RENO ON H.C.Petitioner's Petition for Writ of Habeas CorpusCal.May 10, 2004 ‘FiteS™ COPY MAY 1 0 2004 Frederick K. Ohirich Clerk A IN THE SUPREME COURT OF THE STATE OF CALIFORNIA . $124660 DEATH PENALTY CASE SUPREME COURT COPY PETITION FOR WRIT OF HABEAS CORPUS In Re RENO, On Habeas Corpus f a e r t PETER GIANNINI, No. 61257 GIANNINI & CAMPBELL 12304 Santa Monica Blyd. #105 Los Angeles, CA 90025 Telephone: (310) 207-5772 JAMES S, THOMSON,No, 79658 SAOR E. STETLER, No. 194978 THOMSON & STETLER Criminal Defense Attomeys 819 Delaware Street Berkeley, California 94710 Telephone: (510) 525-9123 Attorneys for Petitioner RENO TABLE OF CONTENTS I, INTRODUCTION . 2.0.0.0...02eeeeens 1 IL. UNLAWFUL RESTRAINT 2.0.0.0. 12 Il. PROCEDURAL HISTORY .......... 0.0.0eee 12 TV. JURISDICTION «2.0.0...c eee 16 V. TIMELINESSOFPETITION .. 0.00.cen 17 VI. INCORPORATION 2.0.0... 000ccee ee tenes 20 VIL INVESTIGATION 2.0...0.0.00.23 VIN. CLAIMS FOR RELIEF ...............00..Bee eee eee ees 23 A. CLAIMS RELATINGTO PETITIONER'S ARREST, SEARCH AND CONFESSION. CLAIM 1: Petitioner’s Arrest Was Unlawful. ........00 0.000000 cee eee 23 CLAIM 2: Petitioner’s Alleged Confession to the South Gate Police was Coerced ee ee eee en een ene eee 36 CLAIM 3: The Search ofPetitioner’s Residence was unlawful..............cccceeees49 CLAIM4: Petitioner Did Not Knowingly and Intelligently Waive His Miranda Rights 2... 0...eeenee eee ee 52 CLAIM 5S: Petitioner's Claim of Coercion and Involuntariness has not been Fully and Fairly Adjudicated . 2.0.2...eee 53 CLAIM6: Petitioner's Second Alleged Confession was the Product of the First Involuntary Confession and wasalso Inadmissible .................. 54 CLAIM 7: Petitioner's Rights were Violated by the Denial of his Right to Bail .. 54 B. CLAIMS RELATING TO THE RETRIAL. CLAIM8: Petitioner's Prosecution for First-Degree Murder on CountII Violated the Prohibition against Double Jeopardy under the State and Federal Constitutions 20.0...eeeeen eens 58 CLAIM 9: Petitioner's Prosecution on CountIII Violated Petitioner's Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments ................. 63 CLAIM 10: Petitioner was acquitted of felony-murder on CountII] and retrying him underthat theory violated Double Jeopardy Principles................ 66 CLAIM 11: Petitioner’s Constitutional Rights Were Violated by the Failure to Follow Statutory Requirements Regarding Charges of Felony-Murder ... 71 CLAIM 12: Petitioner was Acquitted of Premeditated Murder in CountIII and Retrying him Underthat Theory Violated Double Jeopardy Principles ... 74 CLAIM 13: Trying Petitioner Under a Felony-Murder Theory for Count I Violated Double Jeopardy Since Petitioner Was Acquitted Under That Theory at the First Trial 2... e eben eens 77 CLAIM 14: Denial of Petitioner’s Right to Counsel at the Penalty Phase ofthe First Trial Deprived Petitioner of Due Process at the Retrial ........... 78 CLAIM 15: Petitioner's Rights were violated by the Prosecutions’ Use of — Perjurious Jailhouse Snitches ....... 0...eee 88 CLAIM 16: Petitioner's Rights were Violated by the False and Perjurious Testimony of Anthony Comejo ......... 0... c cee ee eee 92 CLAIMS RELATING TO DISCOVERY. CLAIM 17: Failure to Provide Discovery of the Prior Citizen Complaints Against the Police Officers Denied Petitioner a Fundamentally Fair Trial ....... 93 CLAIM 18: Petitioner’s Rights Were Violated by the Destruction of the South Gate Pitchess Records «1.0.0.0...c eee. 101 CLAIM 19: The Prosecution Violated Petitioner's Rights by Failing to Disclose Approximately 400 Pages of Discovery ................ 00000 e ee 104 CLAIM 20: The Prosecution Violated Petitioner's Rights by Withholding Brady Evidence Regarding Benefits Paid to Jailhouse Snitches who Testifiedat Pretrial Hearing 2.0...ceeeens 117 CLAIM 21: The Prosecution Violated Petitioner's Rights by Failing to Disclose Exculpatory Evidence in Discovery Regarding the Prior Felony Convictions and Probationary Status of Prosecution Witness Scott Bushea......... 120 CLAIMS RELATING TO TRIAL COURT ERRORS. PRETRIAL. CLAIM 22: Petitioner's Rights were Violated by Assignment of a Commissioner, Rather Than a Judge, to Preside Over His Case ................-4-. 122 CLAIM 23: Petitioner’s Conviction and Sentence Must be Reversed Because of the Trial Court’s Blas 2...teens 123 CLAIM 24: The Trial Court Violated Petitioner’s Right to a Speedy Trial and Due PLOCESS 2.2.enneee een 128 CLAIM 25: Petitioner was Deprived of a Full and Fair hearing on the Motion to Suppress Evidence ... 0.0.2.2...etteee 130 CLAIM 26: Petitioner was Deprived of a Fair and Accurate Suppression Motion Hearing at the First Trial ... 2.0.0.0... 00.0ee 132 CLAIM 27: TheTrial Court Erred in Failing to Exclude Witnesses During the Hearing on the Motion to Suppress Evidence ................... 135 CLAIM 28: The Trial Court Erred in Failing to Dismiss the Information based Upon the Unlawful Seizure of Petitioner’s Privileged and Confidential Legal Materials. 2...cetteeen eens 138 CLAIM 29: The Trial Court Erred in Failing to Suppress the Jailhouse Informant’s Testimony0...teen tente ete ees 139 CLAIM 30: The Trial Court Erred in Denying Petitioner's Motion to Relitigate the 1538.5 Motion ... 0...eeee ene e eens 141 CLAIM 31: The Trial Court Erred in Failing to Grant Severance of Count III. . 143 CLAIM 32: The Trial Court Erred in Failing to Conduct an Jn Camera Hearing Regarding the Renewed Severance Motion ..............-0..02005 152 CLAIM 33: The Trial Court Erred in Denying Petitioner’s Motion for New Counsel...2.eeeeens 154 CLAIM 34: The Trial Court Erred in Failing to Grant Petitioner’s Requests to be Housed in High Security 2.0... 0...teens 168 CLAIM 35: The Trial Court Erred in Failing to Order Separate Transportation for Petitioner...e netne 170 CLAIM 36: The Trial Court Committed Constitutional Error In Considering Jailhouse Snitch Anthony Cornejo’s Testimony During the Hearing .... 174 CLAIM 37: The Trial Court Erred in Admitting Evidence from Jailhouse Snitch Anthony Cornejo 2... 6.eeennn e ened 176 GUILT PHASE. CLAIM 38: The Trial Court Denied Petitioner his Right of Cross-Examination and to Presenta Defense .......eeene 180 CLAIM 39: The Trial Court Erred in Failing to Take a Personal Waiver Under Boykin-Tahl 0.0.teneteee 182 CLAIM 40: The Trial Court Erred in Admitting Prejudicial Cumulative Photographs of the Victims .. 2.0...centeeeeas 183 CLAIM 41: The Magazines and Photographs of Young Boys Were Improperly Admitted2.0.0.0eae 185 CLAIM 42:Confining Defendant to a Marked Squad Carin Full Sight of the Jury While the Jury Viewed the Crime Scene Wasa Deprivation of Petitioner’s Fifth Amendment, Sixth and Fourteenth Amendment Rights .......... 190 CLAIM 43: Shackling Petitioner in Court Deprived Him of His Fifth, Sixth, Eighth and Fourteenth Amendment Rights ........... 0.0.0.0. 194 CLAIM44: Petitioner’s Due Process Rights Were Violated Whenthe Trial Court Admitted Character Evidence andInstructed the Jury to Consider It .... 197 CLAIM 45: Allowing the Admission of the Magazines, Photographs and Books Violated Petitioner’s Eighth and Fourteenth AmendmentRights ....... 203 CLAIM 46: The Trial Court Erred by Overruling Trial Counsel’s Objection for a Failure to Comply with a Discovery Order by the Bell Gardens Police Departmentand for Allowing it to Be Introduced as Surprise Testimony, in Violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment Rights by Depriving Him ofa Fair Trial... 0.2...ee 205 GUILT PHASE INSTRUCTIONAL CLAIMS. CLAIM 47: The court erred in failing to give Defense Requested CALJIC 2.91 208 CLAIM 48: The Court Erred in Failing to sua sponte Instruct on the Lesser Offenses Included Within the Felony Charge of Lewdact with a Minor . 211 CLAIM 49: The Court Erred in Failing to Instruct Pursuant to CALJIC 17.01 that the Jury Must Unanimously Agree on the Act Constituting the Underlying Felony Charge 20... eetne e ene nes 212 CLAIM 50: The Trial Court Committed Reversible Error By Failing To Instruct the Jury That Shackling Had No Bearing on the Determination of Guilt or Penalty ee ee eee ent e en ens 213 CLAIM 51: The Trial Judge Deprived Jurors of Their Fact Finding Role by Ordering Them to Presume That Petitioner’s Purported Confession Was Voluntary, in Violation of Petitioner’s Fifth Amendment, Sixth Amendment, Eighth Amendment and Fourteenth Amendment Rights ................... 215 CLAIM 52: TheTrial Court’s ImproperInstruction to the Jury Amountedto . Improper Vouching. ......... 0.0 0c cece eee eee 217 CLAIM 53: TheTrial Court erred in Failing to Instruct the Jury That Count I Was Charged as Second Degree by Law, Which Is the Maximum Chargethe Facts Can Support 2.0.6...nentnee 218 CLAIM 54:Instructing the Jury Pursuant to CALJIC 8.31 Unconstitutionally Lessenedthe Prosecution’s Burden of Proof ............ 0.0.00 005- 221 CLAIM 5S: The Trial Court Erred by Giving a Misleading Jury Instruction, When a MorePrecise Instruction Was Requested by Trial Counsel and Violated Petitioners Due Process Rights under the Fourteenth Amendment ...... 224 PENALTY PHASE. CLAIM 56: TheTrial Court Erred in Rejecting the Waiver of Jury for the Penalty Phase 2.0...eetnent ted 226 CLAIM 57: The Trial Court Erred in Failing to Order Trial Counsel to Inform Petitioner of the Penalty Phase Preparation and Plan ................ 228 CLAIM 58: The Trial Court Erred in Admitting Petitioner's testimony at the Penalty Phase .... 1...e ene 231 PENALTY PHASE INSTRUCTIONAL ERROR. CLAIM 59: The Trial Court Failed to Tailor the Instruction Concerning the Factors in Aggravation Which the Jury Could Consider ................0.... 232 CLAIM 60: The Trial Court Erred in Failing to Instruct on the Elements of the Uncharged Offense at the Penalty Phase and in Describing that Offense in Highly Inflammatory Language ......... 0.00... cece eee 234 CLAIM 61: The Jury was Improperly Instructed as to the Scope of Mitigating Evidence it Could Consider .. 0.0.0... .0. 000 ccc eens 235 CLAIM 62: The Trial Court Erred in Instructing the Jury that there Must be Unanimous Agreement as to Penalty ........2..0.0.000. 0000002 237 CLAIM63: The Trial Court Erred in Refusing a Lingering DoubtInstruction at the Penalty Phase ... 0...etetenes 239 CLAIM 64: The Death Verdict Must Be Reversed Because the Court Failed to Instruct the Jury That the Guilt-phase Instruction to Disregard the Consequencesof its Verdict Did Not Apply to its Deliberationsat the Penalty Phase ... 0.0...eeetenet eens 244 SENTENCING. CLAIM 65: The Trial Court Erred in Denying Petitioner's Automatic Motion for Modification of Sentence ..... 2... .eeeeens 245 CLAIM 66: The Trial Court Erred in Considering the Sealed 1979 Probation Report eee ent e ne ees 248 CLAIMS RELATING TO EVIDENTIARYISSUES. — _ — CLAIM67: There was Insufficient Evidence that Carl Carter, Jr. was Killed in the Course of the Felony Defined by Penal Code § 288 at the Timeofthe Offense . 0... eee teens 249 CLAIM68: There was Insufficient Evidence of Wfillful, Deliberate and Premeditated Murder as Defined Under California Law at the Timeofthe Offense in Counts I] and HW] ...... 0...eeee 251 CLAIMS RELATING TO PROSECUTORIAL MISCONDUCT. GUILT PHASE. CLAIM69: The Prosecution's Presentation of Facts was Directly Contrary to Those Contained in the Missing-Juvenile Report ................. 0000005 253 CLAIM 70:The Prosecution’s Failure to Inform Petitioner of the Theory of First- Degree Murder on Which it Would Rely in Proving CountIII Violated Petitioners Rights 2... 2...eeeeee eee ees 255 CLAIM 71: The Prosecutor Committed Misconduct in Violation of Petitioner’s Constitutional Rights in Failing to Disclose Impeachment Evidence Regarding Jailhouse Snitch Anthony Cornejo .................0065 256 GUILT PHASE ARGUMENT. CLAIM 72: The Prosecutor Committed Misconduct By Misstating the Law During Argument. 2.0... eeet e need 265 CLAIM 73: The Prosecutor Committed Prejudicial Misconduct During the Guilt Phase by Commenting on Petitioner's Failure to Testify ............. 267 CLAIM 74: The Prosecutor Committed Misconduct During Guilt Phase Argument When He Took Advantage of ErroneousInstructions Regarding Count 1 251 CLAIM 75: The Prosecutor Committed Misconduct by Commenting on Petitioner’s Sexuality and Potential Punishment.................... 269 CLAIM 76: The Prosecutor Committed Misconduct by Arguing Erroneous Definitions of Second Degree Murder ............... 0.0000 0c eee 271 CLAIM 77: The Prosecutor Committed Misconduct by Arguing Two Theories of First-Degree Murder in Count3, in Violation of Double Jeopardy Principles L256 Loee eee n ent n teens 274 CLAIM 78: The Prosecutor Committed Misconduct by Unconstitutionally Shifting the Burden of Proof Onto Petitioner and His Trial Attorney ......... 278 CLAIM 79: The Prosecutor Committed Misconduct in Commenting on Retrials .. e ene bene ee ent n een eee 280 PENALTY PHASE. CLAIM 80: The Prosecutor Committed Misconduct by Cross-ExaminingPetitioner Regarding the Appellate Process ...... 00.0... cc eee 281 CLAIM 81: The Prosecution did not Provide Adequate Notice of the Evidenceit would Present at the Penalty Phase Under Penal Code § 190.3. ........ 285 PENALTY PHASE ARGUMENT. CLAIM 82: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument. 20...eeeenee 286 CLAIM 83: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument When He Argued Both the Felony-Murder Theory andthe Premeditated and Deliberated Murder Theory..................-00- 287 CLAIM 84: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument With His Comments AboutPetitioner’s Testimony ......... 288 CLAIMS RELATING TO INEFFECTIVE ASSISTANCE OF COUNSEL. INVESTIGATION. CLAIM 85: Defense Counsel's Failure to Examine Officer Carter's ContemporaneousNotes of the Confession Constituted Ineffective ASSISt€NCE2n een eee tenes 289 CLAIM 86: Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Evidence Regarding Alternate Suspects ................ 298 CLAIM 87: Trial Counsel Rendered IneffectiveAssistnace at the Guilt Phase as a Result of the Failure to Adequately Investigate the Identity of the Actual Killer or Killers in the 1976 Offenses ............ 0.0.0. .0 0200005 299 PRE-TRIAL. CLAIM 88: Trial Counsel Rendered Ineffective Assistance by Failing to Attack the Credibility of the Police Officers ... 0.2... 0.0... cee 303 CLAIM 89: Trial counsel was Ineffective for Failing to Raise Issues Concerning the Missing-Juvenile Report .........0.0. 0.0 cee eee eens 305 CLAIM 90: Trial Counsel RenderedIneffective Assistance by Failing to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Regarding the Alleged Penal Code § 288 Violation .................0000 000 309 CLAIM 91: Trial Counsel Rendered Ineffective Assistance When HeFailed to Impeach Cornejo Based on Favors Regularly Conferred upon Him in Exchange for His Testimony .............. 0.00: c cece eee eee 313 CLAIM 92: Trial Counsel Rendered Ineffective Assistance by Failing to Bring the Order from the First Trial to the Court’s Attention .................. 314 CLAIM 93: Trial Counsel’s Ineffectiveness Denied Petitioner His Right to a Speedy Trial eee e nents 317 CLAIM94: Trial Counsel Rendered Ineffective Assistance by Failing to Use the Police Missing-Juvenile Report to Impeach Key Prosecution Testimony and Otherwise Undermine the Legality of Petitioner's Arrest ............. 319 JURY ISSUES. . CLAIM 95: Trial Counsel Rendered Ineffective Assistance during Voir Dive, en eee nen es 319 CLAIM 96: Failure to Conduct an Effective Voir Dire to Ascertain Juror’s Attitudes and Biases Regarding the Death Penalty Constituted Ineffective ASSIStANCE. 2.eeeeee etn e nena 323 CLAIM 97: Trial Counsel Rendered Ineffective Assistance for Failing to Excuse a & Juror Who Knew Oneof the Witnesses. ............ 0.000000 ee eee 328 CLAIM 98: Petitioner's Right to Effective Assistance of Counsel was Violated as a Result of Counsel's Failure to Conduct an Adequate Voir Dire......... 331 CONFLICT OF INTEREST ISSUES CLAIM 99: Petitioner was Denied his Right to the Assistance of Counsel Under the Sixth Amendmentby the Trial Court's Denial of his Request to be Represented by Counsel to Litigate the Critical Proceedings Challenging the Inadequate Representation by his Appointed Tria] Counsel, Prior to and After the Guilt Phase of the Trial. 2... 0... 22.eeeee 332 CLAIM 100: Petitioner's Rights were Violated as a Result of Counsels’ Conflict of Interest in Being Essential Witnesses in the Case. ................4. 336 CLAIM 101: The Trial Court Failed To Conduct The Constitutionally Required Inquiry Into the Conflict of Interest. .... 0.2... 2.0.0... 0.0 e eee 337 GUILT PHASEISSUES. CLAIM 102: Trial Counsel Rendered Ineffective Assistance By Failing to Impeach Dr. Choi with his Preliminary Hearing Testimony. ................. 337 CLAIM 103: Trial Counsel Rendered Ineffective Assistance By Failing to Challenge the Statements Based on Contradictory Witness Testimony and Inconsistencies Between the Two Confessions. ..............-2004. 340 CLAIM 104: Trial Counsel Rendered Ineffective Assistance for Failing to Impeach Witness Jose Feliciano After He Erroneously Identified Petitioner’s Photograph on Redirect at Trial... 2...eee 346 CLAIM 105: Trial Counsel Rendered Ineffective Assistance by Failing to Argue Effectively to the Jury During the Guilt Phase the Applicability of the Second Degree Murder Maximum on Count One. ........... 0.000000 eee 350 CLAIM 106: Trial Court Rendered Ineffective Assistance by Failing to Inform the Jury That the Word ‘Both’ in CALJIC 8.75 Should Be Understoodas ‘Either )354 PENALTY PHASEISSUES. CLAIM 107: Petitioner was Denied his Right to the Assistance of Counsel as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses. e eee eee eden tented ens 355 CLAIM 108: Petitioner's Rights to Due Process and Effective Assistance of Counsel at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence. ........... 0.000000 eee cence 358 CLAIM 109: Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phase of Trial................ 361 CLAIM 110: Trial Counsel Rendered Ineffective Assistance in Failing to Argue the Concept of Lingering Doubt. ..........0.0. 00.0. ens 368 CLAIM 111: Petitioner was Denied Effective Assistance of Counsel with Respect to David Schroeder's Testimony. ........0.0 0.0 ccc tect ee 370 CLAIMS RELATING TO JURY ISSUES. CLAIM 112: Petitioner was Denied an Impartial Jury Drawn from a Fair Cross- Section of the Community. ... 0.0.0... 02. ceeeens 371 CLAIM 113: Petitioner's Rights were Violated as a Result of Extreme Underrepresentation of Hispanics and African-Americansin the Jury Pool401 CLAIM 114: The Denial of A Fair Cross-Section of Jurors in the Guilt Phase Violated Petitioner’s Constitutional Rights. ..................00055 401 CLAIM 115: Juror Zinn Committed Juror Misconduct in Violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth AmendmentRights. ............. 404 CLAIM 116: The Trial Court WasPartial in its Treatment of Potential Jurors During Jury Selection. The Jury Selected Was Biased in Favor of the Death Penalty and Violated Petitioner’s Sixth and Fourteenth Amendment Rights to a Fair and Unbiased Jury. .........00 0000ceeeee 407 CLAIM 117: Informing The Jury That There Had Been a Previous Trial Violated Petitioner’s Right to a Fair Trial. 2... 2...ee 413 CLAIMS RELATING TO MENTAL DEFENSES. CLAIM 118: Petitioner was Mentally Incompetent to Waive Any ofhis Rights at the Time of His Arrest and Confession. ........0....0. 002 e cee eee ee 417 CLAIM 119: Petitioner was Mentally Incompetent to Stand Trial. ........... 417 CLAIM 120: Petitioner Was Deprived of His Right of Access to and Assistance of Competent Mental Health Experts, in Violation ofAke v. Oklahoma. ... 422 OTHER CLAIMS. GUILT PHASE. CLAIM 121: Petitioner was Deprived of a Fair and Accurate Guilt and Penalty Phase Due to Lack of Available Material Evidence ....................0.. 430 CLAIM 122: Petitioner was Deprived of his Constitutional Rights as a Result of Falsification of Sgt. Carter's Alleged Interrogation Notes. ........... 436 PENALTY PHASE. CLAIM 123: The Various Flawsof the Sentencing Procedure Usedin this Case Render the Death Sentence Arbitrary, Capricious, and Unconstitutional. 437 APPELLATE CLAIMS. CLAIM 124: ByFailing to Preserve a Complete Record on Appeal, the Court Deprived Petitioner’s Due Process Rights and State Created Liberty Interests under the Fourteenth Amendment. .............0 0. cue eee eee 44] CLAIM 125: Petitioner's Rights were Violated by Erroneous Rulings and Factual Errors by this Court. 0... teen ene ees 449 CLAIM 126: Petitioner was Denied the Right to Due Process in his Appealas of Right as a Result of this Court’s Chief Justice's Political Support for Opposing Counsel in this Case. 2... 0...eteee 450 CLAIM 127: This Court Failed to Conduct a Constitutionally Adequate Review of Petitioner’s Case andInstitutionally Does Not Conduct Such Review in Capital Cases. 2...eeens 450 4. STATUTORY CLAIMS. VIUL. CLAIM 128: The 1977 Death Penalty Statute, on its Face and as Applied,is Unconstitutionally Vague Arbitrary, and Capricious. ................ 452 CLAIM 129: ManyFeatures of the California Capital Sentencing Scheme as Interpreted by the State Courts and Applied at Petitioner’s Trial Violate the Federal Constitution. ........ 0.0.0.eeeens 453 CLAIM 130: Failure to Narrow the Class of Offenders Eligible for the Death Penalty and Imposition of Death in a Capricious and Arbitrary Manner. . 458 EIGHTH AMENDMENTCLAIMS. CLAIM 131: The Unconstitutional Use of Lethal Injection Renders Petitioner’s Death Sentence Illegal... tees 480 CLAIM 132: Execution of Petitioner after Prolonged Confinement Violates the Eighth AmendmentProhibition of Cruel and Unusual Punishment. .... . 490 INTERNATIONAL LAW CLAIMS. CLAIM 133: Application of the Death Penalty Violates International Law Underthe United States’s Treaty Obligations. ...... 0.0.0... 2c eee eee 494 CLAIM 134: Application of the Death Penalty Violates Customary International LAW,2eeeete eee eee 502 CLAIM 135: Petitioner’s Death Sentence is Arbitrary UnderInternational LAW, L eee eee teen eee 505 CLAIM 136: Petitioner Has A Right To Be Free From Cruel, Inhuman or Degrading Treatment. 2...c neee ee 507 CLAIM 137: Petitioner’s Conviction and Sentence Violate His Right to Due PLOCESS. 21.tennee teens 510 CLAIM 138: Petitioner’s Right to be Tried Before an Impartial Tribunal was Violated by Death Qualification Procedures. ............ 0000 ce eee 513 CLAIM 139: Petitioner Has a Rightto Litigate Violations of His Rights Before International Tribunals. .. 2.2... 0...tenes 515 CUMULATIVE CLAIMS. CLAIM 140: Trial Counsel Rendered Ineffective Assistance. .............. 517 CLAIM 141: Appellate Counsel Rendered Ineffective Assistance. .......... 517 CLAIM 142: Habeas Counsel Rendered Ineffective Assistance. ............ 518 CLAIM 143: Cumulative Constitutional Error Requires a Reversal of the Convictions and Death Sentence. ........0.00 0.0000 ccc een nee 519 PRAYER FOR RELIEF. Petitioner RENO, currently confined on death row at the California State Prison at San Quentin, petitions this Court through undersigned counsel to issue a writ of habeas corpus ordering that his conviction for capital murder and his sentence of death be vacated. In support thereof, petitioner would show this Court as follows: I. INTRODUCTION. Mr. Reno!is 58 years old. He has been incarcerated for over twenty-five years for two homicides occurring in 1976 and one homicide occurring in 1978. Mr. Renowastried, convicted and sentenced to death during the time period of 1978 to 1980. The convictions were reversed by this Court in 1985. Mr. Reno wasretried and sentenced to death in 1987. Ona second appeal, this Court upheld Mr. Reno’s conviction and death sentence in 1995. The 1976 homicides involvedthe killing of Scott Fowler, age 12; and Ralph Chavez, age 10. They had been night fishing at Ford Park Lake, in Bell Gardens, California. Fowler and Chavez were last seen with two men, one of whom rode a motorcycle. No one identified petitioner as being either one of these two men. In the two years following the killings, the police developed considerable evidence supporting the "two-killer" theory and pointing to a numberofpossible suspects. However, the police never arrested anyone on these murder charges. Mr. Reno was never considered a suspect in these killings. This “two-killer” or “alternative suspect” evidence included: ' On December 14, 1994, the Marin County Superior Court granted Mr. Reno’s petition for change ofname from Harold R. Memro to Reno. Exhibit A. 1 ° the “positive identification” of Charles Lohmanas oneofthe killers; ° statements of witnesses to whom potential suspects had confessed; ° Scott Fowler's brother’s statement that the killings could not have been committed by a single killer, and his offer to testify against Nick Allikas, an older man who had had sexual relations with the Fowler boys and who had been with them on the day of the killings; and ° evidence of sightings at the park of a motorcycle very different from Mr. Reno’s. The 1978 homicide involvedthe killing of Carl Carter, Jr., age 7. He was reported missing from his home in South Gate, California. Carter was last seen with his older brother. The Bell GardensPolice investigating officer Don Barclift withheld over 400 pages of exculpatory evidence concerning the 1976 homicides from the defense until six years after the first trial and just two months before the second trial. To this day, the state has failed to release all of the exculpatory evidence concerning the 1976 homicides. Though the 400 pages contained crucial evidence regarding witnesses, other suspects, and basic factual information regarding the 1976 homicides, Bell Gardens Police Officer Barclift stated that the evidence was “irrelevant.” Bythe time it was turned over in 1986, the “trail was too cold,” and the evidence lost value to the defense as a decade had passedsincethe killing and investigation. Had the exculpatory evidence been providedearlier, defense counsel would have been able to investigate the many other suspects and attack the prosecution’s case. Moreover, given that lingering doubt was an important mitigation issue, a more thorough andtimely investigation of the information in the discovery materials would have provided the jury the necessary evidence to makea fair and reliable determination of penalty. Hadthe evidence been turned over when ordered,trial counsel would have learned that Suspect One, of whom a composite sketch was created and circulated, had been seen at the park on the night of the killings by witnesses Jose Feliciano, Scott Bushea and Mary Bushea. Theyall saw Suspect Oneat the park in the week prior to the night of the murder. Jose Feliciano and Scott Bushea saw both suspects fishing at the park earlier that week. Audie Cullison wasfishing with Scott Fowler on the Wednesday before the murders. At that time, Suspect One approached, spoke to them, and then stood andstared at Scott Fowler for about five minutes before finally walking away. Suspect One was described as having sandy blond, shoulder length hair, with a conspicuousscaracrosshis right cheek. He was seen wearing an armyjacket on the night of the killing. The scar was noticeable and played a majorrole in investigating alternate suspects. Five potential suspects were released because they did not havethe requisite scar on their cheek: Joseph Daniel Arozena; Donald Johnson; William Emest Burley; Ralph Wilbur Baker; and Raymond Minick. When Jose Feliciano and his friend Scott Bushea wereat the park earlier that week they saw both suspects. Suspect Twoarrived at the park wearing a brownjacket and nding a motorcycle. Suspect Two spoke with Scott Bushea. Suspect Two was described as having brown, wavyhair, slightly chubby and possibly Hispanic. Neither suspects’ description resembled petitioner. Mr. Reno has dark hair and no scars on either cheek. His police bookingslip in 1978 stated that no scars werevisible. “Marks, scars and deformities: n/v”. A 1972 arrest report only lists “Fu Man Chu mustache” under ‘marks and scars.’ And, unlike Suspect Two, Mr. Renois not Hispanic. Sadly, the state’s misconduct wasnot limited to withholding exculpatory evidence. Asthe state conceded, law enforcement made a warrantless arrest of Mr. Reno and conducted a warrantless search of his house and surrounding area and a warrantless search of his car. The arresting officers did not entertain a subjective belief that petitioner was guilty of an offense and, even if they had, the circumstances knownto the officers failed to establish probable causeto arrest Mr. Reno. After being twice interviewedbypolice, petitioner was arrested for “investigation” of kidnaping Carter. Then after obtaining a coerced confession as to each ofthe killings, Mr. Reno wasalso charged with the 1976 killings though no physical evidence connected himto the crime sceneorto the killings. However, Mr. Reno’s “confession” was involuntary and false. As such, it should have been suppressed bythetrial court. MrRenowasinterrogated by Bell Gardens Police Officer Greene. Greene was described as a large man, a bodybuilder with “huge” arms, who had previously coerced confessions and had twice broken the jaws of detainees in minortraffic stops. During the interrogation, Greene threatened to shove petitioner’s head into a wall of the interrogation room if he did not “cooperate.” Completely independentarrestees on other chargestestified that Green had exhibited this exact behavior towards them. The police did not refute, and in fact corroborated the testimony regarding their mistreatment of these other arrestees. Indeed, the hole in the wall (repaired the same day defense counsel requested to see it) demonstrated the seriousnessof the physical threat made against Mr. Reno. From the momentofhis arrest, it was evident that the police wanted a confession to their unsolved crimes. As a result, petitioner's alleged confessions were obtained by the exploitation of the illegality of his arrest. The confessions were procured during extensive interrogation after petitioner had been illegally arrested and immediately detained in isolation for more than six hours. Mr. Reno was cut off from the outside world. Furthermore, there were no intervening circumstances other than prolonged incarceration and interrogation, betweenthe illegal arrest and the confession. Here, the officers schemed to extract a confession at all costs. Four officers were present at times in a very small interrogation room. ° Officer Lloyd Carter was introduced to Mr. Reno as the "boss man." . Carter had been chosen to conductthe interrogation because of his experience “extracting” information from suspects. ° Carter in turn explained to Mr. Reno that Greene had been hired for his “muscles.” , Carter told Mr. Reno that Greene would probably kill him in a fight unless restrained. ° Greene told Mr. Reno that he knew how to get answers to questions. ° The indentation in the wall was pointed out to petitioner by his interrogators. ° Mr. Reno wasasked if he would like to make a matching impression with his head. ° The interrogators made other comments about the indentation in the wall. ° Greene flexed his muscles menacingly throughout the interrogation. ° The interrogators threatened Mr. Reno with physical harm by other prisoners due to the nature of the crimes. In addition to the threat of physical force, the officers engaged in significant psychological coercion of petitioner. The officers made an offer of psychiatric treatment in responseto petitioner's request to be returned to Atascadero State Mental Hospital.’ They agreed that he was mentally ill and promised him treatment at Atascadero Hospital if he “cooperated.” They also told him that he would be allowed to meet with a friend, Linda Brundige, a reserve deputy sheriff who lived nearby. But after Mr. Reno spoke with her and she agreed to meet him atthe station, the interrogators told him that they would not allow the meeting further enforcing his isolation and helplessness. Prior to this interrogation, petitioner had been interviewed out of custody twice. Each time he had denied any involvementin the crimes. He offered to submit to a polygraph examination and wastaken to the police station under a false impression that an > Petitioner had been previously admitted to Atascadero State Mental Hospital for three years between September 1972 and November 1974. examination would be given. Instead, following multiple lengthy custodial interrogations, an officer’s promise to aid his return to a mental hospital in exchange for his cooperation and after being promised, then denied, an opportunity to see and speak with his friend Linda Brundige, petitioner, in tears and in an extremely emotional state, succumbedto the officers demand and then “confessed.” Here, the evidence points to the inescapable conclusion that petitioner's confession wasnotfreely and voluntarily given. The coercive, isolated atmosphere in whichpetitioner was confronted with items taken from his apartment in an illegal search and with the presence of four officers in a small room, coupled with the fact that he was physically threatened by Officer Greene, with repeated references to the dent in the wall, render his confession involuntary. An examination of the circumstances surrounding the interrogation of petitioner—including the unrefuted, independently corroborative testimony of witnesses describing systemic misconduct by the South Gate Police Department—treveals a coerced confession. As such, the jury should never have heard this untrustworthy and false confession. Needlessto say, it played the deciding role in the guilty verdicts and the death sentence. This Court’s first decision reversed petitioner’s conviction and sentence based on police and prosecutor misconductattrial, including the withholding of relevant evidence on whetherpetitioner’s confessions were coerced. The material withheld was evidence asto the records of misconductof the investigating officers. This Court concluded that e s withholding that evidence was prejudicial both as to the admissibility of the confessions and asto their reliability, assuming they were admitted. People v. Memro I, 38 Cal. 3d 658, 684 (1985). Shortly before this Court’s decision reversing the conviction, the City of South Gate destroyed the evidence that was the subject of the court's pending decision. Consequently, petitioner was unable to obtain the evidence on which the court had reversed his conviction and sentence of death. Thus, Mr. Reno wasnotable to use this evidence to prove that his confession was involuntary. While the first trial was conducted by a Los Angeles County Superior Court judge without a jury, following remand from this Court, the secondtrial was presided over by a court commissioner, John A. Torribio, with a jury. The commissioner lacked felonytrial experience, let alone capital trial experience, and was biased against petitioner due to his sexual orientation and his desire to take part in his defense and assist counselin his defense. On remand for the secondtrial, petitioner renewed his motion to suppress,but, becausethe police had destroyed the personnel files, petitioner did not havethe policefiles that this Court had based the reversal upon. In rebuttal to the argumentjustifying suppression, the prosecution offered testimony of the interrogating officers that the confession had not been coerced, and also presented the testimony of professional informant Anthony Cornejoas to an alleged statement petitioner had madeinjail after the reversal of his case andprior to the secondtrial, purportedly admitting that Mr. Reno was licen guilty and that the coerced confession issue was contrived. Thetrial court denied the suppression motion, stating that it was doing so in reliance upon the prosecution witnesses. Cornejo wasat the time a frequently used jailhouse informant and wasacting as an agent for the police whenhe allegedly obtained this statement from petitioner. He had on a regular basis obtained or created "confessions" from defendants in return for favors from prosecutors andjailers for at least eight years prior to his testimony in this case. He was part of a group of Los Angeles County Mens’ Jail informants who regularly solicited “designer confessions” from other inmatesor, failing that, simply manufactured them to gain favors or freedom on their own pending cases. As one prosecutor noted, upon learning that Cornejo had perjured himself in the Ash prosecution in Pasadena, “Cornejo is without a doubt one of the most unscrupulous snitches that I have ever run across in 14 years as a deputy district attorney.” Another serious error arose when this Court remanded the case without instructions on the proper scope of the permissible charges. Despite the acquittal at the first trial, petitioner stood trial on both theories of first-degree murder, at least one of which had previously been found “nottrue.” Theretrial on both theories resulted in petitioner’s conviction and sentenceresting on predicate facts that were rejected by the original fact finder and a theory offirst-degree murder of which he wasacquittedin thefirst trial. This | combination of errors requires the granting of the habeas petition as to the Carter homicide becauseit violated several of Mr. Reno’s constitutional rights. Atthe first trial, the prosecutor sought to obtain two "special circumstances" findings: "multiple murders" and "felony murder.” Thetrial court madea specific finding that the felony-murder special circumstance was untrue: "As to the special circumstances allegation the Court finds that the special circumstanceallegation as to CountIII relating to the fact that the murder was committed during the commission of a lewd andlasciviousact upon the person of Carl Carter, Jr., in violation of Section 288 of the Penal Code, the Court finds that allegation is not true." (RT I 882; emphasis added). Based onthetrial court’s finding that evidence of the underlying felony wasinsufficient, trying petitioner a second time under a felony-murder theory violated petitioner’s constitutional rights to due process, protection against twice being placed in jeopardy for the same charges or conduct, heightened capital case scrutiny and freedom from cruel and unusual punishment. Double Jeopardy principles barred retrial on CountIII on both first degree theories. As aresult, Mr. Reno’s constitutional rights were violated by trying him under both theories of first degree murder, when he was acquitted on one of those theories bythe trial court. Retrying petitioner on a premeditated theory of first degree murder constituted a separate violation of Double Jeopardy principles because there was insufficient evidence of premeditated and deliberated murder. Moreover, at petitioner’s secondtrial, he was denied a Jury representative of the community. The jury venire in this case grossly under represented Latin Americans and African Americans. The Los Angeles County Jury Commissioner admitted that there was a serious problem because many Latin Americans and African-Americans are rejected from petitioner's "community" to serve as jurors. Wholly unrebutted evidence showedthat the 10 problem could have been corrected at nominal cost. However, nothing was doneto allow petitioner's jury to be chosen from a representative cross-section of the community. Additionally, despite the trial court's finding that there was no felony to support a felony-murderspecial circumstance, trial counsel did little to challenge the felony-murder claim at the secondtrial. Counsel should have challenged the coroner's testimony, and introduced mental health evidence showing that the Carter killing was not premeditated. Petitioner has a long history of mental illness including a 3 year stay at Atascadero State Mental Hospital, which would have negated premeditation and deliberation. Trial counsel failed to present this readily available evidence, which was relevant at both the guilt and penalty phases. Worseyet, trial counsel failed to prepare for the penalty phase though substantial evidence in mitigation was available and should have been presented. This substantial evidence included the fact that petitioner was prematurely released from Atascadero State Hospital where he had been receiving valuable treatment; the fact that Atascadero State Hospital would not readmit him thoughhe felt he needed further treatment; evidence of a very harsh childhood; evidence of his sexual abuse as a child at the handsoftrusted authority figures in his life; evidence of life-long mental illness and evidence of mental illness at the time of the offenses. Inexplicably none of this evidence was presented to the jury. Instead, trial counsel called one penalty phase witness who provided a small and inadequate glimpse of Mr. Reno’s troubled family history. As a result of all of these errors, Mr. Reno’s state and federal constitutional rights 11 were violated. Accordingly, this Court should grant the petition for writ of habeas corpus. II. UNLAWFULRESTRAINT. 1. Petitioner is unlawfully confined andrestrained of his liberty under a sentence of death at San Quentin State Prison, San Quentin, California, by Jeanne Woodford, Director of the California Department of Corrections, and by ThomasP. Goughnour, Warden of the San Quentin State Prison. 2. Petitioner’s imprisonment and death sentenceare the result of a fundamentally unfair trial. As set forth in petitioner’s direct appeals and prior habeas corpus action, numerousconstitutional errors plagued petitioner’s trial rendering his conviction and sentenceunreliable. Additional constitutional violations occurred at the appeals and habeas stages, preventing petitioner from receiving relief from his unjust conviction and sentence. 3. This petition has been filed as soon as practicable after all of the facts alleged as grounds herein became known to undersigned counsel, and counsel could reasonably have discovered the facts. 4. Any delay is attributable to the ineffectiveness of prior appellate and habeas counsel appointed by this Court to represent Mr. Reno. To the extent that claims should have been raised on direct appealorin the initial habeas petition, petitioner was denied the effective assistance of appellate counsel and habeas appointed by this Court. If. PROCEDURAL HISTORY. 1. Mr. Renois confined under sentence of death pursuantto the judgmentofthe 12 Superior Court of California in and for the County of Los Angeles, Superior Court Criminal Case No. A445665, which was rendered on July 17, 1987. Clerk's Transcript of secondtrial, hereinafter referred to as "CT II’, at 577. 2. Petitioner wasinitially charged in an information filed on November17, 1978, which alleged three counts of murder: Counts J and II, the murders of Scott Fowler and Ralph Chavez respectively, both murders alleged to have occurred on July 26, 1976; and CountIII, the murder of Carl Carter, Jr., alleged to have occurred on October 22, 1978. Asto CountIII, two special circumstance allegations under the 1977 death penalty law were alleged as follows: (1) that the murder waswillful, deliberate, and premeditated, and was committed during the commission and attempted commission of a lewd andlascivious act upon a minorin violation of Penal Code § 288 and(2) that petitioner committed the murders of Fowler and Chavez. Clerk's Transcriptoffirst trial, hereinafter referred to as "CT J,” 148-150. 3, Atthe first trial, petitioner waived jury and wastried by a Los Angeles County Superior Court Judge. 4. Asto CountI, petitioner was found guilty ofsecond degree murder; as to CountII, petitioner was found guilty of first degree murder; and as to CountIII, petitioner was found guilty of first degree murder. Relative to CountIII, the court found that the lewd and lascivious act special circumstanceallegation was not true, and found theallegation that petitioner had committed two additional murdersas alleged in Counts I and II true. (CT 1 248). Petitioner was sentenced to death. (CT I 262). 13 5. Petitioner's automatic appeal to this Court resulted in reversalofall convictions. People vy. Memro(1), 38 Cal.3d 658 (1985). This Court issued its remittitur on August 23, 1985. 6. Petitioner appeared in Los Angeles County Superior Court on September31, 1985. Eight months after the return of the remittitur, the prosecution filed an amended information on May 13, 1986. This information alleged that petitioner had murdered the three victims, in violation of Penal Code § 187. Count II contained a special circumstance alleging that petitioner was charged with multiple murders within the meaning of Penal Code § 190.2 subdivision (a)(3). (Clerk's Transcript from the secondtrial, hereinafter "CT," 99-101) 7. Petitioner waived timefor trial upon return of the remittitur in superior court on September 13, 1985. Seven monthslater, on April 18, 1986, petitioner withdrew his time waiver. On June 18, 1986, petitioner filed a handwritten motion to dismiss the case for failure to bring him to trial within the 60-day time period. (CT 193-194). The court did not rule on this motion and granted the defense attorneys a continuance over Mr. Reno’s objection. The attorneys requested and were granted further continuances from time to time overpetitioner's objection, until the matter cameto trial almost one yearlater, on April 1, 1987. (CT 382). 8. On May 19, 1987, the jury returned the following verdicts: guilty of murder in the second degree as to Count I; guilty of murderin the first degree as to Count II; and guilty of murder in the first degree with the special circumstanceallegation of multiple 14 murders as to Count III. (CT 445). 9. On June 11, 1987, the jurors returned a death verdict. (CT 565). On July 17, 1987, after denying motionsto strike the special circumstanceallegation, to reduce the penalty of death and for a new trial, the trial court sentenced petitioner to death. (CT 577). 10. On Automatic Appeal, the judgment wasaffirmed by this Court in its entirety. People v. Memro(IJ) 11 Cal.4th 786 (1995), as modified 21 Cal.4th 783 (1996). 11. On January 20, 1995, petitioner filed a Petition for Writ of Habeas Corpusin this Court. On June 28, 1995, the petition was denied on the merits. 12. OnMay14, 1996, petitioner filed a timely Petition for Writ of Certiorari to the Supreme Court. On October 7, 1996, the petition was denied by the Supreme Court. 13. On April 18, 1996, petitioner filed a request for the appointmentof counsel and a stay ofall proceedings with the United States District Court for the Central District of California. On June 14, 1996, the Honorable Robert Timlin appointed Stanley I. Greenberg as counsel of record. On January 30, 1997, the District Court appointed Nicholas C. Arguimbauas second counsel. 14. On August 13, 1997, Mr. Greenberg filed a motion for leave to withdraw as counsel of record. On August 29, 1997, the District Court granted the motion for leave to withdraw as counsel. 15. On December4, 1997, the District Court appointed Michael Abzug as counsel for petitioner as co-counsel with Mr. Arguimbau. 16. On September 8, 1998, petitionerfiled a Petition for Writ of Habeas Corpus 15 in this District Court. 17. On August 3, 2001, Mr. Abzug filed a motion to withdraw as counsel for petitioner. On August 16, 2001, the District Court granted Mr. Abzug’s motion to withdraw and substituted Peter Giannini in his place. 18. On November13, 2001, Mr. Arguimbau filed a motion to withdraw as second counsel. On November 19, 2001, the District Court granted Mr. Arguimbau’s motion to withdraw as second counsel. 19. On December18, 2001, the District Court appointed James S. Thomson and Saor E. Stetler to represent petitioner in federal court as co-counsel with Mr. Giannini. 20. On September 23, 2002, counsel filed a motion for appointment of counsel with this Court. On October 4, 2002, ThomasJ. Nolan filed a motion to withdraw as attorney of record with this Court. 21. On October 16, 2002, this Court granted Mr. Nolan’s motion to withdraw as counsel and appointed Peter Giannini, James S. Thomson and SaorE.Stetler “for purposes of all postconviction proceedingsin this court, and for subsequent proceedings, including the preparation andfiling of a petition for clemency with the Governorof California, as appropriate.” October 16, 2002 Order. IV. JURISDICTION. 1. This petition is properly presented to this Court pursuantto its original habeas corpusjurisdiction underarticle VI, section 10 of the California Constitution. 2. Petitioner’s imprisonmentis illegal and in contravention ofthe rights 16 guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and their individual clauses and sections, by Article 1, sections 1, 7, 13, 15, 16 and 17 of the California Constitution, and by the Treaties, Covenants and Agreements of International law. 3. Eachofthe constitutional violations asserted in this petition infected the regularity of the trial, appeal and habeas corpus proceedings, violated fundamental fairness and resulted in a miscarriage ofjustice. 4. Petitioner has no other adequate remedyat law to raise these claims. V. TIMELINESS OF PETITION. 1. This petition for writ of habeas corpusis timely filed. On December 18, 2001, present counsel were appointed to represent petitioner in his federal habeas corpus action before the United States District Court for the Central District of California. Counsel filed a request to be appointed to represent Mr. Reno before this Court on September 23, 2002. This Court granted the motion on October 16, 2002. 2. Present counsel learned of the bases forrelief alleged in this petition during this time period and the claims have been presented as quickly as possible after the legal and factual bases for them became known. Petitioner was unableto raise issues contained in this petition at an earlier date because former counsel, appointed by this Court, failed to raise these issues on direct appeal or in the previous state habeas corpusaction. 3. Atall times since hisarrest, petitioner was represented by state-appointed lawyers andrelied on themto raise all legal issues on direct appeal and to investigate 17 sopeaensnaleiali outside-the-record factual issues and present them in his habeaspetition. Petitioner is incarcerated, unschooled in the law and indigent, and was therefore unable to do otherwise. 4. This petition is timely filed pursuantto this Court’s Policies Regarding Cases Arising from Judgments of Death (Policies). Standard 1-1.2 providesthat a petition is filed without substantial delay if filed within a reasonable time after petitioner or counsel knewor should have knownofthe factual and legal bases for the claimsraised. If there has been substantial delay as to any claim, the petitioner may establish good cause by “showing particular circumstances sufficient to justify such delay.” As stated above, counsel only learned of these new claimsas he wasin the process of preparing Mr. Reno’s federal petition for a writ of habeas corpus. The only reason these claims were not raised on appeal or in the first habeas petition is because of the ineffectiveness of prior counsel appointed by this Court. 5. Even if this Court finds there has been unjustified delay in filing this second petition, this case fits within several exceptions to the general rule against delayed or successive petitions as set forth in Jn re Clark, 5 Cal 4th 750 (1993). First, petitioner’s claims demonstrate that a fundamental miscarriage ofjustice occurred. These errors of constitutional magnitude led to trial so fundamentally unfair that no reasonable juror would have convicted or sentenced petitioner to death in the absenceoftheseerrors. 6. Second, because of these errors, Mr. Reno was sentencedto death by a jury that had such a “grossly misleading profile” of himthat, absent the errors and omissions raised here, “no reasonable judge or jury would have imposeda sentence of death.” Clark, 18 5 Cal.4th at 798. Here, it can be said: “the picture of the defendant painted by the evidence at trial. . . differ[s] so greatly from his actual characteristics that . . . no reasonable judge or jury would have imposed the death penalty had it been aware of defendant’s true personality or characteristics.” Jd. atn. 34. Thus, the claims presented should “be considered on their merits even though presentedfor the first time in a successive petition.” Jd. 7. Respondent will suffer no prejudice by petitioner proceeding with the claims in this petition at this time. It is not the “eleventh-hourpetition” that this Court condemned in Clark. Id. Noris it a petition filed to cause “[d]eliberate delay for the purpose of obtaining a last-minute stay... .” Jd. It is a petition that raises substantial claims of constitutional magnitude—issues that Mr. Reno deserves to have considered by this Court. But for the ineffectiveness of former appellate and habeas counsel, these claims would already have been raised and decided bythis Court. 8. Good cause and particular circumstancesjustify the filing of the petition at this time. 9. In light of the particular circumstances of this case, this Court should consider the claimsraised in this petition on the merits as the Court has done on previous occasions in other cases. Applying a procedural bar under these circumstances would violate petitioner’s rights under the United States Constitution and corresponding provisions of the California Constitution. 10. The claimsasserted in this petition involve constitutional questions of extraordinary importance. 19 11. The nature andirrevocability of a death sentence merits consideration of these claimsat this time. VI. INCORPORATION. 1. Petitioner makes the following general allegations in reference to each claim and allegation in the petition. 2. To the extent that the error or deficiency alleged was dueto trial counsels’ failure to investigate and/orlitigate in a reasonably effective manner on petitioner’s behalf, petitioner was deprived of his federal and state constitutional rights to the effective assistance of counsel. To the extent that meritorious claims were notraised in petitioner’s appeal andinitial habeas petition, petitioner was deprived of his federal and state constitutional rights to effective assistance of appellate and habeas counsel. 3. After petitioner has been afforded discovery andthe disclosure of material evidence bythe prosecution, the use of this Court’s subpoena power, and the funds and an opportunity to investigate fully, counsel requests an opportunity to supplement or amend this petition. Anticipating that respondent will dispute every fact alleged below,petitioner requests an evidentiary hearing so that the factual disputes may be resolved. Heis presently aware ofthe facts set out below,establishing a primafacie caseforrelief. 4. Petitioner incorporates and baseshis claims on each and every Exhibit to this petition, including all factual and legal theories set forth in the Exhibits, in each claim presentedas iffully set forth therein. 5. Petitioner hereby incorporates by reference and baseshis claims on each and 20 & every paragraph ofthis petition in each and every claim presentedas if fully set forth therein. 6. Petitioner incorporates by reference, asif fully set forth herein,the certified record on appeal andall other documentsfiled in this Court in the case of Peoplev. Harold Memro, Criminal Case No. A445665 (Los Angeles County).’ 7. Petitioner also incorporates by reference the Opening Brief (“AOB”), Reply Brief (“RB”), Petition for Rehearing (“PR”), and all records, documents, exhibits, and pleading files in People v. Harold Memro(1), California Supreme Court No. 21323 and People v. Harold Memro(II), California Supreme Court No. S004770, as well as the Petition for Writ of Certiorari and original Petition for Writ of Habeas Corpus (““OHP”), the Informal Reply (“IR”) and their appendices in In re Memro, California Supreme Court No. S044437,as if fully set forth herein. The claimsin this petition incorporate these materials, 8. Petitioner has included all knownclaims of constitutional error related to his trial, convictions, sentence and imprisonmentfor the sake of clear presentation and so this Court can assess the cumulative effect and determine that a miscarriage ofjustice occurred. This includes claims that have been previously presented. 9. Petitioner requests that the Court take judicial notice ofall of the above mentioned material record in this case as set forth in paragraphs 6 and 7. > Thetranscript citations in this petition are to the record that was before this Court on petitioner’s direct appeal. Thetranscript abbreviations usedin this petition are identical to those used on appeal. 21 10. Petitioner's confinementis unlawful, unconstitutional and void,in that his conviction and death sentence were unlawfully and unconstitutionally imposedin violation of his rights to: notice, due process,liberty, fair trial, present a defense, unbiased jury, jury trial, effective assistance of counsel, heightened capital case due process,reliable and reviewable guilt determination, individualized, reliable and reviewable penalty determination, fairness in capital case sentencing, the prohibition against cruel and unusual punishments, and the prohibition against death biased proceedings,all constituting arbitrary and unreasonable decision making. Abrogation of these rights is in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Article I, §§1, 7, 13, 15, 16 and 17 ofthe California Constitution, and statutory and decisional law of the State of California and the Supreme Court. See e.g., Hicks v. Oklahoma, 447 U.S. 343, 346-347 (1980); Dropev. Missouri, 420 U.S. 162, 172, 181 (1975); Pate v. Robinson, 383 U.S. 375, 387 (1966); Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001); People v. Laudermilk, 67 Cal.2d 272, 282 (1967); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Duncan v. Louisiana, 391 U.S. 145, 147-158 (1968); Strickland v. Washington, 466 U.S. 688, 694 (1984); Coy v. Towa, 487 U.S. 1012, 1015-1020 (1988); Ake v. Oklahoma, 470 U.S. 68, 83 (1985); Woodson vy. North Carolina, 428 U.S. 280, 304 (1976). 11. Had these violations not occurred, petitioner would not have been convicted or sentenced to death. 12. The following facts support these claims and additional supporting facts will be presented after petitioner is accorded an opportunity for full investigation and discovery, 22 including access to subpoena power, adequate funding for investigation and experts, and an evidentiary hearing on the merits of these claims. 13. Petitioner adopts and incorporates by referenceall facts and claimsset forth elsewherein this petition. VII. INVESTIGATION. 1. Petitioner needs andis entitled to adequate funding, discovery, an evidentiary hearing and any other opportunity to fully and fairly develop the claims raised herein. 2. Further investigation must be conducted in connection with the present petition for writ of habeas corpus. After that investigation is completed, petitioner may have further claims to present, as well as further evidence in support of the claimsset forth herein. At that time, petitioner will supplement the petition as necessary. VIII. CLAIMS FOR RELIEF. A. CLAIMS RELATING TO PETITIONER'S ARREST, SEARCH AND CONFESSION. CLAIM 1: Petitioner’s Arrest Was Unlawful. 1. On October 22, 1978, at approximately 8:00 p.m., Carl Carter, Jr. was reported missing from his South Gate home. (RT I 41-42). 2. Within the next few days, South Gate Police Officers Williams Sims and Louis Gluhak contacted Joan Julian, a self-described "psychic." Julian told the officers that she "envisioned" an individual in the companyofthe victim. Based on her "vision," Julian assisted a policeartist in the preparation of a sketch of the individual. (RT I 83-84). 23 we 3. Thereafter, on October 27, 1978, Officers Sims and Gluhak visited the victim's parents at their house. They showed the sketch to Mr. and Mrs. Carter whotold the officers that the individual resembled petitioner, whom Carl Carter, Sr. referred to as "Butch." Carl Carter, Sr. had worked on petitioner's car and told the officers that several hours after the victim's disappearance, petitioner had dropped off his Volkswagen for repairs. (RT I 55-56, 84). 4. The South Gate police officers claimed to be checkingall possible leads in looking for the missing child and, therefore, based upon the identification of the psychic's sketch andthe fact that petitioner had taken his car to Mr. Carter for repair on the day ofthe victim's disappearance, Officers Sims and Gluhak decided to go to petitioner's apartment. (RT I 84, 313). 5. Accordingto the officers’ testimony, at approximately 3:00 p.m. on October 27, 1978, the officers knocked on petitioner's door. When petitioner responded, the officers identified themselves as police detectives investigating the disappearance of the victim. (RT 145,50). According to Sims, petitioner invited the officers into his apartment. (RT 1 50). 6. Asthe state conceded, law enforcement engaged in a warrantlessarrest of petitioner, a warrantless search of his house, connected and unconnected areas and a warrantless search of his car. Reporter’s Transcript of First Trial, hereinafter RT I, 34. 7. According to the officers, once they entered the apartment, petitioner spontaneously remarked that he had been expecting them andthat he "had been in 24 e e Atascadero Prison before." (RT 152). After complying with the officers’ request for identification, petitioner was said to have uttered "you are going to find out anyway. When I wasarrested in Huntington Park in ‘72 it was because I wentinto a fit of rage and beatthe shit out of a nine year old boy." Petitioner also explained that he had been sentenced to Atascadero State Hospital because of the assault. (RT I 53). 8. Officer Sims asked petitioner whether he had noticed anything "unusual" on the night he left his vehicle at the Carter residence. Petitioner replied that he had not. (RT 159, 60). While the officers were there, petitioner mentioned to them that he was aboutto leave his apartmentto purchase a car part. Theofficers visited petitioner for a total of 15 minutes and left when petitioner did. (RT I 53). 9, Directly after leaving petitioner's apartment, Officers Sims and Gluhak visited the Carter residence again. Approximately 25 minuteslater, the officers saw petitioner standing between the garage andrear portion of the Carter residence. (RT I 54, 297). Officer Sims approachedpetitioner and asked him to describe his observations on the night the victim disappeared. Petitioner recalled that at 6:00 p.m. he had goneto the Sizzler Restaurant located in the neighborhoodof the Carter residence. After encountering a long line, he instead decided to visit Carl Carter, Sr. to discuss the repair of his car. Upon approachingthe rear door of the Carter residence, petitioner was met by Carl Carter, Jr. Petitioner asked the boy if he wanted to go and have a coke. Petitioner and Carl Carter, Jr. went to the Winchell's, approximately two blocks away, for a coke and petitioner told Sims he "didn't do anything" to Carl Carter, Jr. (RT 160). The last time he had seen Carl, Carter 25 Jr., he was walking toward his home. (RT I 60, 61, 70). 10. Accordingto the officers' testimony, immediately following petitioner's statement, Officer Sims advised petitioner that he was underarrest for "investigation of 207, kidnapping." Petitioner was handcuffed, placed in a police car and transported to the South Gate Police Station. (RT I 62). 11. On direct examination, Officer Sims claimed the following factors supported petitioner's arrest: the seriousness of the crime; the fact that a seven-year-old boy had been missing for a week; the fact that petitioner had not mentioned his meeting with the boy during his prior conversation with the officers at his apartment; the fact that petitioner stated he had not done anything to the boy; the fact that the boy wasfirst observed byhis parents to be missing at 6:00 p.m., the same timepetitioner had appearedat the Carter residence;* andthe belief that petitioner was the last person to have seen the boybefore his disappearance. (RT I 62-63). Officer Simsfelt that these factors led him "to believe that he was possibly involved in the missing boy's disappearance." (RT I 62). 12. Officer Simsstated that at the time he approachedpetitioner at the rear of the Carter residence, petitioner was not a suspect. (RT 1 65, 66). The probable causeto.arrest petitioner was generated by the conversation between Simsandpetitioner at the rear of the Carter residence. (RTI 66). Officer Sims recalled that the conversation terminated with petitioner's statement, "I didn't do anything to him. Thelast time I saw him he was walking * This information was contradicted by an official police report in Sims' possession, which related that Carter was not missing until 7 p.m. 26 towards home." (RT I 66, 70). 13. Petitioner testified that on the day of his arrest, October 27, 1978, after arriving home from work around 2:30 p.m., he decided he would pick up a car part at a junk yard and take it to Carl Carter, Sr. (RT 198, 132, 134). At approximately 3:10 p.m., as he was getting into his car in front of his residence, Officers Sims and Gluhak pulled up across the street, identified themselves as police officers and requested to speak with him. The officers and petitioner conversed while standing in front of an unmarked car. (RT 1 97, 98). 14. Officer Sims informedpetitioner that the officers were investigating the disappearance of Carl Carter, Jr. petitioner told the officers that he knew the Carter family because Carl, Sr. did repairs on his vehicle. (RT 1 98). In response to questioning, petitioner told him that he had left his vehicle at the Carter residence the previous Sunday around 11:00 p.m. (RT 199). 15. Officer Sims asked whetherpetitioner had previously been arrested. Petitioner answered that he served time in Atascadero on a charge of Penal Code § 273(d), for which he was currently on probation. (RT 199). Petitioner commentedto the officers that he had expected their visit due to his prior commitment in Atascadero, his acquaintance with the Carter family and his belief they would check outall leads. (RT I 105). 16. Officer Sims then askedto search petitioner's apartment. Petitioner asked "Would it do me any goodto say no?” to which Sims answered negatively. (RT I 100). Petitioner followed the officers to his apartment, and opened the doorbelieving that the officers would force entry into the apartment if necessary. (RT I 100, 138). Petitioner did 27 not object to a search of his apartment, believing he had nooption to refuse. (RT I 100, 101). 17. Officers Sims and Gluhakentered the living room, searched the apartment and took nothing. Upon leaving the apartment, Officer Sims asked petitioner whether he could search the trunk ofpetitioner's car. Petitioner again asked "Would it do me any good if I said no?" to which Sims responded negatively. The officers searched the trunk and then left without seizing anything. (RT I 105, 106). 18. After retrieving the car part from the junk yard, petitioner went to the Carter's house, approaching the rear door. He observed Officer Sims conversing with Mr. and Mrs. Carter. (RT 1 106). Petitioner handed Mr. Carter the vehicle part and beganto leave. Officer Sims followed him andsaid he had further questions. (RT I 107). 