to by Mr. Armstead and Mr. Jordan. When the prosecutors asked me questions concerning the King Kwik I wasn't totally truthful in my answers.
20) Since 1988 when I was initially talked to by one of Byrd's lawyers I have always told the truth and admitted to the stabbing of Mr. Tewksbury, because I did it.
21) I am eligible for parole in 2015 and realize that I have a lot to lose by signing this affidavit.
22) I recognize that there are discrepancies between my 1988 affidavit and this one but I am the one who stabbed Mr. Tewksbury, not John Byrd Jr.
Further affiant sayeth naught.
/s/ John Brewer 175-066
Sworn to and subscribed in my presence on this 24th day of January, 2001.
/s/ Kathryn L. Sandford
(Petitioner's Hearing Exhibit 3.)
The May, 1989, and January, 2001, Brewer affidavits were first introduced to the state courts on January 26, 2001, just two days after the second one was signed, when Byrd attempted to present his claim of actual innocence of the death penalty specification in a successive post-conviction relief petition. In its May 25, 2001, decision, the Hamilton County Common Pleas Court rejected Byrd's successive post-conviction relief petition, concluding that it was without jurisdiction to entertain the petition because the petition did not comply with Ohio Rev Code § 2953.23(A). (Dist. Doc. No. 19 at 693-96.) In spite of that holding, the trial court went on to state that Brewer's 1989 affidavit lacked "any credibility whatsoever," and that the two affidavits were inconsistent and incredible. Id. The state trial court's findings concerning those two Brewer affidavits, however, are entitled to no deference in this Court because a court is powerless to make credibility determinations in a matter over which it has no jurisdiction. See In re James, 940 F.2d 46, 52 (3rd Cir. 1991) (stating that a "void judgment is one which, from its inception was a complete nullity and without legal effect); Patton v. Diemer, 35 Ohio St.3rd 68, [ 35 Ohio St.3d 68] 70, 518 N.E.2d 941, 944 (1988) (noting "a judgment rendered by a court lacking subject matter jurisdiction is void ab initio.")
Brewer's 1989 and 2001 affidavits were similarly presented to this Court at the evidentiary hearing. John Brewer was the first witness to testify. On direct examination, Brewer testified that he and "a few other guys" were driving around, drinking, and taking drugs on the night of April 17, 1983. (Hearing Tr. at 57.) After going to Kentucky for a while, Brewer and his companions returned to Ohio and went to the King Kwik store where Tewksbury worked. Brewer testified that he went over the counter with a knife in his waistband and grabbed Monte Tewksbury, demanding that Tewksbury give him "the money" from the open cash drawer. Id. at 57-58. Something outside the store, possibly a light, distracted Brewer from the job at hand, and he and Tewksbury "tussled" behind the counter. Id. Brewer said Tewksbury grabbed him and pushed him, then Brewer "slung the knife" and stabbed Tewksbury in the right side. Id. Brewer testified that he had been wearing the knife in a sheath that was on his waist, although he equivocated as to which side and eventually, whether the sheath was even on his waist. Id. at 218-19. Seeing no blood and believing that Tewksbury's injury was not serious, Brewer panicked and left the store. Id. at 58. Brewer gave contradictory testimony about whether he grabbed the money before or after stabbing Tewksbury. Id. He also stated he had "no idea" what happened to Tewksbury after the stabbing. Id. at 59, and that he had heard at his own trial that Tewksbury had suffered a head wound at some time during the incident (Id. at 65).
Brewer testified that he first signed an affidavit respecting Byrd's case around 1985 or 1986. Id. at 60. He identified the 1989 and 2001 affidavits as his and stated they were accurate representations of what he told Byrd's attorneys at those respective times. Id. at 62-64. Brewer stated that Byrd's attorney, Richard Vickers, had come to visit him once and that on Vickers' second visit Brewer signed the first affidavit. Id. at 221. According to Brewer, the first affidavit was notarized by Vickers' secretary. Brewer conceded that there were some discrepancies between the two affidavits relating to Byrd's precise location in the store during the robbery and murder. Id. at 64. On cross-examination, Brewer acknowledged that in the May, 1989, affidavit, he stated Tewksbury gave him the money in the register before Brewer stabbed him, and in the January 24, 2001, affidavit, he stated he stabbed Tewksbury, then noticed the cash in the open register drawer and stole the money. (Hearing Tr. at 179.) Brewer explained the difference between the two versions on the passage of time and on his consumption of drugs and alcohol on the night of the murder. (Id. at 180-81.) He testified that he and he alone stabbed Tewksbury. (Id. at 65, 181.) At some point during the night, Brewer testified he passed out in the back of the van. Id. at 67, 182.
Brewer further testified about events occurring after his arrest and the conditions at the Cincinnati Workhouse where he, Byrd, and Woodall were held pending their indictment. Id. at 69-72. As noted above, in Paragraph 15 of his January 24, 2001, affidavit, Brewer stated he never talked to anyone other than John Byrd and Danny Woodall about the King Kwik crimes. (Petitioner's Hearing Exhibit 3.) In the proceedings before this Court, Brewer explained that that statement meant only that he did not talk to Marvin Randolph and Virgil Jordan, two individuals who were incarcerated at the Cincinnati Workhouse at the same time Brewer, Byrd, and Woodall were held there prior to their indictment. (Hearing Tr. at 99, 211.) Brewer testified that after arriving at Lucasville, he confided in a few close friends, namely fellow inmates Benny Fields, Darryl Messer, and Roger Hall, that he felt sorry for Byrd being on death row, and felt bad about killing Mr. Tewksbury. (Hearing Tr. at 86, 103.)
As part of the intake process at the Ohio Penitentiary in Columbus, Ohio, where Brewer was sent following his convictions, Brewer completed a form that included a place for the inmate to give his version of his offense(s). There, Brewer stated he was "involved" in a killing and robberies, but denied any knowledge of the killing or any propensity for violence. (Respondent's Evidentiary Hearing Exhibit 28.) At this Court's evidentiary hearing, Brewer also denied ever saying in the intake process that John Byrd was Tewksbury's actual killer. Id. at 85. On cross-examination, however, Brewer was confronted with an intake screening form dated August 23, 1983, in which he stated "my buddy killed this guy, King Kwik clerk." (Respondent's Evidentiary Hearing Exhibit 30.) Brewer denied ever making that statement. (Hearing Tr. at 122.) Contrary to the intake psychologist's report, which stated that Brewer had said he was surprised when his buddy came out of the convenience store and announced that he had "wasted the dude," Brewer testified in this Court that he told the psychologist only that all three men had been convicted of aggravated murder and that Byrd was sentenced to death. (Hearing Tr. at 123-24.) Brewer suggested the psychologist's report may have been part of a conspiracy between the psychologist or prison authorities and the Hamilton County Prosecutor's Office. (Hearing Tr. at 125.)
Brewer acknowledged in this Court that he had lied to Sergeant Endres and Detective Simmons after his arrest when he said no one else had been with him, Byrd, and Woodall on the night of the murder, and that he had also lied while under oath at his own trial. Id. at 79, 91, 199. Moreover, Brewer admitted he had lied in letters he wrote to the Bureau of Classification in a scheme to be assigned to a correctional facility other than the Southern Ohio Correctional Facility ("SOCF" or "Lucasville") in Lucasville, Ohio. Id. at 80-81. In the letters to the Bureau of Classification and Reception ("BCR"), Brewer stated he had nothing to do with Tewksbury's murder, and that he would be in fear for his life were he to be sent to Lucasville, which was where John Byrd was on death row. (Respondent's Exhibits 1 and 2.) At the hearing, Brewer explained that he had written the letters to the BCR at Woodall's request, and because he did not want to serve his time at Lucasville since it was "the roughest penitentiary in the state." (Hearing Tr. at 80-83, 130.) According to Brewer, word had circulated amongst the inmates that Woodall had testified against Byrd and/or Brewer at their trials, which was not true. Id. at 81. Regardless, Woodall had told Brewer that he was afraid he would be dealt with as a "snitch" by the other inmates if he were to be sent to Lucasville. Id. In an effort to be incarcerated elsewhere, Woodall decided to write a letter to the BCR stating his life would be in danger at Lucasville, and to make his story more credible, Woodall enlisted the help of Brewer who agreed to write similar letters to the BCR. Id. at 80-83. Brewer admitted that he had made statements in the letters that were not true. Id. at 84. Included in the false statements was the one in which Brewer said there were "a lot of people in Luckusville [sic] who will try to take me and Danny Woodall[`s] life" (Id. at 84; Respondent's Hearing Exhibit 1), and that Byrd felt Brewer and Woodall deserved to die with him (Hearing Tr. at 144-45; Respondent's Hearing Exhibit 2). In addition, Brewer's statement that he was fearful of Byrd's father, who was also incarcerated at Lucasville, was a false statement for, as Brewer testified in this Court, "I couldn't have been too afraid of [Byrd's] father. I went to rec with him every other day." (Hearing Tr. at 134, 137.) One of Brewer's letters to the BCR also contained his statement that he knew nothing about Tewksbury's murder, which he admitted at this Court's hearing was a lie. (Respondent's Hearing Exhibit 1; Hearing Tr. at 139.) Brewer explained that Woodall was afraid of being sent to Lucasville because he was not a young man, "wasn't physical," and was a soft-spoken, quiet person. (Evidentiary Hearing Tr. at 145.) Brewer admittedly lied about the danger he and Woodall would be in at Lucasville because he felt he "owed" Woodall as a friend and as a fellow inmate. (Hearing Tr. at 141-44.) In spite of their efforts, both Brewer and Woodall were eventually sent to Lucasville to serve their sentences.
Ohio's Death Row was located at Lucasville at the time, but has since been moved to the Mansfield Correctional Facility.
Brewer was also questioned about his involvement as a leader of the Aryan Brotherhood, which has been described as a "white racist prison gang." Romano v. Oklahoma, 512 U.S. 1, 10, 114 S.Ct. 2004, 2011, 129 L.Ed.2d 1 (1994); see also State v. Sanders, 92 Ohio St.3d 245, 246, 750 N.E.2d 90, 102 (2001) (characterizing the Aryan Brotherhood as a "white racist group"). Brewer denied he was a member of the Aryan Brotherhood, and claimed not to be "hip to" various racist symbols and abbreviations contained in a January 15, 1986, letter written to him by Byrd. (Hearing Tr. at 150-56; Respondent's Hearing Exhibit 5.) However, an October 21, 1998, classification document from Brewer's DRC records indicates Brewer had been identified as an "active Leader of the Aryan Brotherhood" at Lebanon Correctional Institution by the Security Threat Group Committee there. (Respondent's Hearing Exhibit 34.) That same month, officials at the Lebanon Correctional Institution requested authorization to transfer Brewer to the Ohio State Penitentiary, a high maximum security facility, due to his functioning "as a leader or enforcer of a security threat group," presumably the Aryan Brotherhood, and Brewer's involvement in an incident that resulted in his being found guilty by the Rules Infraction Board of assaulting an inmate. Id.
Brewer repeatedly testified that he had executed only two affidavits for Byrd's attorneys over the years, and that the first one he signed was the May, 1989, affidavit. (Hearing Tr. at 166, 168, 213.) Brewer accurately estimated that Byrd's attorneys had been to see him between five and ten times between 1989 and June of 2000. Id. at 169. He further stated that although Byrd's attorneys asked him to tell them whether Bobby Pottinger was involved in the U-Totem robbery, he refused to answer questions about that because, to him, it had nothing to do with the King Kwik robberies and murder. Id. at 167-68. Initially, Brewer denied Byrd's attorneys ever asked him to sign another affidavit after he executed the May, 1989, affidavit, but then stated that after Vickers withdrew from representing Byrd in 2000 or 2001, Byrd's new attorneys, Randall Porter and Katherine Sandford, visited him, wrote out the January 24, 2001, affidavit and had him sign it. Id. at 169-71.
Three former or current inmates testified concerning Brewer's admission to being Tewksbury's actual killer. The first of the three, Benny Fields, testified that he had been incarcerated for twenty years after being convicted of murder in 1980. (Hearing Tr. at 223.) Fields became acquainted with Brewer when both of them were at Lucasville. Fields was transferred to the new facility at Mansfield in 1990 or 1991, and stated he has had no contact with Brewer since that time. Id. at 229. Fields testified that during the years he knew Brewer, he had never disavowed responsibility for Tewksbury's murder, but instead said he was the one who had stabbed Tewksbury, and expressed remorse that John Byrd was on death row for a killing Brewer had committed. Id. at 227-28. Fields denied ever talking to or knowing John Byrd and did not know how the Public Defenders Office's investigator became aware of him or what Brewer had told him. Id. at 239-43.
Roger "Red Bone" Hall also testified he has been imprisoned for 22 years on bank robbery and murder convictions, and stated he became acquainted with both Byrd and Brewer when all three men were incarcerated at Lucasville. (Hearing Tr. at 258-59, 281.) Hall testified that in approximately 1984 or 1985, he and Brewer were in the day room talking about their cases, when Brewer confided that he felt bad about his partner doing time for a crime Brewer committed. Id. at 262, 278. Brewer told Hall he killed Tewksbury, not Byrd, and that he had sworn out an affidavit to that effect for Byrd's lawyers, but that the affidavit had not been used because Byrd's attorneys did not believe him. Id. at 262, 266, 278. Hall later stated that he could not remember if Brewer had mentioned the affidavit the first time he told Hall he had committed the murder. Id. at 286. Brewer was not bragging about the murder, and instead Hall described Brewer's demeanor at the time as remorseful because Byrd was on death row for a murder Brewer had committed. Id. at 262-63, 276. Hall testified that Brewer took responsibility for Tewksbury's murder several times over a period of about ten or fifteen years when both were at Lucasville. Id. at 265, 276, 283.
Hall acknowledged that he himself might have written to another fellow inmate in 1986 telling him he was going to call the inmate as a witness so the two of them could see each other for a few hours, and reassured the inmate that he would let the inmate know what to say on the witness stand when the time came. Id. at 268. He explained that he was "a pretty bad person" back then. Id. Hall denied membership in the Aryan Brotherhood. Id. at 279.
The day after Hall testified, a discussion was held on the record as to whether an order of separation of witnesses had been made or was in effect, and whether the order was being obeyed. (Hearing Tr. at 314-316.) In response to Byrd's attorneys' request that the Magistrate Judge clarify his ruling of the day before on that issue, the Magistrate Judge stated the following:
The renewed motion [for a separation of witnesses] is again granted. I want to make it real clear what I said off the record last night. Yesterday it was brought to my attention that a person claiming to be a press representative was in the courtroom, purporting to represent the Columbus Free Press. The only thing I could find about the Columbus Free Press on the web was something on a Romanian web site this morning. When challenged by the Marshal for press credentials, she could not produce press credentials.
Several courtroom personnel observed her visibly signaling to Mr. Hall when he was on the stand before she was removed from the jury box. She was also observed conversing with Mr. [Dan] Cahill at lunch yesterday. So I have serious questions about whether she's going to be permitted to be in the courtroom. She may be cited for contempt if she comes back and I have serious questions about whether Cahill is going to be allowed to testify.
The person in question identified herself as Ida Strong. Although she produced no press credentials when challenged by the Marshal, she later faxed the Marshal what purported to be Columbus Free Press credentials signed on behalf of that paper by Bob Fitrakis, a person heavily involved in covering this case for Columbus Alive. See particularly reference to Fitrakis in the section of this Report dealing with Bobby Pottinger's testimony.
For security reasons, and because the courtroom was crowded all five days of this Court's proceedings, the jury box was reserved for exclusive use of the press and other media.
Dan Cahill was scheduled to appear as a witness in the proceedings on November 7, 2001. He was subsequently withdrawn from the witness list, however, even though his Affidavit was expressly mentioned in the Order of Remand. See 269 F. 3rd at 586.
(Hearing Tr. at 316-17.)
Darryl Messer testified on November 6, 2001. Messer has been incarcerated for the past eighteen years on aggravated arson and felonious assault convictions. (Hearing Tr. at 319.) Of that time, approximately fifteen years, roughly from 1984 to 1999, were served at Lucasville. Id. at 319-20. During the mid — to latter — 1980s, John Brewer was also incarcerated at Lucasville, and he and Messer socialized and shared confidences. Id. at 320-21. Messer described an incident involving Brewer's request that Messer hold a knife for him after an inmate had been stabbed. Id. at 322. When Messer refused because he felt Brewer was treating him like a "flunkey," Brewer commented that he had a brother who went to death row for him, which Messer assumed referred to Byrd. Id. at 322-23, 347. Sometime between 1986 and 1989, Messer and Brewer had another opportunity to talk about Byrd's case. Id. at 323-24. Messer testified that for a reason he did not remember, Brewer was disappointed in Messer, and criticized him saying, "you ain't loyal, you're not a brother, you're no friend, nothing like the friends I have that will go to death row and take a murder case for me." Id. at 324. From that, Messer concluded Brewer had committed Tewksbury's murder and that Byrd was taking the blame for Brewer. Id. This or similar conversations took place numerous times between Messer and Brewer. Id. Messer stated the reason he came to testify was because he felt a refusal would have reflected poorly on him in his upcoming parole eligibility hearing. Id. at 325. He came "[t]o volunteer, just to share what I do know, basically. I'm not taking sides. I care no more for Mr. Byrd than I do Mr. Brewer. It don't matter to me. Neither guy." Id. at 325.
On cross-examination, Messer acknowledged referring to John Brewer as a "brother" in the past, but denied using the term in any racist context, presumably anticipating a question from Respondent concerning the Aryan Brotherhood. Id. at 326-27. Messer further denied being part of the "brotherhood." Id. He later stated, however, that he will frequently refer to white inmates with whom he converses in any correctional facility as a "brother." Id. at 330-31. Messer admitted that he was not a model prisoner and that he has held knives in prison before. Id. at 333-34. Quite candidly, he added that he did not expect anyone in the courtroom to believe him because of the stigma attached to his status as an inmate, but professed to being truthful. Id. at 334. When questioned about his relationships with Roger Hall and John Brewer, Messer claimed to be somewhat of a loner in prison saying, "I've never been a part of [Hall's] little click [sic] or group." Id. at 335-36. Messer denied being a racist or a hate monger, but stated he did have "racial pride" and believed the races should remain separate. Id. at 338-39. He further testified that he has never belonged to the Aryan Brotherhood, and neither respects nor likes that group. Id. at 339. In fact, he views the Aryan Brotherhood as "ignorant and immature and something I wouldn't be a part of . . . at least in Ohio." Id. at 340. Messer did acknowledge former membership in the Church of Jesus Christ Christian Aryan Nation, that he believes in the separation of the races, and that he did not want to be celled with black inmates. Id. at 341, 346. See also Respondent's Hearing Exhibit 40 (kite from Darryl Messer declaring his race as "white", his membership in the Church of Jesus Christ Christian Aryan Nation, and his opposition to intermingling of the races).
On November 7, 2001, the third day of the hearing, two more Brewer affidavits came to light for the first time. (Hearing Tr. at 586.) The first of these two affidavits was produced by the Ohio Public Defender's Office that day with a claim that its disclosure to the Ohio Attorney General's Office would violate the work product privilege. Id. at 587. That affidavit was submitted to the Court for an in camera inspection, but later that same day, the work product objection to disclosure of the affidavit was withdrawn by attorney Lawrence Greger who had been retained by Byrd's attorneys Randall Porter, Richard Vickers, and David Bodiker. Id. at 587, 740. That affidavit is nearly identical to Brewer's May 16, 1989. (Respondent's Hearing Exhibit 52.) The differences between the two affidavits are that (1) the newly-produced affidavit was executed by John Brewer on June 15, 2000, (2) it is notarized by Randall Porter, (3) the word "late" in Paragraph 3 of the 1989 affidavit appears as "later" in the 2000 affidavit, (4) Paragraph 13 of the 2000 affidavit contains a misspelling of Tewksbury's name, and (5) the word "contact" in Paragraph 18 of the 1989 affidavit appears as "contacted" in the 2000 affidavit. Id.
The second of the newly-discovered Brewer affidavits was produced in this Court the following day, November 8, 2001. (Hearing Tr. at 785; Respondent's Hearing Exhibit 53.) That affidavit, purportedly signed January 18, 2001, reads as follows:
Because the document contains an unsigned jurat, Byrd's counsel insisted on referring to it not as an "affidavit," but as an unsworn statement. However, the document is labeled "Affidavit," is in the same form as other Brewer affidavits, and was signed by Brewer. There was no testimony that somehow Brewer did not understand he was signing an affidavit when he signed this document or that someone told him it would not be notarized, since the place for notarization appears. There was no testimony that Brewer believed it was unsworn and, since the document was not revealed until well after Brewer had been returned to prison, he could not be cross-examined about it.
1) I, John Brewer, after being duly sworn according to law, state the following:
2) That I am acquainted with John Byrd, Jr. and was acquainted with him on April 17, 1983.
3) That John Byrd and I were together in the late afternoon and throughout the night of April 17, 1983.
4) That I observed John Byrd, Jr. drinking large quantities of beer and Screwdriver and taking narcotic drugs during the later afternoon and evening of April 17, 1983.
5) We bought the beer and alcohol at drive-throughs and liquor stores earlier that evening.
6) That John Byrd, Jr. appeared to be highly intoxicated and generally fucked up during the evening of April 17, 1983.
7) That at approximately 11:15pm on April 17, 1983, John Byrd, Jr. and I entered the King Kwik store located at 9870 Pippin Road, Cincinnati, Ohio. I was going to buy more alcohol and John Byrd, Jr. was going to buy food as he was always hungry.
8) That I carried a hunting knife with a five inch, highly polished blade and bone handle when I entered the King Kwik store. Most people in the neighborhood carried knives including John Byrd, Jr. and myself.
9) John Byrd, Jr. went to the area where the food was located and got into an argument with the clerk, Monte Tewksbury.
10) That I was at the front counter attempting to buy alcohol and cigarettes.
11) The clerk was arguing with us because we were so drunk and high and obnoxious.
12) I got pissed off and leaped onto the front counter and then off the counter in order to subdue the store clerk, Tewksbury.
13) That I grabbed Tewksbury by the arm and he grabbed me by my arm and we tussled behind the counter. While we were tussling I freed my left arm and got my knife from my waist and as he tried to grab me I stabbed him in the side. I did not think that he was seriously hurt because I did not see any blood.
14) When I turned around I saw the cash drawer was open and I snatched the money.
15) Then I panicked and went back over the counter and left the store. John Byrd, Jr. was right behind me when I left.
16) John Byrd, Jr. and I got back into the van that we had gone to the King Kwik in. When I got into the van I said to Danny Woodall "Man, I stabbed a guy, take off."
17) When we got a little ways away from the store I threw the knife out the passenger side window.
18) I knew who Virgil Jordan was from a prior time in the County Jail. Virgil testified that I was arrested for rape but I have never been charged with rape or investigated for a rape.
19) I did not know Ronald Armstead and did not know who he was before being in the Workhouse for this incident of April 17, 1983.
20) Other than John Byrd and Danny Woodall, I never spoke to nobody about the King Kwik case, not one word. At our initial appearance on this case in Municipal Court my attorney, Blackmore, advised all three of us not to talk about our case with anybody. I would not talk to a black guy about anything serious, that is ridiculous that I would talk to a black guy about a serious matter.
21) Jordan had a reputation for being a snitch, everyone knew that.
22) Since I had thrown the knife out of the van, I would have had no reason to ask anyone about bloodstains on the knife.
23) Since 1988 when I was initially talked to by one of Byrd's lawyers I have always told the truth and admitted to the stabbing of Monte Tewksbury because I did it.
24) I am eligible for parole in 2015 and realize that I have a lot to lose by signing this affidavit.
Further affiant sayeth naught.
/s/ John Brewer
Sworn to and subscribed in my presence on this 18th day of January, 2001.
/s/ [Blank] Notary Public
(Respondent's Hearing Exhibit 53.)
On November 8, 2001, Ohio Assistant Attorney General James Canepa, trial attorney for Respondent in this case, presented to the Court yet another Brewer affidavit, the last one to be produced in this Court's proceedings. Governor Taft's Office had apparently been following the press accounts of the case and the contretemps over newly-discovered affidavits. Realizing it had an affidavit not previously disclosed, it sent the Affidavit to Canepa. That affidavit reads as follows:
I, John E. Brewer, being first duly sworn according to law, state the following:
1) That I am acquainted with John Byrd, Jr. and was acquainted with him on April 17, 1983.
2) That John Byrd, Jr. and I were together in the late afternoon and throughout the night of April 17, 1983.
3) That I observed John Byrd, Jr. drinking large quantities of beer and taking narcotic drugs during the late afternoon and evening of April 17, 1983.
4) That John Byrd, Jr. appeared to be highly intoxicated during the evening of April 17, 1983.
5) That at approximately 11:15 p.m. on April 17, 1983, John Byrd, Jr. and I entered the King Kwik store located on 9870 Pippin Road, Cincinnati, Ohio, where Monte Tewksbury was the clerk.
6) That I carried a hunting knife with a five inch, highly polished blade and a bone handle when I entered the King Kwik store.
7) That I ran to the front of the store where I leaped onto the front counter and then off the counter in order to subdue the store clerk, Monte Tewksbury.
8) That I grabbed Tewksbury by the arm and ordered him to give me all the money contained in the store's register.
9) That when he gave me the money from the register, I then ordered him to open the store's safe.
10) That I became distracted by lights which flashed through the front windows in the store.
11) That while I was distracted I loosened my grip on Tewksbury's arm, whereupon Tewksbury grabbed at me.
12) I reacted to Tewksbury's action by stabbing him.
13) Tewksbury fell striking his head on the counter.
14) I went around the counter in order to leave the store.
15) While I was behind the counter with Tewksbury, John Byrd, Jr. remained in front of the counter; John Byrd, Jr. had no physical contact of any sort with Tewksbury while Byrd and I were in the King Kwik store.
16) Upon leaving the King Kwik store, Byrd and I entered the van that William Woodall had driven to the King Kwik store.
17) I then threw the knife I used to stab Tewksbury out of the van after leaving the King Kwik store.
18) That I was never personally contacted by John Byrd, Jr.'s trial attorneys or by his appellate attorney regarding John's case.
Further Affiant sayeth naught.
/s/ John Brewer John Eastle Brewer
Sworn to and subscribed before me this 23rd day of June 1988.
/s/ Richard J. Vickers Notary Public
(Respondent's Hearing Exhibit 61; emphasis added.)
Analysis
Since 1988, John Brewer has consistently, albeit not publicly, said he was the actual killer of Monte Tewskbury. Credibility, however, requires more than consistency on a single factual assertion over a period of time. Nor can this Court ignore Brewer's earlier statements that Byrd was the knife wielder in the King Kwik robberies and murder. Brewer's story of what took place the night of April 17, 1983, has changed over the years, as evidenced by the discrepancies between his several affidavits provided to Byrd's counsel between 1988 and this year. For instance, as between the first affidavit executed by Brewer on June 23, 1988, and the second, executed on May 16, 1989, there is a discrepancy in the way Brewer describes John Byrd's level of intoxication. In the first, he only mentions that Byrd "appeared to be highly intoxicated" (Respondent's Hearing Exhibit 61), whereas in the second, he states that Byrd "staggered as he walked into the store and was having a hard time standing up" and that Byrd was "so drunk and stoned that he leaned against a wall in the front of the store to stand up." (Petitioner's Hearing Exhibit 2.) Brewer's third affidavit, executed on June 15, 2000, is substantively identical to the May, 1989, affidavit.
The Brewer affidavits are as follows:
"First" — June 23, 1988 "Second" — May 16, 1989 "Third" — June 15, 2000 "Fourth" — January 18, 2001 "Fifth" — January 24, 2001.
The second and fifth affidavits were first revealed by the Ohio Public Defender in January, 2001. The third and fourth affidavits were revealed by the Public Defender during the hearing. The first was revealed by Governor Taft's Office on November 8, 2001, during the hearing.
Significant differences exist between the fourth affidavit executed by Brewer on January 18, 2001, and all the other affidavits, however. In that affidavit, Brewer gives a completely different explanation of how Tewksbury's murder happened. In the previous affidavits, Brewer did not say why he and Byrd entered the King Kwik store, claimed he was surprised or startled by lights coming through the windows of the King Kwik store, and that Tewksbury's stabbing was an impulsive reaction to that stimulus. (Respondent's Hearing Exhibits 52, 61; Petitioner's Hearing Exhibit 2.) In the fourth affidavit, however, Brewer claimed he and Byrd entered the store to make purchases, became obnoxious because they were intoxicated, and that Monte Tewksbury became agitated because of the pair's conduct in the store. (Respondent's Hearing Exhibit 53.) For the first time, Brewer mentioned that he was wearing a sheath around his waist, that he used his left hand to stab Tewksbury, and that he did not think Tewksbury had been seriously injured because Brewer saw little or no blood from the wound. Id. Other revelations in the January 18, 2001, affidavit were that (1) Brewer panicked after stabbing Tewksbury and fled the store, closely followed by John Byrd, (2) Brewer confessed to Woodall that he had "stabbed a guy" after returning to the waiting van, (3) Brewer knew Virgil Jordan but did not know Ronald Armstead prior to Brewer's being held in the Cincinnati Workhouse following his arrest; (4) Brewer never spoke to anyone but Byrd and Woodall about his case; (5) Jordan was a known "snitch," and (6) Brewer had no reason to ask Armstead or Jordan about bloodstains on a knife since he had thrown the knife used in the killing out of the van. Id.
Just days later, Brewer signed a fifth affidavit that differed significantly from the version of events recounted in the fourth affidavit, and more closely resembled Brewer's earlier three affidavits. (Petitioner's Hearing Exhibit 3.) In that affidavit, Brewer estimates the time he and Byrd entered the King Kwik store as 11:00 p.m. instead of 11:15 p.m., as in all his previous affidavits. In Paragraph 8 of the fifth affidavit, Brewer blends elements of his first three affidavits with those of his fourth affidavit, basically sticking to his earlier story, but adding that he used his left arm to grab his knife from his waist and stab Tewksbury, that he did not see any blood from Tewksbury's wound, that he panicked after stabbing Tewksbury, and that he told Woodall he had "stabbed a guy." Id. Brewer also included his statements respecting Ronald Armstead and Virgil Jordan from the fourth affidavit in the fifth affidavit. Id. A new addition to Brewer's story, first mentioned in the fifth affidavit, was that his trial attorney, a Mr. Blackmore, had advised Brewer to testify at his own trial, and that he was not truthful in his resulting testimony. Id.
None of Brewer's five affidavits explain how the telephone or telephone line inside the King Kwik store came to be ripped from the wall. That such was done tends to disprove Brewer's sometimes-made claim that he panicked and impulsively stabbed Monte Tewksbury. Instead, and in conjunction with Woodall's comment to Tunstall that the three needed Tunstall's van to commit a robbery, the lack of an explanation as to how the phone came to be ripped from the wall in the King Kwik store supports the juries' findings in Brewer's, Byrd's, and Woodall's trials that they possessed specific intent to rob the King Kwik.
Even more telling is the total omission of any discussion, in the affidavits or his live testimony, of the robbery of Monte Tewksbury's person. The robbers took from Tewksbury his wallet (containing cash, a credit card in his wife Sharon's name, and a car registration), his Pulsar watch, and his wedding ring. State v. Byrd, 32 Ohio St.3rd 79, [ 32 Ohio St.3d 79] 512 N.E.2d 611 (1987). A Pulsar watch was taken from Byrd when he was booked into the jail and there is no testimony that Byrd usually wore such a watch. The credit card was found on the floor of the red van. Brewer swears Byrd had no physical contact with Monte Tewksbury, but offers no explanation of the property taken from Tewksbury's person.
By his own admission, John Brewer is willing to lie under oath. Not only has he admitted in his most recent affidavit that he has previously lied under oath at his own trial, he also lied from the witness stand in the proceedings before this Court when he testified that he had only executed two affidavits, those being the second and the fifth affidavits. (Hearing Tr. at 166, 168, 213.) This alone is enough to cast serious and indelible doubt on his credibility for present purposes. But that is not all there is. Upon his incarceration after being convicted, Brewer stated to a prison psychologist that his "buddy," presumably Byrd, had stabbed Monte Tewksbury. (Respondent's Hearing Exhibit 30.) In addition, Brewer told the prison social worker that Byrd had stated he killed the store clerk, and that Byrd was the only one in the King Kwik store when Tewksbury was stabbed. (Department of Rehabilitation and Correction Records ("DRC") of John Brewer, Vol. I, p. 104-05.) It is noted, however, that in 1994, during a review of Brewer's classification status (which has to do with the level of security needed to adequately supervise the inmate and the inmate's placement in a particular facility), it appears that Brewer admitted to being the actual killer in Tewksbury's murder. (DRC Records of John Brewer, Vol. I, p. 67.) Thus, Brewer has also given varying accounts of the King Kwik incident to prison authorities over the years.
Brewer also admits that he lied in his letters to the Bureau of Classification and Reception in his attempt to be placed in a facility other than Lucasville. (Respondent's Hearing Exhibits 1 and 2.) Brewer expressed fear that John Byrd would harm him and/or Woodall should the two be placed in the same facility as Byrd. Id. In addition, Brewer implicitly placed responsibility for Tewksbury' murder on John Byrd by stating that Brewer and Woodall had known nothing about the murder. Id. While these statements were not made under oath, they show Brewer's willingness to bend or break the truth when it is perceived necessary to do so out of loyalty to a friend.
Moreover, Brewer's presence on the witness stand in this Court detracted seriously from his credibility. Brewer was frequently argumentative and combative. Though not apparent from the transcript of the proceedings, there were episodes in which it strongly appeared to this Court that Brewer was feigning an inability to understand questions asked on cross-examination in order to delay answering. Brewer took nearly every opportunity to verbally spar with his cross-examiner, as well.
The testimonies of Fields, Hall, and Messer were offered ostensibly to corroborate Brewer's claim that he was the actual killer in Tewksbury's murder, and to thereby bolster Brewer's credibility. This Court finds Fields and Hall to have been relatively credible witnesses, considering that each has been convicted of murder and that Hall was presumably being coached by Ms. Strong. On the witness stand, both answered questions posed to them without hesitation, their answers appeared spontaneous and candid, and neither was combative or hostile under cross-examination.
The Court finds Messer's testimony somewhat less credible than that of Fields and Hall because Messer displayed a reluctance to concede insignificant points under cross-examination. For instance, when Messer was confronted with a letter written to him by John Byrd, and which Byrd had signed "Byrd Dog," Messer denied knowing John Byrd went by the nickname of Byrd Dog even though it is well known that Byrd has used that moniker since being imprisoned. Messer's reluctance made him appear somewhat contrary and uncooperative, and his credibility suffers as a consequence.
Regardless of their credibility in general, what Fields, Hall, and Messer testified to were Brewer's admissions to them in prison that he, not John Byrd, had stabbed Monte Tewksbury. Thus, even if this Court accepts as true their testimony, that does not prove Brewer was telling the truth when he made his admissions to them. In other words, it is entirely possible that Brewer lied to his fellow inmates, and that they could be telling the truth about what Brewer said to them, but that Byrd was the actual killer in Tewksbury's murder.
Brewer's credibility is further undermined by the testimony of Peter Rosenwald, one of Byrd's attorneys at the trial of this case. On Byrd's first state post-conviction petition, he claimed that his trial attorneys, Rosenwald and Hollis Moore, provided ineffective assistance of counsel by failing to plead an intoxication defense. Such a defense would be consistent with Brewer's statements that Byrd was so intoxicated at the King Kwik that he had to lean up against the wall to keep himself erect. They would also be consistent with Bobby Pottinger's later-appearing (August 31, 2001) affidavit that Byrd was passed out in the back of the van during the U-Totem robbery.
However, by making this claim, Byrd waived the attorney-client privilege for any communications he had with Rosenwald and Moore relative to the intoxication defense. Rosenwald was therefore ordered by the trial judge handling the first post-conviction petition to give an affidavit on that subject. While the affidavit was circumspect, presumably because Rosenwald wanted to disclose as little as possible, he stated that Byrd told him facts which were inconsistent with presenting an intoxication defense. When he appeared before this Court, Rosenwald recalled only that there was some conversation between himself and Byrd about intoxication, including marijuana, and that the real reason he did not present an intoxication defense is that that defense is not usually successful. (Hearing Tr. at 870.) Again, Rosenwald was being circumspect, but his testimony at the hearing does not suggest Byrd was so intoxicated on April 17, 1983, that he could barely stand up or shortly thereafter was "passed out in the van."
In testifying before this Court, Rosenwald was very cognizant of and careful to abide by the relevant ethical canons proscribing revealing the confidences of a client. He would say nothing until the Court found the privilege waived and made an express ruling under Disciplinary Rule 4-101.
The credibility of the story told by John Brewer is further undermined by the testimony regarding William Woodall's account of the crime. Woodall, considerably older than Byrd and Brewer, was the driver of red van during both robberies. He was convicted of three counts of aggravated robbery and one of aggravated murder in a separate trial from Byrd and Brewer and sentenced to life imprisonment.
Upon initial classification in the Ohio prison system, Woodall claimed Byrd was the person who actually stabbed Monte Tewksbury. According to Brewer, Woodall persuaded Brewer to support this version of events and his ongoing fear of the Byrd family in an attempt to avoid being sent to Lucasville prison. Thus, as noted above, Brewer and Woodall's versions of events as told to the classifying prison authorities are parallel.
In 1988, at the same time Byrd's lawyers first visited Brewer and obtained his affidavit that he had stabbed Tewksbury, they obtained a similar affidavit from Woodall. As we now know, Byrd's counsel claim they kept the original Brewer affidavit secret from 1989 to 2001 as a matter of strategy. However, they never revealed the 1988 Woodall affidavit at all until Respondent produced affidavits from Assistant Hamilton County Prosecutor Mark Piepmeier and Ohio Highway Patrol Lieutenant Howard Hudson of statements to them from Woodall, who was dying, repudiating his prior affidavits and again (as in 1983) stating that Byrd was the principal offender.
The 1989 Brewer Affidavit is the second, not the first. However, from January 26, 2001, until November 8, 2001, Byrd's counsel claimed that the 1989 Brewer Affidavit was the first one.
Woodall died of cancer on April 8, 2001, and was thus not available to testify.
Ohio Public Defender David Bodiker testified at the hearing that Woodall's affidavits were not used because Byrd's counsel doubted his "reliability." But if Woodall's reliability was doubtful in 1988, why was Brewer's not doubtful on the same basis? Byrd's counsel sought to subpoena three separate hospitals to obtain records from Woodall's last illness, ostensibly to demonstrate that Woodall's statements to Piepmeier and Hudson were unreliable, one supposes on the theory that he was too sick to be believed. But this hardly explains why Woodall was thought unreliable in 1988 or in 1994 when Byrd filed his first federal habeas petition.
Discovery of those documents was denied, essentially because by themselves they would prove nothing and the attempt to obtain them would likely generate satellite litigation in then short time this Court had available to complete the hearing and Report.