19. Officer Sims again askedpetitioner about the last time he had seen the Carter boy. Petitioner explained that he had cometo discusshis vehicle's repair with Carl Carter, Sr. and saw Carl Carter, Jr. playing with the neighborhood children. (RT I 107). Petitioner said that he delivered his car to the Carter residence at 11:00 p.m. on Sunday,the day of the boy's disappearance. Officer Sims asked whetherpetitioner had observed anything unusual. Petitioner told him that he recalled seeing police vehicles and several neighbors and family members outside the residence. Simstold petitioner that Officer Gluhak had further questions for him and summoned Gluhak on his walkie-talkie. (RT I 108, 109). 20. After Officer Gluhak joined Officer Sims and petitioner, a discussion ensued about petitioner submitting to a lie detector test. (RT 1110, 113). The officers then 28 showedpetitioner a copy of the psychic's “visionary” sketch and petitioner remarkedthat he did not recognize the individual depicted. (RT 1 112, 113). Officer Sims opined that the sketch resembled petitioner and said that he had sufficient evidenceto arrest petitioner for kidnapping, but to avoid arrest, Sims asked petitioner to consent to taking a polygraphat the police station that night. (RT 1113, 114). Although petitioner had a dinner date for that evening (about which he had previously told the officers), he agreed to the polygraphtest. (RT 1 113, 114). 21. Officer Simstestified that petitioner was arrested for "investigation" of kidnaping of Carl Carter, Jr. At the time of the arrest, Officer Sims knew (1) the victim had been missing from home for five days; (2) petitioner had informed the police officers of his stay at Atascadero State Hospital six years prior for assaulting a young boy; (3) the Carters identified petitioner as resembling the psychic's visionary sketch; (4) petitioner, who knewthe Carter family, initially told the police that he had not observed “anything unusual" on the day of the boy's disappearance and subsequently stated that he took Carl Carter, Jr. to Winchell's and then returned him home. (RT I 62-63, 351-352). 22. Here, the arresting officers did not entertain a subjective belief that petitioner was guilty of an offense and, even if they had,it did not meet the legal probable cause standard. Officers Sims and Gluhakdid not possess a subjective belief that petitioner was guilty of a crime. This is demonstrated by their own characterization of the arrest as being for "investigative purposes.” For example, in referring to the factors upon which the arrest was based, Officer Simstestified that he believed that petitioner was "possibly 29 involved"in the disappearance of Carl Carter, Jr. (RT 1162). Indeed, Officer Simsstated that petitioner was arrested only for “investigation of 207, kidnapping.” (RT 61). 23. Becausethe officers themselves did not have a belief in the guilt of the petitioner at the time of arrest for purposes of custodial interrogation, the fruits of that arrest must be suppressed. The circumstances knownto the officers failed to establish probable cause to arrest. Petitioner made no attemptto flee but rather accommodated the police questioning and then went on with his own business even if that meant encountering the officers again. His only arguably suspicious conductthe police could point to was the alleged inconsistency regardingthe last time he had seen Carl Carter, Jr. 24. Assuming, arguendo,that the arresting officers did entertain a subjective belief in petitioner's guilt, the reasonableness of such belief, measured objectively, fails to meet the probable cause standard. At the time of the arrest, there was no evidencethat a crime had been committed. No witness had observed the boy's abduction, no ransom note or other indicia of extortion had been received, no possessions belonging to the boy had been suspiciously abandonednear his home and no evidence of foul play had been detected. What was known wasthat a child had been missing from homefor five days. While such disappearanceis a serious cause for concern, it could be caused by non-criminalfactors including the loss of way; an incapacitating injury due to an accident; or the child's act of running away from home. 25. Evenif reason to believe that a crime had been committed existed, there was no reason to believe that petitioner was culpable. At the time of the arrest, the officers 30 knewthat petitioner knew the missing boy and his family. That six years prior, he had received psychiatric treatment for assaulting a boy cannot be viewedas indicative that he committed some unknown crime,norhas a present propensity to commit a crime. If so, police could randomly arrest people and "round up the usual suspects." Such an unfounded theory ofarrest is not tolerated by the Fourth Amendment. 26. Moreover, the fact that petitioner was depicted in a sketch prepared from a psychic's "vision" lends no evidence ofhis culpability. The psychic's sketch and her "vision" of petitioner in the companyofthe boy are devoid of those indicia of trustworthiness necessary to lead a "man of ordinary care and prudence"to draw any conclusion, muchless onejustifying an arrest. Indeed, the trial court found that factor unreliable for inclusion in the probable cause determination. (RT I 351). 27. Officer Simstestified that the factors of acquaintance, past psychiatric treatment for a juvenile assault and identification based on a psychic's vision were insufficient for probable cause. In Officer Sims' words,prior to the conversation with petitioner at the rear of the Carter residence, petitioner "was not a suspect." (RT I 65-66). Bythe arresting officer's own explanation, the conversation at the Carter residenceitself transformedthe officer's belief that petitioner was not a suspect into a "strong and honest suspicion"that petitioner was guilty of kidnaping. 28. During that conversation, two facts were revealed. First, petitioner indicated proximity to the missing boy an hour before he waslast reported to have been seen. Second,this recollection was allegedly inconsistent with petitioner's prior commentathis 31 apartment. 29. Anaccused's proximity to an alleged victim of a crime an hourbefore the crime's occurrence, while justifying further inquiry, cannot support an arrest. Moreover, petitioner stated that he last saw the boy walking home unharmed. (RT 170). Furthermore, the police officers knew of evidence which not only corroborated petitioner, but indicated that the boy's brother, notpetitioner, was the last person to have seen Carter.” 30. Even the alleged inconsistency between petitioner’s statementat his first police interrogation and the second commentdid not constitute either a suspicious circumstanceor probable causeto arrest. During the interrogation atpetitioner's apartment, Officer Sims said that he asked whetherpetitioner had observed "anything unusual" on the night of the boy's disappearance, to which petitioner responded negatively. (RT 59-60, emphasis added). Officer Sims further testified that during the subsequent conversation at the Carter residence,petitioner recalled contact with the boy around the time of his disappearance. (RT 60). To Officer Sims,petitioner’s conflicting statements evidenced a consciousness ofguilt. 31. Upon closer scrutiny, no inconsistency exists. Officer Sims never inquired if petitioner had actually seen the boy on the day of his disappearance. Moreover, simply seeing Carter at the boy's own houseis hardly "unusual." Thus, petitioner's statement that he had not seen "anything unusual” could not reasonably be interpreted to mean that he had not ° This information wascontained in the missing-juvenile report in the possessionofthe police. (RT 282). 32 seen the boy. Under these circumstances, petitioner's failure to go into any detail upon his first conversation with the officers is not inconsistent with his subsequent statementat the Carter residence. Indeed, any "inconsistency"is attributable to the framing of Sims' question. Petitioner understood the inquiry regarding anything "unusual"to refer only to the presence of suspicious circumstancesor individuals at the time in question. Hence, the final fact justifying the arrest lacks merit. 32. Thus,the arresting officers lacked a subjective belief that petitioner had committed a crime and, even if such belief existed, the reasonableness and sufficiency of that belief failed to comply with the probable cause standard. 33. Petitioner's confessions were "obtained by exploitation oftheillegality of his arrest." Dunaway v. New York, 442 U.S. 200, 217 (1979). The confession was procured during extensive interrogation after petitioner had been illegally arrested and immediately detainedin isolation (i.e., cut off from the outside world) for more than six consecutive hours. Furthermore, there were no intervening circumstances between the illegal arrest and the confession. The only event betweenthe illegal arrest and the confession was prolongedincarceration and interrogation. The purposeandflagrancy of the official misconductin this case are undebatable. Thearresting officers testified that petitioner was being arrested for "investigation" of kidnaping. His treatment from the momentof his arrest demonstrates that the officers were willing to hold him without probable cause until he “confessed.” 34, The state made no attempt to demonstrate that petitioner's confession was 33 obtained other than by exploitation of his arrest. The prosecution, in fact, acknowledged repeatedly that proofof the illegality of the arrest would necessarily justify suppression of the confession. (RT 336, 749). Accordingly, because the arrest was unlawful, the trial court erred in not suppressing the confession. 35. In addition to the confession, petitioner sought suppression of additional evidenceseized as a result of his illegal arrest. The prosecution concededthat should the court find the arrest illegal, all of this evidence would be inadmissible. (RT 1336). This evidence includesall physical evidence seized from the residence or garages belonging to the petitioner; all physical evidence seized from the automobiles; all observations madein the residence, garages or automobile after October 27, 1978 and any evidenceseized at the recovery location of the deceased body. (CT I 189-190). The officers admitted that they had no idea where the body wasbefore petitioner's arrest and subsequent confession and that they probably never would have foundit. (RT I 382). 36. Numerousitems found in one of the garages were introducedattrial. These included a red suitcase containing boy’s undergarments and a piece of rope resembling the rope found on the body. (RT 2437, 2443). Some photos of nude young boys as well as rolls of masking tape recovered from inside the house were introducedattrial. (RT 2244). 37. Assumingthe initial arrest wasillegal, the trial court was compelled to suppress these itemsasdirect fruits of the illegal arrest, under state as well as federal precedents. Wong Sun v. United States, 371 U.S. 471, 485 (1963); People v. Superior Court (Zolnay), 15 Cal.3d 729, 734-735 (1975). As in Zolnay, these items were located 34 solely as a result of petitioner's confession and alleged permission to search given during the interrogation within hoursofhis arrest. 38. Regarding the murder of Carl Carter, Jr., the prosecution presented little, if any, evidence other than that which flowed directly from the arrest and confession. Even the location of the body and the ensuing autopsy report were the fruits of the arrest. 39. As to the other two murders, there is no evidence other than the alleged confession that connects petitioner to the crime. These homicides occurred two years before petitioner's arrest and the only suspects arrested had been released. No physical evidence from the crime sceneor petitioner’s home connected himto the murders. Indeed, the only eyewitnesses who sawthe victims before the murders were notable to identify petitioner as the person seen with the victimsin the park that day. ~40. Moreover, the independent testimony of the witnesses andthe police supports the theory that petitioner was not seen in the park on the day of the murders. Once again, without the confession, petitioner would not have been convicted. 41. Insummary: a. Petitioner's arrest was illegal both becausethe police lacked a subjective belief in petitioner's culpability and, viewed objectively, the arrest was made without probable cause. (1) The police arrested petitioner for "investigation" of crimes rather than out of a belief that there was probable cause to believe he had committed a crime. 35 (2) There wasinsufficient evidence that a crime had been committed and the sole bases for the arrest were the non-inculpatory statements of petitioner and a "vision" from a psychic. b. The confession was tainted by the illegal arrest and was therefore inadmissible. c. All other evidence obtainedas a result of the illegal arrest and confession wasinadmissible. d. Theillegality of the arrest requires reversal of the convictions. CLAIM 2: Petitioner's Alleged Confession to the South Gate Police was Coerced. 1. Following hisarrest, petitioner was transported to the South Gate Police Department around 4:00 p.m. He wastaken to a booking cell, searched and then led into the interrogation room. (RT 711). According to Officer Sims, petitioner was advised of his Mirandarights and hetold the officers that he did not wish to speak with an attorney. (RT 687). He then related the same sequence of events to Simsas before,i.e., that he saw the Carter boy when he went with him to Winchell’s. (RT 689). This interrogation lasted thirty minutes. Petitioner was returned to a holding cell. (RT 712, 713). 2. Twoor three hourslater, petitioner was brought back to the same room. The officers testified that he was again advised ofhis rights. Presentat this interrogation were Officers Sims, Gluhak, Carter and Greene. (RT 691). During this second interrogation, petitioner allegedly confessed to the murders. (RT 693). Neither of these interrogations 36 were tape-recorded. 3. Simstestified that he and the other three detectives had worked together a numberof times. (RT 701). Detective Greene was a powerfully built individual whom the trial court described as a “physical specimen” with a “huge chest and big arms.” (RT 868). At times during the interrogation, he would get up and block the door. (RT 850). Sims asked Officer Lloyd Carter to conduct the second interrogation because of Carter’s ability to extract information and his experience. (RT 846). The interrogation room wassmall, about 8 feet by 15 feet. Although Sims “could not recall” any dents or impressionsin the wall (RT 697, 698-701), Carter testified there was a 6"-8" indention or dentin the interrogation room wall. (RT 853). 4. Officer Carter testified that he was present for the interrogation, during which petitioner appeared "emotionally upset." (RT 837). He spoke about Carl Carter, Jr.'s murderfirst and thereafter became very upset. (RT 840). 5. Carter and Simsleft the interrogation room for a few minutes at that point and Carter told Sims, "Well, we have him talking,let's talk some more. He may be good for a few other murders or criminal involvement." (RT:842). The detectives then re-entered the room and, without re-advising petitioner of his rights, questioned him about the other murders. (RT 851). Carter stated that when he questionedpetitioner, he was aware of petitioner's prior commitment to Atascadero State Hospital. Petitioner indicated that he wouldlike to return to Atascadero. (RT 855, 857). Petitioner asked to make a phonecall to a counselor at Atascadero during the interview (RT 866); his request was denied. 37 6. Petitioner testified that he was not told he was underarrest, that he was allegedly being taken to the station for a voluntary polygraph examination, and that upon arrival at the station, he was placed in a holding tank andstrip-searched. His request to make a phonecall was denied. (RT 2153). He was kept alone for an hour and then brought to the interrogation room where Sims and Gluhak were waiting. After repeating only that he had seen Carl Carter, Jr. last after taking him for a Coke, the officers returned him to a holding cell. (RT 2155, 2156). 7. Forty-five minutes later, petitioner was again taken backto the interrogation room, where Sims and Gluhak told him that the Huntington Park Police Departmentsaid he was a "sicko." He was showna pair ofjeans, underwear anda t-shirt that Sims said he thought belonged to Carl Carter, Jr. and which petitioner recognized as having been seized from the bathroom of his apartment. Petitionertold the officers that the clothes did not belong to Carl Carter, Jr. and that he wantedto leave if they were not going to give hima polygraphtest, as previously indicated. Sims then told him forthefirst time that he was underarrest for kidnaping. Petitioner was again returned to a cell and bookedandhis request to make any phonecalls was again denied. (RT 2157, 2159). 8. Petitioner was taken into the interrogation room a third time and Sims, Gluhak, Carter and Greenewereall there. Sims introduced Carter as the "boss man" or something to that effect. Greene was wearing Levi's anda tight-fitting tank-topshirt. Carter pointed out that Greene waslarge and that he had been hired for his muscle. (RT 2160). He also askedpetitioner if he thought that he could beat Greenein a fight. 38 Petitioner said he thoughtif he gotinto a fight with Greene, that Greene would probably kill him. Carter responded that Greene would probably kill him if someonedidn't stop him. Petitioner estimated that Greene was around 6'1" to 6'2", 220-225 pounds. At that time, petitioner himself was 5'9%4" and probably weighed between 155 and 165 pounds. It was obvious that Greenelifted weights and worked out extensively. Greene said that he knew how to fight and get answers to questions. (RT 2161). 9. Petitioner felt Greene was threatening him. Either Carter or Greene pointed out the hole in the wall of the interrogation roomto petitioner. They asked him how he thoughtit got there and whether he would like his head to make a matching hole or enlarge it. It was not an actual hole but a depression or dent. (RT 2162, 2165-2166). Greene commentedthat the walls in the interrogation room neededto be spackled and painted practically every day. At that point petitioner was crying and scared; he wasafraid of Greene. (RT 2167). 10. Onacouple of occasions during the interrogation, Greene postured and flexed his muscles. (RT 2168). During the interrogation, petitioner repeated that he had already told them everything he knew about the crime. (RT 2160). Petitioner had not been read his rights and hetold the officers that he wanted an attorney. (RT 2161, 2165). He told the officers that he wanted to meet with a friend of his, Linda Brundige, who was a reserve deputy sheriff and wholived right behind the station. (RT 2169). Theofficers agreed. During a breakin the interrogation, Carter told thejailer to let petitioner have two calls. The jailer dialed Linda's numberand Lindatold petitioner she would comeright over. 39 & (RT 2170). However, after petitioner had madethe call and asked Linda to come overto the station to see and speak with him,the police then told him that he would not be allowed to see her. (RT 2172). 11. Petitionertestified that the officers said that they had already acted improperly and that the case would probably not hold up in court. They told him they thought he was mentally ill and that he would be returned to Atascadero andthat this could be done even withoutfiling charges. (RT 2162). They told him they would help him get re- admitted to Atascadero if he cooperated. They also told him that if he was convicted of kidnaping a young boy, he probably wouldn't live very long in prison. (RT 2163). 12. At this point, petitionerstill maintained he did not know anything. Petitioner said he was willing to cooperate any way he could. When Carter mentioned that petitioner might be able to return to Atascadero,petitioner asked if he could call his former sponsor at Atascadero andtalk with him. Carter told him that he could call him after he cooperated. It was petitioner's understanding that Carter promised to get him back to Atascaderoif he cooperated with the officers. (RT 2168). Following this promise, petitioner offered a confession. 13. The South Gate Police Departmentpolice officers, and these officers in particular, were notorious for using harsh and unethical methodsto try to coerce confessions from suspects. For example: a. Louis Morenotestified that he was arrested in 1978 by South Gate Police. Oneofthe officers (apparently Greene) who arrested him wasvery large. 40 After breaking into his house, the large officer started kicking him in the head and temples while the other officer kicked him in the ribs. His head was pushed through a door. (RT 1308-1313). Peter M. Williams, petitioner's trial counsel at the first trial, identified photographs of Angelina Nasca. One photograph showed Ms. Nasca with a scar on her cheek, which wasthe result of Officer Greene hitting her and driving her tooth into her cheek. Greene thereafter threatened to put her head through the wall of the interview room if she did not confess to a burglary. (RT I 591-592). Angelina Nasca's testimony from the prior trial was admitted in evidence by stipulation at this hearing. Ms. Nasca wasarrested by Officer Greene on November1, 1978, just four days after petitioner's interrogation. Upon her arrest, Ms. Nasca was thrown against the side of a car and kicked by Officer Greene. (RT 1591-593). When taken to the South Gate Police Department interrogation room,she noticed a hole in the wall. She wasseated in a chair right below the hole. Officer Greene threatenedher, telling her that if she did not start talking and telling him the truth, he was going to put her head through the hole. He told her he had donethis to another suspect. Nasca testified that she was struck three times, once whenarrested and twice in the interrogation room. She washit oncein the back, once in the head and once on the side of the face. (RT 1 598-601). 4] e. 14. Michael Bridges testimonyin the first trial was made part of the evidenceat this hearing. (RT 2241). Bridgestestified that Officer Greene had arrested him and put him in a police car. Every time the car cameto a stoplight, Officer Greene would hit him with a billy club. Bridges was handcuffed at the time and Officer Greene struck him in the back, downthe side of his arm, downhis leg, and on his calves. Before they got to the station, Greene told himthat he should kill him, that he was a hostage and that no one knew where he was. Once inside the station interrogation room, Bridges was given a Miranda waivercard, which he signed, asking for an attorney. Greene took the card and tore it up. Greene then called him a smartass andstarted hitting him with a blackjack, asking if he was going to cooperate. Greene had told him that they frequently repainted the interrogation room because the officers repeatedly knocked the paint off the wall. Bridges stated that he saw a plaster spot aboutthe size of someone's head on the wall. (RT I 772-782).° The testimony of Bridges and Nasca was unrebutted. Jailhouse informant Anthony Cornejo testified for the prosecution at the hearing. Hestated that petitioner spoke with him while on a busto court on July 17, 1986. (RT 994). According to Cornejo, petitioner stated that he had lied to his attorneys about ° Thecitizen complaint records had been purposefully destroyed before the second trial and were not available for review by defense counsel. Thetrial court refused to impose any sanctions for their destruction; thus, no evidence of such complaints was admitted during this hearingorattrial. 42 the coercion of his confession and that he freely gave the statements to the police. (RT 995). 15. At the end of the 402 motion, the court ruled that petitioner was fully advised of his constitutional rights, that his statements were voluntary andthat there had been no threats or promises of reward or leniency. The court held that the confession was admissible. (RT 2266). 16. Thetrial court erred inits ruling that petitioner's confession was voluntary. The record in this case providesa startling example of a confession induced bythreats and a coercive atmosphere. 17. This Court was required to review the voluntariness of the confession to determine if the prosecution sustained its burden of proving it was voluntary beyond a reasonable doubt. People v. Jimenez, 21 Cal.3d 595, 608 (1978). Underthe federal constitution, the court applies a lesser burden, as the prosecution must show voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 774, 984 (1972). The latter standard was adopted by this Court for crimes occurring after the adoption of Proposition 8. People v. Markham, 94 Cal.3d 36, 17 (1989). Becausethe challenge raised by the defendant involves both the federal and state constitutions, this issue should have been analyzed under both standards. 18. In reviewing the voluntariness ofa confession, the ultimate issue is reviewed independently by the reviewing court. Schneckloth v. Bustamante, 412 U.S. 218, 226 (1973). Undereither standard, petitioner's confession should have been suppressed here. 43 19. An examination of the circumstances surrounding the interrogation of petitioner—including the unrefuted, independently corroborative testimony of witnesses describing systemic misconduct by the South Gate Police Department—teveals a coercive atmosphere. 20. Prior to the interrogations at the South Gate Police Station, petitioner had twice been approachedbypolice officers, once at his home andagain at the Carters’ residence. Both times police questioned petitioner regarding Carl Carter, Jr. and both times petitioner denied any knowledge of his disappearance. Nevertheless, he was arrested and taken to the police station. 21. From the momentofhis arrest, the tone was set for the ensuing interrogation. It was clear that, despite petitioner's protestations of innocence, the officers were not going to leave himalone until they extracted the information they wanted, even according to the police testimony. Onceatthe jail, petitioner was again interrogated and again reaffirmed his lack of involvement in Carl Carter, Jr.'s disappearance. Unsatisfied with his answers, Officer Sims turned the role of inquisitor over to Detective Carter since Sims himself had been "unsuccessful." (RT I 468). 22. The interrogations took place in a cramped room that measured 8 feet by 15 feet, with a large table.’ Accordingto theofficers’ testimony, at the second interrogation, 7 Although Simsdid not recall any dents in the wall, Carter testified that there was an indention six to eight inches in diameter. The existence of the mark in the wall was confirmed bythe testimony of petitioner, Nasca and Bridges. When the defense investigator went to photograph the indentation prior to the first trial, the hole been freshly repaired. 44 & there werea total of four officers in the room, one of them Officer Greene, whom Carter described as "powerfully built" and bythe court's own observation was "a physical specimen with a huge chest and big arms." (RT I 868). It was at this session that petitioner was said to havefirst confessed. 23. Despite the officers' denials that force was actually used to extract the confession, the court must accept the facts describing implicit menacing threats made to petitioner because the police did not refute, and in fact corroborated, testimony regarding their mistreatment of other suspects. Petitioner stated that Carter was introduced to him as the "boss man." Carter in turn explained that Greene had been hired for his muscles. Petitioner wasalso told that Greene would probably kill him in a fight unless restrained and Greene himself said he knew how to get answers to questions. 24. The indentation in the wall was pointed outto petitioner by his interrogators and he wasasked if he would like to make a matching impression with his head. Other comments were made about the dent and Greene continuedto flex his muscles menacingly. 25. Petitioner's testimony concerning the dent and Officer Greene was substantially corroborated by others who had experience with the South Gate Police and by the photos taken by the defense. Both Bridges and Nasca had beenviolently attacked by Officer Greene. Nasca and Bridges, as revealed throughtheir prior testimony, had been told that their heads would be put through the wall of the interrogation room if they did not cooperate. This evidence corroborates petitioner's account of the interrogation and 45 & underminesthe self-serving testimony of the police officers.* 26. The presence of Greeneat the interrogation clearly had no purposebut to threaten. Sims and Gluhak werethe investigating officers and Carter was there because of his "successful interviewing techniques." There was no reason, however, for Greene to be there except as a coercive threatening force who would inducepetitioner to confess. 27. In addition to the threat of physical force, the officers engaged in significant psychological coercion of petitioner. The officers made an offer of psychiatric treatment in responseto petitioner's request to be returned to Atascadero. They stated he was mentally ill, promised treatment at Atascadero and also threatened him with harm should he be sent to prison. 28. Thetrial court’s determination was erroneousand not supported by substantial evidence and, thus, must be rejected by this Court. The police testimony failed to refute the significant areas of corroboration that supported petitioner's testimony. The court was presented with several witnesses who had beensimilarly coerced and abused by the South Gate police officers who interrogated petitioner. In addition, the indentation in the wall was corroborated by these witnesses, the testimony ofat least one ofthe police 8 Petitioner testified to other occurrences during the interrogation which the prosecution's witnesses failed either wholly or adequately to dispute. This evidence includedpetitioner's assertions that he was denied telephone calls, that when he did make a telephonecall he was denied the promised access to his visitor, that he was confronted with a child's clothing taken from his apartment, that officers told him he would be returned to Atascadero without any charges filed, etc. This testimony should be believed whenviewingthe totality of the circumstancesofhis interrogation. Petitioner also contends, however, that the evidence of threats made to him through Officer Greene and referenceto the hole in the wall are adequate by themselves to establish the involuntary nature of his confession. 46 “ 5 officers, and a photograph depicting the wall with a new repair in exactly the location as described in testimony. Finally, the destruction of the Pitchess v. Superior Court, 11 Cal.3d 135 (1974), materials casts significant doubt on the testimonyofthe officers. (For the details of the destruction of this material see Claim 18.) These records would have supported petitioner's position that complaints of force had been madeagainst these officers and would have supported his version of the illegal interrogation tactics used by the police involved. 29. The interrogation here involved the threat of physical harm to petitioner both by the police and by other prisoners. The entire circumstances of the interrogation, including the presence of numerousofficers in a tiny room confronting petitioner for a lengthy period of time, were coercive. It must be rememberedthat petitioner had been twice interviewed out of custody, hadinitially denied any involvement in the crimes when first brought into the station and had beentold that he was being taken to the station for a polygraph test. Finally, following multiple lengthy interrogations, an officer’s promise to aid his return to a mental hospital in exchangefor his cooperation and after being promised, then denied, an opportunity to see and speak with his friend Linda,petitioner confessed. Only after a substantial period of time and after coercive threats and promises had been madeto petitioner did he succumbto the officers wishes. In tears and in an extremely emotional state, he then madea confession. 30. Unlike most other cases of confessions in homicide cases, the South Gate 47 Police chose not to record or in any way memorializethe statements given by petitioner.” Indeed, evenafter the first confession, the Bell Gardenspolice re-interviewed petitioner the very next momingand allegedly obtained another unmemorialized confession. Nonetheless, this interview was not recorded in any fashion, nor waspetitioner asked to write a statement or sign a statement written out by the police. Because ofthe actions of the police themselves, the only record of the interrogation is the testimonyofthe officers and petitioner. When addedto the willful destruction of the Pitchess materials, this omission seriously undercuts the official version of the interrogation and supports the conclusion that the confession was involuntary. 