Byrd's counsel's doubt of Woodall's reliability undermines their claim that the Brewer confession was withheld for strategic reasons and instead supports the inference that they did not believe either Brewer or Woodall. One should recall that Brewer himself did not think Byrd's lawyers believed him back in 1988-1989.
To summarize, therefore, this Court finds after reviewing the totality of Brewer's statements concerning the King Kwik murder and the statements of others made about Brewer's statements, that Brewer's credibility is irreparably damaged. He admits to having lied to the court in his own trial, his prison social worker, a prison psychologist, the Department of Rehabilitation and Correction, and the Bureau of Classification and Reception. His five affidavits contain glaring inconsistencies and omissions, and he lied while under oath at the proceedings before this very Court. These facts allow no room for a conclusion other than that John Brewer's word is not to be believed.
The "New" Evidence Regarding Ronald Armstead
John Byrd, Jr., has argued since late 1983 that he was convicted on the perjured testimony of Ronald Armstead. While the focus of his new case in the Court of Appeals was the newly-revealed John Brewer affidavits, he also sought to obtain and present additional evidence supporting this claim which he had made, in form or another, in his first federal habeas proceeding. The Order of Remand directs the gathering of documents related to this claim and a great deal about it was presented at the hearing.
The Evidence Presented
In April, 1983, after Byrd, Brewer, and Woodall were arrested, they were all placed in the A-block of the Workhouse, the maximum security unit. Armstead was also incarcerated in A-block at the same time. Armstead testified for the State in the Byrd, Brewer, and Woodall trials, and, according to his trial testimony in all three cases, Byrd, Brewer, and Woodall talked to him about their cases while in the Workhouse. Specifically, Armstead testified in all three trials that Byrd admitted to stabbing Monte Tewksbury during the course of the King Kwik robbery. Another Workhouse inmate named Virgil Jordan testified at the Brewer and Woodall trials but did not testify at Byrd's trial.
Virgil Jordan died of a drug overdose on June 24, 2001. (See Petitioner's Exhibit 30).
Virgil Jordan did testify at John Brewer's trial. His testimony revealed detailed conversations with Brewer in which Brewer stated that Byrd stabbed Monte Tewksbury. Jordan was not asked at Brewer's trial whether he had conversations with Byrd, and therefore any conversation was not revealed.
At the grand jury proceeding which indicted all three defendants, Jordan testified that he saw and engaged in conversation with both Byrd and Brewer in the Workhouse. (Grand Jury Testimony of Jordan.) Although he did not know Byrd, he testified that he knew Brewer from a previous stay at the Workhouse. Id. at 2. Jordan also testified that Brewer told him that he (Brewer) and Byrd "went into a King Kwik and forced a guy to open a cash register with a knife." Id. at 2. Further, Jordan testified that Brewer told him that Byrd had the knife while in the store, and that Brewer did the "talking." Id. Jordan testified that Byrd also spoke to him about the case, and that Byrd had told him he "didn't mean for it to jump off the way it did when he stabbed him," and that he "wasn't going to the chair hisself." Id.
At Byrd's trial, Armstead testified that when Byrd, Brewer, and Woodall first came to the Workhouse, they bragged about the King Kwik robbery and murder. (Byrd Trial Tr. at 1548.) He also testified that Brewer approached Armstead when Byrd, Brewer, and Woodall were first brought to the Workhouse because Brewer thought that he had met Armstead while previously incarcerated in the Workhouse or the Hamilton County Jail. Id. at 1546. Armstead testified that soon after Byrd, Brewer, and Woodall were brought to the Workhouse, Byrd and Brewer asked him questions concerning their cases and the law, Id. at 1547, particularly about whether the police would be able to find bloodstains on the knife, where the police would send the knife to have it analyzed, and whether the police would be able to find any blood on the knife if they had cleaned the knife. Id. at 1547-48. Armstead testified that he spoke with Byrd and Brewer in Byrd's cell, and that Byrd told him during the conversation that he stabbed the King Kwik store clerk. Id. at 1548.
Additionally, Armstead testified that on May 26, 1983, he and the other A-block inmates, including Byrd, watched a television program called PM Magazine which profiled the singing career of Monte Tewksbury's daughter. Id. at 1550. When the prosecutor asked Armstead what Byrd said when Monte Tewksbury's picture came on screen during the television program, Armstead answered, "[H]e said, `Fuck him,' you know. `He deserved to die,' and he said, him, Byrd, Brewer, all of them said, `Plus the fact the Bitch can't sing.'" Id. at 1551. When the prosecutor asked Armstead if Byrd specifically told Armstead that he (Byrd) was the one who stabbed Monte Tewksbury, Armstead answered:
Yes, he did . . . . Okay. See, he kept on worrying, he, you know, he kept on worrying about that knife, so like he had got some stamps and I needed some stamps, so I was in the cell talking with him first and then Brewer came in and then we just started, they just started asking me questions, and he said, "Yeah, I killed him, I killed him, you know, because he was in my motherfucking way, fuck him," you know . . . .
Id. at 1551.
Armstead's testimony was that he thought the A-block held close to one hundred people, but that there could have been from twenty to thirty men in the A-block on April 19, 1983, when Byrd, Brewer, and Woodall were first brought to the Workhouse. Id. Armstead testified that Byrd, Brewer, and Woodall: "talked to everybody . . . . They was bragging." Id. at 1557.
On cross-examination when Armstead was asked whether basic legal advice would be to discuss your case with others, Armstead remarked:
[W]ell, with them three if you would tell `em to keep their mouth quiet, they wouldn't keep it quiet anyway. What they felt they did was big thing, so they bragged. They didn't only brag to me, they bragged to everybody over there that was in that area at the time they heard `em.
Id. at 1560.
When asked the names of some people that Byrd, Brewer, and Woodall allegedly bragged to, Armstead testified, "[O]ffhand, you know, well, you got quite a few guys over there." Id. at 1561. Upon further questioning, Armstead stated that Marvin Randolph was the name of another inmate that Byrd and his co-defendants allegedly bragged to about the King Kwik stabbing and robbery. Id.
Before Byrd's trial, both Marvin Randolph and another inmate, Thomas Sargent, sent letters to the Hamilton County Prosecutor's Office stating that they had information about the King Kwik case. (See Respondent's Exhibit 56).
On cross examination, Armstead was asked about another inmate at the Workhouse named Denver Nicely. Id. Armstead explained that Denver Nicely was not in the A-block at the time that Byrd and his co-defendants entered the A-Block, but that he did come to the A-block after that time. Id. Armstead could not remember whether Denver Nicely was in the Workhouse on May 26, 1983, the date of the airing of the PM Television program. Id. at 1561-62. Armstead testified that he had written the Hamilton County Prosecutor's office to let them know about Byrd's admissions only after the airing of the PM Television program. Id. at 1567,1569.
When asked if he had any charges pending at the time that he spoke to the Prosecutor's office, Armstead answered that he had "his time in March the 15th and I don't have no time pending or nothing else pending." Id. at 1569. Further, he testified that he had "about two more weeks" before his "time was up." Id. at 1570. Although Armstead's testimony was correct that he was almost finished serving the time for his attempted theft and assault charges, Armstead did in fact have more potential time pending due to a parole violation.
Soon after Byrd's trial ended, Armstead, while in the Hamilton County Jail and later the Columbus Correctional Facility, wrote several letters to the Hamilton County Prosecutor's Office stating that he was being threatened and had been assaulted by several inmates because he testified against Byrd. (See Respondent's Exhibit 57-59.) Armstead's letters expressed concern that he might be seriously injured or possibly killed by other inmates including John Byrd, Sr., (the Petitioner's father) and his friends incarcerated at the Columbus Correctional Facility. Id. Armstead specifically referred to seeing Denver Nicely when first arriving at the Columbus Correctional Facility, and expressed concern that Nicely knew that Armstead was now an inmate there.
The Courts review of John Brewer's DRC records revealed that the Columbus Correctional Facility ordered that Armstead, Byrd, Brewer, Nicely, and Woodall be separated at all times.
Although the Hamilton County Prosecutor's had strongly opposed Armstead's release on parole several years before, Daniel Breyer, one of the prosecutors in Byrd's case, sent a letter to the Adult Parole Authority regarding Armstead's release on parole. In his letter, Daniel Breyer stated that due to concerns for Armstead's safety, the Prosecutor's office would not recommend any particular disposition of Armstead's parole status, but would not oppose Armstead's parole. Daniel Breyer testified at the hearing that during that time period the Hamilton County Prosecutor's Office, largely for political reasons, opposed virtually every potential parole of a Hamilton County prisoner of which they got notice. He recalled Leonard Kirschner, a supervisor in the office, sitting for hours dictating parole opposition letters.
Armstead's parole was reinstated on October 20, 1983, and he went immediately to his brother's home in San Diego, California. The Petitioner's allegations that Armstead had testified falsely surfaced soon after Byrd's conviction and sentence. On December 6, 1983, the Petitioner filed a Motion for a New Trial based upon newly-discovered evidence in the Hamilton County Court of Common Pleas. The Petitioner claimed that his father, John Byrd Sr., had received information that Armstead had admitted that he committed perjury to Elwood Jones, an inmate who was at the Workhouse at the same time as Armstead and Byrd. On September 19, 1989, almost six years later, this Motion was denied by the Court of Common Pleas because the court found that there was no credible evidence that Armstead lied in his testimony.
The following evidence relating to the claim that Armstead lied was presented at the hearing in this Court:
* Testimony of Abdul Mughni
* Affidavit of Abdul Mughni dated January 17, 2001 (Petitioner's. Exhibit 5).
* Testimony of Elwood Jones
* Affidavit of Elwood Jones dated August 19, 1988 (Petitioner's Exhibit 7).
* Testimony of Leon Jones
* Affidavit of Leon Jones dated August 17, 2001 (Petitioner's Exhibit 8).
* Testimony of Robert Ashbrook
* Affidavit of Robert Ashbrook dated December 28, 2000 (Petitioner's Exhibit 11).
* Testimony of Henry O'Hara
* Affidavit of Henry O'Hara dated August 20, 2001 (Petitioner's Exhibit 12).
* Testimony of Oliver Duff, III
* Affidavits of Oliver Duff, dated August 20, 2001 and September 20, 2001 (Petitioner's Exhibit 13).
* Testimony of Denver Nicely
* Affidavits of Denver Nicely, dated May 30, 2000, and September 21, 2001 (Petitioner's Exhibit 19)
* Affidavit of Doris Jordan dated January 25, 2000 (Petitioner's Exhibit 21).
* Affidavit of Watson Jordan dated February 1, 2001 (Petitioner's Exhibit 22).
* FBI record and Adult Parole Authority Investigation's Report of Ronald Armstead and Petitioner's "Armstead Timeline" (Petitioner's Exhibit 23).
Although both Doris and Watson Jordan were subpoenaed and came to the hearing to testify on November 7, the Petitioner decided not to call either of them. (Hearing Tr. at 615.)
* Armstead's testimony from Byrd's Trial (Petitioner's Exhibit 24).
* Letters from Hamilton County Prosecutor's Office regarding Ronald Armstead's furlough, parole, or release (Petitioner's Exhibit 25).
* Affidavit of Thomas W. Casler dated May 16, 2000 (Petitioner's Exhibit 27).
* Testimony of David Bodiker (Petitioner's Exhibit 28).
* A handwritten note regarding Virgil Jordan's removal from the Workhouse dated May 20, 1983 (Petitioner's Exhibit 29)
The note states,"Capt Henke . . . . For your info files — regarding the King Quick [sic] homicide. I received call from Prosecutor's Office re Virgil Jordan (CCI Inmate) testifying before the Grand Jury on info he obtained from Defendants. They requested we remove him from CCI put him in jail for remainder of the time, for obvious reasons."
* Virgil Jordan's Certificate of Death (Petitioner's Exhibit 30).
* Affidavit of Marvin Randolph dated September 14, 1988 (Petitioner's Exhibit 38).
Although the Court issued a subpoena for Randolph to appear before the court, Petitioner declined to call him as a witness. (Hearing Tr. at 616.)
* Testimony of Daniel Breyer
* Affidavit of Daniel J. Breyer dated July 21, 1989 (Respondent's Exhibit 56).
* Armstead letter "Dear Mr. Breyer" dated August 15, 1983 (Respondent's Exhibit 57).
* Armstead letter "Mr. Arthur M. Ney, Jr." dated August 30, 1983 (Respondent's Exhibit 58).
* Armstead letter "Mr. Daniel Breyer" dated September 1, 1983 (Respondent's Exhibit 59).
* Letter from Leonard Kirschner to John Shoemaker dated October 6, 1983 (Respondent's Exhibit 60).
* Affidavit of Billy Joe Sowell dated April 30, 1989 (Respondent's Exhibit 64).
* Folder from Carrie Glaeden from the Governor's office containing the Affidavit of Robert Jones dated September 23, 1988 (Respondent's Exhibit 65).
At the hearing, Petitioner called Abdul Mughni as a witness and submitted his affidavit of January 17, 2001. (See Petitioner's Exhibit 5). Abdul Mughni testified before this Court on Monday, November 5, 2001. (Hearing Tr. at 288-308). At the hearing, Mughni, who is black, testified that he is incarcerated at SOCF (Lucasville) on 1985 convictions of aggravated murder and robbery. (Hearing Tr. at 288). Additionally, he testified that his prior felony convictions include receiving stolen property, carrying a concealed weapon, and felonious assault. Id. at 289.
Peter Rosenwald and Daniel Breyer testified that Mughni was tried on death specifications for the aggravated murder, but that he was acquitted. Their conversation about the case was presented as the context for an admission by Rosenwald that Byrd had stabbed Tewksbury. See infra at "New Evidence of Byrd's Guilt."
Mughni testified that he was incarcerated in the A-block of the Workhouse in 1983 at the same time that Byrd, Armstead, and Jordan were there, and that he knew both Armstead and Jordan before that time. Id. at 289-291. Referring to Armstead and Jordan, testified, "[I] know them from the streets. They were junkies . . . . They grew up with my brothers." Id. at 290-291. Mughni testified that there were only maybe fifteen to twenty people in the A-block of the Cincinnati Workhouse back in 1983. Id. at 304. Further, Mughni testified that in 1983 that black and whites were integrated at the Workhouse, but "stayed separate". Id. at 293. Mughni's testimony was that Byrd, Brewer, and Woodall were loners who kept to themselves. Id. at 293. Mughni testified that he did not know John Byrd personally, but did know of him at the time they were in the Workhouse. Id. Mughni did testify however that he knew John Brewer "from the streets". Id. Mughni also testified that he did not hang around with Byrd at the Workhouse. Id. at 300.
Mughni testified that it was common knowledge on the street that both Armstead and Jordan were police informants. Id. at 291. Mughni testified that he overhead Armstead and Jordan "bragging about how they had successfully set Byrd up and wrote the prosecutor on him, lied on him, you know, stuff like that, to get out from under the cases that they had that were pending, how they worked out a deal with the prosecutor and everything." Id. at 292. Mughni's testimony was that he did not actually hear Armstead and Jordan discussing the details of their "false" testimonies at the King Kwik murder trials. Id. at 294. Instead, Mughni testified that he "heard them bragging about they had got if off, you know, some of the stuff they had fabricated." Id.
Mughni's testimony described a situation where he, Armstead, and another inmate, "Buck," were watching a television program which featured Armstead's testimony at Byrd's trial. Id. at 296. Mughni testified that Buck told Armstead that "he was a low down snitching MF and he shouldn't have did what he did because he knew that he was lying and everything," and that Armstead merely responded by laughing and saying "hey, I'm getting out, F him." Id.
Upon cross-examination by the Respondent's counsel, Mughni acknowledged that his affidavit does not state that Armstead's testimony against Byrd was false. Id. at 304. Mughni testified that there are different definitions for the word "snitch," and that "[I]n the ghetto, we consider a snitch someone like a dope fiend or someone like that will fabricate and go tell lies to get out of a particular case or a circumstance that he's gotten himself into by any means." Id. at 305-6. Mughni testified that he would not call someone who just testifies truthfully a "snitch" and that the word "snitch" connotes fabrication. Id. at 307.
Mughni's affidavit states that he overheard Armstead and Jordan bragging about "the deals they got for testifying against Byrd, Brewer, and Woodall" and that Jordan had a reputation for being a snitch. (Petitioner's Exhibit 5.) The affidavit does not state that Armstead and Jordan falsely testified, or that Armstead had a reputation as a snitch.
At the hearing, Petitioner also called Elwood Jones as a witness and submitted his affidavit of August 19, 1988. (See Petitioner's Exhibit 7.) Jones testified before this Court on Tuesday, November 6, 2001. (Hearing Tr. at 356-414.) Jones testified that he is on death row at the Mansfield Penitentiary, Id. at 356, and that he is a black inmate who was in both the Hamilton County Jail and the Cincinnati Workhouse in 1983. Id. at 358. Jones testified he knew Ronald Armstead "from the streets", Id. at 359, and that he grew up with Virgil Jordan. Id. at 359. As far as the reputation of Armstead and Jordan on the street, Jones testified that, "they was snitches. They was informers. Any time they went to jail, they would look to make a deal with the prosecutor." Id. at 360. Although Elwood Jones testified that it was common practice for both Armstead and Jordan to lie, he did not testify as to any specific instances when they had done so. Id. at 362.
After the events about which he testified here, Elwood Jones was convicted of aggravated murder in the course of an aggravated robbery in which he beat a 67-year-old woman to death. State v. Jones, 90 Ohio St.3rd 403, [ 90 Ohio St.3d 403] 739 N.E.2d 300 (2000). His initial federal petition for writ of habeas corpus was filed in this Court within the last week.
Jones testified he saw both Armstead and Jordan when he arrived at the Workhouse in 1983. Id. Although they spoke to one another at the Workhouse, he was not friends with Armstead or Jordan. Id. at 361. He testified that he did see Armstead and Jordan talking to white inmates at the Workhouse, Id. at 398, and that he did not know Byrd, Brewer, or Woodall while he was at the Workhouse. Id. at 362.
While at the Workhouse, Jones overheard Armstead and Jordan discussing the King Kwik case, and stating specifically that a skull cap and a knife were missing from the evidence. Id. at 363. Later that same afternoon, he saw Armstead and Jordan speaking with two Cincinnati detectives. Id. at 364.
While he was in the Hamilton County Jail with Armstead after Armstead testified against Byrd, Armstead asked him to write a letter to the Hamilton County Prosecutor's office regarding Armstead's parole. Id. at 370. Jones explained that he wrote such a letter for Armstead ("the Elwood Jones letter",) and he sent this letter to the Prosecutor's office with a letter that Armstead had written himself ("the Armstead letter"). Id. He further testified that prior to writing the letter, Armstead admitted that his testimony in the Byrd case was false. Id. at 378.
The "Elwood Jones" letter is addressed to "Whom It May Concern" and bears the purported signature of Elwood Jones. The letter is handwritten and states that Armstead told Elwood Jones that he "lied on John William Byrd, Jr. in the King Kiwk Murder case . . . . for a deal". (See Petitioner's Exhibit 7).
The "Armstead letter" is addressed to "Whom It May Concern" and bears the purported signature of Ronald Armstead. The letter is hand-printed except for the signature and the letter states that Armstead fears that his life is in danger due to the fact that he testified in the "King Kiwk" murder case and that he only gave his testimony because the Hamilton County Prosecutor's Office told him that he would go back to the streets. (See Petitioner's Exhibit 7.)