31. The evidencein the instant case points to the inescapable conclusion that petitioner's confession wasnot freely and voluntarily given. The coercive, isolated atmosphere in which petitioner was confronted with items taken from his apartmentin an illegal search and with the presence of four officers in a small room; coupled with the fact that he was physically threatened by Officer Greene, with repeated references to the dent in the wall, render his confession involuntary. The prosecution failed to carry its burden of proof that the confession was voluntary and, thus, the confession should not have been admitted by the trial court. ” Petitioner believed that the confession wasnot being recorded and made his statementin reliance on this fact. See Claim 4 below, for a detailed discussion of this issue which formsa separate basis for suppression of the statement. 48 a CLAIM 3: TheSearch of Petitioner's Residence was Unlawful. 1. After arresting petitioner and interrogating him at length, the police returned to his apartment without a warrant and seized numerousitems of evidence. According to the police, this search occurred at approximately 4:00 a.m. on October 28, 1978, the day after petitioner's arrest. (RT I 449). 2. No attempt was madeto secure a search warrant. (RT I 446). Theofficers claimed they searched pursuant to consent from petitioner obtained after waking him upat 4:00 a.m. 3. Officer Carter testified that after the police returned from recovering Carl Carter, Jr.'s body, he and Officer Sims approachedpetitioner in his cell. They asked petitioner for permission to search his home for clothes and the clothesline usedin the killing. Carter testified that petitioner agreed and asked to accompanythe officers. They refused and petitioner allegedly reaffirmed his consent to search. (RT I 444-445). 4. Petitioner denied that this conversation in his cell ever occurred. (RT I 510). Heprovided uncontradicted testimony of three incidents which demonstrated that the first search of his apartmentoccurred before his confession. a. In the secondinterrogation by Sims and Gluhakandprior to the confession, petitioner was showna pair of boy's jeans, a t-shirt and some underwear, and was askedif he recognized them. He answeredaffirmatively, realizing that the clothes had been taken from the bathroom of his apartment. He denied that the clothing belonged to Carter. (RT I 459). 49 5. During the interrogation by Officer Carter, petitioner had been asked to undresspartially once more, despite a previous strip search, because the officers wanted to comparepetitioner's body with pictures the police had obtained. (RT 1 471-472). Petitioner knew these pictures had been taken from his apartment. (RT I 490). During Officer Carter's interrogation, one of the other officers remarked on the large numberofbooks on witchcraft and the occult in petitioner's apartment. Since petitioner had such booksin his apartment, he again recognized that the police had already searched his residence. (RT I 491). If petitioner's uncontradicted testimonyis accepted,it is clear that the search wasillegal since it was conducted without a warrant, without any exception to the warrant requirement and without probable cause, and prior to when the police claimed to have asked for permission. 6. Even if the prosecution's version is accepted, the search wasstill unconstitutional. a. Petitioner wasasleep in his cell when he wassaid to have been approachedin the early morning hours (approximately 4:00 a.m.) after being in custody for almost 12 hours. During that time, he had been interrogated repeatedly for over 6 hours and eventually purportedly confessed to the crime. He had showntheofficers the location of the body and then been returnedto jail. (RT 1399, 417, 511). He had barely eaten, had not been allowed to see 50 counsel and had asked to be isolated because offear for his life. (RT I 448). Hehad also pleaded with the officers not to force him to view Carter's body. (RT 1 380). b. Underthese circumstances, there was no consent. Petitioner’s custodial status, combined with the clear emotional stress he had been under throughouthis incarceration and the time at which he been awakened,indicate that consent was notfreely given. C. Additionally, petitioner sought to accompanytheofficers to the apartment. This was an attempt to condition the search. Although Officer Carter stated that he refused the request and petitioner thereafter agreed to the search, the voluntariness of any consent in these circumstancesis highly suspect. The officers’ self-serving testimony that petitioner consented must berejected. 7. Further, even if there was valid consent, the actual search exceeded the scope of the consent and wastherefore illegal. a. The search exceededthe area of petitioner's apartment to which heallegedly gave consent(e.g., the garages) and exceededthe types of objects for which he allegedly gave consentto search. b. The police used petitioner's consent to search his “apartment” for two specific items as a pretext for a general exploratory search of his apartment, separately locked storage area and separate garages. There was no permission to seize any items. There was no consentto search petitioner's 51 garages and locked storage areas, much less consent to seize any items from these separately lockedlocations. 8. Therefore, the seizure of at least the magazines, photographs and masking tape from the apartment, and everything seized from the garages and other locations, which were introducedinto evidenceattrial (RT 2452), wasillegal and violated petitioner’s Fourth, Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 4: Petitioner Did Not Knowingly and Intelligently Waive His Miranda Rights. 1. Evenif the police officers' assertions that petitioner was advised ofhis Miranda rights are accepted, there was nevertheless a manifest lack of understanding of these rights, which resulted in the absence of a knowing andintelligent waiver. Petitioner's preoccupation with the fact that the interrogation room was bugged wasa clear indication that he did not wish to give a recorded statement and that he wanted anything that might be said to be "off the record." He believed that an unrecorded, off-the-record statement could not be used against him in court. Carter's false and misleading actions, as demonstrated by his sending otherofficers out of the room, searching the room with petitioner for recording devices and reassuring petitioner that there were no electronic “bugs” gave legal credence and reinforced petitioner's misunderstanding of any Miranda wamings,if in fact given. Carter had a duty to assure that petitioner understood that any statement, recorded or not, could be used against him. 2. Petitioner conditioned his providing a statement on the groundthat it be 52 9 unrecorded and off the record. As noted in People v. Braeseke, 25 Cal.3d 691, 706, n.7 (1979), "even if he assumedthat defendant was attempting to condition his discussion with [the interrogating officer], the assumption simply underscores defendant's lack of understanding rather than establishing the invalidity of the request." Carter was required to inform petitioner that such a condition was of no consequence and to makesure that petitioner really understood that his statement would be used whetherit was recorded or not. Instead, Carter intentionally misled petitioner, encouraging an obvious misunderstanding of his rights and an unknowing and misinformedalleged waiver. 3. Becausepetitioner's confession was the sole evidence connecting himto the offenses, introduction of the confession requires reversal of each conviction based upon the Fifth and Fourteenth Amendments. CLAIM 5: Petitioner's Claim of Coercion and Involuntariness has not Been Fully and Fairly Adjudicated. 1, Petitioner's claim of coercion and involuntariness has never been fully and fairly adjudicated as a result of: (a) improper denial of discovery; (b) deliberate police destruction of evidence;(c) interference with his Sixth Amendmentrights through use of police-agent jailhouse informants; (d) informant perjury; (e) the state courts' refusal to take appropriate corrective action in light of clear and convincing evidence of wrongdoing; and (f) this Court's refusal to grant petitioner adequate resources to investigate the issues. 2. Petitioner requested funds fromthis Court during state habeas proceedings following the direct appeal to investigate these issues but the request was denied. 53 3. Petitioner’s rights to due process;a fair trial; a reliable sentence and freedom from cruel and unusual punishment under the California Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments have been violated. CLAIM 6: Petitioner's Second Alleged Confession was the Product of the First Involuntary Confession and wasalso Inadmissible. 1, Onthe night ofhis arrest, in the presence of South Gate Police Officers, petitioner allegedly confessed to the commissionofall three murders charged. The following day, in the presence of Bell Garden Officers, petitioner again allegedly confessed to the killings charged in Counts J and Iof the information. 2. From the time of the first confession episode to the second,petitioner remained in police custody. 3. No evidence or argument was presented below demonstrating that the second confession episode wasfree of the taint of the prior confession. 4, Therefore, the inadmissibility of the first confession must, under such circumstances, render the second confession inadmissible. CLAIM 7: Petitioner's Rights were Violated by the Denial of his Right to Bail. 1, Petitioner's conviction sentence of death and confinement were obtainedin violation of his constitutional rights to a fundamentally fair and reliable determination of guilt and to penalty, to due process of law and to reasonable bail, as protected by the Fifth, Sixth, Eighth and Fourteenth Amendments andthe analogous provisions of the California Constitution by the conduct of the South Gate Police Departmentin failing to inform 54 petitioner that he could be released on bail. 2. Petitioner was arrested outside the Carter residence and taken to the South Gate Police Department. Uponarrival, petitioner was booked into the South Gate Police Department, with bail set at $5,000. 3, Petitioner was never informed that he could be released on bail at any time after his arrival at the South Gate Police Department. Petitioner was never informed that bail had been set at $5,000. 4. Petitioner had funds available to post bail and would have posted bail had he been informed that a $5,000 bail wasset. 5. The failure to inform petitioner that he could be released upon posting bail of $5,000 deprived petitioner of his only possible meansof protecting himself against the coercive pressure placed on him byhis interrogators. 6. Hadpetitioner posted bail, he would not have made coerced, false and unreliable admissions and confessions to membersof the South Gate Police Department and the result of the proceedings would have been more favorable to petitioner on questions of both guilt and penalty. B. CLAIMS RELATING TO THE RETRIAL. CLAIM 8: Petitioner's Prosecution for First-Degree Murder on CountIII Violated the Prohibition Against Double Jeopardy Underthe State and Federal Constitutions. 1. Petitioner's conviction, special circumstance findings and sentence of death are illegal and were unconstitutionally obtained in violation of the prohibition against 55 double jeopardy underthe state and federal constitutions as a result of his retrial forfirst- degree murder on CountIII. 2. Theviolations of these rights, individually and cumulatively, prejudicially affected and distorted the presentation and consideration of evidence as well as every factual and legal determination madebythe state courts and the jurors at the guilt and penalty phases. 3. Petitioner was charged in CountIII of the complaint with first-degree murder based upon the killing of Carl Carter, Jr. 4. Thejury at petitioner's retrial was given four instructions of significance with regard to this killing: a. That it could find first-degree murderif the killing was deliberate and premeditated (CT 484) (the “premeditation and deliberation” theory). b. Thatit could alternatively find first-degree murder if the killing occurred during “commission of or an attempt to commit the crime of lewdact with a child [under Penal Code § 288] and where there wasin the mind ofthe perpetrator the specific intent to commit such crime.” (CT 486(the “felony murder” theory)). C. Thatit did not need to have unanimity as to the theory ofliability (premeditation and deliberation versus felony murder) but that each juror must be convinced of one theory or the other beyond a reasonable doubt. (CT 502). 56 a s 5. In responseto a specific inquiry from the jury, that as a matter of law, a lewd act on a child could only be foundif the attempt or the act commenced while the child wasstill alive. (RT 2877). Petitioner's request that the jury be polled to determine each juror’s basis for concludingthat a first-degree murder had been proven wasdeniedbythetrial court. 6. The evidence regarding the Carter homicideat the first trial consisted primarily of the testimony of Deputy County Coroner Joseph Choi (RT 1 700 et seq.), plus, by stipulation, the preliminary hearing transcript. (RT 1 734). In particular: a. Dr. Choitestified at the preliminary hearing that there was nothing remarkable as to the condition of Carter's anus, indicating that there had been no penetration. Although there was someabrasion, Choi could nottell how extensive the abrasion had been prior to the decomposition of the body. (PRT 9-10). Dr. Choitestified at the first trial that he could not tell how extensive the abrasions of the anus hadbeenat the time of death. Healsotestified, inconsistently, that although no sperm waspresent, a “2+”testing for acid phosphatase had been performedandthatit could “possibly” mean “some seminal fluid may be involved.” South Gate Officer Carter took petitioner’s alleged confession. He stated that petitioner had allegedly brought Carter to his apartment and had suddenly gotten angry and strangled Carter when the child had said he wanted to go 57 home; then petitioner allegedly tried to sodomize the dead child but “couldn't get a hard on”and “finally just quit.” (PRT 56). 7. At petitioner’s first trial, where the prosecution had sought a “lewd act special circumstances”finding for the purpose of death eligibility, the factfinder, a judge, had madethe following specific finding of ultimate fact: that the “lewd act” special circumstance was untrue. (RT I 288). The judge necessarily found specifically either that the allegation of premeditation and deliberation wasuntrue,or specifically that the allegation that a murder occurred during the course of a felony wasuntrue. 8. Defense counsel arguedat both trials that the Carter killing occurredin fit of rage rather than after premeditation and deliberation andthat it did not occur during the commission of a lewd and lascivious act. Petitioner was erroneously not permitted to have either issue taken away from the jury at the secondtrial, despite the fact that at least one, perhapsboth, of these issues had been decided in his favor by thetrier of fact at thefirst trial. (RT 2424). 9. Onthe first appeal, both parties understood and briefed the caseas if the felony-murdertheory had been decidedin petitioner's favor. In particular, petitioner argued that the judgmenthad to be reversed because the evidence of premeditation and deliberation was insufficient to support the judgment. Respondent never countered with anyassertion that the decision could have been based upon felony murder because both parties understood that the trial court had found the felony-murder evidenceto be insufficient. (Petitioner's Opening Brief at 29-33; Respondent's Brief at 135 et seq., Petitioner's 58 L F Opening Supplemental Brief at 31-35). 10. On the first appeal, this Court raised sua sponte the alternative (felony murder) groundsfor finding the evidence sufficient to support the conviction, despite recognizing: a. that Dr. Choi's testimony wasat best “confusing” (Memro I, 38 Cal.3d at 693, fn. 37); b. that an unambiguousfinding by the trial court would have created a “bar . . . to analyzing appellant's sufficiency argument on a felony-murder theory;” and C. that the record “suggested”that “the trial court’s special circumstances finding was basedon insufficient evidence to establish a violation or attempted violation of section 288.” Memro I, 38 Cal.3d at 696. 11. Despite all of the above, the trial court, over petitioner’s objections on retrial, permitted CountIII to go before the jury as a first-degree murder. Moreover, the court instructed the jury on two alternative theories, premeditated murder and felony murder, at least one, perhaps both, of which had necessarily been decidedin his favor. 12. The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall “be subject for the same offense to be twice put in jeopardy oflife or limb.” This protection has been held applicable to state proceedings through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). The California Constitution contains its own provision prohibiting placing criminal defendants twice in jeopardy. California Constitution, Article I, section 15; see also Penal Code § 687, 1023. 59 13. Where two offenses contain the same elements, multiple prosecution for the offenses violates the double jeopardy bar. Blockburger v. United States, 284 U.S. 299 (1932). The Supreme Court has explainedthat: The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the samefacts. United States v. Dixon, 509 U.S. 688, 705 (1993) (emphasis in original). 14. Where the governmenthas‘lost’ in the first prosecution, the court must apply a two-part test to determine if the second prosecution is barred. First, the Court must apply the traditional Blockburgertest to determine if the two offenses have identical elements or if one is a lesser-included offense of the other. If either is met, the prosecutionis barred. 15. Even if the Blockburgertest is not met, the prosecutionis still barred “where the second prosecution requiresthe relitigation of factual issues already resolved by the first.” Brown v. Ohio, 432 U.S. 161, 166-67 fn. 6 (1977). This test combinesthe notion of collateral estoppel with that of double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). 16. Application of either test mandates reversal of the conviction on CountIII on Double Jeopardy grounds. Under the Blockburger standard, the felony-murderspecial circumstance contained both the elements of premeditated and deliberated murder and felony murder. Because of his acquittal of the felony-murder special circumstance andthis 60 Court’s failure to decide the issue of sufficiency of evidence of willful and deliberate murder (see Memro J at 695), retrial on the premeditated and deliberated theory offirst degree murder was prohibited. Despite the acquittal at the first trial, petitioner stoodtrial on both theories offirst-degree murder, at least one of which had previously been found “not true.” 17. Thefirst trial court’s rejection of the special circumstance allegation was necessarily based on a failure ofproof of one of the two theories offirst degree murder. Petitioner thus stood acquitted of one of these theories of first degree murderafter the first trial. After appeal, to permit retrial violated the Double Jcopardy Clause. It is improperto retry a first degree murder case on both theories of first degree murderif one has been rejected in a priortrial. See, e.g., People v. Asbury, 173 Cal.App.3d 362 (1985); People v. McDonald, 37 Cal.3d 384 (1984). 18. At the secondtrial, the prosecutor arguedto the jury that they need not agree unanimously on the theory offirst-degree murder. (RT 2790). Thetrial court refused to poll the jury under which theory they convicted petitioner. The jury was notinstructed that they needed to unanimously agree on a theory. Thus, there is no way to know whether petitioner was convicted under a theory barred by the Double Jeopardy Clause. 19. Under Blockburger’s ‘same conduct’ test, the conviction must also be reversed. Inthefirsttrial, the special circumstanceallegation placed at issue the way in which Carl Carter, Jr. was killed and specifically, petitioner’s conduct during the alleged murder wasplaced at issue. The acquittal of the special circumstance allegation barred 61 e retrial on any charges for which the prosecution was relying on the same conductof petitioner. The conceptof collateral estoppel prohibits the retrial on theories of felony murder or premeditated and deliberate murder. 20. Petitioner wastried for a special circumstance that required that he committed the murder with premeditation and in the commission ofthe specified felony. Hewasacquitted of that special circumstance. While trial on a lesser charge of second degree murder would have been permissible, it was clear error to allow the jury to be instructed on any theory offirst degree murder involving this conduct. 21. Petitioner’s case is a hybrid of two situations in which Double Jeopardy applies— acquittal by thetrial judgesitting as a fact finder (see, e.g., Richardson v. United States, 468 U.S. 317, 325 (1984)) and an implied finding of insufficiency of the evidence on appeal. See, e.g., Smallis v. Pennsylvania, 4786 U.S. 140, 142 (1986). The former resulted from the trial court’s not true finding of the felony-murder special circumstance. The latter occurred when this Court decided that there was sufficient evidence of felony murder, but found that there was insufficient evidence of premeditated and deliberated murder. Memro J at 695. An implied acquittal triggers the protections against Double Jeopardy. Gomez v. Superior Court, 50 Cal.2d 640, 652 (1958). 22. The Double Jeopardy Clause does not discriminate between bench and jury trials United States v. Morrison, 429 U.S. 1,3 (1976). The Double Jeopardy Clause applies equally to determinations made on special circumstanceallegations. People v. Superior Court (Engert), 31 Cal.3d 797, 803 (1982). Special circumstance allegations 62 have the “hallmarksof a trial on guilt or innocence.” Bullington v. Missouri, 451 U.S. 430, 439 (1981). 23. Jn this situation: whenthe prosecution presents its case to the jury on alternate theories, some of which are legally correct and others incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannotstand. People v. Green, 27 Cal.3d 1, 69 (1980). 24. Onretrial, Double Jeopardy barredretrial on CountIII oneitherfirst degree theory; alternatively, it was barred on both theories. CLAIM 9: Petitioner's Prosecution on Count III Violated Petitioner's Rights Underthe Fifth, Sixth, Eighth and Fourteenth Amendments. 1. Thetrial court, acting as factfinderat the first trial, made a finding of the ultimate fact that the “lewd act” special circumstance was untrue. Nonetheless: a. This Court determinedin the first appeal that the finding was “ambiguous.” b. However, neither this Court northe trial court on remand hadthe authority to resolve the alleged “ambiguity.” C. This Court permitted the issue of whether the murder had been committed during the commission of a lewd and lascivious act, necessarily decided in petitioner’s favor before Judge Stevensat the first trial, to be retried before the jury on the secondtrial. 2. The trial court record in Memro I clearly demonstrates that the parties vigorously litigated the truth of the lewd and lascivious special circumstanceallegation in 63 terms of whether the evidence wassufficient to establish the commission of the substantive underlying felony. Thetrial court’s general verdict convicting petitioneroffirst degree murder while finding the special circumstance nottrue led the parties logically to infer that the court had concludedthat the murder was premeditated and deliberated but that it did not occur in the course of petitioner’s commission of a felonious lewd andlascivious act. On appeal, the focus ofthe litigation shifted to whether the evidence wassufficient to prove premeditation and deliberation. 3. On appeal, this Court declined to decide the adequacyof the evidenceto show premeditation. Instead, this Court foundthat the trial court might have basedits verdict on a theory of felony-murder. Memro I, at 696, fn. 44. The case was thus remanded withoutinstructions on the proper scope of permissible charges. Theretrial on both theories resulted in an impermissible nsk that petitioner’s conviction and sentence rested on (1) predicate facts that were rejected by the original fact finder and (2) a theory of first-degree murder of which he wasacquitted in thefirst trial. There is no reliable way to determine whichtheory the jury relied on nor even to discern that the jury unanimously agreed on a particular theory. This combination of errors requires reversal of CountIII because it violated several constitutional rights. 4. This Court’s failure to rule definitively in Memro J violated petitioner’s rights to due process;fair trial; reliable determination of penalty; freedom from cruel and unusual punishment underthe Fifth, Sixth , Eighth and Fourteenth Amendments. 5. Defendants are entitled to have their case decided on the basis of the issues «64 tried and presentedattrial. It is improper for an appellate court to uphold a conviction on a charge never brought before thetrial court. See, e.g., Presnell v. Georgia, 439 U.S. 15 (1978). 6. Here, the trial judgesitting as the trier of fact found the special circumstance untrue. Oddly, unless it was an apparent attemptto find a basis to permit re-prosecution, this Court implicitly ruled that the trial court could have found both a felony-murder and a premeditated murder even though one ofthese findings wasexplicitly rejected by the trial court. This amounted to this Court substituting its view of the evidence for that of the fact-finder, in direct violation of Presnell. Moreover, it allowed this Court to make factual findings which are properly the provinceofthe trial court fact-finder, not the Court on appeal. See, e.g., Ring v. Arizona, 536 U.S. 584 (2002). 7. Thetrial court’s ruling that the felony-murder special circumstance was not true amounted to an acquittal of premeditated murder, felony murder, or both. The only proper solution wasto retry solely on a second degree murdercharge or anotherlesser offense. Onretrial, any possibility of salvaging a valid first degree murder conviction was lost when the court denied petitioner’s request to require a unanimousverdictorpolling of the jury on which theory was relied on in reaching the verdict. 8. Because the first-degree murder conviction on CountIII was the sole basis for a finding of death eligibility, the retrial on either theory created a substantial risk of arbitrary and capricious imposition of the death penalty in violation of the Eighth Amendment. 65 9. Accordingly, the court on retrial was barred from retrying petitioner on CountIII on both theories. CLAIM 10: Petitioner Was Acquitted of Felony-Murder on Count III and Retrying him Under that Theory Violated Double Jeopardy Principles. 1. As discussed above,petitioner’s constitutional rights were violated by trying petitioner pursuant to both theories of first degree murder, when one of those theories was rejected by the trial court. Retrying petitioner on a premeditated theory offirst degree murder constituted a separate violation of Double Jeopardy principles, based on this Court’s findings in Memro J that there was insufficient evidence of premeditated and deliberated murder. 2. In addressing the felony murder special circumstance,the trial court in the first trial referred to the lewd act componentrather than the premeditated component in finding the special circumstance not true. (1978 RT 882). The parties hadlitigated the contention attrial of whether there was sufficient evidence. 3. Atthe close of evidencein thefirst trial, the Court stated: Asto CountIII, in which the defendant is charged with the offense of murder on or about the 22" day of October, 1978, as to the subject Carl Carter, Jr., the Court finds the defendant guilty of the offense of murder andfixes that offense as being murderin the first degree. Now gentlemen, the code provides that as to the special circumstances allegation the Court find that the special circumstance allegation as to Count JI] relating to the fact that the murder was committed during the commission or attempted commission of a lewd and lascivious act upon the person of Carl Carter, Jr., in violation of Section 288 of the Penal Code, the Court finds that that allegation is not true. 66 (1978 RT 882). 4. The plain meaning of the Court’s ruling wasthat it found the allegation that “the murder was committed during the commission or attempted commission of a lewd and lascivious act” not true. Thus, petitioner was not guilty of felony murder. 5. This interpretation of the trial court’s ruling is logical and consistent. Nowherein the trial court’s ruling did the trial judge mention the premeditation element of the special circumstance. Instead, the court concentrated solely on the alleged felony, and found it not true. 6. This interpretation ofthe trial court’s ruling is also consistent with the evidence presented duringthe first trial. As discussed in detail below, a central issue in the first trial was the timing or existence of the alleged Penal Code § 288 violation on Carl Carter, Jr. Counselatthe first trial extensively cross-examined the medical officer about the timing of any such violation. This issue wascritical to the felony-murder theory of conviction, as the victim had to bealiveat the time of the offense, under California law,in order for that offense to be committed. 7. At the preliminary hearing conducted on November 13, 1978, Dr. Choi testified about Carter’s autopsy. The following colloquy took place: Q: And the autopsy that you did involving a subject Carl Carter, did you make any particular examination of his anus? A: Yes. Q: Did you find anything unusual or extraordinary about his anus? 67 A: It was decomposed andit was difficult to assess, but there was circular end and a longitudinal operation in the anus. Q: Were there any unusual or — did you take any tests of any substances found in the anus ~ were there any other— withdraw the question. Were there any foreign substances found in the anus? A: Of a remarkable nature? Not visibly. I didn’t see anything. Q: Notvisible? A: No. But it was decomposed andit wasdifficult to tell. Q: So there is nothing— there was nothing unusual about the anus consideration, the decomposition;is that a fair statement? A: Well, there was some degree of abrasion, circular abrasion, and longitudinal operation, but it is difficult to tell how extensive it was before the decomposition. Q: You could not make any judgments as to the cause or how long— the cause or those abrasions or how long they had been there or anything like that? A: That’s right. It is difficult to tell. (Preliminary Hearing Transcript at 9-10). 8. Dr. Choi testified during thefirst trial regarding Carter’s death. He discussed the body’s decomposition, due to the probability that death occurred approximately 5-7 days before the body’s discovery. (RT 702-03). The cause of death was ligature strangulation. (RT 706). He stated that there was “some abrasion of the anus,” which may have been caused by decomposition and that he could nottell if there had been any sexual contact. (RT 716-17). He also tested for the presence of any foreign substances. Histest was negative for spermbut positive for acid phosphatase, which merely indicates the 68 possible presence of seminal fluid. (RT 717). He did not know whatcausedthe positive acid phosphataseresult. (RT 718). 9. Dr. Choi’s testimony was thus ambiguousat best. [t was actually more consistent with a finding of no sexual contact as it was with sexual contact. Its speculative nature could have been further emphasized if counsel had engagedin further investigation, as discussed below. If trial counsel had doneso, the following facts would have been disclosed: Based uponthe state of decomposition of the body at the time of the autopsy, it would have been completely impossible to determine whether any PC § 288 or injury to or penetration of the anus occurred and, if it did, whetherit occurred before or after death. In fact, it would have been completely impossible to determine the relative times within 48 hours. The acid phosphatasetest described in Dr. Choi's testimonyis sensitive to the presence of a componentof seminalfluid also found in other bodyfluids, in bacteria and a variety of food substances. As a result, a positive finding on the acid phosphatase test, even a "4," does not necessarily imply the presence of seminal fluid. A positive finding on the acid phosphatasetest in this case waslikely a result of laboratory error, since the test was performedat least six or seven days after death, but ordinarily is unreliable after 24 hours of death. The acid phosphatase test is a "Yes or No"test; that is, it determines only that 69 acid phosphataseis oris not present, it does not determine amounts. The 0-4 scale referred to by Dr. Choi is very subjective, and the meaning of a given value of the number depends upon the subjective view of the individual who ran the test. Because ofthese limitations, the test is used rarely and had already come into disfavor as of 1987, when petitioner wastried. A positive acid phosphatase test where neither sperm nor seminalfluid is foundis not alone indicative of semen. e. Asa result of decomposition, semen ordinarily no longer gives a positive acid phosphatasetest after 24 hours. Asa result, a positive acid phosphatase test on a swab sample taken from a decomposing bodysix or more daysafter death must have come from someother source. 10. Petitioner’s alleged statement to police, which the prosecution relied heavily on, also supported a finding that there was insufficient evidence on whichto base a felony- murder verdict. 11. The evidenceat trial was thus insufficient to support a felony-murderverdict, as recognized by the court. Petitioner’s alleged statement demonstrated that any sexual contact did not occur until after Carter was dead, and thus no violation of PC § 288 occurred. Dr. Choi’s testimony was equivocal as to whether any sexual contact occurred and he could not determine when any such contact may have occurred. There was simply no evidence to show that Carter’s death occurred during the perpetration of a sexual assault. The trial court recognized this fact and dismissed the felony murder special circumstance. 70 12. This determination bythe trial court was a finding of fact. The doctrines of res judicata and collateral estoppel, in conjunction with Double Jeopardyprinciples, prohibited the prosecution from relitigating the case in order to prove a different set of facts. See, e.g., Ashe v. Swenson, 397 U.S. 436 (1970). 13. Based onthetrial court’s finding that evidence of the underlying felony was insufficient, trying petitioner under a felony-murder theory violated petitioner’s constitutional rights to Due Process, protection against twice being placed in jeopardyfor the same charges or conduct, heightened capital case scrutiny and freedom from cruel and unusual punishment. 14. Since the jury wasinstructed on felony murderandthetrial court denied petitioner’s request to poll the jurors as to their theory supporting their verdicts, reversal is mandated. See, e.g., Suniga v. Bunnell, 998 F.2d 664, 670 (9th Cir. 1993) (“Where two theories of culpability are submitted to the jury, one correct and the other incorrect, it is impossible to tell which theory of culpability the jury followed in reaching a general verdict”) quoting Sheppard v. Rees, 909 F.2d 1234, 1237-38 (9th Cir. 1989). CLAIM 11: Petitioner’s Constitutional Rights Were Violated by the Failure to Follow Statutory Requirements Regarding Charges of Felony-Murder. 1. Pursuant to Penal Code § 190.1: Wherevera special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applyingto the trial and conviction of a crime. 2. Petitioner was not charged with any offense under Penal Code § 288, 71 although the prosecutorinitially brought the special circumstance of felony-murder against petitioner. At the first trial, this special circumstance was foundto be nottrue, although the special circumstance of multiple murder was foundtrue. 3. At the secondtrial, over petitioner’s objection, the prosecutor was allowed to seek first-degree murder convictions based on a felony-murder theory. 4. At the time petitioner was convicted, the failure to separately charge underlying offenses was error. See Williams v. Vasquez, 817 F.Supp. 1443 (E.D. Cal. 1993), citing People v. Robertson, 33 Cal. 3d 21, 47 (1982) [finding error to be harmless]; People v. Velasquez, 26 Cal. 3d 425, 434 (1980) [finding error to be harmless], vacated, 448 U.S. 903 (1980), reinstated, 28 Cal. 3d 461 (1981). 5. Subsequently, in People v. Morris, 46 Cal. 3d 1, 14 (1988), this Court determinedthat failure to separately plead special circumstancesis not necessarily error. This decision was not announceduntil July 21, 1988, one year after petitioner was convicted at his secondtrial and approximately ten years after he was convictedathis first trial, and over a decadeafter the crimes were committed. 6. Thus,at the time of both ofpetitioner’s trials, it was error not to charge separately the underlying felony of lewd conduct with a minor, if it was going to be used to prove a felony-murder special circumstance. Penal Code § 288; see People v. Robertson; People v. Velasquez. The only issue under Robertson and Velasquez is whetherthat error was harmful. As discussed below, hereit was grossly prejudicial. As discussed herein, doing so violated Double Jeopardy prohibitions. See Claims 11, 13, 15 and 16. 72 7. Doingso also violated the quoted portion of Penal Code § 190.1 which requires that the underlying felony be charged in any charge of felony-murder. 8. Had petitioner been charged with Penal Code § 288 separately,it is reasonably likely that petitioner would have been acquitted of that offense at thefirst trial, based on (1) the trial court’s ruling that the special circumstance wasnottrue and (2) that there was insufficient evidence to support that charge. See Claim 16. 9, Had petitioner been acquitted of the underlying Penal Code § 288 offense, the prosecution could not have proceeded with a felony-murder theory on CountIII. Since evidence of premeditation and deliberation was lacking, petitioner would then have been acquitted offirst-degree murder on CountIII and would have beenineligible for death. Thus,petitioner was prejudiced bythefailure to abide by the requirements of Penal Code § 190.1. These failures violated petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights. 10. In addition to the violation of federal constitutional principles, the violation of the statute was a violation of a state created liberty interest, which also constitutes a violation of federal due process. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Vitek v. Jones, 445 U.S. 480 (1980); Hewitt v. Helms, 459 U.S. 460 (1983); Hicks v. Oklahoma, 447 U.S. 343 (1980). 11. The failure to charge petitioner under Penal Code § 288 violated state law, and allowedthe state courts to violate petitioner’s rights not to be subjected to Double Jeopardy. Had the statute been complied with, petitioner would have been convictedof,at 73 most, second-degree murder on CountIII. CLAIM 12: Petitioner was Acquitted of Premeditated Murder in Count HI and Retrying him Underthat Theory Violated Double Jeopardy Principles. 1. In addition to the violations discussed above,retrying petitioner on a premeditated theory offirst degree murder constituted a separate violation of Double Jeopardy principles, based on this Court’s findings in Memro J that there was insufficient evidence of premeditated and deliberated murder. 2. In addressing the felony murder special circumstance, the trial court in the first trial referred to the lewd act componentrather than the premeditated componentin finding the special circumstance not true. (1978 RT 882). Attrial, the parties had litigated the contention at trial of whether there was sufficient evidence of the underlying felony. 3. In its first opinion, this Court stated: Onceinside, appellant took Carl Jr. into the bedroom, turned on “black strobe lights,” and sat down on the bed. The boy stood adjacent to the bed, watching the lights blink on and off. Suddenly, when Carl Jr. announced his departure, appellant becameangry, grabbed the clothesline and strangled him. Although appellant confessed to binding Carl Jr.’s hands, he was unable to remember whetherhe tied the boy’s handsbefore strangling him, and no independent evidence established the timing ofthat act. Nospecific “plan” vis-a-vis Carl Jr. had been formulated. MemroI, at 699. 4. This wasa factual finding presumed correct under federal law. See, e.g., 28 U.S.C. § 2254(e)(1). Thus, the doctrines of res judicata and collateral estoppel, in conjunction with Double Jeopardy principles, would operate to prevent the prosecution 74 from relitigating the case in order to prove a different set of facts. See, e.g., Ashe v. Swenson, 397 U.S. 436 (1970). 5. This factual finding precludesa finding of premeditation and deliberation. The killing of Carter resulted from a sudden burst of anger with no specific plan. This Court found as much whenit noted that there was no evidenceto establish the timing ofthe acts. Without such evidence,there is no sufficient evidence to find premeditation and deliberation. Thus, Memro J established that there was insufficient evidence of premeditation. 6. — Ifthere were any doubt aboutthis finding, it is washed away by this Court’s discussion ofthe sufficiency of the evidence of premeditation. Because ofthe trial judge’s reference to the insufficiency of the evidence of the lewd act componentof the special circumstance charge rather than the premeditation component, the parties on thefirst appeal focused solely on the sufficiency of the evidence of premeditation and deliberation. This is understandable because “the record suggeststhat the trial court believed the evidence of lewd orlascivious conduct to be less than convincing.” Memro J, at 696, fn. 44. Thus, the tacit understanding of the parties wasthat the trial court had found insufficient evidence of the underlying felony while perhapsfinding sufficient evidence of premeditation. On appealthen, petitioner challenged the sufficiency of evidence of premeditation necessarily found bythetrial court. 7. This Court rejected this argument andstated: The parties focus only on the evidence of premeditation and deliberation in 75 their discussion of the sufficiency of the evidence to support the CarlJr. first degree murderverdict. However, this court need not determine whether the evidence wassufficient on that theory, since substantial evidence supports the verdict on a felony-murder(attempted lewd or lascivious conduct (Penal Code § 288)) theory. Memro I, at 695. This Court then proceeded to engage in a lengthy discussion of the evidence to demonstrate that there wassufficient evidence to support a felony-murder theory. This discussion includedthe facts cited above regarding the killing taking place as an angry reaction to Carter’s desire to go home. 8. If this Court was correct that there was sufficient evidence of felony murder, then there was insufficient evidence of premeditation and deliberation. Thetrial court necessarily found evidence of one theory insufficient as a matter of law. This Court affirmatively stated that there was no “plan.” Memro J at 699. By finding sufficient evidence of felony-murder, this Court implicitly found a lack of evidence of premeditation. Any other reading would amountto the substitution of this Court’s factual opinionsfor that of the trial court, an intolerable and impermissible result. 9. Thus, Memro I establishes a separate basis for a Double Jeopardy claim than those discussed above. Whereasthose claims stem directly from thetrial court’s ambiguous ruling which is now incapable of being resolved, this claim stems directly from this Court’s ruling in Memro I. In sum, Claims 11 and 12 state Double Jeopardy claimsthat the trial court’s ruling preventedretrial on either first degree murder theory. This claim states a Double Jeopardy violation based on this Court’s implicit acquittal on a premeditated and deliberated murder theory which mandatesthe granting of habeasrelief. 76 CLAIM 13: Trying Petitioner Under a Felony-Murder Theory for Count I Violated Double Jeopardy Since Petitioner Was Acquitted Under That Theory at the First Trial. 1, The jury wasinstructed pursuant to CALJIC 8.10, in relevantpart: Defendantis charged in Counts 1, 2 & 3 of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code. The crime of murderis the unlawful killing of a human being with malice aforethoughtor the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life. (CT 482). 2. The jury wasalso instructed pursuant to CALJIC 8.21, in relevantpart: The unlawful killing of a human being, whetherintentional, unintentional or accidental, which occursas a result of the commission of or attempt to commit the crime of § 288 lewd act with a child, and where there wasin the mind ofthe perpetrator the specific intent to commit such crime, is murder of the first degree. (CT 486). 3. Underthese instructions, the jury was allowed to consider whetherpetitioner committed the murder charged in Count I undera felony- first degree murder theory. The trial court’s instruction that “Count 1 charges murderin the second degree as a matter of law. This is for reasons which do not concern your deliberations and about which you must not speculate” did nothing to eliminate this first degree murder theory from their consideration. (See CT 507). 4, Atthefirst trial, the court found that petitioner was guilty of only second- 77 e s degree murder in Count I. This finding by the court was an acquittal of first-degree murder and a rejection of the felony-murder theory as applied to Count I. Had the court found that petitioner killed Fowler during the perpetration of lewd conduct, the trial court would have foundpetitioner guilty offirst-degree murder. Since the court did not do so andrejected a felony-murder theory as applied to CountI, the jury should not have been allowedto use that theory in CountI at the secondtrial. 5. The violation of Double Jeopardy principles was prejudicial. It allowed the prosecutor to secure a conviction under circumstances which otherwise would not have warranted one. 6. This error wasparticularly prejudicial in the penalty phase, where the prosecutor was able to successfully argue that petitioner had been convicted of three murders. Had this erroneous theory of guilt not been presented, there may have been only two murder counts which the jury hadto assess. 7. This erroneousinstruction violated petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 14: Denialof Petitioner’s Right to Counsel at the Penalty Phase of the First Trial Deprived Petitioner of Due Process at the Retrial. 1. Atthe first trial in 1979, a conflict arose between petitioner and his counsel, Peter Williams, which intensified at the conclusion ofthe guilt phase. Petitioner explained to the trial court: Mr. Williamsis no longer representing me, as I feel we have had a complete and total breakdown of communications. 78 Herefuses to represent my bestinterests in this matter and won’t answer my questions pertaining to legal procedures to enable meto intelligently object to his tactics. There is and has been an on-going conflict between us and I am convinced that he has notfaithfully and honestly carried out his duty to adequately investigate and to conscientiously defend mein this case. Hehasfailed or refused to call and question or interview potential witnesses as requested by me, often after assuring me that he would doso. WhenI asked about myright to participate in my own defense he agreedthatI did have that right but only as long as my wishes corresponded with his decisions. I have found it necessary to talk with his supervisor, a Mr. Donald Ellertson on two separate occasions, one of them involving what I consider to be a violation of the attorney-client privilege. Mr. Williams has repeatedly failed or refused to investigate certain aspects of the case, to subpoenacertain records and other potential evidence and to interview andcall potential witnesses that could have proven beyond any doubt that not only was my arrest improper but that manyif notall of the police officers whotestified committed blatant and willful perjury. Many of these samefailures and refusals have already caused a considerable amount of whatI believe will prove to be irreparable damagein this case. As a result I am discharging him atthis time to prevent him from intentionally causing even further damage ofthat nature. (1979 RT 894-895). Petitioner asked that the Court appoint another attorney to represent him. 2. The Court did not want to discharge Mr. Williams and a lengthy discussion occurred which demonstrated the true nature of the conflict. THE COURT: Well, frankly, Mr. Memro, I have known Mr. Williams for quite a numberof years and knowthathe is an excellent, good and — excellent trial lawyer and doeshisbest for any client for whom heis appointed to represent. It is difficult 79 F for me to conceivethat he has failed to comply in the bestinterests of an attorney in representing you in this case. Now you are going to haveto bea little more specific for this Court to excuse Mr. Williams from these services. THE DEFENDANT:In whatrespect? THE COURT:Well, you say that he refused to do certain things. I don’t know whatyouare talking about. THE DEFENDANT:I say that he has refused to interview certain witnesses, he refused to subpoenacertain records that would have been pertinent to this case. THE COURT:Well, what witnesses? THE DEFENDANT:I can’t get details on those things. I can’t go into those details because it w« MR. WILLIAMS:If I might, Your Honor. I am obviously not— THE COURT:Mr. Williams, you are not required to defend yourself. MR. WILLIAMS:J understand that. J am trying to defend myclient is what I am trying to do. THE COURT:I have always found that you have always doneso. MR. WILLIAMS:I think Mr. Memro’s view of whatis in his best interests may well conflict with my view,but that is not— that is sort of the general reason why there may be a problem betweenusat this time. Specifically with respect to the motion that he is maki THE COURT- Well, do you think that that conflict can be resolved in-any way? THE DEFENDANT:No. THE COURT: I am not asking you, sir. I am asking Mr. Williams. MR. WILLIAMS:Well, I think we have a basic difference in what wefeelis in his best interests. (1979 RT 895-897). 3, Ultimately, the trial court agreed to relieve Mr. Williams. Thetrial court 80 trailed the matter until the next day for the appointment of new counsel. (1979 RT 900). Prior to doing so, the Court noted that “I cannot permit him [Mr. Memro] to proceed in pro per” and “There is no circumstances under which he can. This is a death penalty case.” (1979 RT 898). 4. The following day, the Court appointed Robert Villa to represent petitioner. (RT 902). Petitioner objected to Mr. Villa serving as counsel based on their conversations and stated that he saw noalternative other than to submit for sentencing on the previous proceedings, due to his lack of qualifications to serve as his own attorney. (1979 RT 903- 904). The Court stated: The request to proceed in propria personais denied. The Court cannot permit a person whofeels that he is not qualified to do so to represent himself in a case wherehislife is at stake. (1979 RT 904). The court declined to relieve Mr. Villa and gave Mr. Villa his requested time to prepare. (1979 RT 905-913). 5. Upon returning to court, Mr. Villa explained that a conflict had “arisen between Mr. Memro and myself which go[es] to my ability to continue to represent Mr. Memro.” Mr. Villa stated that he could not go into these matters with the trial court, which wassitting as the trier of fact. (1979 RT 914). Thetrial court transferred the matter to Judge Allen. (1979 RT 916). Upon Mr. Villa’s request, he was removedas counsel. (1979 RT 916). The court ordered Mr. Villa to return the transcripts, reports and correspondence to petitioner. (1979 RT 918-919). 81 6. The court then askedif petitioner was ready to proceed andpetitioner said he was not. Petitioner believed that the court would appoint new counsel. The court said that unless he could retain his own attorney, he would have to proceed on his own. (1979 RT 920). The court gave petitioner nine days to prepare himself for the penalty phase. (1979 RT 925). 7. At the next appearance, petitioner again requested a continuance and appointment of counsel. The court refused this request. (1979 RT 927). Petitioner reminded the court that Mr. Villa was relieved on his own motion. Petitioner also remindedthe court that he was not competent to represent himself. (1979 RT 928). Despite the court’s prior pronouncements that under no circumstances could a defendant represent himself in a capital case, the court denied petitioner’s request that counsel be appointed. (1979 RT 928). Petitioner explained that he lacked adequate resourcesat the county jail and that even if he had adequate resources, he was not qualified to represent himself. (1979 RT 929). The court refused to appoint an attorney. (1979 RT 929). The court offered an additional continuance andpetitionerreiterated that regardless of the amount of time, he was unqualified. (1979 RT 930). Thetrial court continued the matter 21 days and appointed an investigator for petitioner. (1979 RT 932). 8. Petitioner was unable to proceed at the next appearance, dueto his inability to confer with the appointed investigator. (1979 RT 935). Thetrial court denied petitioner’s request for a continuance. (1979 RT 937). Petitioner again renewed his request for appointed counsel, which the court denied. (1979 RT 939-41). 82 e s 9. Petitioner again reminded the court that he was not competent to represent himself as the court had previously found. (1979 RT 941). The court reversedits prior statements, see above, and said that the court only found that petitioner did not feel he was competent to represent himself. (1979 RT 941). Thetrial court also stated: I also know, Mr. Memro,via grapevine, you might say, that you have an intelligence quotient around 120. You are not an incompetent mental case, so you certainly have the mental capacity to represent yourself. _ Consequently you are goingto do it. (1979 RT 941-42). The court offered no source for its knowledge of petitioner’s IQ or authority holding that the Sixth Amendment doesnot apply to people with an IQ of 120 or above. 10. The penalty phase began with petitioner representing himself. The prosecution rested on the evidencepresented during the guilt phase. Petitioner stated that because he was unqualified to represent himself andthe court refused to ensure his access to a licensed investigator, he had nothing to add. (1979 RT 942-43). 11. The prosecutor argued thatif petitioner did not deserve the death penalty, there was no case in which it would everbejustified. He urged the court to impose the death penalty. (1979 RT 944-45). Petitioner stated he was not qualified to proceed. (1979 RT 945). The court construed petitioner’s statements as his refusal “to make any summation whatsoever in his own defense.” (1979 RT 945). The court then entered a death verdict against petitioner. (1979 RT 949). 83 12. The complete denial of counsel violated petitioner’s Sixth Amendment rights. “The presumption that counsel's assistance is essential requires us to concludethat a trial is unfair if the accused is denied counselata critical stage ofhistrial.” United States v. Cronic, 466 U.S. 648, 668 (1984). The Supreme Court has uniformly found constitutional error without any showing of prejudice when counsel waseithertotally absent or prevented from assisting the accused during critical stage of the proceeding. See, e. g., Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 US. 853 (1975); Brooks v. Tennessee, 406 U.S. 605, 612-613 (1972); Hamilton v. Alabama, 368 U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570 (1961); Williams v. Kaiser, 323 U.S. 471, 475-476 (1945). 13. Thetrial court refused to appoint counselto representpetitioner in the penalty phase. There can be no doubtbut that the penalty phaseis a critical phase of the trial. See, e.g., Estelle v. Smith, 451 U.S. 454 (1981); Hoffmanv. Arave, 236 F.3d 523 (9" Cir. 2001); Gerlaugh v. Stewart, 129 F.3d 1027 (9" Cir. 1997) (applying Strickland and Cronic to penalty phase representation). 14. Thetrial court’s sole ground for not appointing counsel wasthat two prior attorneys had been dismissed. Peter Williams had been relieved after an irreconcilable conflict of interest arose. (1979 RT 900). This removalwas necessary andproper under the Sixth Amendment. See People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (1970). The essence of a Marsden motion is that appointed counsel’s representation 84 wv has in some significant measure fallen below the level required by the Sixth Amendment. See Schell v. Witek, 218 F.3d 1017, 1021 (9" Cir. 2000). 15. Robert Villa was relieved upon his own request. (1979 RT 916). The court attributed, without factual basis, Villa’s motion to be relieved to petitioner and repeatedly refused to appoint counsel despite petitioner’s numerous requests. 16. Thetrial court’s refusal to appoint counsel to representpetitioner in the penalty phase wasa gross violation of petitioner’s Sixth Amendmentrights. The resulting penalty phasetrial violated petitioner’s rights to Due Process. Capital cases require heightened scrutiny under the Eighth Amendment, which wasalso violated. 17. Thetrial court’s gross violation resulted in a penalty phase trial which was a foregone conclusion. Petitioner was unqualified to represent himself and presented no evidence on his behalf. Abundant evidence existed which, if presented, was reasonably likely to result in a sentence of life without parole instead of a death sentence. Had the trial court sentenced petitioner to life without parole instead of death, double jeopardy principles would have barred the prosecution from seeking death after the reversal of the guilt phase verdict. 18. |The Supreme Court has explained: Regard for the requirements of the Due Process Clause inescapably imposes upon this Court an exercise ofjudgment upon the whole course of the proceedings(resulting in a conviction) in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even towards those charged with the most heinous offenses. These standardsofjustice are not authoritatively formulated anywhere as though they were specifics. Due process oflaw is a 85 summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or are implicit in the concept of orderedliberty. Rochin v. California, 342 U.S. 165, 169 (1952) (internal quotations and citations omitted) (reversing state court conviction “obtained by methodsthat offend the Due Process Clause’). 19. These violations amounted to conduct which was “‘so outrageousthat due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32 (1973). 20. Insum, allowinga retrial of the penalty phase against petitioner after what was doneat the prior penalty phase wasa “constitutionally intolerable event.” Herrerav. Collins, 506 U.S. 390 (1993) (O'Connor, J. concurring); see also Lambert v. Blackwell, 962 F.Supp. 1521 (E.D. Pa. 1997), rev'd on other grounds, Lambert v. Blackwell, 134 F.3d 506 (3% Cir. 1997). Petitioner should have been subject to, at most, a sentence oflife in prison withoutparole. 21. This error also prejudiced petitioner in the guilt phaseat the retrial. Petitioner’s jury was “death-qualified” pursuant to Witherspoonv. Illinois, 391 U.S. 510, 521 (1968). In Witherspoon, the Court recognized that the voir dire practice of “death qualification” -- the exclusion for cause, in capital cases, ofjurors opposedto capital punishment-- can dangerously erodethis "inestimable safeguard" of representative juries by creating unrepresentative juries “uncommonly willing to condemn a manto die.” See also Adams v. Texas, 448 U.S. 38, 44-45, 48-50 (1980). 22. Research has determined that “death-qualified” juries are often particularly prone to convict defendant’s as well. See, e.g., H. Zeisel, Some Data on Juror Attitudes 86 Toward Capital Punishment (University of Chicago Monograph 1968) (Zeisel); W. Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964) (Wilson); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 53 (1970) (Goldberg); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971) (Jurow); and Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum. Behav.53 (1984) (Cowan-Deliberation); Louis Harris & Associates, Inc., Study No. 2016 (1971) (Harris-1971); Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970); Bronson, Does the Exclusion of Scrupled Jurors in Capital Cases Makethe Jury More Likely to Convict? Some Evidence from California, 3 Woodrow Wilson L.J. 11 (1980); Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 (1984); and Precision Research, Inc., Survey No. 1286 (1981). In addition, McCree introduced evidence on these issues from Thompson, Cowan, Ellsworth, & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Hum. Behav. 95 (1984); Ellsworth, Bukaty, Cowan, & Thompson, The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum. Behav. 81 (1984); A. Young, Arkansas Archival Study (unpublished, 1981); and various Harris, Gallup, and National Opinion Research Center polls conducted between 1953 and 1981. 23. Petitioner’s jury should not have been death-qualified, since he should not have beenretried in the penalty phase dueto thetrial court’s gross-violation of petitioner’s Sixth Amendmentrights. By allowingthe retrial of the penalty phase, the court improperly forced petitioner to undergoa guilt trial with a jury that was conviction prone. That jury should not have been death qualified, since petitioner should not have been deatheligible. 87 Trying petitioner in the guilt phase under these circumstances violated petitioner’s rights to a fair trial by an impartial jury from a cross-section of the community. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights were violated. CLAIM 15: Petitioner's Rights were Violated by the Prosecutions’ Use of Perjurious Jailhouse Snitches. 1. After this Court issued a remittitur and petitioner's case was sent to Los Angeles County Superior Court for retrial, petitioner was transferred from San Quentin State Prison to the Los Angeles County Jail. In August 1985, shortly after petitioner arrived in Los Angeles, both petitioner and trial counsel Larkin requested that petitioner be held in the high-security, individualized cells at the jail. The request was made for security reasons and becauseofthe fear ofjailhouse informants. Mr. Larkin repeatedly requested that petitioner be protected from possible inmates/government agents. 2. On September 25, 1985, Mr. Larkin again requested that petitioner be placed in protective custody and given special transportation. Thetrial court granted the request for protective custody and denied the request for special transportation. On September 27, 1985, the court recognized that petitioner had not yet been placed in protective custody. 3. On December 3, 1986, trial counsel informed the court that petitioner had still not been placed in the cells specified by the court (Module 7000). The court once again orderedthat petitioner be placed in a Module 7000cell andstill the Sheriff's Department refused to comply. 4. During the period whenpetitioner was awaitingtrial, the Sheriff's Departmentintentionally placed knownjailhouse informants in cells near petitioner's cell and near petitioner during transportation to and from court. 5. On January 7, 1987, Los Angeles County Jail inmate Howard D. Stewart (Booking Number 8456951) wascalled to the attorney visiting room to see an investigator regarding a matter unrelated to this case. Sidney Storch, an informant who waslisted on the 88 prosecution's witnesslist in petitioner's case, was called to the attorney visiting room at the same time. Mr. Stewart was taken to an attorney booth. Laid out before Mr. Stewart were the files, reports and photographsrelating to the case against petitioner. Mr. Stewart began to review the materials, which were turned to face where Mr. Stewart wassitting. Moments later, Harold Baldwin, a deputy sheriff assigned to the attorney visiting room,indicated to the individual seated across the table from Mr. Stewart that there was an error and Mr. Stewart should not be in that room. The individual in the room identified himself as an investigator from the District Attorney's Office and said he wantedto talk to Sidney Storch. Deputy Baldwin stated that the inmate in the room wasnot Sidney Storch. The investigator then immediately shut the files and did not say another word to Mr. Stewart. 6. After Mr. Stewart was removed from the room, Mr. Stewart observed Sidney Storch meeting with the same investigator and obviously reviewing the files and reports whichhad been spread out on the table previously. Report of Investigator Scott L. Thompson/Declaration of Howard D. Stewart, Exhibit S-D. 7. Records of the Los Angeles County Jail indicate that on January 7, 1987, Sidney Storch met with D. A. Investigator R. Hilleary in the attorney room. On the same day, Storch purportedly provided to the prosecution for the first time an incriminating statementallegedly madebypetitioner. 8. Leslie Vernon White, the “Premier LA Snitch” Celebrity, an inmate knownto the Los Angeles Sheriff's Department as someone whofalsely informed on other inmates for the District Attorney's Office, was housed along with petitioner in "high power" (Module 1700) at the Los Angeles County Jail from August, 1986, to December, 1986. In November, 1986, White learned from Michael Steriotti, another knownjailhouse . informant, that petitioner was accused of killing some kids and that Deputy District Attorney Phil Millett was assigned to prosecute the case. Without knowing any other information, White telephoned Mr. Millett and an interview was scheduled for December4, 89 e 1986 at the Norwalk courthouse. 9. Millett then arrived for a personal interview with White accompanied by Lloyd Carter, a District Attorney investigator who,prior to his retirement from the South Gate Police Department, had interrogated petitioner and obtained his alleged confession to the capital offense in 1978. White allegedly told Millett, in the presence of Carter, that petitioner had admitted killing some kids. White further stated that petitioner had been screaming that Anthony Comejo, another knowninformant, had snitched on him andthat petitioner had confided in White that petitioner had in fact made certain admissions to Cornejo. White's statements regarding petitioner were 100%false. 