The Respondent has argued in previous court proceedings that the "Armstead letter" was actually written by Elwood Jones instead of Ronald Armstead. The "Armstead letter" states that Armstead only gave his testimony because the Hamilton County Prosecutor's Office told him that he would go back to the streets. On April 6, 1989, James Dibowski, a handwriting examiner, filed an affidavit stating that he was requested by the Hamilton County Prosecutor's Office to determine if the letter was signed by Armstead. (Appendix to Return of Writ, First Habeas Petition Doc. No. 38, Exhibit C-4 Appendix A therein.) Dibowkski' s report states that although the copy of the letter he examined was in poor condition, he had no basis for believing that Armstead's signature was contained in the "Armstead letter" Id. Dibowkski reached this decision by comparing the signature on the "Armstead letter" with Armstead's known to be genuine signature on letters sent to the Hamilton County Prosecutor's Office. Id.
Dibowski reached no conclusion as to whether the signature on the "Armstead letter" was written by Elwood Jones. Id. However, and importantly, the "Armstead letter"contains a misspelled word: King Kwik is spelled "King Kiwk". Id. Dibowski noted that the "Elwood Jones letter" also misspells King Kwik as "King Kiwk." Because the "Armstead letter" is hand-printed (other than the signature) and the "Elwood Jones letter" is written, Dibowski could not make a determination as to Elwood Jones' authorship of the "Armstead letter." Id. Elwood Jones admitted before this Court that the word "Kwik" is incorrectly spelled "Kiwk" in both the "Armstead letter" and the "Elwood Jones" letter. (Hearing Tr. at 392-93).
At the hearing, Jones identified "the Armstead letter" as the letter written by Armstead that Jones mailed to the Hamilton County Prosecutor's Office along with his own letter. (Id. at 374). Jones testified that he didn't expect any kind of benefit for sending the letter on behalf of Armstead, and that his purpose in writing the letter was that he did not like the Hamilton County Prosecutors's office because of their practice of using snitches on a regular basis. Id. at 378 — 79. Jones provided no explanation of why, if he dislikes snitches so much, he would write a letter on behalf of a snitch to whom he personally owed nothing and whom he believed lied in the very case in which Jones was assisting him.
Thomas W. Casler, an investigator with the Office of the Nevada Federal Public Defender, signed a sworn affidavit in Nevada on May 16, 2000, stating that he had spoken with Armstead about the "Armstead letter." (See Petitioner's Exhibit 27.). In his affidavit, Casler states that he spoke with Ronald Armstead on May 9, 2000, to discuss the authenticity of a couple of letters, which are affixed to the affidavit as Attachments "A" and "B." Id. Casler states in his affidavit that he gave Armstead a copy of Attachment A (the "Armstead letter"), and that after carefully looking at it, Armstead said that he recognized the letter and that it did contain his writing. Id. Casler also states in his affidavit that he questioned Armstead about who the letter was intended for and Armstead he could not remember. Id. When questioned about Attachment B, Casler states in his affidavit that after Armstead read the letter, Armstead stated, "It doesn't look like mine because I can't spell that good. I still can't spell that good. I don't know if it's mine. I don't remember." Id.
Thomas Casler was not called as a witness by either party or this Court at the evidentiary hearing, and therefore, he did not testify at the hearing.
Attachment A is the "Armstead letter". Attachment B is a letter addressed to "Dear Mr. Bryer" and signed "Truly yours, Ronald Armstead". The Attachment B letter states that Armstead is concerned with being transferred to the county jail and Ohio penitentiary because he has received threats. Attachment B is one of the letters that was used in the handwriting analysis report..(See Appendix to Return of Writ, First Habeas Petition Doc. No. 38, Exhibit C-4 Appendix A therein.)
Attempts by Petitioner's counsel to locate Armstead so he could be subpoenaed for the hearing were unsuccessful.
At the evidentiary hearing, Petitioner called Leon Jones as a witness and submitted an affidavit signed him Jones on August 17, 2001. (See Petitioner's Exhibit 8). He testified before this Court on Tuesday, November 6, 2001. (Hearing Tr. at 401-416). At the hearing, Leon Jones testified that he was convicted of aggravated robbery and that he is presently an inmate at the London Correctional Facility. Id. at 402. Jones, who is black, testified that he went to junior high and high school together with Armstead and later knew him from the streets. Id. at 404. Regarding Armstead, he testified,
I knew him to be a dope fiend, a snitch . . . Well, he was like an informant, worked for the prosecutor's office. Something like that. He would gain information, confront people and gain information about their case and write the prosecutor's office in exchange for a deal to get out of jail . . . .
Id.
Leon Jones testified that he was an inmate at the Workhouse in 1983. Id. Leon Jones, testified that he knew that Byrd was at the Workhouse, but he did not know Byrd personally. Id. at 415. Leon Jones testified that he also knew that Brewer was at the Workhouse, and that he had known Brewer previously. Id. at 404. Jones further testified that he knew Jordan very well, and that Armstead, Jordan, and Marvin Randolph were all at the Workhouse at the same time Brewer was there. Id. at 405-407. He would see Armstead and Jordan together at the Workhouse, but he did not recall seeing Marvin Randolph with them. Id. at 408. Jones testified that black and white inmates did not associate at that time, and that he did not see Armstead or Jordan associate with white inmates. Id. He testified that he did not know anything about Armstead and Jordan testifying against Brewer or his co-defendants, Woodall and Byrd. Id. at 409. When he was asked at the hearing if he ever knew about Armstead testifying in a case, Leon Jones testified "yes," but explained,"I can't be specific because of being so long ago, but I do know that he was in the county jail on two occasions where he made a deal with the prosecutor and got out." Id. at 409. Jones further testified that he knew this because Armstead had told him about getting the deals. Id. at 409 — 410.
Jones testified that snitches would "tell on" other inmates, but did not testify that snitches lied. Id. at 411. At certain times in the Workhouse, the inmates were able to congregate together, but that black and white inmates did not do so. Id. at 412. On cross-examination, Jones testified that he did not recall saying in his sworn affidavit that there was an exception if the "black person knew the white person." Id. at 413-14. He then clarified his testimony and explained that if a black inmate previously knew a white inmate, the parties might have spoken to one another in the Workhouse, but would not have associated with each other. Id.
See Affidavit of Leon Jones. (Petitioner's Exhibit 8.)
Petitioner also called Robert Ashbrook as a witness and submitted his affidavit signed on December 28, 2000. (See Petitioner's Exhibit 11). He testified before this Court on Wednesday, November 7, 2001. (Hearing Tr. 555-64). He is an inmate at the Madison Correctional Institution serving a term of incarceration for "GSI," (gross sexual imposition). Id. at 556. His other felony convictions include breaking and entering and passing bad checks. Id. at 556.
Ashbrook, who is white, testified that he met Byrd in the Cincinnati Workhouse in 1983, Id. at 555, and that he never saw Byrd associating with black inmates there. Id. at 557. Ashbrook further testified that he knew who Armstead and Jordan were, and that he never saw Byrd talking to either Armstead or Jordan at the Workhouse. Id. Ashbrook testified that he spoke with Byrd and played cards with him while they were both at the Workhouse, but that Byrd did not talk about his case. Id. at 562. Ashbrook admitted that he did not accompany Byrd around the Workhouse at all times. Id. at 561. Ashbrook's testimony described the racial situation in the Workhouse as "whites hung with the whites and blacks stayed to theirselves." Id. Ashbrook also testified that he never saw Brewer or Woodall talking to any black inmates. Id. at 558. Ashbrook testified that he never associated with black inmates at the Workhouse because he had previously been raped by a black inmate. Id.
Petitioner also called Henry O'Hara as a witness and submitted his affidavit signed on August 20, 2001. (See Petitioner's Exhibit 12.) O'Hara testified before this Court on Wednesday, November 7, 2001. (Hearing Tr. at 622-45.) He is an inmate at the Lebanon Correctional Institution on charges of kidnaping and sexual assault. Id. at 623. O'Hara, who is black, testified that he grew up with Virgil Jordan and that his mother practically raised Jordan. Id. at 624. Jordan had a reputation as a bully, a snitch, and a drug addict. Id. O'Hara testified that Jordan "used people to get out of trouble himself." Id. at 628. O'Hara further testified that:
Basically, what Virgil done, I called it — myself and a lot of people called it working for the prosecutor's office, you know, because Virgil was the type of guy who had went to jail on different charges himself. And, what he would do, he would tell on other people to get out of jail. He would use other people to get out of jail by going to the prosecutors and giving the prosecutors false information a lot of times on people. I was in there — I went back to court, I was in prison in 1985 and I went back to court on appeal in 1985 and Virgil Jordan was my celly, my cell mate, in the Hamilton County jail. We had another friend that was in there with us by the name of Larry Calloway. And Virgil wrote a letter to the prosecutor's office. Virgil was in there for two guns, two weapons, he had got caught with. And he wrote a letter to the prosecutor while he was my celly and he told him — asked him to help him. And he had a lot of names in this letter whom he had snitched on and told on and asking them, I help you out with this, I help you out of that, can't you help me get out of jail now?
Id. at 628-29
O'Hara further testified that the letter that Jordan showed him contained close to twenty names. Id. at 629. He stole the letter from Jordan to show to Calloway because Calloway's name was listed in the letter. Id. O'Hara testified that Byrd's name was listed in the letter, but could not recall whether Brewer's name was listed. Id. at 630. O'Hara also testified that he knew Armstead from the streets. O'Hara described Armstead as a "drug addict and thief, robber, he was — he was a snitch on the streets." Id. at 627.
O'Hara testified that he was also an inmate in the A-block of the Workhouse in 1983. Id. at 630-31. Although O'Hara states in his affidavit that he recalls seeing Byrd at the Workhouse (Petitioner's Exhibit 12), O'Hara testified at the hearing that he thinks that Byrd had already left the Workhouse when O'Hara arrived. Id. at 640-41. O'Hara testified that the A-block was the maximum security block for high-risk inmates, and that there were about twenty to thirty people on each range. Id. at 631. O'Hara testified that he remembers seeing Armstead and Jordan there. Id. O'Hara also testified that he knows who Byrd is, but that he does not know him personally. Id. at 632.
O'Hara testified that Jordan told him that he, "went to court on Byrd" and that Jordan had to get somebody else to corroborate what he was saying because he had went to the Prosecutor so many times." Id. Jordan told him that he asked Armstead and Marvin Randolph to corroborate his testimony. Id. at 633. Jordan told him that the evidence that Jordan, Armstead, and Randolph presented was not true. Id. Even though Jordan was like a brother to him, Jordan would steal from O'Hara and his family, but that Jordan "had never told on" him "about anything." Id. at 636.
O'Hara was also asked several questions regarding Marvin Randolph on cross-examination. He testified that Jordan told him that Randolph testified against Byrd. Id. at 637. Further, O'Hara testified that Randolph himself told O'Hara that he had testified against Byrd. Id. When asked on re-direct about Randolph testifying, O'Hara testified:
I knowed he had something to do with the case. And, as I recall, Marvin testified, as I recall. I might be wrong. I'm not sure whether Marvin told me he testified or he didn't testify. Marvin was in prison with me and he was scared. I don't recall whether he said that he had to testify some, but Marvin was one of the guys that Virgil went and got."
Id. at 644.
Further, O'Hara testified that he doesn't know whether Marvin testified against Byrd or Brewer. Id.
In fact, Marvin Randolph did not testify in Byrd's trial or at the grand jury. Nor, did he testify in the Brewer or Woodall trials. Randolph, who was an inmate at the Workhouse in 1983, did send a letter to the Hamilton County Prosecutor's Office stating that he had information about the King Kwik case, that he became friends with the defendants in that case, and that Byrd told him that he killed the man so there would not be any witnesses. (See Respondent's Exhibit 56.) Randolph, however, signed a sworn affidavit on September 14, 1988, stating that he participated in a plan with Armstead and Jordan to put together a story against the defendants in the King Kwik murder case. (See Plaintiff's Exhibit 38.) Randolph's affidavit also states that Jordan told Armstead and Randolph that they should tell the Hamilton County Prosecutor's Office that Byrd had admitted stabbing the King Kwik store clerk (Monte Tewksbury) and that Byrd and Brewer asked questions about blood stains on the knife that was used in the murder. Randolph's affidavit also states that to the best of his knowledge, Armstead never talked to Byrd, Brewer, or Woodall while he was incarcerated at the Workhouse in 1983, and that Byrd never admitted to Randolph that he stabbed Monte Tewksbury. Id.
Although this Court, at the request of the Petitioner, issued a subpoena for Randolph and he was served, the Petitioner declined to call him and his supposed participation in this scheme was thus not exposed to cross-examination.
Petitioner also called Oliver Duff as a witness and submitted two affidavits signed by Duff, one on August 20, 2001, and the other on September 20, 2001. (See Petitioner's Exhibit 13.) Duff testified before this Court on Wednesday, November 7, 2001. (Hearing Tr. at 566-84.) At the hearing, Duff, who is black, testified that he is incarcerated at the Lebanon Correctional Institution on charges of felonious assault and aggravated arson. Id. at 567. Additionally, Duff testified that his prior felony convictions included robbery and aggravated robbery. Id. at 568.
The August 20, 2001, affidavit is substantially similar to Duff's testimony at the hearing, although the Respondent questioned Duff about a couple of inconsistent statements. The September 20, 2001, affidavit reaffirms the August affidavit and further states that Duff would have testified about this information at Byrd's trial.
Duff testified that he was in the A-block of Workhouse in 1983 and that he knew both Armstead and Jordan from "on the streets as well as jail." Id. at 569. Duff testified that both Armstead and Jordan were "scandalous drug addicts" and "snitches." Id. He said "they were opportunists. They will use whatever they could to bargain with prosecutors, with police or on the streets to get drugs or whatever." Id. Duff testified that he did not know Byrd but that he did see him in the Workhouse 0in 1983. Id. Duff also testified he never saw Byrd associating with either Jordan or Armstead at the Workhouse, and that it would have been unusual if he had because "back then, white inmates and black inmates just didn't communicate." Id. at 570.
Duff testified that he had heard Armstead and Jordan in the Workhouse talking about Byrd's case, and stating that they "were going to work the case . . . . in order to gain leverage in their personal cases." Id. at 570-571. He defined "working the case" as where jailhouse informants try to collect information, whether true or false, and then try to use the information as leverage in their own cases. Id. at 571. Initially, Duff testified that he talked to Armstead in the Ohio Penitentiary in 1984 about Armstead's parole dates. Id. Upon further questioning, Duff amended his testimony and stated that it must have been 1983 instead of 1984 when he talked to Armstead in Columbus. Id. at 578. Duff testified that after he left the Workhouse in 1983, he was transferred to the Hamilton County Jail for four months, and then he was transferred to the Ohio Penitentiary in Columbus. Id. at 577. Duff testified that Armstead told him at the Ohio Penitentiary that Armstead's "time had been reduced, that he was only coming back as a parole violator to the correctional facility, and that his lawyers had worked it out to where his parole violation would be annihilated and he would be paroled out of state." Id. at 572.
Duff refers the Columbus Correctional Facility as the "Ohio Penitentiary."
Duff testified that he had already "known" in the Workhouse that Armstead had made some type of deal with the prosecutors in exchange for testimony against Byrd because he had "overheard Ronald Armstead and Virgil Jordan in the legal library discuss how they were going to work the case against Brewer and Byrd and the other partner." Id. Duff testified that when he overheard this conversation about "working the case," Armstead and Jordan were having problems because Brewer and Byrd would not communicate with them. Id. Duff testified that he did not know what evidence Armstead and Jordan were going to use to testify against the Petitioner and his co-defendants. Id. at 574.
On cross-examination, Duff admitted that there are some inconsistencies between his August 20, 2001, affidavit and his testimony. Id. at 578-79. Although in his affidavit Duff states that he had previously done time with Byrd, before the Court he admitted that this statement was incorrect, Id. at 578, that he had previously done time with Brewer, not Byrd. Id. Duff also testified that he previously did time with Armstead and Jordan, and that this information was not contained in his affidavit. Id. at 579. Duff was also questioned on cross-examination about material differences between his affidavit and his testimony relating to the veracity of Armstead's testimony. At the evidentiary hearing, the following questioning and testimony occurred on cross-examination by Chuck Wille, attorney for the Respondent:
Q. Mr. Duff, you don't say anything in your affidavit about Mr. Armstead testifying falsely, do you?
A. No. What I said was that I had overheard him and inmate Jordan both discussing the Byrd/Brewer case.
Q. You didn't say in your affidavit that they said during this discussion we're going to testify falsely, did you?
A. No, I did not say that.
Q. You did not hear that, did you?
A. I heard them saying they were going to work the case.
Q. Let me ask this question again. You did not hear them say we're going to work this case and we're going to testify falsely, right?
A. Well, it was obvious that if they were going to work the case, they were going to work it falsely because they hadn't discussed the case.
Id. at 581-582.
Duff testified that in April, 1982, he was placed on parole and as part of his parole conditions, was ordered to undergo outpatient psychiatric counseling. Id. at 582. He admitted that he never completed the psychological program for violent offenders as ordered by the Parole Board. Id. Duff also testified that at one time he was offered anti-psychotic medication while at the Lima State Hospital, but did not accept the medication. Id. The testimony did not reveal what symptoms his psychosis produced, whether it was now under control, or what effect it might have on his memory. Additionally, Duff testified that he had been incarcerated with Byrd's father before, but that he has not had any contact with him since they were incarcerated in the same facility. Id. Duff's testimony did not reveal where or when Duff was incarcerated with John Byrd, Sr.
At the hearing, Petitioner called Denver Nicely as a witness and submitted two affidavits signed by Nicely, one on May 30, 2000, and the other on September 21, 2001. (See Petitioner's Exhibit 19). Denver Nicely testified before this Court on Tuesday, November 6, 2001. (Hearing Tr. at 416-29.) At the hearing, Nicely, who is white, testified that he is incarcerated at the Orient Correctional Institution for theft and breaking and entering. Id. at 418. Additionally, Nicely testified that he has an extensive criminal record including breaking and entering, forgery, sale of narcotics, drug abuse, theft, and probation violations. Id.
The May 30, 2000, affidavit is substantially similar to Nicely's testimony at the hearing, although the Respondent questioned Nicely about a few inconsistent statements. The September 20, 2001 affidavit reaffirms the August affidavit and further states that Duff would have testified about this information at Byrd's trial.
Nicely testified that he was incarcerated with Byrd in 1983 in the Workhouse and the Hamilton County Jail, and that he socialized with Byrd in the Workhouse. Id. at 418-19. He knew Armstead, Jordan, and Randolph from the Workhouse, but that he did not associate with them because of his own racial prejudice at that time. Id. at 419. Nicely testified that he never knew Byrd before that time, but that he did know his father because he had been incarcerated with him years before. Id. at 419. Nicely testified that he did not know that John Byrd, Jr., was the son of John Byrd, Sr., until he saw John Byrd, Sr., at the Ohio Penitentiary in 1983. Id. at 423.
In his May, 2000, affidavit, Nicely states that he knew John Byrd, Sr., because he had served time with him in the 1960's and 1970's. (See Petitioner's Exhibit 19). Additionally, he stated in this affidavit that because he knew John Byrd, Sr., he and John Byrd, Jr., were around each other most of the time when they were in the Workhouse together. Nicely's September, 2001, affidavit reaffirms the May 2000, affidavit. Id. Nicely's testimony at this Court's evidentiary hearing is inconsistent with the statements given in his May 30, 2000, and September 21, 2001, affidavits.
Nicely testified that he never saw Byrd socializing with any black person while at the Workhouse, including Armstead, Jordan, or Randolph. Id. He said he could observe the activity in the Workhouse because when the inmates were not in the cells, they were in a big, open area. Id. at 421. Regarding Armstead, Jordan, and Randolph, Nicely testified that "they tried to talk to everybody, but lots of us, people like myself and him (Byrd) that were racists, we didn't talk to them." Id. at 420. Nicely testified that some whites would intermingle with the black inmates, but that those white inmates who were racially prejudiced would not interact with the black inmates. Id. at 424. Further, Nicely testified that Byrd was a racist at that time and would not associate with black people. Id. at 420. He was at the Workhouse the whole time that Byrd was there until they were both moved to the Hamilton County Jail where they were cell mates. Id. at 421. Nicely testified that until this Court's evidentiary hearing, he had not seen Byrd since 1983, nor had he talked to him or had any dealings with him. Id. at 427. After he became aware that Armstead and Jordan testified in the Byrd, Brewer, and Woodall trials, he wrote a friend a letter and told him not to discuss his case with Armstead and Jordan. Id. at 421.
Petitioner also called Daniel Breyer as a witness. Daniel Breyer testified before this Court on Tuesday, November 6, 2001. (Hearing Tr. at 884-1011.) In 1983, Daniel Breyer was an Assistant Hamilton County Prosecutor. Id. at 887-888. He was assigned as second chair to Assistant Prosecutor Carl Vollman after Byrd's indictment and Prosecutor Arthur Ney withdrew from handling the case personally. Id. He was familiar with the names Jordan, Sargent, Armstead, and Randolph because before Byrd's trial, they had all four indicated to the Prosecutor's office that they had information about the King Kwik case. Id. at 888. They were brought to his attention through either an attorney or investigator at the Prosecutor's office. Id. To his recollection, all four were brought to the Prosecutor's office, and Breyer talked to them in Carl Vollman's office. Id. at 891.
The Respondent submitted to this Court an affidavit signed by Daniel Breyer on July 21, 1989. (See Respondent's Exhibit 56.) Breyer's testimony at the hearing was consistent with the statements made in his affidavit. Attached to his affidavit are two letters, one from Thomas Sargent and one from Marvin Randolph. Sargent's letter states, "I know who killed the King Kwik store clerk and I am willing to be a state witness . . . . I have a name of a juvenile involved in that case." (See Respondent's Exhibit 56.) Randolph's letter states: "I have become friends with them and we have talked about their case a number of times . . . . One fellow named `John Byrd' was telling me that, he killed that man just so that there wouldn't be any witnesses and he also said `he's known for cutting people up'" Id.
Daniel Breyer explained that at that time a decision was made to only use Armstead as a witness in Byrd's trial because Armstead appeared credible and would make a good witness. Id. To his recollection, Armstead was the only one of the three who was not asking for anything, and that the other three, Jordan, Sargent, and Randolph, were making requests, either explicitly or through innuendo, that something be done for them in exchange for their testimony. Id. Additionally, after his memory was refreshed by reviewing his affidavit, Breyer testified that another reason that Armstead was chosen to testify at Byrd's trial rather than Jordan, Sargent, or Randolph was that Armstead was aware of information that was not in the media. Id. at 894. However, he had no recollection of what the information was that Armstead possessed which was not in the media. Id.
As noted earlier, Jordan did testify at the Grand Jury hearing. Jordan also testified in both the Brewer and Woodall trials.
Breyer admitted he did have contact with Armstead after Byrd's trial because Armstead had written him a letter from prison stating that he was having a hard time because he had been labeled as a snitch. Id. There are in fact several letters from Armstead to the Hamilton County Prosecutor's Office in which Armstead expresses concern for his own safety. In a letter dated August 15, 1983, and addressed to "Dear Mr. Breyer," Armstead writes:
I am writing you concerning myself Virgil Jordan Marvin Randolph at the present time . . . . we have been threatened a number of times. . . .we are concern about our welfare and safety. We are very happy everything turn out right in court for you and the rest of collegue.
(Respondent's Exhibit 57.)
Breyer testified that he remembers seeing a letter from Armstead indicating that he felt like his life was in danger, but he could not say for sure that he saw the letter dated August 15, 1983.
In another letter, dated August 30, 1983, and addressed to "Mr. Arthur M. Ney, Jr.," Armstead writes:
I testified in the King Kwik murder case . . . . Sir those same guys who I testify against are up here John Brewer William Woodall and also Denver Nicely who wrote these threatening letters and a number of their friends . . . Denver Nicely saw me when I came in and I am worry for my life . . . . I don't want to die in here.
There is a handwritten note on the letter which states, "Get on this now!!! check with Woody." At the evidentiary hearing, Daniel Breyer testified that he does not know who wrote the note, but that he is "Woody." (Hearing Tr. at 910.)
In a third letter, dated September 1, 1983, and addressed to "Daniel Breyer," Armstead states:
Sir I am in Columbus Correctional Facility for a parole violation and I need help . . . . John E. Brewer's father did time in Chillicothe and have a lot of friends. John Byrd have a brother locked up and also has father . . . . Sir your office have those letters Denver Nicely wrote and yes Sir I am very worry please help get out of this jail system. I don't want to die here.
(Respondent's Exhibit 59).
Breyer testified that to the best of his recollection, after receiving information from Armstead that he was concerned for his safety, he approached his superiors and asked permission to write a letter to the parole board. Id. at 902-03. He was given permission and wrote a letter to the parole board which stated:
I was recently involved in the prosecution of an individual by the name of John William Byrd, Jr., . . . . A critical witness for the State of Ohio in these various prosecutions was an individual by the name of Ronald Armstead. I am firmly convinced that, without Mr. Armstead's cooperation and assistance, the prosecution of John Byrd, Jr., would have concluded with a much less favorable result. This cooperation by Ronald Armstead, in the form of information and testimony, was attained without any promise or inducement by the State of Ohio . . . Ronald Armstead is facing a parole revocation which may in fact be merited. However, it is my considered opinion that to return Mr. Armstead to a penal institution would result in his being subjected to serious physical harm and perhaps even fatal injury . . . .
(Petitioner's Exhibit 26.)
Additionally, Breyer's letter to the parole board states that he is not in a position to recommend any particular disposition but that he would not be opposed to Armstead's parole. Id.
Breyer testified at the evidentiary hearing that he was employed at the Hamilton County Prosecutor's Office from 1977 to 1984, and that while he was employed there, Leonard Kirschner was the head of the appellate division. Id. at 895. Kirschner single-handedly responded to every parole notice, and routinely objected to every one. Id. at 896. Breyer testified that he was not aware at the time that he chose to use Armstead as a witness that Kirschner had written several letters to the parole board suggesting that Armstead not be considered for parole. Id.
When Armstead was previously incarcerated in 1981 and 1982, Kirschner had written a couple of letters to the parole board strongly opposing any type of furlough, parole, or release for Armstead. (See Petitioner's Exhibit 26.)
Breyer identified Respondent's Exhibit 60 as a letter written to John Shoemaker, the Adult Authority regarding Armstead's safety concerns. (Hearing Tr. at 904-05). He testified that although the letter is signed by Kirschner, Breyer believes that he himself composed the letter. Id. at 904. The letter states:
As you will recall, I spoke to you previously about the defendant Ronald Armstead and why this office feared for the safety and possible life of the defendant Ronald Armstead. Mr. Armstead provided this office and police authorities invaluable assistance in giving testimony against one John Byrd and his two co-defendants in an aggravated murder charge . . . . In my phone call to you I advised you how the defendant Byrd has made a physical assault upon Armstead and some of Armstead's friends while the trial was in progress . . . . In Mr. Armstead's letter he reflects that John Byrd's father (John Byrd, Sr.) physically assaulted him while he was in your custody, within three days from the time he entered your protective custody incarceration . . . . We would therefore greatly appreciate your response in writing relative to what, if anything is being done by the Ohio Department of Corrections relative to protecting Mr. Armstead from physical assaults that have occurred in the local detention facilities as well as in the Ohio State Penitentiary.
(Respondent's Exhibits 60.)
Daniel Breyer testified that to the best of his recollection, Armstead did not testify at the grand jury and in fact did not come forward until after the indictment. (Hearing Tr. at 945.) Again, Breyer pointed out that he was not on the case until after the Petitioner was indicted. Id. at 943. When asked if he knew how Armstead came forward, Breyer testified: "Well, only I think I've seen somewhere where he wrote a letter, but I don't recall . . . . My first recollection with Armstead is meeting with him . . . .in Carl Vollman's office. . . ." Id. at 946. He testified that he did not know when or in what order Jordan, Sargent, Armstead, or Randolph contacted the Prosecutor's Office. Id. at 951. He acknowledged that the Prosecutor's Office did receive letters from Sargent and Randolph, and that he thinks that at one time there was a letter from Armstead. Id. at 969. Daniel Breyer testified that the Hamilton County Prosecutor's Office did not make a deal with Armstead in exchange for his testimony. Id. at 969.
Analysis
The claim that Ronald Armstead perjured himself at trial has been at the heart of all John Byrd's collateral attacks on his death sentence. As early as the motion for new trial filed by his direct appeal attorneys, Byrd claimed to have new evidence of that perjury — information his father had gathered about alleged admissions of perjury by Armstead which were referenced in an affidavit of Fred Hoefle, one of Byrd's appellate counsel. The claim has been presented in a number of permutations. In the first federal habeas petition, for example, the claimed perjury was with respect to whether Armstead was facing more jail time and thus had an incentive to bargain with prosecutors. If permitted to file his new petition, Byrd intends to argue that the informers were planted by the prosecutors as forbidden in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 2d 246 (1964).
The Magistrate Judge agrees with Petitioner that his claims revolving around the Armstead testimony are his strongest claims for collateral attack. His counsel have asserted that those claims seemed so strong to them that they withheld the Brewer-based claims until 2001 in the expectation they would be successful on the Armstead claims. Having heard comparatively the testimony supporting these two different claims, the Magistrate Judge agrees the Armstead-based claim is stronger. Certainly, it evoked a strong dissent from Judges Jones on appeal of the first petition and nearly won an en banc rehearing on that appeal.
The question before the Court now, however, is not whether the first habeas petition was correctly decided or whether the first appeal was correctly decided or whether, had any of us been jurors at the trial we would have found Armstead's testimony sufficient to convict on the death specification. Rather, the question is whether there is sufficient new evidence related to the Armstead-based claim to merit relitigating it.
On balance, the testimony at the hearing supporting the Armstead-based claim was considerably more credible than either the Brewer-based claim or the Bobby Pottinger claim. As noted above, a number of inmates who were present at the Cincinnati Workhouse in April and May, 1983, testified to the racial atmosphere there, to Armstead's and Jordan's reputations, and so forth. Nothing in the demeanor or content of these witnesses' testimony stands out to detract from their credibility. While there were some minor inconsistencies between the affidavits and live testimony in some of their cases, as pointed out in the narrative above, there were no glaring inconsistencies. The difficulties with the Armstead-related testimony are twofold: 1) considered as a whole, the testimony does not provide any direct proof that Armstead lied regarding Byrd's admissions, and 2) what evidence has been presented is not really "new" within the meaning of that term under Schlup, Sawyer, and Calderon.
However, the Elwood Jones testimony remains a puzzle to this Court. In some ways, Jones' testimony is the strongest for Byrd because he claims Armstead admitted to him that he lied on the stand. On the other hand, how are we to understand Jones' willingness to help Armstead, the hated, lying snitch? And how explain the admittedly inconclusive handwriting inconsistencies?
When the testimony of the inmates is considered as a whole, it largely comes down to character and reputation (Armstead and Jordan were known snitches) and custom and practice (snitches inform for the prosecutor and sometimes lie to make a case).
That Armstead was a snitch is certainly well established, but the State has never really contested that point. The original jury knew that Armstead had a record and knew he gathered what he testified about Byrd in jail. The affidavits and testimony from the other inmates deepen that characterization —
* everybody knew Armstead was a snitch,
* people in jail don't talk to snitches, so of course Byrd and Brewer didn't,
* Armstead's reason for snitching was his drug habit, and so forth.
Additionally, while the Court heard a great deal about what snitches in general do to promote their own causes (from people who are far from impartial on the subject), there was no direct proof of fabrication in this case. No one testified that he watched the PM Magazine telecast of Monte Tewksbury's daughter and Byrd was not there or did not say what Armstead says Byrd said, or indeed any competing description of that scene at all. The testimony, though generally credible, does not touch on the actual event testified to. Instead, the inmate witnesses gave us generalities such as whites did not talk to or associate with blacks at that time in the Workhouse or I never saw Byrd talking to Armstead.
Conversely, Petitioner has not proven Armstead got a quid pro quo for his testimony. While several inmates purportedly heard him bragging about getting a deal, Daniel Breyer testified directly that Armstead did not ask for anything (in contrast to Jordan, Sargent, and Randolph who did) and that nothing was given to him. Armstead had to write several times after he testified and claim (whether truthfully or not we do not know) that he had been beaten or targeted for beating in order to get Breyer to do anything for him. Petitioner believed that Armstead's flight to San Diego was financed by the Prosecutor's Office, but no documents supporting that claim surfaced despite a court order to search for them. Armstead, as a career snitch, may well have expected favorable post-testimony treatment, but there is no proof of any explicit agreement.
Additionally, the evidence presented is not new within the meaning of Schlup, Sawyer, and Calderon. The Elwood Jones and Marvin Randolph affidavits were presented in the first habeas corpus proceeding before Judge Graham (Byrd v. Collins, C-1-94-167). Jones' testimony at the hearing was consistent with his affidavit, but added nothing of importance. Perhaps the only real difference in measuring Elwood Jones's credibility between the time of his affidavit and now is that he has now been convicted of a death specification himself and has even less reason to be impartial as to the Hamilton County Prosecutor. As to Marvin Randolph, Petitioner had him subpoenaed and then chose not to present him, a situation which could lead the Court to disregard his affidavit altogether. See Williams v. Coyle, 260 F. 3rd 684, 697 (6th Cir. 2001) (Affidavit inadmissible in a habeas corpus proceeding when the witness is available to testify.)
It is true that the affidavits from the remaining inmate witnesses on the Armstead claim are "new" in the sense that they were executed in 2000 or 2001. However, none of them are new in the sense that they would not have been obtainable in the exercise of due diligence at the time of the first habeas petition. All the inmates witnesses estimated the pool of available persons to testify what happened in A-block in April — May, 1983, was relatively small — 25 to 30 people. Those names were known or could have been learned in 1983 or 1989 or 1994. Indeed, Byrd, Brewer, Woodall, and Nicely undoubtedly knew some of them. None of these witnesses has been shown to have been unavailable in 1994 in the sense of being unwilling to testify or suddenly having remembered Armstead's conduct for the first time in 2000 or 2001.
The question for the Court is whether the new evidence on the Armstead claim, even considered apart from the Brewer and Pottinger claims, would have been enough to persuade a pre-AEDPA court to allow a successive petition on the Armstead claim. Because that evidence is not sufficiently probative that Armstead lied and because it could have been gathered during the first habeas proceeding, the Magistrate Judge believes a pre-AEDPA court would not have allowed the successive petition. Applying that same standard, the Court of Appeals should determine as to this claim that the AEDPA does not make a difference (because the claim would not have been heard in a successive petition pre-AEDPA).
The Bobby Pottinger Story
When Petitioner first filed in the Sixth Circuit on September 4, 2001, his counsel apparently knew nothing of his efforts to obtain testimony from Bobby Pottinger, Jr., for Pottinger was not mentioned in their initial filing. However, on September 9 and 10, 2001, Pottinger gave a televised interview on Cincinnati's Channel 19 in which he alleged facts substantially different from his trial testimony. Sometime during Labor Day weekend, he had signed an affidavit with some of the same salient facts and given it to Byrd's sister, Kim Hamer, who had given it to the Governor's Office during the clemency proceedings. Pottinger's story was added to the mix in the Sixth Circuit in Byrd's Motion for Appointment of a Special Master.
Although the en banc court did not specifically mandate inquiry into the Pottinger story, both parties after remand desired that it be made a part of the record and so a number of witnesses relating to the story were listed as witnesses. Byrd asked that Pottinger himself be subpoenaed; Respondent sought Pottinger's father, mother, and sister, Byrd's sister Kim Hamer, Hamer's girl friend Jena Thomas, and Tennessee Bureau of Investigation Agent W. Thomas Brown. All the witnesses were subpoenaed, and all but Thomas appeared. Ultimately only Pottinger, his father, and Agent Brown testified at the hearing.
Byrd, Brewer, and Woodall were convicted of robbing two convenience stores on the night of April 17, 1983: the King Kwik (where Monte Tewksbury was killed) and a U-Totem an hour or so later. Up until early September, 2001, when Pottinger came forward, it had been believed that only Byrd, Brewer, and Woodall were involved in the two robberies, but Pottinger now says that he committed with second robbery along with Brewer, while Byrd was passed out in the rear of the van. Byrd's counsel argue this new story proves Byrd's actual innocence because it breaks the "perceived circumstantial link between the U-Totem and King Kwik robberies." (Petitioner's Proposed Findings, Dist. Ct. Doc. No. 62 at 25).
The Evidence Presented
The record shows the following with respect to the Pottinger story:
Pottinger was known to have associated with Byrd, Brewer, and Woodall; indeed, he shared a telephone with Brewer's sister. Thus, he was interviewed by two Cincinnati detectives about the crime on May 6, 1983. He was sixteen or seventeen at the time and gave the detectives the following account.
He spent a good deal of the early part of the day on April 17, 1983, with Byrd, drinking beer and smoking marijuana. Later, Brewer and Woodall joined them and the group eventually went to a local bar to shoot pool. The group went on to Leroy Tunstall's apartment where Byrd, Brewer, and Pottinger took some Quaaludes and Woodall took some "speed." Pottinger, Byrd, Brewer, and Woodall then went over to Newport, Kentucky, where they bought some Canadian Club liquor and then they went to a pool hall to shoot pool; they stayed until about 8:15 p.m. The group then drove to Pottinger's residence and told him to get out of the vehicle because they had to "take care of business" and that they were "facing a lot of time." He got out of the van and Byrd, Brewer, and Woodall left.
After being taken to his residence by Byrd, Brewer, and Woodall, Pottinger went out with Tunstall, Debbie Brewer, Cheryl Fisher, Amy Snetser, Gary Lee, and Reba Lee for about an hour. Then Pottinger and Tunstall went out to buy more beer. When they returned, Byrd, Brewer, and Woodall were in front of Pottinger's residence, getting ready to get into a red van. When Tunstall asked the group where they were going, Woodall responded that they were going to go do a robbery. Pottinger told the detectives he then went into his house where he stayed for the remainder of the night. One of the detectives asked Pottinger if there was "anything that we may stumble on later that may implicate you in this particular crime," and he responded, "[n]o, not that I know of."
Pottinger later testified before the grand jury that indicted Byrd, Brewer, and Woodall, telling the grand jury essentially what he told the two detectives on May 6, 1983. In his testimony before the grand jury, Pottinger again denied being involved in the criminal events of April 17, 1983.
Finally, Pottinger reluctantly testified at Brewer's and Byrd's August, 1983, trials consistently with his statement to the detectives and testimony to the grand jury.
Pottinger knew Byrd's sister, Kim Hamer, before April, 1983. At one time the two had a sufficiently close, personal relationship that Pottinger acknowledges he may be the father of Hamer's seventeen-year-old daughter. Pottinger and Hamer had spoken on the telephone numerous times over the years since Byrd was convicted, but they had not seen each other since 1989, just prior to Pottinger's incarceration for robbery. Pottinger was paroled in July, 2000, and his supervision was transferred to the Tennessee parole authority; he lives in the Nashville area to where his parents and sister had moved some years ago.
On three occasions in August, 2001, Hamer and Pottinger spoke via telephone. On the first occasion, Hamer read Pottinger a letter which Byrd had sent her via his minister, telling her to read it to Pottinger and then flush it down the toilet. That conversation was not recorded, but is referred to in two subsequent telephone conversations between Hamer and Pottinger which Hamer did record. The second conversation, authenticated by Pottinger during his testimony, is reproduced verbatim below. Although the conversation is lengthy, it is reproduced in full because it gives an insight into how Petitioner has "constructed" the "truth" of the events of April 17-18, 1983.