10. Millett appeared disappointed and unsatisfied with the information. Before he and Carterleft the interview, they asked White if White had told him on the phonethat petitioner had admitted that his confession to the police was voluntary, that it had not been coerced or beaten out of him andthat petitioner was only now claiming coercion in an attempt to defeat the prosecution case. White had made no such commentto Millett on the phone but understood Mr. Millett's question to be suggestive of the testimony Millett wanted White to provide. White then falsely acknowledged to Millett that White had stated on the phonethat petitioner admitted that his confession was voluntary. Declaration of Leslie Vernon White, Exhibit S-E. 11. The Los Angeles County Sheriff's Department deliberately placed known informants in locations wherethey could elicit, or claim to have elicited, confessions and admissions from petitioner and other inmates, particularly high-profile inmates and those charged with capital offenses. The Los Angeles County Sheriff systematically failed to establish adequate procedures to control improper placementof inmates, with the foreseeable result that false claims of confessions or admissions would be made. Exhibits B-K. 12. The participation of the Los Angeles County District Attorney's Office and 90 Sheriff's Department in the procuring of false and unreliable evidence in this case was not unusual, isolated occurrences. In particular: a. 13. During the time period when petitioner was incarcerated at the Los Angeles County jail, the Los Angeles District Attorney's Office systematically sought out and presented false and unreliable jailhouse informant testimony. Exhibit B, C, E. Prosecution witness Cornejo in the present case described to counsel and an investigator in the Bittaker case (People v. Bittaker, 48 Cal.3d 1046 (1989)) a practice in which several jailhouse informants would receive a "class" on a case and would then attempt to obtain corroborating statements from the defendant. That failing, they would then, underthe tutelage of the police and prosecutor, create a "script" under which each wouldtestify to particular statements heard from the defendant. Exhibit B. Furthermore, the Los Angeles County District Attorney's Office systematically failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed decision to seek and usefalse jailhouse informanttestimony. Exhibit C, Report of Los Angeles County Grand Jury. The presentation of false and perjurious jailhouse informant testimony prejudicially and unfairly influenced and effectively dictated petitioner's decisions about whetherto testify in his own defense and whetherto raise attrial the voluntarinessof his alleged confession. The testimony of informant Anthony Cornejo prejudicially and unfairly influenced theoutcomeof the Evidence Code § 204 hearing on the admissibility of the confession. Absent the government's outrageous misconductin eliciting false and perjurious statements and testimonyofjailhouse informants, the result of the proceedings would have been more favorable to petitioner at both the guilt and penalty phases. 91 CLAIM 16: Petitioner's Rights were Violated by the False and Perjurious Testimony of Anthony Cornejo. 1. Petitioner's conviction, sentence of death and confinementare unlawful and were obtainedin violation of his rights to due process,to a fair trial, to effective assistance of counsel, to be free from unlawful, uncounseled interrogation, to be free from outrageous government misconduct andto have a capitaltrial free from false and unreliable evidence, as protected by the Fifth, Sixth, Eighth and Fourteenth Amendments,the analogousprovisions of the California Constitution and Penal Code § 1473, dueto the false and perjurious testimony of Anthony Cornejo presented at the section 402 hearing on the admissibility of the confession. 2. On April 13, 1987, over petitioner's objection, the prosecution called Anthony Cornejo to testify at a Section 402 hearing to determine the voluntariness of petitioner's alleged admissionsto the police. Cornejo testified that on the bus between court andjail, petitioner admitted that he had fabricated his claim that the statements made to the police were coerced. Cornejo's testimony supported the prosecution's contention that petitioner's confession was voluntary. 3. Following the Section 402 hearing,thetrial court ruled that petitioner's confession would be admitted. The court made the following finding: "Based upon the totality of the evidence, the court finds beyond a reasonable doubt the confession wasfree and voluntary.” 4. Cornejo's testimony wasfalse. Petitioner never spoke with Cornejo about any legal issues. Cornejo obtained the information to fabricate his statement from the published opinion of this Court in MemroI. 5. Introduction of Cornejo's false and perjurious testimony unfairly and prejudicially led the court to concludethat petitioner's confession was voluntary and that petitioner's claims regarding the coercive conductofthe interrogating officers were 92 untrue. Absent Come; o's testimony, the court would have entertained a reasonable doubtas to the voluntariness of the confession. Furthermore, Cornejo's false and perjurious testimony prejudicially and unfairly influenced and effectively dictated petitioner's decisions regarding whethertotestify in his defense and whetherto raise the voluntariness of the confessionattrial. In the absence of Cornejo’s false and perjurious testimony, the result at the guilt and penalty phase of the trial would have been more favorable to petitioner. 6. This Court's remandfor a newtrial rather than only for a new determination of voluntariness of the confession was based uponthe principle that voluntarinessof the confession may beraised under California law as a factor for the jury in determiningits believability, as well as a factor for the judge in determining its admissibility and a recognition that withholding of evidence on voluntariness of the confession was prejudicial both asto guilt and as to penalty. See Memro I, 38 Cal.3d 658; California Evidence Code § 405(b). This Court determined that under California law and the facts of this case, evidence potentially prejudicial with regard to a determination of voluntariness was also potentially prejudicial with regard to a determination of guilt. Jd. 7. The government's creation and exploitation of the perjuriousinformant testimonydeprived petitioner of a fundamentally fair and reliable guilt and penalty trial. C. CLAIMS RELATING TO DISCOVERY. CLAIM 17: Failure to Provide Discovery of the Prior Citizen Complaints Against the Police Officers Denied Petitioner a Fundamentally Fair Trial. 1, Following petitioner's initial conviction in this case, this Court reversed his conviction, holding that petitioner had demonstrated good cause for discovery of police personnel records of complaints of excessive force because the information wasrelevant to his claim that his confession was coerced. Memro I, at 674-684. 2. Atpetitioner's retrial, the trial court ruled that the records of the South Gate 93 “ % police officers involvedin petitioner's arrest and interrogation were appropriate for discovery pursuantto Pitchess v. Superior Court, 11 Cal.3d 531, and this Court’s earlier decision in this case (RT 295). The court erroneously denied counsel's request for discovery offiles related to officers other than the four directly involved in the interrogation, Sims, Gluhak, Carter, and Greene. Asto those four officers, however, the motion was granted. (RT 1950). 3. Despite the long legal battle over these records and the fact that they had been deemed discoverable, the records were destroyed by law enforcement. 4. The following testimony waselicited at the hearing regarding the destruction of these records. a. According to Officer Huntrods, the custodian of records at South Gate, the files of the police officers involved in this case were destroyed pursuantto Government Code § 34090. The Chief of Police initiated the destruction in July 1984 by asking the City Attorney to so act. (RT 308-309). b. At that time, the appeal in Memro J had been fully briefed and orally argued before the state supreme court. The trial court acknowledgedthat oral argument in Memro I occurred on May 7, 1984, and that the records were ordered destroyed on July 3, 1984. The decision in Memro I was rendered on June 6, 1985. (RT 2023). c. Huntrodstestified that when a citizen's complaint is received at the station, it is normally taken by the watch commander, whoassignsit to the administrative sergeant and oneor two investigators. Depending upon the type of complaint, the officer involved may not be contacted until near the end of the investigation. (RT 311). d. Huntrods was aware that the South Gate branch was the subject of allegations of aggressive behavior and excessive force. (RT 312). 94 a 5. Huntrodstestified that, in deciding to destroy the records, he considered only whether there were any civil cases pending against the officers. Had there been any, he claimed he would not have destroyed the records. Although he acknowledgedthatpetitioner's capital case was probably the best-known case at South Gate, he never contacted the District Attorney's office or the Attorney General's office to ask about destruction of records pertaining to the case. (RT 314-317). Sgt. Ludwick, the Administrative Sergeant at South Gate from 1972 to 1978, stated that when a formal complaint wasfiled against an officer, the officer would eventually be confronted, although the officer was not alwaystold about the complaint during the initial screening period. (RT 496). RaymondLilley testified that complaints received in the form ofa letter were not processed as formal complaints so an officer might never know of the complaint. (RT 508). Over objection, the trial court permitted the officers named in the Pitchess motion to testify regarding their knowledge of any complaints against them. a. Detective Simstestified that he was an officer at South Gate from 1972 to 1983. He recalled one complaint filed against him, which had to do with the physical arrest of the complainant. He could rememberno other details. (RT 318-320). Detective Carter was employed at South Gate from 1958 to 1986. He testified that he had never been confronted with complaints filed against him for aggressive behavior, violence or excessive force, although he had been disciplined for other types of misconduct. (RT 326-327). Carter knew that duringthefirst trial in this case, a motion had beenfiled requesting his personnel file. He knew that the case was pending on appealat 95 6. the time his file was destroyed. Before the file was destroyed, the Attorney General discussed the case with Carter on February 11, 1982. (RT 2021). The matter against Memro wasthe biggest case he had worked on in over 25 years as a police officer and it was one of the most significant ever out of South Gate. (RT 333-343). Louis Gluhak began working at South Gate in 1967. He stated that he was not aware of any complaints that he had personally used excessive force on citizens but acknowledged that he was namedas a defendantin a case involving a complaint over the use of Mace. (RT 355, 358). Dennis Greene workedat South Gate from 1973 to 1980. His testimony that he had never been confronted with complaints against him for violent or aggressive behavior (RT 543) was proven false by the testimony of former District Attorney Michael Carney, whotestified that he had prosecuted a case where Greenehad used excessive force in making an arrest. (RT 363). In addition, Officer Greene then explicitly told Carney that he received a restricted duty assignment for breaking another individual's jaw in making a traffic stop. (RT 363-366, 526). Greene stated that he recalled that one defendant was unhappy with the way he had effected the arrest but he was not aware of any complaint being filed against him. Herecalled two incidents in whichhe broke the jaws of suspects during traffic stops. According to Greene, no complaints were filed in either case. (RT 591-596). The court found that Carter was aware of the appeal which included claims regarding the officer’s personnel files. (RT 340). It held, however, that the defense had not established bad faith onthe part of the officers in destroying the records. Specifically, the court noted "although the scenario or the chronology of events is fortuitous, I don't know if it sustains proof of bad faith. You cannot presumebad faith." (RT 2023, 2024). The court 96 therefore denied any type of sanction for the loss of records. (RT 2025-2026). 7. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court stated a basic tule: [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process wherethe evidence is materialeither to guilt or to punishment, irrespective of the goodfaith or bad faith of the prosecution. Id. at 87; see also Giglio v. United States, 405 U.S. 150, 153-154 (1971). 8. That petitioner was entitled to the police records in issue cannot be disputed. Thetrial court correctly ruled that petitioner could discover the materials and basedits ruling upon the finding of this Court, reversing petitioner's former conviction, in which this Court reasoned: The Evidence Code clearly supported appellant's theory of discovery. Discovery might lead to evidence of habit or custom admissible to show that a person acted in conformity with that habit or custom on a given occasion [citation] "Habit" or "custom"is often established by evidence of repeated instances of similar conduct[citation]. Plainly, evidence that the interrogating officers had a custom or habit of obtaining confessions by violence, force, threats or unlawful aggressive behavior would have been admissible on the issue of whether the confession had been coerced. Furthermore, evidence of reputation, opinion, and specific instances of conduct is admissible to show,inter alia, motive, intent, or plan [citation]. Evidence that the interrogating officers had acted according to a plan or with a motive to coerce appellant's confession, or had intended to do so, would have been relevant to appellant's claim of involuntariness. Reputation or opinion evidence would also have been relevant on this issue... [{] Moreover, counsel's declaration satisfied Pitchess and Evidence Code section 1043. The declaration asserted that the confession had been coerced by promises of leniency and threats of violence. Evidence of coercion is relevant both to the admissibility of a confession and the weightit is to be givenby the trier of fact. [Citations.] Since evidence concerning complaints of prior violence by interrogating officers might have been admissible evidence on that question, counsel's allegations sufficiently "set forth the materiality" of the requested information. [Citation]... [§]] In sum, under Pitchess and the Evidence Code, appellant demonstrated good cause"for the requested discovery. Memro I, 38 Cal.3d at 681-684. 9. Followingits proper holding that petitioner was entitled to the requested 97 discovery in this case, the trial court erred in failing to impose sanctions upon a showing that the files had been intentionally destroyed. The court held that petitioner had not proven “bad faith” by the state in the destruction of the records and therefore it could not impose sanctions. However, the absence of "bad faith" does not preclude the imposition of sanctions. 10. The testimony of the South Gate Police Department offered on the issue of the destruction of records showed no "rigorous and systematic procedures designed to preserve evidence." According to Officer Huntrods, the Custodian of Records, there was no wholesale, indiscriminate destruction of records. Rather, he considered whether there were any civil cases pending against an officer prior to the destruction of that officer's file. He just as easily could and should have determined whether any criminal cases were pending in which the records might be relevant. 11. The sequence of events concerning the records is highly suspicious. The Attorney General discussed the case with at least one of the officers involved during the briefing process. The case was argued before this Court on May 7, 1984 and the records were destroyed almost two monthslater, eleven monthsprior to this Court's decision. Importantly, several of the officers involved acknowledged that this case was the most notorious case ever to come out of the South Gate Police Department. It is therefore inexcusable, not to mention prejudicial to petitioner, that the records that were the primary issue On appeal were destroyed. Irrespective of any showingor absence ofbadfaith,it is outrageousthat no sanction was imposed for such an action, especially when a man's life is at stake. 12. The fact that there were complaint records to destroy supports the conclusion that the records contained exculpatory material because they wouldassist petitioner in the motion to exclude his confession. Someofthe officers acknowledged that past complaints had been madeagainst them; in addition, there was evidence presented 98 that past complaints had in fact been madeagainst the officers for excessive use of force. The conclusionis that the records did contain information helpful to the defense and their destruction required the imposition of sanctions under Brady. 13. Assuming, arguendo,that a bad faith standard should apply to this case, the court's conclusion that there was no badfaith by the prosecution is not supported by the evidence. The issue regarding discovery of the records was contested in the first trial and wasa central basis for appeal. 14. Everyone involved knewthat the records were of great importancein this death penalty case. The police acknowledged that they had contact with the legal representatives of the state and were kept informedofthe status of the matter while it was pending before this Court. Despite the knowledgebythe officers in charge that this matter wasstill pending, they purposely decided to destroy the records. Based onthis record, there is no support for the trial court's conclusion that the destruction was not done in bad faith. Therefore, under the state and federal constitutions, imposition of sanctions for this action by the police department 1s mandated. 15. Finally, the police department admitted that in civil cases they retain the records until the case is fully resolved on appeal but claimedthat rule did not apply in criminal cases, even a death penalty matter. a. Becausethe penalty of death is qualitatively different from a sentence of imprisonment, "there is a corresponding difference in the need forreliability in the determination that death is the appropriate punishmentin a specific case." Woodson vy. North Carolina, 428 U.S. 280, 305 (1976). b. Becausea constitutional right is affected by the destruction of the records, this court must apply a harmless beyond a reasonable doubttest under Chapmanv. California, 683 U.S. 81 (1967). Under thistest, it is clear that the failure of imposition of a sanction cannot be deemed harmless. 99 Exclusion of the confession would leave absolutely no evidence connecting the petitioner to the offenses charged. C. Additionally, the failure to impose sanctions against the prosecution on the issue of prior complaints of excessive force at the hearing on the suppression of the confession is also not harmless. The prosecution cannot show that the court's decision on this issue would have been the same had there been such a sanction imposed. Thus, even for this lesser sanction the result must be the same and the confession must be excluded. 16. In MemroI, this Court reversed petitioner's conviction becauseofthe trial court's failures to order discovery of the key records. Specifically, this Court stated: It is clear that prejudice exists in this case. Thetrial court was requiredto determine from the evidence presented at the hearing on appellant's motion to exclude the confession whether it was voluntary beyond a reasonable doubt. [Citation.] Since the denial of discovery deprived appellant of the possibility of presenting evidence on that issue, the trial court did not make as informed a determination as it might haveif discovery had been granted. ]... Underthe facts of this case, it is reasonably probable that discovery would have led to admissible evidenceof sufficient weight to affect the trial court's determination on the voluntariness of the confession. Memro I, at 684-685. 17. Thetrial court on retrial was similarly deprived of the evidencerelating to police misconduct, albeit for different reasons. Thus, the prejudice remains the sameasit did when this Court reversed in Memro I. As to the weight to be accorded the confession, this Court noted in MemroI: [E]vidence of coercion would have been admissible at trial on the question of what weight the trier of fact should have given the confession. [Citation.] Obviously,the trial court's failure to accord appellant an opportunity to discover evidence of coercion precluded him from presenting any such evidence as to whether the confession should have been believed, even assuming it was properly admitted. Id. at 684 n. 28. 18. Contrary to the findings ofthe trial court, the destruction of any citizen 100 complaint records could not be mitigated through other means. At the hearing concerning the destruction of the records, it was established that allegations of aggressive behavior and force had been madein petitioner's case. The destruction of the records, however, precluded petitioner from investigating these complaints. 19. Officer Gluhak claimed hewasnot "aware" of any accusations. Officers Carter and Greene claimed they were never "confronted" with any complaints. First, none of the officers involved could plainly state that there were no complaints filed against them. Second,the self-serving nature of their testimony wastelling. 20. The evidence wasclear that the apprehension and prosecution ofpetitioner resulted in the most notorious case to ever come out of the South Gate Police Department. The officers involved thus had great motivation to be less than forthcoming with any information regarding the use of excessive force against citizens. The unreliability of the police officers' testimony 1s also demonstrated by the impeachmentof Greene's testimony that he was never involved in the use of excessive force. Also, the prosecutor whosaid he prosecuted a case where Officer Greene had harmed somoeone. 21. Because ofthe court's failure to impose an appropriate sanction or any sanction at all for the destruction of police records, petitioner's convictions must be overturned. The absence of any instruction precluded petitioner from questioning the validity of the confession before the jury. The alleged confession wasthecritical piece of evidence condemningpetitioner, and it was the only evidence offered against him on Counts I and II. For these reasons, petitioner was denied his due process rights under the federal and state constitutions. CLAIM 18: Petitioner’s Rights Were Violated by the Destruction of the South Gate Pitchess Records. 1. This Court reversed petitioner's initial convictions, holding that petitioner demonstrated good cause for discovery of police personnel and psychiatric records of 101 L F complaints of excessive police force because the information wasrelevant to his claim that his confession was coerced. MemroI, at 674-684. 2. At petitioner's retrial, the trial court ruled that the records of the South Gate police officers involved in petitioner's arrest and interrogation were discoverable pursuant to Pitchess v. Superior Court, 11 Cal.3d 531 (1974) and this Court’s opinion in Memro I. Thetrial court improperly denied counsel's request for discovery offiles related to officers other than the four directly involved in the interrogation; Sims, Gluhak, Carter, and Greene. Asto those four officers, however, petitioner's motion for discovery was granted. 3. Despite the notoriety of petitioner's case including the long battle over the discovery of these specific records, the prosecution notified petitioner and the trial court that the South Gate Police Department destroyed the records. The Chief of Police of South Gate initiated the destruction in July, 1984. At that time, the appeal in Memro I had been fully briefed and orally argued before this Court. The trial court found that oral argument in Memro / occurred on May 7, 1984 and the records were ordered destroyed on July 3, 1984. 4. Officer Huntrods, the custodian of records at South Gate, was aware that allegations of excessive force had been made against the South Gate Police Department. Nonetheless, in deciding to destroy the records, Officer Huntrods claimed to have considered only whether there were any civil cases pending against the officers. 5. Petitioner's case was the most well-known, high-profile case in South Gate at the time. Police Chief Robert Stewart, who initiated the destruction, personally responded to the allegation that petitioner's confession was coerced. It was Chief Stewart who initiated the destruction of the citizen complaints. Exhibit S-C, "Police Chief Charges Public Defender with Unethical Conduct," Sun Reporter, January 19, 1979, Exhibit S-C. 6. Sgt. Carter knew that his personnel jacket had been requestedin thefirst trial in this case. Sgt. Carter also knew that this case was pending on appealat the timehisfile 102 & was destroyed. Before Sgt. Carter's file was destroyed, the Attorney General contacted him at least twice and the other officers concerning this case. This case wasthe biggest case Sgt. Carter had worked on in over 25 years as a police officer and it was one of the most significant cases ever out of South Gate. 7. Officer Greenetestified that he had never been confronted with complaints against him for violent or aggressive behavior. Nonetheless, former Deputy District Attorney Michael Carneytestified that he prosecuted a case where Officer Greene had used excessive force in making an arrest. Officer Greene then, and only then, admitted to Mr. Carneythat he, Greene, received a restricted duty assignment for breaking another individual's jaw in effecting a traffic stop in yet anothercase. 8. The destruction of the prior citizen complaints againstthe police officers involvedin the arrest and interrogation of petitioner was intentional and was done in bad faith. The records were destroyed by the South Gate Police Department while responsible parties at the South Gate Police Department knewthat the discoverability of those records wasan issue pending before this Court. Sgt. Carter was aware of the appellate process and had been contacted by the Attorney General's office at least twice during the pendency of the appeal andpriorto the destruction of the Pitchess materials. The records ofprior citizens' complaints were clearly material and exculpatory. The government's actions in destroying the evidence were intentionally designed to, and did in fact, deprive petitioner of material exculpatory evidence that would have demonstrated the coerced, false, and unreliable character ofpetitioner's alleged confession. 9. No sanction was imposedonthe prosecution as a result of the intentional destruction of the prior citizen complaints. 10. Had petitioner been provided with discovery of such prior complaints, he would have been able to impeach the testimony ofthe arresting and interrogating officers and establish that his confession was involuntary and the productofillegal coercion. 103 Disclosure ofthe prior citizen's complaints would have produced a result more favorable to the petitioner in the guilt and penalty determination. 11. The government's failure to provide discovery of the recordsinitially andits subsequent misconduct in destroying the citizen's complaint records deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. CLAIM 19: The Prosecution Violated Petitioner's Rights by Failing to Disclose Approximately 400 Pages of Discovery. 1. No physical evidence connects petitioner to the crime scene. Thefailure to provide discovery of crucial evidence regarding witnesses, other suspects, and basic factual information regarding Counts J andIJ, together with the loss of evidence regarding photo line-ups and other suspects and the failure to disclose reports about the 1976 investigation of petitioner, deprived petitioner of the ability to investigate the case thoroughly, to prepare and present a defense, to effectively cross-examine witnesses regarding the identification of petitioner, and to present evidence ofthird-party culpability. 2. On January 8, 1979, prior to petitioner's first trial, the trial court granted petitioner's discovery motion and issued an order compelling the prosecution to provide to the defense a numberofitems, including: 9. Photographsor pictures that have been exhibited to the witnesses for the purposesof establishing the identity of the perpetrator of the crime. 11. All notes or memoranda, handwritten or typed, by police officers or other investigating officers of their conversations with personspertaining to the investigation of this matter. 13. Namesand addressesofall witnesses to, or who have knowledgeof, the crime or event leading to the commission thereof. 14. Copy of crime reports, together with all reports written byofficers investigating the crime involvedin the aboveentitled action. 104 17. Namesand addressesofall persons arrested as suspects in the investigation of the aboveentitled case. 18. Namesandaddressesofall persons interviewed by the District Attorney's Office its investigators or agents, or any other law enforcement agency knownto the District Attorney or his representatives in relation to this case. 3. Despite this order, approximately 400 pages of materials generated and gathered by the Bell Gardens Police Department in connection with the murders of Scott Fowler and Ralph Chavez were not turned over to defense counselat the first trial. Under the aboveorder, the prosecution was required to disclose all such material. 4. Bell Gardens Police Officer Don Barclift prepared reports regarding the murders charged in Count I and II. At the instruction of Deputy District Attorney David Feldman, Barclift intentionally failed to disclose hundreds of pages of reports, despite their clear relevanceto petitioner's case. As shown in Exhibit S-A, the reports, all of which had been withheld by the District Attorney and policeat thefirst trial included a great deal of potentially exculpatory information that was never investigated bytrial counsel. In particular, the District Attorney and police refused to disclose the following exculpatory information: a. A report that witness Jose Feliciano, who purportedly identified petitionerat the secondtrial (for the first time) as having been present at the scene, had been shown various photo line-ups and identified persons including Charles Michael Lohman and Craig Crowder, who wasalready a suspect in the homicides. b. A report of an interview of Richard Francis Hayden (DOB 4/29/17, approximately 59 years old at the time of the Fowler and Chavez homicides), who admitted that: he had lived with Fowler, he knew other adult males who took Fowler fishing, he had known the Fowler family for a decade, he had previously had sexualrelations with "every Fowler boy," and he was knownto 105 the family as "Uncle Dick." Haydenalso stated that the only other adult male with whom he knew Fowlerto associate was Jim Luna. A report of an interview with Nick Allikas, on probation for "playing with boys"in violation of Penal Code § 288 ("lewd orlascivious acts with a child under age 14"), who knew Hayden to have had sexual relations with Fowler and to have performed sexual acts on the Fowler boys when they were in diapers. A transcript of an interview of Mary Marie Merk (DOB 4/20/59, a Bell Gardens "Police Explorer" with two years' experience), who saw victim Chavez and Nick Allikas together at the Bell Gardens Taco Bell on the night of the murders at 9:25 p.m. She said she could "positively ID" both, and specifically identified victim Chavez and Allikas by photograph. Her positive identification makesthe story in petitioner's alleged confession an impossibility. The transcript of an interview with Marvin Fowler, whotold police: — that he knew Scott best “out ofall his brothers"; — that "John-John" (John Davis) started to the park with Fowler and Chavez but changed his mind, turned back and told Fowler and Chavez, "You better not go up there, because [Davis] knew lot of things going on upthere, all kinds of weirdos"; — that "We know it was two guys"; — that Scott Fowler usually had money and that John Davis would know where he gotit; | — that "Everybody said [Scott Fowler] came homeat 11:30 that night"(a fact inconsistent with the facts as allegedly told by petitionerto the police); — that someone named "Nick" (Nick Allikas, as apparent from the report) 106 & > referred to by the interviewer as "your friend upstairs," "doesn't know nothing about nothing"; — that "all of [Scott's] friends were trouble makers"; — that he "knowsjust aboutall of Scott's friends," but that "I don't think Scott knew anybodylike that [i.e., gay]" (a fact known bythe police at the time to be false). A report of a second interview with Marvin Fowlerin which: — hesaid that he had been with Nick Allikas until approximately 9 p.m. on the night of the homicides, that they had picked up some "dirty books" in San Diego, that Allikas had said he was going to go bowling thereafter and that Allikas also said he was going to show the "dirty books" to someoneat the Arena Bow]; — he admitted that Marvin had had sexual relations with Allikas; he stated that at the time Nick left him off at home, "Nick gave him the feeling that Nick wanted to score"; — hestated, on being asked "if he felt that Nick had anything to do with this," | that "he did not know,but, if Nick wasarrested for the killing that he would testify against Nick"; — hestated that Scott and one Frank McCoy, "an out and out whore,” would on occasion go to the Long Beach Pier "and pick up whoeverthey could in order to make some money”; — he replied, when asked why Nick Allikas would have been "so nervousthat his hands were trembling" when he was interviewed bythe police, that he felt "his brother Scott knew the assailant or assailants." A report of an interview of John William Davis ("John John"), who knew Allikas and Scott Fowler and gavethe police the impression that he was 107 i s "withholding much information.” Reports indicating that Nick Allikas, who,at the time of the Bell Gardens offenses, was on probation for a violation of PC § 288 (lewdacts with a person under 14): — stated that Scott was "a hustler"; — had been "positively identified” by Bell Gardens Police Explorer Mary Merkas being with victim Ralph Chavez at a Taco Bell in Bell Gardensat 9:52 on the night of the homicides; — admitted spending the day until approximately 9 p.m. with Marvin Fowler; — said (unconfirmed by any other witness) that he went from there to Arena Bowl "for a few minutes" and then (also unconfirmed) to WonderBowl (where he claimed to have been until approximately midnight), but — could not accountforall of his time subsequently that night other than for being home alone. (Another report indicates that Allikas "has been arrested on approximately five occasions. The first occasion being in New Jersey, this being for sexual assault and the other arrest being in the County of L.A. He hascrimes against children, rape, attempted rape.") A report of an interview of Lou Pasquale, the owner of Arena Bowl, who said that a patron observed bythe officer to be Nick Allikas was frequently there and "would play the pinball machines usually accompanied byten orfifteen year old boys," but that he did not see him there on the evening of 7/25/76. A report of interview of Billie Darlene Bailey, manager of the apartment complex in which Nick Allikas lived, who "assumedthat Scott Fowler knew Nick, because everyone in the area knew Nick." She further stated that Nick used to frequent the billiard hall at Atlantic and Clara which Fowler also used to frequent, and believed that "Scott Fowler knew Nick." 108 A report ofinterview of Christine Ruth McNeil (DOB 8/27/59), in which she said: — that at the beginning of July, 1976, an incident occurred in which neighbor Bobby Davis stabbed one Windel Ludlow (who,according to Christine, resembled the police composite) at the Fowler residence; — that subsequently Donald Ludlow ("wholives at 4861 Clara St. in Cudahy [the address at which Nick Allikas was also living], wears a green fatigue-type Army jacket and rides seven different types of motorcycles and has a yellow dirt bike"), along with Windel and third brother Avon Ludlow, "have been coming around the Fowler's residence during the last month, trying to locate the person that stabbed the brother; — thatall three "are potentially violent." A report identifying ThomasPotts as having described persons known from other sources as having been presentat the scene, as looking like the police composite and notlike petitioner. A report identifying Kim Cain, an employee of Carl's Junior in Bell, California, as having seen the homicide victimsat the restaurant at approximately 9 p.m., makingthe story in petitioner's alleged confession an impossibility and tending to corroborate Mary Merk's sighting of Allikas and one of the victims at another hamburger stand approximately an hourlater. Reports establishing that, despite petitioner having allegedly goneto the scene on his motorcycle and witnesses’ consistent reports of one man on a motorcycle hanging out with the victims shortly before their death, the motorcycle actually seen was a different color from petitioner's and that its tracks, of which plaster casts were taken and "lost," could not have been made by petitioner's motorcycle. 109 & A report of an interview of Frank McCoy, whoidentified numerousthird parties (adult males) who had probably had homosexualrelations with victim Scott Fowler and who said he thought Fowler would possibly "hit on another male"at the park where his body wasfound. A report of an interview of Edward Alvarez, a suspect who knew victim Fowler and correctly and precisely described Fowler's knife wound, although the police maintained that only they and the killer had this information. A report stating that Ralph Chavez's father (Ralph Ortega Chavez, Sr.) had recently taken out a $20,000 life insurance policy on Ralph andindicating that this information had been received from other sources than Mr. Chavez that he may havepaid "Blackie" (probably Paul Anderson), a former mental patient who lived with Chavez's ex-wife, for the killing. A report of an interview of Richard Donald Lathrop, who confirmed that Craig Crowder, who lived only two blocks from Jose Feliciano, "matches the description almost perfectly of the composite drawing" of one of the individuals seen at the scene with the 1976 victims on the night of the homicides. A report of an interview of Linda Lois Wellman, who wasliving with Kent Alexander Beason (DOB 5/18/53); Beason was described as "crazy and hot tempered," and had beenarrested in a citizens’ arrest for trespass. Beason told Wellman that the arresting officers had mentioned that he resembled the Bell Gardens murder composite and that he had been held overnight for investigation. He then told her that the composite artist had done a lousy job of drawing his picture because he didn't look like the composite and that he had fooled the police and had gotten away with murder because they could not prove he committed the crime. He then told her he "cut their throats to 110 teach them a lesson" because they "went against me." The report of an interview of a suspect named James Lee Crumwell, a/k/a James Lee Savage, who was wantedfor unlawful flight, parole violation, the murder of a young boy in Arizona and a similar murder in Wisconsin, and whowassaid by an investigating officer to meet the physical description of one of the men seen at the scene. Crumwell, who is approximately the same age as petitioner has been arrested in relation to the 1979 murder of a 13- year-old boy in Costa Mesa and for 15 counts of child molestation. An interview report of witness Jose Feliciano, who identified petitioner (for the first time at the secondtrial) as a man in an Army jacket whom he saw hanging out with the victims at the scene; in the report, Feliciano "positively identified" a photo of John Helder Arnett, Jr., as the man with the Army jacket. Separate interviews of Jose Feliciano and Audie Cullison; each reported having reviewed 14 photographs and "positively identified" the photo of "Charles Michael Lohman"as having been with the victims at the scene on the night of the homicides. A report of an interview of Lohman in the San Diego County Jail in which he said he "might have been" in Bell Gardensat the time of the Fowler and Chavez homicides. A report of Lohman having remarkedin the back of a police van, when it was not public knowledge that the police were investigating the sexual aspects of the Chavez/Fowler killings, "That murder has probably been reducedto child molest by now." A report from an unidentified police informant knownbyan officer to be reliable, that "Gary" had told her, "And you knowthose two kids that gottheir 111 aa. bb. cc. dd. throats cut? Well, I killed them because they didn't give me what I wanted." Althoughto the best of counsel's knowledge there was no public information at the time concerning the sexual activities of Fowler or Chavez, the informantalso said "Gary" referred to "one of the boys, if not both, as “cocksuckers.™" A report stating that Raymond Lee Evans of Glendale, who wore a large knife strapped to his right side and matchedpolice descriptions of the suspects, was photographed; his photograph, which was apparently used in photoline- ups, inexplicably disappeared from the police property room. A property report indicating that an address book was collected from the crime scene. A report of an interview of Carl Hamilton, Jr., who informed the police that he had been told by Charles ("Chuck") Vanoythat the latter had been in Ford Park on the date of the Chavez and Fowler homicides, had seen the offender and knew him to workat a specific motorcycle shop, which waspointed out to Hamilton by Vanoy. related report states that one witness, while under hypnosis, identified the police composite of one of the suspects as "Chuck." A report indicating that Lt. Bower, one of the investigating officers in this Case, was instructed to search the residence of Linda Gail Camp and Brenda Kay Anderson for "homicide evidence" regarding the presentcase, including "fishing tackle boxes, lunchpails, fishing gear, knives, cigarette lighters, etc." Counsel at the secondtrial (Larkin and Carney) never investigated the reasons why Camp and Anderson were investigated by the police. Reports that Deputy Figueroa had separately interviewed Jose Feliciano and Tracy Adkins at Ford Park on the evening of the homicides; that Feliciano reported having seen twosuspects; one (who cameto the site on a partly 112 ee. ff. yellow, recently hand-painted motorcycle with a rectangulartaillight) resembled the photograph of Eddie Avon Ledlow andthe other was wearing an armyfatigue jacket, had a knife strapped to his right leg and was not on the motorcycle; and that Adkins had also seen a "square"red light at the pond. A report of an interview of Velma Wells, who reported that at the time of the homicides David Jenkins, a friend of her son who wasrecently released from the U.S. Army, had beenliving at hertrailer in Bell Gardens; — that Jenkins "slipped very quietly into the trailer" in the early morning hours after the homicides and crawled acrossthe floor; — that he slept until approximately noon; — that when he got up she remarked to him she hopedthe killers would be caught andthat he hadsaid "it will never happen, no way, it 1s only a one time thing”; — that Jenkins admitted being at the park "just ten minutes before the killings," although it was impossible for anyone who wasnotpresent at the killings to know that precisely when they occurred; — that he left some of his clothes "covered with blood" in the hamperin the trailer; — that she washedthe clothes but never inquired of Jenkins how they had becomebloody; — that several days later Jenkins and Wells' daughter-in-law Brenda Myers left together and had not reappeared; —and that Wells initially went to a motel, a fact confirmed bythe police. A report of an interview with David Allen Jenkins (DOB 4/30/57 according to his statement, although military records obtained by the police showed DOB2/18/57), who: 113 &&- hh. ll. i. — admitted having beenatthe park; — said he was there with Wells’ son Clinton Myers; — denied having known, except from a statement by Clinton, that they had been there just before the homicide; — stated he thought Mrs. Wells wasa truthful person; — and gavethe officers the impression that he "was very nervous, and appeared to be concealing something during the interview." A report of interviews of Richard Donal[sic] Lathrop and Craig R. Crowder; the police described Crowder to Lathrop as having "matched the description almostperfectly of the composite drawing..." A report of an interview of Sharon Coplan, who had previously lived with Beason, and whotold the police he "was crazy and hot tempered" and "had mentioned killing several North Vietnamese when he wasin the Army and that he enjoyed killing people." | A report of the interview of Edward Fimbres Alvarez, who — described to Calvin Dale Snyder the woundinflicted on one of the two victims; — gave the police an explanation they perceived to be false of how he had obtained that information; — wastold by the interviewing officer that only the killer could have correctly described the wound; — admitted he knew Scott Fowler; — and gave an alibi that he admitted could not be confirmed by anythird party. A report of an interview of Vicky Shidle, who stated that she saw Scott Fowler at 11:15 p.m. on 7/25/76 with a fishing pole near her residence at 4635 Clara, Bell Gardens, makingthe story in petitioner's alleged confession 114 Il. non. 5. an impossibility. A report of an interview of Mary Maxine Bushea (DOB 8/25/45), who was present at Ford Park with her son Scott in the evening, saw both the two suspects and the victims and noticed that the victims carried a gallon-size white plastic bottle, and other reports of the presence of persons(e.g., Scott Busheaand Jose Feliciano) who would have seen and known aboutthe bottle. These facts are consistent with facts "confessed to" by petitioner that the prosecution asserted attrial could have been knownonly bythe actualkiller. A report of an interview of Jim Luna, one-time director of the Sugar Ray Foundation, who knew Fowler, admitted to having taken him fishing "three or four times," admitted to being bisexual, admitted to having had sexual relations with Fowler's brother Marvin and believed Marvin was "holding something back from the officers." A report of an interview with Ms. Lee Ugone, a counselor who had worked with both victims and identified the photo of a "suspect" who, she said, had entered the Fowler residence two days before the Fowler homicide. From other reports, counsel know this to have been the photograph of Nick Allikas. Ugone had spent two hours fishing with Fowler at Ford Park approximately two weeksprior to the homicide. The approximately 400 pages of discovery were notdisclosed to petitioner or his counsel until 1986, in connection with petitioner's retrial. 6. Peter Williams, petitioner's counsel at the first trial, never saw the documents until he wascalled as a witnessat a pretrial hearing during the secondtrial in 1986. The materials turned over to petitioner for the first time in 1986 included descriptions andidentifications of suspects other than petitioner, confessions/admissions by another suspect, activities of the victims, statements of witnesses, the names and 115 addresses of such witnesses, reports regarding physical evidence and other pertinent material. Exhibit S-A, Bell Gardens Police Reports re Counts I andII. 7. Additional material evidence that was covered by the 1979 and 1986 discovery orders wasintentionally lost or destroyed by government agencies and was not available to petitioner at the second trial. This physical evidence consisted of a series of photo line-ups that had been shownto Jose Feliciano, an eyewitness to people seen with the victims just prior to the Bell Gardensincident. Feliciano and other witnesses had examined several photo line-ups close to the time of the incident and identified suspects other than petitioner. 8. Further, a photograph of a suspect other than petitioner, which closely matched the composite drawing, was covered by the 1979 discovery order(reports also indicate that this suspect was identified by more than one of the witnesses). While not disclosed to the defense at the time ofthe first trial, this photograph was broughtto the courtroom for inspection shortly before the secondtrial and was then lost or destroyed by governmentagencies before the defense could useit at trial, as intended. 9. Also, in the course of the investigation of the Bell Gardenskillings in 1976, police approached Ronald Medrano, showed him a photographofpetitioner and asked numerous questions regarding petitioner's activities. Petitioner has never been provided with discovery of any reports regarding this 1976 investigation. 10. By the time the material was released in 1986, ten years after the killings and investigation, it was impossible to locate the witnesses and presenttheir testimonyattrial. Timely discovery and adequatetrial representation (cf. Claim 86) would have allowed petitioner to present substantial evidence of his innocence on Counts I and II. See Exhibits G and H. 11. Absent the government's intentional refusal to comply with the 1979 discovery order and the ensuing loss of evidence, the result of the proceedings would have 116 been more favorable to petitioner on both the questions of guilt and penalty. 12. The government's various acts of misconduct, including butnotlimited to the suppression, destruction, belated disclosure, and continued withholding of evidence, including material exculpatory evidence, deprived petitioner of due process and a fundamentally fair and reliable guilt and penalty trial. CLAIM 20: The Prosecution Violated Petitioner's Rights by Withholding Brady Evidence Regarding Benefits Paid to Jailhouse Snitches who Testified at Pretrial Hearing. 1. Petitioner's conviction and sentence of death were renderedin violation of his constitutional rights to a fundamentally fair and reliable determination of guilt and penalty, to the effective assistance of counsel, to a trial free from false evidence and to the disclosure of all exculpatory evidence, including evidence tending to impeach the prosecution's witnesses and refute the prosecution's case, under the Fifth, Sixth, Eighth and Fourteenth Amendments andthe analogousprovisions of the California Constitution, by the conduct of the Los Angeles County District Attorney's Office and the Los Angeles County Sheriff's Department whointentionally withheld exculpatory evidence regarding benefits providedto jailhouse informants whotestified against petitioner at a pretrial hearing. 2. In compensation for Mr. White's December 4, 1986 interview with Deputy District Attorney Millett, Mr. Millett filed a writ petition, previously prepared by White, on White's behalf, immediately after the interview. Thepetition was presented to Judge Armstrong. 3. In compensation for White's testrmony at the December 23, 1986 hearing on the admissibility ofjailhouse informant testimony, White was transferred from the main Los Angeles County Jail to the Glendale City Jail. At the Glendale City Jail, White was afforded moreprivileges than at the main Los Angeles County Jail, including access to a direct-dial phone andthe ability to receive property, including jail contraband, from his wife. 117 4. On December29, 1986, Mr. White wrote a letter to Assistant District Attorney Livesay in which White described his cooperation with the District Attorney's Office in numerouscases, including petitioner's. In responseto that letter and in further compensation for White's cooperation, Mr. Livesay arranged for Judge Haberto order White's release from the Glendale City Jail, despite a pending parole hold which would normally bar any release. On December 29, 1986, Deputy District Attorney Andrew Diamondpersonally drove White from court to White's residence. On December31, 1986, Mr. Diamond telephoned White and informed him that the parole board had learned of his release and that he would have to turn himself in to the Glendale Police Department, which White did later that evening. 5. On January 2, 1987, Mr. Livesay telephoned White and told him to call Diamondandtell Diamond that Livesay had ordered himto obtain White's release. Diamondarranged for Judge Perez to order White's release, despite the pending parole hold. Officer Gardner of the South Gate Police Departmenttransported White from the Glendale City Jail to Van Nuys Superior Court and, following White's release, to White's residence. Officer Gardner advised White that Millett had requested the South Gate Police Department to provide White with such transportation. On January 6, 1987, White attended a parole board hearing and wastaken into custody. Exhibit S-E, Declaration of Leslie Vernon White. 6. Informant Anthony Cornejo had also repeatedly received benefits from the District Attorney for testimony over a period of nearly 10 years in other cases, e.g., in the form of letters recommendinglenient sentencing, early parole and transfer to a prison near his family (e.g., Exhibits C and D). In the Ash case in 1980, he and another inmate, Schenley,testified (almost exactly as in the present case) to having been transported to court with the defendant, who allegedly gave inculpatory statements on the bus. Cornejo then recanted and told the DA that he and Schenley hadpartially concocted the story in that 118 Schenley had not been able to hear the statements. Exhibit F. In an investigation of Schenley's possible perjury, however, Cornejo (then incarcerated) told investigators that he would notassist in a prosecution for perjury unless "someone wouldpaint [him] abrighter picture" regarding his future. Exhibit S-F. Cornejo was charged with aiding and abetting Schenley in perjury despite his admissions. 7. The prosecution also knew that Cornejo had admitted to an attorney for Lawrence Bittaker that a "script" had been developed by several regular informants, including himself, for false testimony in that case. Exhibit B. 8. The benefits conferred on White and other jailhouse informants in compensation for their assistance in the prosecution of petitioner constitute substantial, material and exculpatory evidence. Such benefits and compensation were never disclosed to petitioner or his counsel. 9. The information withheld by the District Attorney's Office and the Sheriff's Department regarding compensation ofjailhouse informants would have impeached the testimony of Cornejo and other law enforcement witnesses. 10. The failure to disclose such benefits prejudicially and unfairly influenced and effectively limited petitioner's tactical decisions regarding whetherto testify in his defense and whetherto attack the voluntariness of the confession at trial. Disclosure of such evidence would have produceda result more favorable to petitioner in the guilt and penalty phases. . 11. As the Supreme Court recently held in Banks v. Dretke, 540 U.S. _, 124 _ §.Ct. 1256, 1273, 1275 (2004), Brady is violated whenthe prosecution fails to disclose material exculpatory evidence regarding a informant witness presentedattrial: On the question of "cause," moreover, Banks's case is stronger than was the petitioner's in Strickler in a notable respect. As a prosecution witness in the guilt and penalty phases of Banks's trial, Farr repeatedly misrepresented his dealings with police; each time Farr responded untruthfully, the prosecution allowed his testimony to stand uncorrected. See at 4-7. Farr denied taking money from or being promised 119 a anything by police officers, App. 37; he twice denied speaking with police officers, id., at 38, and twice denied informing Deputy Sheriff Huff about Banks'strip to Dallas, id., at 109. It has long been established that the prosecution's "deliberate deception of a court and jurors by the presentation of known false evidenceis incompatible with rudimentary demandsofjustice." Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam) ). If it was reasonable for Banksto rely on the prosecution's full disclosure representation, it was also appropriate for Banks to assumethat his prosecutors would not stoop to improperlitigation conduct to advance prospects for gaining a conviction. See Berger v. United States, 295 U.S. 78, 88 (1935); Strickler, 527 USS., at 284. n14 The State here nevertheless urges, in effect, that "the prosecution can lie and conceal and the prisonerstill has the burden to . . . discover the evidence," Tr. of Oral Arg. 35, so long as the "potential existence” of a prosecutorial misconduct claim might have been detected, id., at 36. A rule thus declaring "prosecutor mayhide, defendant must seek,"is not tenable in a system constitutionally bound to accord defendants due process. "Ordinarily, we presumethat public officials have properly dischargedtheir official duties." Bracy v. Gramley, 520 U.S. 899, 909 (1997) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). We haveseveral times underscored the "special role played by the American prosecutorin the search for truth in criminal trials." Strickler, 527 U.S., at 281; accord, Kyles, 514 U.S., at 439-440; United States v. Bagley, 473 U.S. 667, 675, n. 6 (1985); Berger, 295 U.S., at 88. See also Olmstead v. United States, 277 USS. 438, 484 (1928) (Brandeis, J., dissenting). Courts, litigants, and juries properly anticipate that "obligations [to refrain from improper methodsto secure a conviction]. . . plainly resting upon the prosecuting attorney, will be faithfully observed." Berger, 295 U.S., at 88. Prosecutors' dishonest conduct or unwarranted concealment should attract no judicial approbation. See Kyles, 514 U.S., at 440 ("The prudence of the careful prosecutor should not . . . be discouraged."). Banks v. Dretke, 540 U.S. , 124S.Ct. 1256, 1273, 1275(2004) (Emphasis added). 12. See also Exhibits S-A, S-C, S-D, S-E, I and J. 13. The government's suppression of material exculpatory evidenceofbenefits provided to informants deprived petitioner of due process, a fundamentally fair andreliable guilt and penalty trial in violation of Brady. Banks, 540 U.S.__, 124 S.Ct. at 1279. CLAIM 21: The Prosecution Violated Petitioner's Rights by Failing to Disclose Exculpatory Evidence in Discovery Regarding the Prior Felony Convictions and Probationary Status of Prosecution Witness Scott Bushea. 1. Scott Bushea wascalled by the prosecutionto testify regarding the 1976 Bell Gardenskillings charged in Counts I and II. Busheatestified that on July 25, 1976, at about 5:00 p.m. he went to Ford Park with his mother and his friend Jose Feliciano. Bushea met 120 Fowler and Chavez, though he had not known them before. When Bushealeft the park at 11:30 p.m. or midnight, he noticed that Fowler and Chavez werestill there fishing and were standing around with two men; Bushea described the men as being adults in their mid to late twenties. One wore an Armyfield jacket. One of the men had wavy, almost shoulder- length hair, while the other had longer hair, a moustache and beard. The two men had a yellow dirt bike. 2. On October 12, 1984, Scott Bushea was charged by complaint in the Los Angeles County Municipal Court with two felony violations of Penal Code § 288(a). Los Angeles County Municipal Court, Long Beach Judicial District, Case No. A-026 633. On October 23, 1984, in a closed proceeding, Busheaentered pleas of guilty to both charges. On January 31, 1985, Bushea appeared before the Hon. Sheila F. Pokras, Judge of the Superior Court, for sentencing. The court suspended the imposition of sentence, granted probation for three years and ordered Bushea to serve 114 days in the county jail. Bushea was on probation at the time of the secondtrial. Exhibit S-F, Copy of Reporter's Transcript in People v. Bushea, Los Angeles County Municipal Court, Long Beach Judicial District, Case No. A029633. 3. The charges against Bushea result from a three- or four- year-long pattern of sexual abuse, including forcible oral copulation, intercourse and sodomyof a child. The victim was approximately five years old when Busheabegan his sexual assaults. 4, Although Bushea was on probation and had been convicted of two felony counts of violation of Penal Code section 288, as described above,petitioner and his counsel were not informed of Bushea's felony conviction or his probationary status at any time during petitioner's own proceedings. 5. The prosecution's failure to disclose relevant information included, but was not limited to, the fact that Bushea had been the victim ofat least one male adult sexual predatorprior to and at the time of the 1976 homicides andthat his victimization left him 121 emotionally and psychiatrically impaired. 6. The failure to disclose substantial material exculpatory evidence affecting Bushea'scredibility prejudicially deprived petitioner of a fundamentally fair and reliable guilt and penalty determination. 7. Petitioner was not placed on notice of the possibility that Bushea might receive somebenefit for his testimony. 8. Furthermore, the failure to disclose Bushea's conviction also deprived petitioner of the opportunity to argue the possible involvement of the same person who molested Bushea and/orhis associates in the Bell Gardenskillings and to attack the identification testimony of Bushea's friend Jose Feliciano, based on Feliciano's possible knowledgeof that person's involvement. 9. Had petitioner been aware of the above factors impeaching Bushea's credibility, the result at the guilt and penalty phase would have been more favorable to petitioner. 10. The failure to disclose Bushea's convictions and probationary status deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. D. CLAIMS RELATING TO TRIAL COURT ERRORS. 1. PRETRIAL. CLAIM 22: Petitioner's Rights were Violated by Assignment of a Commissioner, Rather Than a Judge, to Preside Over His Case. 1. Petitioner wastried before a Los Angeles County commissioner rather than a superior court judge. RT A-294. The commissioner, John A. Torribio, was not permitted, either by statute or by the California or federal constitution, or by training and experience, to try any felony, let alone a capital case. 2. Although Mr. Reno apparently signed a written stipulation to have the commissionerhearhis case, petitioner did not knowingly andintelligently waive his right 122 to trial before a superior court judge. The ramifications of such a decision were notfully explained to him. 3. Any purported waiver was not knowingandintelligent for reasons including but not limited to (a) the lack of adequate communication and advice from his attorney at the time, and (b) his inability, as a result of mental incompetence, to make a knowing and intelligent waiver. 4. As a result of the above, petitioner was denied a fundamentally fair trial and a fair and reliable determination of guilt and penalty. CLAIM 23: Petitioner’s Conviction and Sentence Must be Reversed Because of the Commissioner’s Bias. 1. It was bad enough that an inexperienced commissionersat as the judge on the case, but on numerousoccasions, the commissioner improperly demonstrated outright hostility and bias toward petitioner. This bias alone wassufficient to render petitioner’s trial presumptively unfair. 2. In addition, however, the court employedits bias against petitioner as a basis for denying petitioner other constitutional rights. 3. First, at an in-chambers conference, outside of petitioner’s presence, the commissionerand the parties reviewed various photos, magazines and books which had been seized from petitioner’s apartment. The materials depicted males in variousstates of dress. While going over the materials, the commissioner stated: “Jesus, why can’t they be girls? Jesus.” (RT 2439; emphasis added.) The commissionerthen said: Are you taking this down as we’re talking? You didn’t put that why can’t they be girls, did you? The record should reflect we’re in chambers. Mr. Memro’snot present. It’s just the three attorneys. Mr. Millett has broughtin all of the photographic material that was referred to by Deputy Carter plus nine magazines and one book whichareall homosexual material involving, it appears, men only. 123 (RT 2439). 4. The commissioner’s remark asking why couldn’t the subjects be “girls” was wholly inappropriate. It implied that the materials would have been acceptable had they been nudepictures of “girls.” This comment demonstrated a bias against petitioner for his sexual orientation. 5. The commissioner attempted to cover up his remark whenhetried to have the court reporter not make his commentpart of the record. This was done despite the legal requirementthat all proceedings in a capital case be transcribed on the record. 6. The commissioner’s personal offense at the gender of the subject in the materials was evidenced whenheruled that they could be admitted before the jury. He stated: I think the record should beclear that these are magazines and photographs [that] have young boys. That’s the basis of myruling. (RT 2457). This remark, taken in conjunction with the commissioner’s revulsion at seeing the materials and exclaiming “why couldn’t they be girls” instead, demonstrates that the commissioner was biased against the homosexual nature of the evidence. Thebasis of the commissioner’s ruling was its own prejudice as the materials themselves were inadmissible. 7. Second, at a subsequent sidebar conference, the commissioner again emphasizedits revulsion at the photographs: These photographsare of young boys seven through about 18. In some of them the boys are nude with their peniseserect...[§]] You know,these are not photographs of grown men. Theseare not photographs of women. Theseare photographs of young boys. And I mean young. I don’t mean 20, 21, 22; I mean,these are kids under anybody’s definition. (RT 2459). 8. First, on May 15, 1987, the jury sent a note to the court regarding Penal Code § 288. (RT 2872). During the discussions of the appropriate response,petitioner 124 & sought to communicate with his attorney. The commissionerlashedout: Mr. Memro, could you please be quiet? You’re talking constantly. Your attorney [can’t] listen to me. He can’t think. So why don’t-you just let your attorney be the lawyer? (RT 2875). 9. Petitioner responded,“Becauseit involves me also.” The commissioner launchedinto an insulting, degrading diatribe: I understand that, Mr. Memro, but yourlegal I.Q. is zero. You have proved that to this Court beyond a shadow of a doubt. You spent 12 years studying and you still you don’t have any more concept of what’s going on in those 12 years. You’re anintelligent man, but the intelligence you bringto this trial is frightening. (RT 2875; emphasis added). 