No one testified to the contents of this letter, which must therefore be inferred from what Kim Hamer says about it in the following conversation.
Kim Hamer ("K"): Bobby, honey how you doin'?
Robert "Bobby" Pottinger, Jr., ("B"): How you think I'm doin?
K: You O.K.?
B: Hell no I ain't.
K: Listen I just got back from seeing Johnny. I got to see him two days in a row. I'm wore out.
B: Yeah.
K: Listen. He only wanted me to talk to about one thing. O.K.?
B: Yeah. If that's the second one, I can't do that Kim.
K: About the U-Totem?
B: Yeah, that's the second one. That would put me at the other one [the King Kwik].
K: No it won't.
B: Yes. It will. I've done looked at it.
K: He don't want
B: I read it all.
K: He don't want that brought out whatsoever.
B: And that stuff, I already told him that. They asked me on that same Columbus Alive. They . . .
K: Who'd you talk to?
B: I don't know. Them people been calling and calling. A whole bunch of people been calling now, Kim.
K: I didn't give your number to no one.
B: I know.
K: I swear to God on Johnny's life I didn't give your number to no one.
B: Well, the phone's shut off.
K: Honey, I didn't give your number to . . .
B: Johnny gonna call me on this number?
K: He's gonna try. See, they already got him downstairs where checking him every half hour to make sure He don't commit suicide.
B: Um hum, suicide watch.
K: Yeah. Baby, only thing I need to know that worries me, that I wanna be sure about so I understand before my brother dies.
B: It's not gonna make a difference.
K: To me though. Was Johnny passed out in the van when you and Johnny Brewer went in U-Totem? Was he passed out or not?
B: Johnny was tore up that night.
K: But was he passed out, was he passed out in the van?
B: Kim, I mean, look I can't you know I wouldn't answer even if I could answer that question, I wouldn't answer it on the phone.
K: Well, I'm not here to hurt you in any way. I love you.
B: I understand that. I'm understanding that but I'm on a cell phone and shit man and I'm already thinking that people are following me.
K: Well, I don't want nobody, I just need to know, was Johnny passed out in the van when you two went in U-Totem?
B: I don't know. I can't answer that right now, Kim. If you were to see me, I might answer that. You understand what I'm saying?
K: Yes. baby. This has got me so fucked up. I just want to be at peace. . . . Bobby, it just puts me at peace with myself sweetheart. It's got me fucked up. I know it's got you fucked up.
B: When can you see me?
K: And Johnny don't want you hurt in no way possible. That's why he's never brought you into this. Never.
B: I feel real good Kim. I got shit going for me and everything.
K: I know baby doll. Only thing I'm concerned with that I'm worried about is for peace of mind of myself is was Johnny passed out in that fucking van?
B: Here's what we're going to say. You know the truth.
K: I only know bits and pieces of the truth because Johnny can't talk to me.
B: You do know the truth, Kim. You know I can't talk to you on the phone. I'm sorry baby. I just can't do that. You know if I was to see you face-to-face you know. It's not you that I don't trust, it's the other people that's surrounding things.
K: Well, there is nobody here with me.
B: [undecipherable] there's other people. There's a cop sitting two houses up from me right now.
K: Huh?
B: Yeah.
K: And you'll never sign nothin' admitting to anything that Johnny was the one passed out in the van? That's all I need, Bobby.
B: Kim.
K: Johnny's gonna die in fourteen days. [At the time of this conversation, Byrd's execution was most recently set for September 12, 2001.]
B: Listen to me.
K: I'm willing to.
B: If that would save him, if that would save him . . .
K: It will save him. It will at least get him a new trial.
B: Just a second one though, Kim.
K: Oh no.
B: Not the first one, it's the second one. And by saying that, if I was to say that, that would put me at the first one.
K: No, because there's, no because there's already an affidavit. But baby, Johnny Brewer already signed two affidavits putting Johnny in there.
B: I don't care what Johnny Brewer did. If two people are saying it's gonna be even worse.
K: But see have you read the two affidavits by Johnny Brewer?
B: No, I haven't got to read them.
K: Well, you know what the affidavit says?
B: They're not on the net.
K: Huh?
B: They're not on the net.
K: You know what the two affidavits says.
B: I got the whole thing printed out right here.
K: Well, the affidavit says that Johnny and Johnny Byrd went in the store. Because they got Johnny Byrd's [sic] footprint going over the counter, right?
B: What affidavit? The one from Danny?
K: No, from Johnny Brewer. He signed one in `89 and he signed one in 2001 in January.
B: Right.
K: O.K. He said my brother, Johnny Byrd leaned up against the wall the whole time fucked up. Johnny Byrd was the one in that store. Johnny Brewer was the one that jumped up over the counter. Johnny Brewer said he seen lights. Him and Tewksbury kind of scuffled. He seen lights shine through and that's when he got scared and he stabbed Mr. Tewksbury in the side and then he didn't see very much blood at all and that's when they fled our of the store. Then they went to the U-Totem and that's when apparently they said that Johnny went into the store with him again. That they put Johnny as the perpetrator chasing the man to the restroom. But then the story was told to me that Johnny was the one passed out in the back of the van and that you and Johnny Brewer . . .
B: This is what I'm going to tell you.
K: The one that went into the store.
B: O.K., I'm telling you. There was somebody passed out, O.K.?
K: Yes.
B: That's it. That's all I'm telling you. There was somebody passed out. That's the best you're gonna get.
K: But if I come and see you would you sign a statement stating that Johnny was passed out in the van and you were the one that went in the store with Johnny Brewer? Would you sign something like that?
B: Kim, do you know how long they would put me in prison for?
K: But do you know that would save Johnny's life?
B: But it would kill me.
K: Not dead. What's ten years to death Bobby? When the poor boy didn't do
B: It would take everything I've been working, Kim and it would take everything I've been working towards.
K: I know that sweetheart, but the only
B: You don't understand how hard I've worked.
K: I know. I love you too, but I love my brother. Johnny's gonna die in fourteen days, Bobby.
B: Kim, I'm telling you right now you know who did it.
K: Yes, but he's still gonna die. Johnny's gonna die, I gotta claim his body.
B: God damn it, Kim. That shit is not cool you're doin' to me.
K: No its not. God damn it but it's not my fault and he shouldn't have to pay for all the consequences should he? I love you. You know I love you and I love you as a friend for always.
B: You're never gonna love me when I go to fucking prison for about fifteen years won't they?
K: Yes, at least you'll still be alive. You'll still be alive God damn it. Johnny's gonna be dead.
B: I won't be alive.
K: Johnny's gonna be dead, Bobby.
B: I won't be no good to nobody or nothing. Hell, I'm barely any good now.
K: That's bullshit.
B: You don't understand how hard it is for me, Kim.
K: Yes, I understand because you've had to live with this for fucking 18½ years and you've not shared it with no one. You've had to deal with this on your own all by yourself. I can imagine what you've been going through. But you imagine Johnny's kept you out of this completely. You want to know why? `Cause he cared. And he ain't no God damn snitch. That's why. All I'm asking you is to admit that Johnny was the one. I'll come see you. It'll just be me and Gina.
While Ms. Hamer's friend's name appears as "Gina" in the transcripts of the November, 2001, hearing, there are indications elsewhere in the materials related to this matter that the spelling of that name is "Jena."
B: [undecipherable] now I gotta tell my family.
K: God love you don't worry about whatever everybody else thinks.
B: This is gonna kill my family, Kim.
K: Baby doll, would you rather tell the truth and serve time and save a life than Johnny die for something?
B: You're not understanding, Kim.
K: Johnny's gonna die, my Mom's gonna lose her son, I'm gonna lose my brother.
B: It's not the truth.
K: Hum?
B: It's not the truth.
K: What's not the truth?
B: What you're thinking is the truth. You know the truth.
K: Yea, but Johnny's gonna die, Bobby. He's gonna die, Bobby. Are you gonna be able to live with that the rest of your life?
B: Listen to me, I got to talk to my family. I got a little boy I'm raising.
K: I know, baby.
B: No you don't.
K: You gotta realize I'm gonna lose my brother.
B: I know.
K: Johnny.
B: I gotta talk to my family. I gotta talk to my brother. I gotta talk to my sisters. I gotta tell them what I'm gonna do.
K: We've only got so many days to do this in, Bobby and I'll come alone. You just sign this piece of paper and you fucking flee. You just flee. As long as I've got this fucking piece of paper to present to at least get him a new trial-to at least get him off of death row. If not, Johnny's gonna die in fourteen days, Bobby. I know you can't live with that. There's no fucking way. He did tell me 100% that you will never be linked to the other one. Never. Because he will admit that he was the one that was there, not you. Johnny don't want that on you. That's been totally stressed. No one knows our conversation but you and me and my brother and whoever in the fuck you talked to on the phone yesterday because I have no idea. I know.
B: I talked to Columbus Alive. I didn't tell them nothing.
K: Well, I know an investigator was hired to find Ronald Armstead, the snitch, and I don't know who you talked to yesterday. Someone with Columbus Alive, I guess I heard you say. I don't know how your name come about because my hand to God on my children, I told nobody nothing when I talked to you on the phone and when I read to you that paper that Johnny told me to read to you that you did admit to me you heard me flush it. Didn't you?
B: I don't know. I don't know what you are talking about.
K: When I called you the other day and I flushed that piece of paper.
B: I drink a lot.
K: You've been drinking a lot. I'm a fucking alcoholic myself. You just need to give this some serious thought sweetheart because Johnny's only got fourteen days to live. All I need you to do is sign a piece of paper. It'll be me and my girlfriend Gina. I am no law. I will never tell no one where you were. You've got my word on that.
B: [undecipherable] you brought somebody with you I didn't trust, Kim.
K: Huh?
B: I wouldn't let somebody get away with you that I didn't trust. Let me tell you that.
K: You trust me?
B: I trust you.
K: Well, I don't like traveling alone.
B: You don't have to travel alone. You can drop her somewhere.
K: All right.
B: You know, we'll think of something.
K: God love you. I know you're in a huge spot.
B: You can't imagine how big of a spot I'm in. You know. You cannot even imagine.
K: I know this has been weighing on you forever. How do you think it's gonna weigh on you once Johnny's executed and his body catches on fire and I gotta have him cremated and fucking
B: You don't gotta put no more of that shit on me because I'm telling you now. You know, me and Johnny know that by me doing this I can probably end up in prison for ten years and him still die in fourteen days.
K: But to me though, Bobby, what is ten years? I know it's a lot.
B: [undecipherable] to do ten years for fucking nothing. That's what it'll be, Kim.
K: But, Johnny'll be dead forever, gone, taken from me.
B: But, that'll be ten years out of my life too.
K: And he's done
B: Ten, eleven
K: But, God love ya, he's done eighteen for not even doin' nothing.
B: Yes he did, Kim. Now come on now. Let's be realistic.
K: He was passed out in the van.
B: No. Not all of the time.
K: I don't know. This shit's got me totally . . .
B: I said there was somebody passed out in the van. You're jumping to conclusions. Kim, you know and I know.
K: Hello.
B: I gotta figure out what the angle is here. The reason why if I do this that it's gonna stop it. Because I don't see me saying being that I was at the second one. I don't see me saying if I was at the second one that he didn't mean he wasn't at the first one doing something. No, I just don't see that, Kim.
K: I don't fucking know. All I know is I'm tired.
B: I am, too. You wouldn't imagine ever since this shit started happening. You know I'm catching all kinds of shit from everywhere. What gives Johnny the idea that Casey's my baby. You know, that's laying heavy as hell on my heart.
K: `Cause he knows.
B: He knows.
K: He knows.
B: Did you tell him?
K: Uh huh.
B: You told him that Casey was my daughter?
K: She could be.
B: What? You told Casey this?
K: I've never said nothing to her. You know she had a baby, don't you?
B: Yeah. That means [I'm a] grandpa. [undecipherable]
K: All I know it's totally got me fucked up.
B: Well, it's got me fucked up you know.
K: O.K. If I'm gonna meet you here in the next day or two, you're gonna have to call me and give a designation away from your family's house. You ain't gotta be worried about nothin' and I can drop Gina off so I don't have to ride by myself and we'll meet together and we'll write something up together and whatever you agree upon and we'll get it notarized. You think about what you want to think about sweetheart. I don't want to see you go to jail, but Bobby, I gotta leave this with you sweetheart.
B: I gotta know for sure. There's no, I can't do it unless I make sure that's it's so much different. If it's gonna make the difference that it's gonna point the finger that I did it, I can't do that, Kim.
K: No, hell no. It ain't' gonna point the finger that you did it. Johnny Brewer already admitted it.
B: The way I look at it. That's the way I'm looking at it because it's describing the clothes and shit and I can't do it.
K: Johnny Brewer already admitted it.
B: That doesn't matter. They was asking me yesterday what kind of clothes I had on that night. Fuck. That was eighteen years ago. Man. What the fuck you think? I don't remember what I was wearing. And when I told the man, I said, "Look here man. You're trying to get me to implicate myself on something. I don't even know you."
K: What did his voice sound like?
B: Well, it was some guy named Tim at first, then Bob.
K: Who?
B: Bob.
K: Bob?
B: Bob.
K: From Columbus Alive?
B: Neicker or something like that.
K: It was fucking Bob Fitrakis.
B: That was it. That was it.
K: He's a writer.
B: Yeah.
K: How in the fuck did he get your number? Now I know he hired a private investigator to find Ronald Armstead because he thought Hamilton County killed him.
B: Did they find him?
K: No, they still ain't found him. They found out he's been married twice so we know he's still alive. Only thing Johnny's concerned with is the admitting that he was passed out in the van when the U-Totem robbery happened. That's the only thing that he wants to be admitted to. That's the only thing he wants out of you, Bobby. That.
B: Yeah.
K: That's good. Because that keeps him from being the perpetrator.
B: I think I might be able to come up with something else not pointing to me and prove the same thing. I don't know.
K: That would keep him from being the perpetrator because they got him as being the actual killer of Monte Tewksbury and he wasn't. Even though Johnny Brewer admitted to it.
B: Who all's there?
K: Huh?
K: Just me and Gina and that's it. That's it. It ain't nothing going no further no where cause she knows I'll kick her ass.
B: I don't know, you know.
K: My hand to God. Swear to God on children. I swear to God on Johnny's life.
B: [undecipherable] say anyway. You know, I'm not going to, like I'm telling you, Kim, I'm not going to make myself the perpetrator. You understand that?
K: Yes.
B: I'm not gonna do that.
K: Johnny don't want you to do that.
B: Well, I'm telling you.
K: Johnny don't want you to do that. He cares too much for you. Why do you think he's kept you out of the picture for so long? You're young. He cares for you. The boys done set on death row all these years cause he didn't think he would. He thought he would come home because he wasn't the one that did it. Johnny Brewer's the one that did it.
B: Believe me, you're gonna have a while different light on your whole outlook. I'll tell you that. I'll call you back in a couple of days. O.K.?
K: I love you.
B: I love you, too.
K: All right, baby. `Bye. . . . .
Sometime after this conversation, Robert Pottinger, Sr., Bobby's father, called Hamer. She also taped that conversation, which is as follows:
Kim Hamer ("K"): Hello.
Robert Pottinger, Sr., ("R"): Is this Kim?
K: Yeah, baby, it's Kim.
R: Kim, this is Bob, Bobby's father.
K: Yes, sir.
R: What's happening? I mean, I've listened to Bobby talk.
K: Well, what did your son tell you, hon?
R: Well, we're listening to Columbus Alive, you know, and they're making like his name's been mentioned in all this stuff.
K: And I've never implicated him in anything. I've never gave his name or nothing to no one. Um,
R: You know Bobby spends a lot of time, he's home with us. He's doing pretty, you know, pretty good, adjusting.
K: I know.
R: [undecipherable]
K: I know, hon. I know. But, Bobby knows and Bobby was there and my brother's gonna die. But one thing that Bobby needs to know, hon, is that the statute of limitations have ran out for him being in the U-Totem. And he cannot be charged with that whatsoever.
R: The U-Totem? What's that?
K: That's the second store that was robbed. I don't know what Bobby has told you.
R: Was that after the murder or what?
K: That was after the murder, yes. And Bobby did admit to me that my brother was the one passed out in the van and that him and Johnny Brewer had went into the store. Bobby admitted that to me. I don't wanna see nothing happen to your son. I care for your son. I've never stopped caring for the whole family. I love Missy. I love Mel. I love all of them.
R: O.K., but you're saying that Bobby was in the second robbery but he had nothing to do with the murder?
K: Nothing to do with the murder.
R: So, what can that do for your brother?
K: It places him not at the second. It lets them know that he was totally fucked up. My brother is being accused of the murder even though Johnny Brewer, the actual person that killed him that signed two affidavits later on down the line. My brother has had terrible representation, but they're still saying my brother's the one that done the actual murder even though Johnny Brewer has admitted twice that he is the one that done it. And by Bobby admitting that my brother was passed out in the back of the van claims that he was too fucked up because in the affidavit that Johnny Brewer signed about King Kwik that my brother was in the store. Johnny Byrd was in the store with Johnny Brewer. He admits that my Byrd, my Byrd, my brother was leaning up against the wall. He was too fucked up to even know what was going on around him.
R: Then how can, in the trial, I've been reading the affidavits here.
K: Uh hum.
R: All I can see is no name of Bobby.
K: No, no, no. There's no name of Bobby but Bobby was there at the second one and he knows Johnny was in the back of the van.
R: But why wasn't Bobby ever mentioned in it?
K: Because Johnny never wanted to see anything happen to Bobby because he was so young. Johnny didn't want, Johnny felt where they didn't have no evidence of him being there was no fingerprints or nothing found in the King Kwik. The only thing that was found in the King Kwik was Johnny Brewer's footprint the one that actually killed Mr. Tewksbury.
R: Right, right.
K: But, my brother was accused of it. Because he was passed out in jail for two days and was not questioned while the other two were questioned. The other two tried to even deny even being there, but Johnny Brewer's, I guess, conscience after six years started bothering him and he knew that he couldn't be retried for it and people feel that Johnny Brewer has nothing to lose. But he does because when he goes up in front of the Parole Board in 2015, it shows on his record that he did admit to the murders so they're not going to parole him. One thing that Bobby needs to understand and I will never bring this down upon him, and my own brother's come straight from his mouth, he will never be implicated in the King Kwik robbery because my brother was the one in the affidavit leaning up against the wall while Johnny Brewer committed the murder. What will help my brother to prove his innocence that he was too fucked up to be the one to commit the murder. That he was the one leaning up against the wall in the King Kwik is Bobby admitting that my brother was passed out in the back of the van at the U-Totem and that Bobby and Johnny Brewer went into the store. All that is, is a robbery. Nobody was harmed. And the statute of limitations of a robbery has done ran out. Bobby cannot be charged with that whatsoever, and it cannot link him to the King Kwik store robbery cause Johnny said the truth is the truth and that's what he's gonna stick with. He was the one leaning up against the wall in the King Kwik and Johnny Brewer was the one that killed the man because they have the footprint over the counter. They have no fingerprints in the King Kwik store. They never even placed Johnny in the store.
R: Why did Johnny admit to it?
K: That's why Johnny never brought. Excuse me?
R: Why did Johnny admit to it?
K: Admit to what?
R: To a murder.
K: My brother never admitted to a murder. Johnny Brewer did after years of being in jail. None of them
R: I have the affidavit that said that he did admit to it and he also tried to extort money from somebody else.
K: No, no. I don't know what affidavit you're reading, but that's not an affidavit from my brother's attorneys. What's from my brother's case whatsoever.
R: I don't know what Bobby's got here. He just showed us a bunch of stuff.
K: Uh hum.
R: It shows that your brother kind of tried to extort money from some family out in
K: That's from Mike Allen. That's from Mike Allen. That's from the prosecutor. He's bringing up things that are not even true facts. That's why Johnny deserves a new hearing. Because them are not true facts. They have nothing on Johnny. They have no fingerprints or nothing from that store. Johnny does not want to implicate Bobby at that store whatsoever. The only thing, the only thing, the only thing that we need from Bobby is to prove that my brother was so fucked up and passed out in the van that he was unable to commit that murder that he is charged of even though Johnny Brewer's admitted to it. See, they're calling these affidavits bogus and they're affidavits that you're not reading. You're reading something that come from Mike Allen, which is the prosecutor, and they're not true facts.
R: But Bobby said this is from the defense. This is all defense stuff here.
K: Well, I don't know what you're reading.
R: I don't know where the hell it come from.
K: Well, Johnny, my brother's never admitted to murder, because he didn't do it. And and and and and we care a lot about Bobby and we never wanted to bring Bobby into this, but Bobby and Bobby did admit it to me the other day on the phone that he was in the U-Totem and I don't want to see him get in no trouble so I was in Columbus today and I went to a person that I didn't even know and was an attorney to find out the statute of limitations of robbery. And of robbery as long as there was no one injured is seven years. After seven years of robbery, that's the statute of limitations. Murder never runs out. Huh?
R: We're talking capital murder here.
K: No. Bobby's not going to be implicated in that part.
R: If he was anywhere around a person that committed capital murder, that statute of limitations is on the capital murder it's not on the
K: But we're talking about the U-Totem.
R: I know, but you're talking about a second robbery afterwards and Bobby was coherent and Johnny wasn't.
K: Yeah, Johnny was really fucked up.
R: Is it possible Bobby was responsible for the murder?
K: No, hell no. Johnny Brewer already admitted to it.
R: What gets me is that I can't remember you all.
K: I only met you once I think, sir, when Peggy lived on Turtle Street.
R: Yeah, probably, That's been thirty some years ago.
K: I remember you being a good looking man.
R: I was, still am.
K: And I'm not here to cause no problems, I'm just trying to save my brother's life. And like my brother said, he waited. I was pissed off at Johnny for waiting so long to even bring this out.
R: Yeah.
K: He said, "Sis, I didn't think it'd ever come to this because they never placed me even in the, they don't have no fingerprints or nothing." And I don't mean to bring no problems, but I'm, I'm, I'm numb. I'm just completely numb here, sir. And I don't mean to bring problems on your family.
R: Oh, I believe you. You know my daughter Lucy, she'll be going to
[At this point a dialogue between Ms. Hamer and her mother takes place.]
K: And Bobby's got a lot of thinking to do. The only thing I want Bobby to admit to and there's no fingerprints to implicate him being in the first one. Nothing. Johnny Brewer done signed an affidavit.
R: How old was Bobby back then?
K: Seventeen. I was fifteen. Uhm, Johnny Brewer done that's done tooken care of. King Kwik's done tooken care of, but they're still implicating my brother as the murderer because they're saying these affidavits are bogus because my brother's attorneys fucked up, didn't bring the affidavit out in `89 which Johnny Brewer signed, stated that he is the one that stabbed Mr. Tewksbury in the side while my brother was too fucked up leaning up against the wall and my brother went in the death house in `94.
R: Yeah.
K: He was still in appeals court. They're trying to cover up. The only thing they got on my brother is a jailhouse snitch which they can't find him to this day. They never had no fingerprints or nothing.
R: To prove a nigger would actually sit there and
K: Well, we, you know what's bad, my brother's attorneys couldn't cross-examine him because they represented him three months prior to my brother's trial. They should have been pulled off my brother's case. They filed some kind of grievance or something. So all they heard was what the prosecutors had to ask Armstead. My brother's been fucked.
R: He's been in prison for what — eighteen years now?
K: Eighteen years. Isn't that fucked up?
[mother]
K: And Johnny's gonna die in fourteen days. He's been denied everything. And the only thing I'm asking and I would not lie, I don't want Bobby, I don't want to see Bobby in no trouble but the statute of limitations is ran out. They have no fingerprints to ever implicate him being in that store. The ones that were placed at the King Kwik store was my brother and Johnny Brewer. The only thing is reason why I want Bobby to admit as my brother being passed out and them two being in that store, Johnny Brewer and Bobby, is to prove that my brother was too fucked up. Yes, he was the one leaning up against the wall while Johnny Brewer jumped over the counter and stabbed Mr. Tewksbury. That's the two people that were placed in the store of the King Kwik. And, that's one thing my brother truly stressed — he does not want Bobby to ever be linked to that because he does not deserve it and because he was not there inside that store. But, Johnny does know through police things and what Johnny Brewer and Danny Woodall and what they all talked about is that Bobby admitted to me. I know he's scared, sir. I know he's scared. But Bobby and Johnny Brewer were the ones that went in U-Totem when Johnny was passed out and the statute of limitations is ran out on that.
[dialogue between Ms. Hamer and her mother]
K: . . . I understand Bobby's position — he's scared shitless. This is something that this boy that has carried on his shoulders without telling nobody for all these years.
R: Bobby's still on parole down here.
K: Right, but this can't get him violated unless he's done something against the law already. You know what I'm saying?
R: I understand.
K: I can come alone. I can come alone.
R: Yeah.
K: And all I want him to do is sign an affidavit stating that Johnny was passed out in the van during the U-Totem robbery.
[mother]
K: And the reason why. My own brother's attorneys don't even know I'm doing this and I done talked to the fucking
R: The Columbus Alive don't know anything about this, right?
K: Well, no, no apparently — I found out from Bobby from Bobby making a phone call and I just called cause the investigator that's looking for Ronald Armstead, the snitch. I found out from them. Well, they had been investigated into it and they found out there is links to Bobby being there. Right?
R: Yup.
K: And like I told them. I said you, you no one I said you better back off and leave him alone. No one does nothing unless they speak to my brother's attorneys first. I said you done went over people's heads. I said my brother's attorneys don't even know that I've even talked to Mr. Pottinger. I said back off. I said he's not going to talk to anyone but me. But I did find out that the statute, and that is my hand to God may they take my brother Johnny, the statutes of limitation have ran out on that robbery from the U-Totem and, sir, I would not lie to you because I don't want to see Bobby go to prison either. Johnny don't want to see him to prison. That's why Johnny's waited to this very last minute to bring him into it. Because Johnny figured he would be brought out because they never could prove that he was the perpetrator of killing. Johnny Brewer admitted to it. So, the two people in the store of King Kwik is already proved it was Johnny and Johnny Byrd. Not Bobby and not Danny. The main thing is that we're trying to prove is is that my brother was the one that was fucked in King Kwik leaning up against the wall because they're still not taking them affidavits, that's the affidavits that Johnny Brewer says that Johnny was the one fucked up leaning up against the wall and that Johnny Brewer was the one that jumped over the counter. They have his footprint of him jumping over the counter. There's no implications of Bobby even being in King Kwik. That's why it cannot be even implicated and I know that's what Bobby's worried about. The only thing we need from Bobby is stating that Johnny was the one fucked and passed out in the back of the van because when he was arrested he was passed out in a fetal position.
[mother]
K: But, sir, I wouldn't lie, I would never lie, I love your, all, I love Missy, I love Mel, I love Richard, I love Bobby. I love them even though we've lost contact. They've always been with me. They're my friends forever.
[mother]
K: But, we're talking about, like I told Bobby, we're talking about life and death.
[mother]
K: And that's something like I told Bobby. If you don't come forward with at least that much.
[mother]
K: Johnny's life is gonna, that's gonna lay on him [Bobby] the rest of his life and I already know it's smothered him even Johnny being there this long. Because he knows the truth. They all know the truth. I finally found out the truth. You see what I'm saying sir? And I am not lying to you. They cannot implicate Bobby to the other one because Johnny Brewer's already signed two affidavits admitting that he was the one that killed the man and that Johnny was the one fucked up leaning up against the wall and by Bobby admitting that Johnny was the one passed out at the U-Totem robbery that happened afterwards and that him and Johnny Brewer went into the store, that proves that my brother was so fucked up he's not the one that killed Mr. Tewksbury. There's no way. It took them two days to wake my brother up in jail.
R: Who testified against your brother? Was it Johnny Brewer?
K: None of them testified against each other. They all had separate trials. They all had. The only person that testified against my brother other than the arresting police officers is
R: They found the knife.
K: There was no knife. There was a knife found in the van, but it wasn't the knife that killed Mr. Tewksbury. Right. The only thing that convicted my brother was the jailhouse snitch. He said my brother went around the workhouse bragging that Johnny my brother bragged to him that he killed Mr. Tewksbury. As we all know, in 1983, in jail, blacks and whites didn't even hardly communicate let alone share their case. So, after he testified against my brother, he was facing fifteen years in prison for parole violation. I forget what he got arrested for but he had attacked a nurse in the workhouse and tried to escape. Three months prior to that when the prosecutors wrote a letter to the Parole Board stating that Ronald Armstead, the snitch, was a threat to society. Well, after he testified against my brother, they went ahead and sent him to prison. He served two months. Then, the same prosecutors wrote a letter to the same Parole Board that this man is no threat to society, blah, blah, blah. They released him — gave him a plane ticket and he flew to San Diego to his brother's.
R: Did Bobby tell you that he saw Johnny passed out?
K: Yes. He told me that. I called your son. I'm trying to think.
R: Approximately how long ago? Was it eighteen years ago?
K: No. He just told me three days ago.
R: He told you three days ago?
K: Johnny wrote me a letter.
R: This was after the murder, your brother was passed out?
K: Yes. And, and
R: He wasn't in the joint at all?
K: No. My brother wrote me a letter. It's the first time it came out. I never even knew Bobby was there. O.K.? My brother wrote a letter. It was sealed in an envelope. His reverend delivered it to me. No one else seen it, but me. I drove half-way to Columbus.
R: I thought Johnny was going to call.
K: They've got him under a half hour watch now for suicide. They've got him in a separate cell.
R: So he can't make phone a call?
K: They won't let him use the phone. They let him use the phone when they want to let him use the phone. Now, he's on suicide watch now. And I don't know what day they're gonna move him to Lucasville but Johnny will be executed September 12 in the morning.
[mother]
K: But, anyway, the letter I drove up to Columbus. I opened up the envelope. I was pissed off at my brother for he waited this long because he never wanted to involve Bobby whatsoever. Because they're friends. Never. And what I read to Bobby on the phone I said Bobby, I'm going to read you word for word what Johnny said. He said, Bobby, I never wanted to involve you in this, but I'm down to my last few days. I never wanted to involve you years ago because you were a young kid.
R: Yeah.
K: Because he did. He threatened Johnny Brewer and Danny Woodall to never bring Bobby into it because he was a kid and he wasn't involved in the murder. But, it stated he said Bobby, you know I was the one passed out in the back of the van and that you and Johnny Brewer went into the store they raised a little ruckus.
R: Bobby was an accessory.
K: Huh?
R: Bobby was an accessory.
K: To the first one?
R: Well, if he knew about, he didn't do anything about, he didn't do anything about it, then he's an accessory to first degree murder.
K: But, who's to say he was in the van in that time. They could have picked him up later on on the way to the other U-Totem. Johnny don't want him linked whatsoever to the first one.
R: No, I agree.
K: Whatsoever.
R: I agree.
K: But the main thing that Johnny wants him to state is that he was the one passed out and Bobby did admit it to me a couple of days ago on the phone. He said I read the letter to him that they both went into the store. Johnny Brewer and Bobby went into the store and there was a kid playing a video game. Well, a teenager playing a video game. Bobby or Johnny was raising ruckus and you know how loud your son can be when he gets drunk. They were raising a ruckus. Bobby did chase. The teller ran to the woman's restroom and they seen his reddish-brown hair sticking out the back of the stocking mask. He had on brown pants. Bobby chased the man to the restroom. All he did was hit the knife on the bathroom door a couple times. They grabbed the cash register and they left.
R: My Bobby?
K: Your Bobby and Johnny Brewer and they left the store. O.K. Bobby agreed to me that he should. I said Bobby is that the truth? I was crying to him. He said yes, Kim, it's the truth. O.K. Now, and he admitted to the pants he had on.
R: What kind of knife?
K: I guess it was a knife that was found in the truck.
R: O.K.
K: O.K. I'm not sure of that, sir. Apparently, and I don't know what happened after that. Johnny wrote at the bottom — he said, sis as soon as you're done reading this letter make sure you flush it and I flushed it. I let Bobby listen to me and I did flush it. My hand to God on my brother's life, I flushed it right through at McDonald's. Now, I know Bobby's scared. I'd be scared, too. But, I did find out the statute of limitation. He can. They're not going to link him to the other one, cause Johnny even stated that he won't be linked to it whatsoever because there's no fingerprints or nothing and Johnny Brewer already put my brother in the store and hisself in the store. He didn't put no one else in the store and he said Danny Woodall was out in the van. All I need from Bobby is to admit the truth about the U-Totem. The statutes of limitations is ran out on that. By Bobby admitting that my brother was passed out in the van at U-Totem proves that he was so fucked up in King Kwik he was the one leaning up against the wall. That's all we're asking, sir. To save my brother's life. I would never, ever want to see anyone in jail. Like I told Bobby, and if he does get ten years, what's ten years to a life being taken?
[dialogue between Ms. Hamer and her mother]
K: And I know his concern about being linked to the other one, but that's one thing my brother stressed to me tremendously that would never be done because he doesn't want it to come down that way. Only way this, what this will do for my brother will stop his execution to get his — get him a hearing — to get him a hearing because Johnny Brewer already admitted to this and Mike Allen because I've been out here in the news. I've been fighting. I guess you don't see the Cincinnati news, but I'm out here everyday. I've even quit my job. I'm out here fighting trying to save my brother's life because I know and Johnny Brewer's admitted it. But, they're trying to say everything that's brought from the attorneys is a hoax and these fucking courts now that the decision from my brother's stay of execution was denied today by the U.S. Supreme Court, but it was four to three. All we needed — see what I'm saying?
R: Yeah.
K: There was another one to where there was thirteen judges and it was seven to six.
R: Yeah.
K: You see, my brother's at his last minutes and I would not lie to you, sir. Call an attorney. I don't know if you can do it anonymously, but I'm telling you the statute of limitations is
[mother]
K: The statute of limitations is ran out on the robbery charge of the U-Totem. No one was hurt there and Bobby has never been placed into the King Kwik store whatsoever. There's no footprints. The only thing they got out of U-Totem is the footprint. That is it.
R: Yeah.
K: And Johnny Brewer already admitted to killing him. They're still trying to implicate my brother because Johnny Brewer took some six years to come forward, but at the time, like I try to explain to the media, they were all scared. None of them wanted to fucking go to jail. And Johnny don't remember nothing because he was so fucked up. But, he's learned from police reports and what Danny Woodall's told him and Johnny Brewer's told him. That's how Johnny's put it all together. He remembers earlier that day they were all doing Quaaludes, smoking pot, and drinking Jack Daniels. But, Johnny did purposely tell them before they all went to trial. He told them. We're not bringing this boy into this. We're not. He's young. We're not. So, you talk with your son. I would love to come see yas. And I will come. You've got my hand to God. I will never bring no one down to arrest your son.
[mother]
K: Which I don't even think he can be arrested. He can't be arrested anyway because the statute of limitations ran out.
R: They might get him for a material witness or something.
K: And that's what we need just to stop an execution.
[mother]
K: It's real bad here. I've done had to make funeral arrangements for my brother and
[A discussion takes place between Pottinger, Sr., and Hamer in relation to Hamer's mother.]
K: Bobby could stop the execution if he does come forward with this Mr. Pottinger. So you think on that and talk to your son. The statute of limitations, I would not lie to him whatsoever. I'm not a liar.
[mother]
K: And I know this is all weighing on Bobby and he's worried about his family. He's worried about going back to jail.
[mother]
K: There's no way to implicate him at the King Kwik store. I'm telling you now there was no fingerprints. None whatsoever. The only thing in there is Johnny Brewer's footprints and Johnny and I. If you, I got Bobby's, I guess it's his e-mail, Bobby's World or whatever it is. I'll get copies of the two affidavits because apparently you don't have them and I will send them to you tomorrow. Let me get off here and calm my mom and I'll get some nerve pills in her. Am I welcome to call you back tonight or tomorrow?
[A conversation between Pottinger, Sr., and Ms. Hamer's mother takes place.]
K: Pottinger, the phone's beeping and it could very well be Johnny and if it is, I'll tell him to call you. O.K.
R: O.K.
K: All right, hon. Thank you for calling and hug Bobby for me because he does need a hug. The boy's scared to death. Thank you sir. Bye.
Subsequently, Hamer and Bobby Pottinger had their third taped telephone conversation which went as follows:
Kim Hamer ("K"): O.K. It's Bobby.
Operator: Will you accept charges?
K: Yes.
Operator: Thank you for using ATT.
Robert "Bobby" Pottinger, Jr., ("B"): Hey.
K: Hi, sweetheart.
B: Hey.
K: Honey.
B: I just got through reading
K: O.K. I'm getting ready. I need your e-mail. I need your
B: My phone's off right now. So you can't get my e-mail.
K: Damn. I've got the two affidavits from Johnny Brewer. I got them e-mailed to me.
B: Yeah.
K: I got the two affidavits so you could read them.
B: Let me get Rickart's e-mail address and I'll give it to you tomorrow.
K: O.K. Well, I was going to come down and see you tomorrow.
B: O.K. Well, listen.
K: I'm listening, baby.
B: I just now got through reading the — my name's in here.
K: On what?
B: You didn't tell me that, Kim.
K: Your name's on what?
B: I'm gonna find it in just a second. Says in between the robberies they came to see me, Bobby Pottinger. Says it plainly. And then they told them I done U-Totem.
K: O.K.
B: You need to come see me.
K: Can I come tomorrow?
B: Yes.
K: O.K.
B: Now, look.
K: Uh huh.
B: I'm gonna get off work so you're not gonna be able to see me until after 5:00.
K: How long does it take me to get there from Price Hill?
B: It will take you from there the get to there in Nashville — 4½ hours.
K: Am I going to your Daddy's house?
B: Yeah, you can go to my Daddy's house. I'm going to give you the address right now.
K: Hold on baby, let me write it down, O.K.?
B: Yeah.
K: Hold on and I do have the two affidavits that were — Johnny Brewer signed. I can go ahead and sign to you. Johnny did get to make one phone call. Sorry he couldn't call you, but this is what he told me. O.K.?
B: Yeah.
K: He said no evidence was testified against you for being anywhere at that first place. He said you can always plead the fifth and let me read and
B: I already know. I already know.
K: And you're the only that
B: You don't even need to go over that. I already know all this.
K: O.K. O.K.
B: You think I'm not running all this shit through my head?
K: All right, baby.
B: Just sittin' there doin' nothin' cause I knew this shit was going to happen.
K: All right. baby, give me your address.
[Pottinger and Ms. Hamer engage in a conversation relative to travel directions.]
Hamer and her friend Jena Thomas drove to Tennessee on or about August 31, 2001, to meet with Pottinger. They brought with them a large quantity of beer as well as some electronic equipment including a laptop computer. Purportedly on August 31, 2001, Pottinger signed an affidavit in the presence of a notary public at a used-car dealership. That affidavit, which does not contain paragraphs numbered 5 and 6, reads as follows.
The omission of these paragraphs from the numbering supports the correctness of the report of Ohio officials September 6, 2001, interview with Bobby Pottinger in which he said Paragraphs 5 and 6 were once in the Affidavit, but he insisted they be taken out before he would sign, and then the drafter forgot to re-number the paragraphs. As noted below, the omitted paragraphs identified clothing Bobby Pottinger wore on April 17, 1983, and identified him as the knife wielder at the U-Totem robbery.
AFFIDAVIT OF ROBERT E. POTTINGER, JR.
STATE OF TENNESSEE COUNTY OF DAVIDSON. SS:
I, Robert E. Pottinger, Jr., depose and state under oath as follows:
1. Shortly before midnight on April 17, 1983, John Brewer, William Woodall and John Byrd Jr. picked me up in the Northside area of Cincinnati, Ohio, in a red van.
2. A short time later, Woodall, who was driving the van, pulled up in front of the U-Tote-M convenience store in Colerain, Ohio.
3. Byrd, who was heavily intoxicated that night, had passed out and did not participate in the U-Tote-M robbery.
4. The witnesses who identified Byrd as the masked man who stabbed at the door of the restroom in which the store's clerk had hidden were wrong. Byrd never left the van during this robbery.
7. Byrd, Brewer and Woodall later told me that they had agreed to keep my name out of the case because I was only 17, and I was never charged with anything as a result.
8. Officials later tried to force me to implicate Byrd, Brewer and Woodall in the murder of Monte Tewksbury during a robbery before they picked me up, but I refused because I was not there.
Further I sayeth naught.
(Petitioner's Hearing Exhibit 9.)
After arriving in Tennessee, Hamer and Thomas began drinking beer with Pottinger at his father's residence. When the father's ex-wife Juanita told them they had to leave, the threesome went to Pottinger's sister Melody Meyers' residence. The group remained there through the weekend, drinking, "partying," and having sex. Bobby eventually took Kim and Jena to his girlfriend's house, then lied to the girlfriend about having had sex with both of them.
Byrd's counsel argue that Pottinger did not sign his Affidavit in exchange for sex and beer on the theory that the affidavit was signed before the partying and Pottinger denied he was influenced by them. (Petitioner's Proposed Findings of Fact and Conclusions of Law, Doc. No. 62, at 22-23.) These same counsel have been arguing since 1989 that, although both Ronald Armstead and Daniel Breyer denied under oath that Armstead was promised anything for his testimony, there must have been a deal because Armstead got a letter from Breyer favorable to his parole after the trial.
Although they were not a part of the initial formal application for clemency, Pottinger's affidavit, as well as the audio tapes of Hamer's telephone conversations with Pottinger and his father were submitted by Byrd's family members to Ohio Governor Bob Taft's office in conjunction with Byrd's Application for Executive Clemency.
Desiring to investigate this new story, Ohio Assistant Attorneys General Steve Maher and Heather Gosselin, and Ohio Bureau of Criminal Identification Investigation SA Rex Russell traveled to Tennessee Bureau of Investigation ("TBI") headquarters in Nashville, Tennessee, for the purpose of meeting with and interviewing Pottinger, TBI Special Agent ("SA") W. Thomas Brown located Pottinger at his place of work and Pottinger agreed to go to TBI headquarters to meet with the Ohio officials.
According to the report, at the September 6, 2001, interview, Pottinger denied that he was at the King Kwik at the time of robbery/homicide and acknowledged that had no first-hand knowledge of that event. (Respondent's Exhibit 70.) Pottinger also told the Ohio officials that Byrd was not involved in the stabbing death of Tewksbury, was not in the U-Totem at the time of the April 17, 1983, robbery, and was passed out in the van during the commission of that offense. Id. In response to questions about his August 31, 2001, affidavit, Pottinger declined to provide information such as who initially approached him about providing an affidavit, how the affidavit was delivered to him, who took the affidavit from him after he signed it, and who presented the affidavit to him for his signature. Id. However, Pottinger did tell the Ohio officials that the affidavit was presented to him in two forms: one with Paragraphs 5 and 6 included and one with Paragraphs 5 and 6 omitted. Id. Pottinger explained that he refused to sign the affidavit which included Paragraphs 5 and 6 because he thought that the information in those paragraphs incriminated him in that one statement alluded to the clothing he wore the night of April 17, 1983, and the other identified him as wielding the knife in the U-Totem robbery. Id.
The Ohio officials then played the audio tape of the telephone conversations with Hamer. Id. Subsequent to taking a break and re-starting the audio tape, Pottinger stopped the interview and requested transportation back to his place of employment and SA Brown complied with that request. Id. Upon returning to the TBI headquarters building, SA Brown advised the Ohio officials that while taking Pottinger back to his work site, Pottinger told him that Byrd's family knew who had committed the murder, that he (Pottinger) believed in the death penalty, that if someone murders another, then that person should suffer the consequences, and that Byrd committed the murder in question and now had to pay for it. Agent Brown provided an affidavit to this effect (Respondent's Hearing Exhibit 50) and testified live at the hearing consistently with his affidavit (Hearing Tr. 654-55).
Also on September 6, 2001, the Ohio officials and SA Brown went to Bobby Pottinger's father's home to interview him. (Respondent's Hearing Exhibit 70.) According to the report of that interview, Pottinger, Sr., said that he did not believe that his son was involved in the robberies in question, that if his son was involved in the robberies and homicide that occurred on April 17, 1983, his son would have broken down and told him about the incidents because he would not be able to keep that kind of a secret to himself. Id. Pottinger, Sr., also said that his son had spoken about the robberies and murder within the last several days and that each time he talked about it, he said that Byrd had murdered Monte Tewksbury. Id. Pottinger, Sr., related that during the period of time that Ms. Hamer and Jena Thomas were in town, Pottinger called him and boasted that he had been involved in three-way sexual encounters with them. Id.
On September 9 and/or 10, 2001, Cincinnati television station WXIX (Channel 19) news broadcast an interview of Pottinger during which he said that Brewer, and not Byrd, killed Monte Tewksbury. Pottinger also said that he was in the van with Byrd, Brewer, and Woodall, at the time of the U-Totem robbery, that Byrd did not go into the U-Totem, and that Byrd "was so messed up that he couldn't even — he could barely hold his head up." Pottinger stated that although he was with Byrd, Brewer, and Woodall at the time of the U-Totem robbery, they kept his name out of the events of April 17, 1983, to protect him because he was only sixteen years old at the time. Pottinger explained during the September, 2001, interview that he that he was coming forward because he had just learned that Byrd was going to be executed and because he wanted to clear his conscience.
On September 9, 2001, Pottinger provided a second affidavit which is handwritten, bears the name, signature, and seal of an State of Ohio notary, and which reads as follows:
Indeed, Pottinger Jr.'s September 9, 2001, affidavit was notarized by one of Byrd's lawyers.
AFFIDAVIT OF BOBBY POTTINGER
1) My name is Bobby Pottinger. I live in Nashville, Tennessee.
2) I am currently on parole for robbery. I have been on parole since July of 2000 for robbery.
3) I should have been off parole a month, I thought, but I have not been told by my parole officer that I am off parole.
4) On Thursday, Sept. 6, 2001, I believe that was the date — it was the first day I went back to work subcontracting HVAC work.
5) Three TBI (Tennessee Bureau of Investigation) agents showed up at my job and told me I was not under arrest, that the attorney general from Ohio wanted to talk to me.
6) I agreed. I went with the TBI agents to TBI Headquarters. This was about 11 a.m.
7) When I got there, I got a badge. They put me in a room by myself for a few minutes. The TBI agents came and got me and took me to another room where the people from the AG's office from Ohio were there.
8) The AG people were: one had dark hair, late 40s, early 50s; another had gray hair; the third was a woman, late 20s, short blonde hair.
9) They asked me questions about the affidavit I signed — then they started throwing names of people at me — Debby Brewer, Gary Lee, Reba Lee[.]
10) They tried to play on my emotions. I ended the interview.
11) I told the AG people that I was present at the U-Totem robbery and John Byrd never left the van.
12) At no time did I tell the AG people that John Byrd killed the man in the King Kwik.
13) I did tell the AG people that Dannie Woodall told me that Johnny Brewer was the one who killed him.
14) My dad is named Robert Pottinger. The AG people went and talked to my father. I do not know what my dad said.
15) Further Affiant saith naught.
(Petitioner's Hearing Exhibit 10.)
As noted above, Pottinger testified before this Court on November 6, 2001, via video conferencing from Nashville, Tennessee. (Hearing Tr. at 430-547.) At that hearing, Pottinger who has been convicted of five or six robberies over the years, testified that his 1983 testimony about the matters related to the April 17, 1983, incidents was not truthful. Id. at 433, 513-14. He also testified that the information contained in his August and September, 2001, affidavits that he (Pottinger) was at the U-Totem robbery and that Byrd never left the van is true. Id. at 438-39. Pottinger testified that it is true that Byrd was heavily intoxicated and passed out and did not participate in the April 17, 1983, U-Totem robbery, Id. at 441, and that he (Pottinger) and Brewer committed the U-Totem robbery. Id. at 444. Pottinger testified further that the promise of having sex with Hamer and Thomas did not motivate him to sign the August 31, 2001, affidavit, that he did not know at the time he signed the affidavit that he was going to have sex with both of the women, and that his conscience motivated to sign the August affidavit. Id. at 446-47. Pottinger testified that he was not in the van at the time of the King Kwik robbery Id. at 485, and that Hamer presented to him the two versions of the August 31, 2001, affidavit, Id. at 495, that he didn't recall whether one version of the affidavit said something about what he was wearing although he recalled it had something to do with clothes, Id. at 498, that he signed the August, 2001, affidavit the morning after Hamer had arrived in Tennessee, and that while they had consumed some beer the night before, they hadn't yet started partying and he was completely sober at the time he signed the affidavit. Id. at 505. Pottinger denied telling SA Brown that Byrd killed the store clerk. Id. at 504. Pottinger also testified that Byrd is his friend, that "back in them days." Byrd was his best friend, and he acknowledged that in 1983, when asked about his relationship with Byrd, he said that he would do anything to help Byrd. Id. at 515-16. Pottinger testified that he has never had any conversation whatsoever with Byrd about this case, Id. at 508, and that in May, 1983, he lied when he told the police detectives that there was nothing he knew of that they might stumble on that might implicate him (Pottinger) in the April 17, 1983, crimes. Id. at 512-13. Pottinger testified that he "sort of" remembered having a telephone conversation with a reporter from Columbus Alive during which, in response to a question about April 17, 1983, he (Pottinger) told the reporter, "Of course I remember that night, man, wouldn't you?", that he "wasn't with them when that guy got killed," that he had been in prison with Danny Woodall for a while and "all the indications I got it was John Byrd that killed him." Id. at 526-27. Pottinger testified further that what he believes now and what he believed then are different things and that even though he was not anywhere around at the time the murder occurred, he now believes that Byrd did not kill Tewksbury. Id. at 528. In addition, Pottinger testified that because the events of April 17-18, 1983, happened a long time ago, he could not recall who carried the cash register in the U-Totem robbery, what the inside of the U-Totem looked like, how much money the group got in the robbery, what clothes they were wearing, whether Brewer was the one who had the knife, and that there are some things he doesn't recall about April 18, 1983, because he "was pretty tore up" or because it happened so long ago. Id. at 538-40.
Pottinger's father, Robert Pottinger, Sr., testified before this Court on November 9, 2001, by way of video conferencing from Nashville, Tennessee. (Hearing Tr., Doc. 53 at 18-82.) At that time, Pottinger, Sr., testified that during his above-quoted telephone conversation with Ms. Hamer, she told him things that he'd never heard before such as his son possibly having been involved in a murder and that his son was the father of Hamer's child. Id. at 27-29. Pottinger, Sr. also testified that after Hamer called Bobby, Bobby told his father that he knew that Byrd had committed the murder and that Bobby was not involved. Id. at 20. Pottinger, Sr., testified further that he has talked to Bobby Pottinger about the events of April 17-18, 1983, that his son told him "he had nothing to do with it," that it was his (Pottinger Sr.'s) understanding that Hamer wanted Pottinger to do ten years if necessary to save Byrd's life, and that Bobby told his father he was willing to do it because "[i]t's my friend and I'm going to try to save his life, I'll do the time. . . . Daddy, this is something I got to do." Id. at 65-66. Pottinger, Sr., testified that when Hamer and Thomas came to his house in August, 2001, they came on Thursday night and left town the following Tuesday or Wednesday; that after they started drinking the first day they were there, his former wife told them to leave; that Hamer, Thomas, and Bobby Pottinger then went to his daughter Melody Meyer's trailer; and that, although he did not see him sign it, Bobby told Pottinger, Sr., that he had signed the affidavit Hamer wanted, but that he did not sign it on the first or second day that Hamer and Thomas were in Tennessee. Id. at 71-76. Pottinger, Sr., testified further that at no time recently or over the years since 1983 did he come to understand that Bobby was initially one of the suspects in the April 17-18, 1983, crimes, that he "never knew anything about this until this stuff hit the air," that his son has spent a lot of time in prison for crimes he has committed, that Bobby has no conscience, and that it would be fair to say that he does not know about all of the crimes Bobby has committed. Id. at 80-81.
For purposes of clarity, reference to the transcript of the November 9, 2001, proceedings includes the docket number because this volume of the transcript, taken by a separate court reporter, is not consecutively paginated with the prior volumes.
The Court notes that it admitted this testimony not for the truth of the matter but for purposes of the impeachment of Pottinger.
On November 7, 2001, SA Brown testified at the hearing on this matter. (Hearing Tr. at 646-75.) SA Brown testified that on September 6, 2001, he went to Pottinger Jr.'s, work site, told Pottinger that there were Ohio officials at TBI headquarters who wanted to speak with him, that he drove Pottinger to TBI headquarters, and that although he did not have a role in the process, he remained in the room during Pottinger, Jr.'s, interview. Id. at 648-52. SA Brown also testified that when Pottinger requested that he be taken back to his work site, he (SA Brown) took him and that while they were in the vehicle, Pottinger "was lamenting the fact that he had done some crazy things when he was younger," and he said that he was afraid that the Ohio officials had come to Tennessee to arrest him because an affidavit he had given implicated him in the robberies. Id. at 653-54. SA Brown testified further that he commented to Pottinger that it appeared "that you're willing to take a rap here to serve a little bit of time to save your buddy, John Byrd's life," that Pottinger then said Byrd's family was "doing everything to save him, but they [knew] the truth," and that Pottinger also said, "Believe it or not, I believe in the death penalty. When somebody kills somebody, they need to pay the consequences. And he killed the man." Id. at 655. SA Brown also testified that after returning Pottinger to his work site, SA Brown returned to TBI headquarters and reported to the Ohio officials the above-quoted conversation he had with Pottinger, and that nobody suggested going to get Pottinger and interviewing him further. Id. at 673. SA Brown testified that he and the Ohio officials then went to Pottinger, Sr.'s, and Ms. Meyers' residences and interviewed them. Id. at 655.
Analysis
Bobby Pottinger's story is not in the slightest bit credible for any number of reasons.
First of all, Pottinger has admitted the story is not true to his father and to Special Agent Brown, on occasions when he knew he was not being taped or committed to paper. He hints at such an admission in his taped conversation with Kim Hamer when he tells her she knows what the truth is.
Secondly, Pottinger's story has both more and less detail than would be expected if it were true. He states repeatedly that Brewer rather than Byrd killed Monte Tewksbury, but gives no reason why he should know that. Was he in the van at the King Kwik as well? Coached by Kim Hamer and Byrd, he "constructs" the truth to put himself at the second robbery (on which they all believe the statute of limitations has run) and avoids placing himself at the murder scene. Conversely, he can remember virtually no detail about the U-Totem robbery.
Third, Pottinger's story has been coached by Byrd himself. We know from what Kim Hamer says in the telephone conversations that she is fully aware of the theory of the facts which Byrd's counsel have been proclaiming — Brewer's affidavits, blacks and whites didn't talk to one another at the Cincinnati Workhouse in 1983 so Armstead must have been lying, etc. We can reasonably infer that the contents of the flushed letter are harmful to Byrd's case and Pottinger's credibility, because the evidence of the contents was deliberately destroyed on Byrd's instructions. See, e.g., Bright v. Ford Motor Co., 63 Ohio App.3d 256, 578 N.E.2d 547 (Ohio App. 2 Dist. 1990). Certainly if the contents of the flushed letter were not harmful, Byrd's sister Kim could have so testified.
There is authority for the proposition that Byrd himself could have taken the stand to explain the contents of the flushed letter (or deny that he gave any such instruction) without waiving his Fifth Amendment privilege as to the events of April 17, 1983. Nevertheless, the Court made it clear it would draw no adverse inference from Byrd's failure to take the stand on any point, and his failure to testify about the flushed letter may well have been made in reliance on this assurance of the Court. Therefore, no inference is drawn from his silence on this point.
Fourth, Pottinger is a many-times-confessed perjurer. He admitted in his live testimony that he perjured himself before the grand jury and in Byrd's and Brewer's trials. Then he admitted to his father that he had perjured himself in the two affidavits he gave. There is no good reason to give credence to any one sworn statement of a perjurer.
The word "perjurer" is used here not in the technical sense of someone who has been convicted of perjury or in the sense that Pottinger's conduct satisfies some particular statutory definition of the term, but in the ordinary sense of the term: one who lies under oath.
The first federal perjury statute disqualified a convicted perjurer from ever giving testimony again in a federal court. Act of April 30, 1790, cited in Underwood, False Witness: A Lawyer's History of the Law of Perjury, 10 Ariz. J. Int'l Comp. L. 215, 246 (1993).
Pottinger's motive for providing affidavits now appears to be loyalty (perhaps catalyzed by beer and a menage-a-trois) to his friend John Byrd who kept him out of this case for eighteen years. But when loyalty not only brings a witness forward but completely constructs his testimony, the testimony is not to be believed.
Byrd's ability to control what facts would be made public appears to have been present at the time of the crime and to have continued to date — none of the co-defendants ever testified against each other or implicated Pottinger until the hearing. Brewer was reluctant even then to admit Pottinger's involvement until he discerned it was acceptable to Byrd to do so.
New Evidence of Byrd's Guilt
As noted at the outset, the Magistrate Judge did not limit the parties in their presentation of witnesses, but allowed both sides to present anyone they wished on the issue of Byrd's actual innocence. Respondent did not limit herself to impeaching Byrd's new evidence, but itself presented new evidence of Byrd's guilt.
Daniel Breyer, now an Assistant County Prosecutor for Clermont County, was the "second-chair" prosecutor at Byrd's trial as an assistant prosecutor for Hamilton County. Sometime after the Byrd trial, he left the Hamilton County Prosecutor's Office and went into private practice, renting office space from Hollis Moore and Dean Prewitt. Moore had been one of Byrd's trial attorneys and Peter Rosenwald, the other trial attorney, also rented space from Moore and Prewitt. While in private practice, Breyer was appointed to represent Abdul Mughni who was indicted for capital murder. Against Breyer's advice, Mughni insisted on making an unsworn statement to the jury during the mitigation phase of his trial and succeeded in persuading some of the jurors that he was not the person who had done the killing in question, thereby garnering a life recommendation from the jury. Breyer was discussing this result with his office mates after the trial and said to them that they should have used this approach in the Byrd trial. They responded that they could not because Byrd had told them he was guilty and they couldn't put him on the stand, given that admission. Breyer responded that at least Byrd had done the right thing by not perjuring himself.
Mughni is still serving that sentence and appeared as a witness for Petitioner pursuant to a writ of habeas corpus ad testificandum. He was not asked questions about his trial.
Conclusion
John W. Byrd, Jr., has not proven to the level of clear and convincing evidence that he is actually innocent of the principal offender death specification of which he was convicted. Therefore his request to file a second federal habeas corpus petition should be DENIED.