10. This personal and unprofessionalattack on a litigant violated Mr. Reno’s constitutional nghts. It was intemperate, improper and inappropriate. It also violated the California Code of Judicial Ethics. See Canon3, 6. 11. The commissioneralso improperly interfered with the attorney-client relationship. Here, petitioner sought to confer with his counsel about the legal issues surrounding the jury’s question. Such open communicationlies at the heart of a meaningful attorney-client relationship. If the court felt that counsel could not address both the court’s questions andpetitioner’s concerns, the proper step would have beento take a brief recess so that petitioner could confer with his counsel. Doing so would then allow trial counsel to comebackto the court, address the court’s concerns as well as act as petitioner’s representative in resolving the issues. To shout petitioner down and cow him into silence violated petitioner’s rights to counsel and harmed the attendant attorney-client relationship. 12. This personal attack demonstrates the contempt with whichpetitioner was regarded by the commissioner. Evenifpetitioner had a zero “legal IQ”as the commissioner exclaimed, to throw insults at petitioner in open court was prejudicial. The court is required to decide the legal principles before it without prejudice andto treat the 125 parties with respect. Any observer hearing this remark could only concludethat the commissioner acted improperly and with bias against Mr. Reno. The commissioner’s undisguised disgust with petitioner colored his treatmentofpetitioner throughoutthetrial. During the penalty phase, the commissioner washesitant to allow petitionerto testify as he desired. Petitioner was notably upset that the commissioner appearedto be ruling that he could nottestify and objected. The commissioner responded: Mr. Memro,I realize to you weare all your enemies. That’s fine. Your own paranoia is something you’ll have to deal with... (RT 2963). 13. The commissioner’s acknowledgmentthat petitioner was paranoid andthat his paranoia affected his ability to make decisions aboutlegal strategy should have triggered a competency determination. Having expressed a doubt aboutpetitioner’s ability to participate or understand the nature of the proceedings competently, the commissioner wasobligated to initiate proceedings pursuant to Penal Code §1368. “Underthe statutory scheme mental competency proceedings involve twodistinct steps: (1) initiation of the §1368 proceedings and suspension of the criminal trial; and (2) actualtrial of the competency issue.” People v. Mayes, 202 Cal.App.3d 908, 915 (1988). This was a mandatory proceeding: [W]hen a “doubt” arises in the mindofthe trial judge regarding defendant's present sanity or competenceto standtrial, it becomeshis duty to certify the defendant for a sanity hearing; the matter isjurisdictional and cannot be waived by defendant or his counsel. In Re Davis, 8 Cal.3d 798, 808 (1973), citing, inter alia, Robinson y. Pate, 383 U.S.at 384. As explained by the Supreme Court, this is so in part because "it is contradictory to argue that a defendant may be incompetent, and yet knowingly orintelligently 'waive' his right to have the court determine his capacity to standtrial." Robinson v. Pate, 383 U.S.at 384. 14. The failure to hold a competencyhearing following the expression of doubt 126 & as to defendant's competencyis error and cannotbe cured bya retrospective appellate determination of probable competenceto stand trial. Any ... sub silentio disposition of the section 1368 proceedings withouta full competencyhearing rendered the subsequenttrial proceedings void because the court had been divested ofjurisdiction to proceed pending express determination of the competencyissue. People v. Hale, 44 Cal.3d 531, 538-539, 541 (1988). Reversal for this error is automatic. Robinson v. Pate, 383 U.S. at 387. 15. If, however, the commissioner was only throwing out the word “paranoid”as an insult and did not believeit, despite the court’s conclusion that petitioner was suicidal (see, e.g., RT 2964, 2967), then the court’s offensive behavior was further evidence ofthe commissioner’s bias against petitioner. If the commissionerdid not believe that petitioner was mentally ill, there was no reason to hurl yet another insult at petitioner. 16. The court’s continued hostility to petitioner was demonstrated only a momentlater. After repeatedly stating that the court would not allow his testimony because it would amountto “participating in judicial suicide” and would be “very offensive’ (RT 2967) and so ruling, (RT 2963) , the prosecutor suggested that they might break for the day to consider it overnight. The commissioner reacted and abruptly changedits position. The commissionerstated: We’re goingto finish today, counsel. We’re going to finish today. This case has — there’s no reason notto finish today. So Mr. Memro, you will be allowed to make any statement to the jury you wish to make. (RT 2965). 17. The court gave no explanation for its abrupt and complete reversalofits position that petitioner could nottestify, other than he wantedit to finish that day. Truly, the commissioner was more concerned with a fast track resolution than with a just resolution of the case. His contempt for petitioner caused him to make whathe considered 127 3 w u to be the wrongruling,just to get the trial completed. Doing so wasfurther evidence ofthe commissioner’s bias and impropriety. If the trial court’s personal animosity against petitioner was so strong, he should have recused himself from hearing the case. 18. Moreover, the commissioner lacked the trial experience whichsitting Superior Court Judges have gained by handling numeroustrials. This inexperience may have been part of the reason why the court was (1) biased against petitioner, and (2) affected by its bias in ruling on the issues presented. Moreover, the fact that commissioners do not normally heartrials may have led the commissioner to remain on the case despite his growing bias and prejudice, whereas a Superior Court Judge with moretrial experience would have been more willing to recuse himself. 19. A biasedtrial judgeis structural error. See, e.g., Tumey v. Ohio, 273 US. 510, 535 (1972). The Due Process Clause requires a “fair trial in a fair tribunal,” (Withrow v. Larkin, 421 U.S. 35, 46 (1975)), before a judge with no actual bias against the defendant or interest in the outcomeofhis particular case. Bracy v. Gramley, 520 U.S. 889, 904 (1997). It is not subject to harmless error analysis. See generally Arizona v. Fulminante, 499 US. 279, 307-10 (1991). CLAIM 24: The Trial Court Violated Petitioner’s Right to a Speedy Trial and Due Process. l. Petitioner movedthe trial court to dismiss his case based on the speedytrial violation. Moreover, petitioner went even further and moved the court to appoint another attorney to represent him in a pretrial review of the motions to remove appointed counsel and to dismiss the case. The erroneousrefusal of the court to grant either motion effectively prevented petitioner from seeking suchrelief before his trial and effectively left petitioner unrepresented by counselatthiscritical stage of the proceedingsin violation of his Sixth Amendmentright to counsel. 2. The violation of a defendant's California statutory speedytrial rights does not 128 require a showing of prejudice when the matter is raised priorto trial, as it was here. Thus, the action oftrial counsel andthetrial court not only deprivedpetitioner of the right to have his matter reviewed on a standard where no actual prejudice is required for reversal, but also resulted in extreme prejudice and irreparable harm to petitioner. 3. Additionally, the failure to dismiss the case (without prejudice) due to a violation of petitioner's speedytrial rights, as required by California law, severely prejudicedpetitioner's defense. Hadpetitioner been broughtto trial within the statutory period, the perjurious testimonyofthe jailhouse informants would not have surfaced and been used against him during the motion to suppress his confession. This false testimony was extremely damagingasit not only undercutpetitioner's version of the confession and supported that of the police, but it also effectively prevented petitioner from raising the validity of his alleged confession before the jury. 4. Asthe prosecution conceded throughoutthe trial court proceedings, there wasno case against petitioner without the admission of his “confession.” 5. Additionally, after the running of the 60-day period, the prosecution (a) suddenly "found" additional Brady and discovery materials relating to the 1976 murders which required even further delays in the proceedings and (b) "lost" evidence favorable to the defense. In particular, as set forth above,petitioner lost the ability to locate favorable witnesses to the 1976 offenses. Thus, prejudice from the delay is affirmatively shown and the habeas petition must be granted on the speedytrial violation. 6. The refusal to comply with the state statutory speedytrial rules, which requires mandatory dismissal, also served in this case to effectively deny petitioner any opportunity for a de novo hearing on his motion to suppress evidence andviolated his right to due process under the Fourteenth Amendmentto the Constitution. Hicks v. Oklahoma, 447 U.S. 343 (1980). 7. The denial of these rights deprived petitioner of a state-createdliberty 129 interest in violation of due process. CLAIM 25: Petitioner was Deprived of a Full and Fair Hearing on the Motion to Suppress Evidence. 1. Mr. Reno wasdeprived ofa full and fair hearing on the motion to suppress evidence because Judge William McGinley wasprejudiced againstpetitioner andtrial counsel wasineffective for his failure to recuse Judge McGinley from hearing the motion to suppress. a. Prior to the first trial, the court held a hearing on the motion to suppress evidence. This hearing was held before Judge McGinley. At the conclusion of that hearing, the court denied the motion to suppress evidence. b. In 1974-75, petitioner had appeared before Judge McGinley on an assault charge in Los Angeles Superior Court. Case No. A28968. C, Prior to petitioner's release on probation on that case, Judge McGinley threatenedpetitioner, including butnot limited to saying that he would "throw the book"at petitioner if he ever appeared before Judge McGinley again for any reason. d. Petitioner informed counselat both the first and secondtrials in this matter of Judge McGinley's stated prejudice against the petitioner. Neither trial counsel investigated this allegation or challenged Judge McGinley’s fitness to preside over any of petitioner’s proceedings. e, At the commencementofthe hearing on petitioner's 1538.5 motion, defense counsel Peter Williams made a motion to exclude witnesses. That motion was improperly denied by Judge McGinleyas a result of his bias against Mr. Reno. Asa result, each of the officers was permitted to hear the testimony of the otherofficers. f. Because of Judge McGinley's prejudice against petitioner, the judge was not 130 2. the motion to a. objective, was biased and had the appearanceofbias in his ruling on the motion to suppress evidence. The commissionerin the secondtrial proceedings denied petitioner's motion to relitigate the motion to suppress evidence, thereby permitting the admission of the confession and physical evidence obtainedasa result of the unlawful arrest of petitioner and warrantless search ofhis residence. There would have been no conviction in the guilt phase of this case had the motion to suppress been granted. The prosecution could not have used the alleged confession of petitioner nor any of the physical evidence obtained as a direct result of the illegal arrest of petitioner. Neithertrial counsel had any reasonable,tactical basis for permitting petitioner's suppression motionto belitigated before a biased tribunal. The failure to recuse Judge McGinley deprived petitioner of a fundamentally fair and reliable hearing on his suppression motion and guilt and penalty trials because the evidence was impermissibly admitted. The prosecution failed to provide the location of a critical witness related to suppress evidence. Prior to the motion to suppress evidence and the commencementof the secondtrial, petitioner's trial counsel attempted to locate and interview Joan Julian, the “psychic” whoassisted the police in drawing a composite ofthe suspect based on her psychic "vision" of a man she "saw" with Carter. The government used a composite drawing based on this psychic's "vision"in the apprehension andarrest of petitioner. The drawing wasusedto identify petitioner. At the hearing on the motion to suppress, the officers falsely testified that they did not rely on information provided by this psychic or the composite 131 drawingin their arrest of petitioner. Based on the false testimonyof the officers, the court erroneously ruled that the police had not relied upon the assistance provided by this psychic. c. Petitioner was never provided with the address of Joan Julian. Petitioner was thereby deprived of the opportunity to investigate what information was provided to Joan Julian and what statements were made to Ms. Julian by the police regardingtheir reliance on her psychic "vision." d. Contrary to this testimony, Ms. Julian would havetestified that the police did in fact rely on her assistance and credited her with a significant role in the petitioner's apprehension. Exhibit S-G, James Crenshaw, "Court Admits Psychic Evidence," Fate Magazine (November 1979), e. The trial court would have granted the motion to suppress evidencehadit consideredthe testimony of Ms. Julian regardingherrole in the arrest of petitioner and the reliance by the police on herassistance prior to petitioner's arrest. Suppression of the fruits of the unlawful arrest would have led to a more favorable result at the guilt phase ofthetrial. f. Theintentional failure of the government to provide defense counsel with information reasonably necessary to locate and interview Ms. Julian constituted a denial of due process and deprivedpetitioner of a fundamentally fair and reliable guilt and penalty trial. CLAIM 26: Petitioner was Deprived of a Fair and Accurate Suppression Motion Hearingat the First Trial. 1. Petitioner was deprived of a fair and accurate motion to suppress hearing at the first trial as a result of the police misstatement of information in the missing-juvenile report and the destruction and unavailability of police dispatch tapes. 2. With regards to the police misstatement of information in the missing- 132 juvenile report: a. The legality of petitioner's arrest wasraised at pretrial proceedingsprior to the first trial. The motion to suppress waslitigated at that time, denied and raised on appeal in Memro J andtherelated habeaspetition. This Court did not reach the suppression issue in either the appeal or habeas proceedings. Counsel at the secondtrial was erroneously prevented from relitigating the suppression issue, despite ineffective assistance of counsel at the motion to suppress and the existence of new relevant facts obtained from previously withheld discovery and Brady material. The South Gate Police Department Missing Juvenile Report on Carl Carter, Jr., was prepared on October 22, 1978. The Report indicates that Carter was last seen by his brother near the rear of his residence at 7:00 p.m. (1900 hours), a full hour after Mr. Reno saw him,on that date. (Exhibit S-H, Missing-juvenile report). Officer Simsarrested petitioner on October 27, 1978. In determining probable causefor the arrest, Officer Sims relied heavily on his purported belief that petitioner wasthe last person to have seen the boypriorto his disappearance. This alleged belief was based on two purportedfacts: first, that Carter was claimedto be missing at 6:00 p.m. and, second,that petitioner admitted being present at the Carter residenceat that time. Moreover, the court, in finding probable cause for the arrest, consideredit significant that according to police testimony, petitioner was the last person with Carter, prior to his disappearance. The missing-juvenile report directly contradicts the crucial factors upon whichthe arresting officer and the court based the probable cause determination. Furthermore, the report corroborates the statementpolice 133 attribute to petitioner that he didn't do anything to Carter, and that the last time petitioner saw him he wassafely walking toward his home from a nearby donut shop shortly after 6:00 p.m. This documentis critical becauseit refutes the statement by Officer Sims that he allegedly believed petitioner wasthelast person to see the boy prior to his disappearance. This purported "belief" by the officer wasa critical, if not the sole, basis for his immediate warrantless arrest of petitioner. A reasonably diligent advocate would have used the missing-juvenile report to challenge the truthfulness of the arresting officer and the legality of the arrest. However, trial counsel did not use the missing-juvenile report to cross-examine Officer Sims or otherwise make reference to the Report. Mr. Williams admitted that he had notactical reason for not making reference to that report. Mr. Williams candidly states that if he were engaged in the same suppression hearing today, he would "use the report to impeach the testimony of arresting officers Sims and Gluhak andalso argueto the court that the report served to substantiate the lack of probable cause for defendant's arrest.” Exhibit S-I Declaration of Peter M. Williams. Defense counsel's failure to use the missing-juvenile report deprived petitioner of a legitimate opportunity to prevail at the motion hearing. Properuse ofthe report would haveleft the court no choice butto find the arrest illegal. Because the confessionis a fruit of the arrest, proper use of the report would have caused the confession to be suppressed. If Mr. Williams had used the missing-juvenile report, there would have been a result more favorable to petitioner at the guilt and penalty phases. With regards to the destruction and unavailability of police dispatch tapes: Officers Sims and Gluhak were in radio contact with the South Gate Police 134 Department on the day and time petitioner was arrested. The radio communications were preserved on a dispatch tape that could have been obtained by defense counsel Williams and which wasat least arguably covered by the continuing 1979 discovery order. b. The dispatch tape provides significant evidence that could have been used to impeach the testimonyofthe arresting officers and corroborate petitioner's testimony. A reasonably diligent advocate would have obtained and preserved the dispatch tape reflecting communications of Officers Sims and Gluhak on the day of petitioner's arrest. c. There wasnotactical reason for not obtaining the dispatch tapes. d. Defense counsel's failure to obtain the dispatch tapes deprived petitioner of a legitimate opportunity to prevail. Obtaining the dispatch tape and using that tape to impeachthe testimony of Officers Sims and Gluhak and to corroborate petitioner's testimony would have caused the court to find the arrest illegal and would have produced a more favorable result to petitioner in the guilt and penalty determination. e. The lack of this impeachmentevidence, the failure of the trial court to considerit, and the resultant erroneous denial of petitioner's suppression motion deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. CLAIM 27: The Trial Court Erred in Failing to Exclude Witnesses During the Hearing on the Motion to Suppress Evidence. 1. At the first trial in 1978, trial counsel Williams made a motion to haveall witnesses excluded,as “it is incumbent upon fairness that each witnesstestify without the ‘benefit’ of having listened to the other witnesses’ testimony.” (RT 38). Trial counsel also asked that the witnesses be ordered not to discuss any testimony with potential witnesses 135 until the hearing concluded. 2. The witness who was aboutto testify was Detective Sims from the South Gate Police Department. Three other South Gate Police Department witnesses were present: Officers Carter, Green and Gluhak. The judge reminded counsel that the determination is discretionary and askedif the prosecution wished to be heard. The prosecutor responded, “Yes. I would opposeit becauseit is discretionary with the court.” (RT 38). 3, Trial counsel asked the court to explain: if there is any reason whythe court should not grant my request to exclude witnesses .. . and I haven’t heard counsel say anything except that he objects to it, with no reasonsgiven for his objection to my motion to exclude .. . I think it would be an abuseofdiscretion for the Court not to grant my motion to exclude the witness. 4. The defense theory wasthat the officers lacked probable cause for petitioner’s arrest andthat all other evidence flowed from that arrest. The defense contention wasthat the officers coerced petitioner into providing a false confession that they spoon fed to him. The officers were given an opportunity to prepare their testimony and ensure consistency among themby hearing one anothertestify during direct and cross- examination. 5. “The practice of excluding witnesses from the courtroom except while each is testifying is to be strongly recommended,particularly where the testimonyof the witnesses is in any measure cumulative or corroborative.” Williamson v. United States, 310 F.2d 192 (9" Cir. 1962). “Such witnesses may, and often do, shape their testimony to match that given by other witnesses within their hearing. To prevent such matching of testimony is the prime purposeof putting witnesses underthe rule.” Charles v. United States, 215 F.2d 825 (9" Cir. 1954) (Judge refuses to exclude witnesses because he disagreed with rule of exclusion found to be abuse ofdiscretion.); see also Witt v. United States, 196 F.2d 285 (9" Cir. 1952). “The exclusion of witnesses is obviously desirable 136 for such effect as it may haveto preventthe perjurious parroting of testimony.” United States v. Postma, 242 F.2d 488 (1957). 6. Having provided no reason for denying the request, even after a reason was specifically requested,the trial court’s refusal to exclude the witnesses was an abuse of discretion and violation of due process. 7. Here, the witnesses were officers from the same department who were testifying to corroborate each other’s assertion of the voluntariness and content of the alleged, unmemorialized confession. They werealso testifying as to the probable cause to arrest and alleged permission to search petitioner’s residence. Allowing them to listen to each others testimony poisoned the proceedings and deprived petitionerofa fairtrial. 8. Theissues of petitioner’s arrest, the search of his residence andthe alleged subsequent confession werecritical. All of the evidence againstpetitioner flowed from this illegal chain of events. If petitioner’s arrest lacked probable cause, or if his confession was involuntary, the prosecution would have lacked sufficient evidence to proceed, as the prosecutor admitted. The failure to exclude witnesses thus unfairly skewed the testimony against petitioner and resulted in an unfairtrial. 9. Becausethetrial court in the secondtrial did not allow petitioner to relitigate this issue, the record is based entirely on the hearing held atthefirsttrial. 10. Byrefusing to exclude the witnesses, the court allowed each ofthe officers to hear the testimonyofthe others. The only witness to contest the police version of the atrest was petitioner. There was no contemporaneous memorialization of the confession. 11. By permitting all of the officers to remain in the courtroom andlisten to the other officers’ testimony, the court irreparably prejudiced petitioner's opportunity to cross- examinethe officers effectively and to prove the invalidity of his arrest and thereby violated petitioner's right to due process, to confrontation and to a reliable determination of guilt and penalty. 137 CLAIM 28: The Trial Court Erredin Failing to Dismiss the Information Based Upon the UnlawfulSeizureof Petitioner’s Privileged and Confidential Legal Materials. 1. At the conclusion ofthe first trial, the trial judge issued an unlawful order that the Sheriff's Office in the Los Angeles County Jail confiscate petitioner’s transcripts of the proceedings. (CT 1264). The prosecution conceded that pursuant to that order the records were taken from petitioner. (RT 302). 2. The papersincludedtrial transcripts with defense counsel's and petitioner's notations and 14 pagesofpetitioner's handwritten notes specifically written at the request of trial counsel. (RT 386). 3. In addition,petitioner's entire confidential legal file was illegally taken by jail officials and illegally retained for several days in February 1982 over his objection. Thefile had been examinedbyagents ofthe state. (RT 388). 4. The Supreme Court has held that the sanction of dismissal for a breach of a Sixth Amendmentright to counsel is appropriate wheneverthere is prejudice to the defendantor a substantial threat thereof. 5. Petitioner was prejudiced and there was a substantial threat thereofas a result of the following: a. Petitioner and counsel at the secondtrial were deprived of materials he and his attorneys had prepared duringthefirsttrial. b. The government had access to these materials for its own use prior to, and during, the secondtrial. C. Becausethe notes pertained to a central issue in the case, possession of the materials by the prosecution and the officers who would eventually testify against petitioner greatly enhancedtheir ability to shape their testimony accordingly and rebutpetitioner's testimony at the suppression hearing. d. Possession of these materials by the trial court influenced the court's rulings 138 both at pretrial hearings andattrial. 6. Accordingly, his conviction and sentence must be reversed for this violation of petitioner’s Fifth and Sixth Amendmentrights. CLAIM 29: The Trial Court Erred in Failing to Suppress the Jailhouse Informant’s Testimony. 1. After petitioner was returned to county jail following reversalofhis convictions by this Court, he was concerned abouthis jail housing. Several times before the retrial he requested the trial court to order the jailers to house him in a safe unit. The trial court held hearings on this matter and issued orders that petitioner be housed in protective custody. (CT 104, 105, 165). 2. Despite these requests and orders, petitioner was placed in housing and transported with several knownjailhouse informants. Numerousinformants eventually supplied “information” about the case to the prosecutor. All of this "information" was generated after the requests for separate housing by petitioner and related orders issued by the court. 3. Four informants came forward to falsely claim that petitioner had spoken to them about his case. The informants did notallege that petitioner had confessed to them but claimed instead that petitioner told them that he was lying about the coerced confession, which wasa central issueat theretrial. 4. Each of the informants was being used regularly by the prosecution in various criminal cases. (RT 8, 30, 43, 85). Each was commonly knownto be a paid jailhouse informant. 5. Each of the informantstestified that he had been housed nearpetitioner or transported with him on the way to court. During these times, they allegedly elicited information from him related solely to the confession issue. Oneofthe informants, Anthony Cornejo, wascalled at the hearing on the confession. (RT 993). 139 6. On July 17, 1986, Cornejo wasriding on the busto court with petitioner. Cornejo claimed heinitiated a conversation inquiring whypetitioner was housed in a particular unit. Cornejo continued to question petitioner about the case. Petitioner allegedly told Cornejo that he had lied to his attorneys about the coercion of his confession and stated that the confession was freely given to the police. (RT 996). Comejo admitted that he had worked with the prosecutor on several cases and that he was usually held in the "snitch tank" in the county jail. (RT 998). The court nevertheless refused to exclude Comejo's testimony and clearly took it into consideration in denying the challenge to the confession. (RT 2250). Here, Cornejo and the other informants were acting as governmentagents. They had provided numerousstatements to the prosecutor's office in several murder cases and wereactively testifying in other cases. In addition, they were provided benefits in return for their cooperation. (RT 1004). 7. Cornejo admitted that he initiated the conversation with petitioner, as did the informant in United States v. Henry, 447 U.S. 264 (1980), which held that the government cannot employ jailhouse informants to obtain information from a defendantin violation of the right to counsel. a. 8. Cornejo specifically inquired aboutpetitioner's case and focused on the very issue that was central to petitioner's defense. By his own admission, Cornejo wastherefore not merely a passivelistener, but instead actively sought information from petitioner, in violation of petitioner's Sixth Amendmentrights. Petitioner was prejudiced bythetrial court's failure to suppress Cornejo's testimony. The informant's false and perjurious testimony undercutpetitioner's testimony 140 regarding the circumstancesof the confession. 9. Althoughthe police denied any coercion in obtaining the confession, there wasclear evidence to support the conclusion that petitioner wastelling the truth about the confession having been coerced. Therefore, the erroneous admission of Cormejo's testimony was not harmless and the convictions based solely upon the confession must be reversed. CLAIM 30: The Trial Court Erred in Denying Petitioner's Motion to Relitigate the 1538.5 Motion. 1. Petitioner filed a motion to suppress evidence based upontheillegality of his arrest. (CT 326). Trial counsel argued, on severalbases, that petitioner was entitled to a de novo hearing. 2. Oneof the reasons offered wasthat petitioner's former counsel at the hearing had neglected to present a missing-juvenile report which indicated that Carl Carter, Jr. had been sighted at the rear of his own residence, safe and sound,an hourafter the timeat which petitioner said he had last seen him. a. This report was not only reviewedbythe arresting officers, it was in their possession at the time they arrested petitioner and they testified to being awareofits contents at that time. b. The report wascritical because it refuted Officer Sims’ statement that he allegedly believed petitioner was the last person to see the boy before he disappeared. That alleged belief was cause for his immediate warrantless arrest of petitioner. C. The report established that Carter had been seen outside the Carter home by his own brotherat least an hourafter petitioner had last seen Carter. Officer Sims knew this fact when hearrestedpetitioner. d. Nonetheless, the court barred petitioner from relitigating the motion, stating: 141 uy "The court finds that defendant has not established through any evidence whatsoeverthat the defendant lacked an opportunity for a full determination of the merits of his motion as originally made andnoticedat the previous hearing.” (RT 283). 3. Becauseoftrial counsel's admitted ineffectiveness at the first hearing and not having the missing report, petitioner was deprived of an opportunity for a full and fair determination by a fact-finder who could observethe credibility of the officers when being questioned about the report. This was a denial of his right to due process underthe Fourteenth Amendment. Cf. Kimmelman v. Morrison, 477 U.S. 365 (1986) (denialoffull and fair hearing on suppression motion permits consideration of Fourth Amendment claim on federal habeaspetition). 4. The piece of evidence excludedat the first hearing, the report of the missing juvenile, wascritical to the probable cause determination. Thereport directly refuted one of the main reasons—fnot the crucial factor—ainarresting petitioner, as stated by the police officers. a. Simsspecifically testified that one of the reasons he suspected petitioner wasthat petitioner was the last one to see Carter. However, petitioner stated that he had last seen Carter safely walking toward home at approximately 6:00 p.m. b. That statementby petitioneris, if anything, fully corroborated by the muissing-juvenile report, which includes the statement from the boy's brother that he saw Carter at 7:00 p.m.at the rear of the Carter residence. 5. The introduction into evidence of the report and cross-examination of the officers would have undercuta finding of probable causeto arrest. a. Officer Simstestified that at the time he arrested petitioner, all he knew was that: 142 il. ili. iv. Carterwas missing from home; Petitioner had undergonetreatment in Atascadero State Hospital six years earlier for the assault of a young boy; the Carters had identified petitioner from a sketch based on a psychic's “vision”; and Petitioner hadinitially stated to the police in responseto their question that he had not observed "anything unusual" on the day of the boy's disappearance, but subsequently mentioned taking the boy to Winchell's and returning him home unharmed, hardly an unusual occurrence. b. The missing-juvenile report would have supportedpetitioner's claim that nothing "unusual" had occurred, that the boy had in fact returned home unharmed, and that petitioner was not the last person seen with the boy. That was the only factor that conceivably linked the boy with petitioner and the crime. C. Evidence that the boy had been seen by his own brother an hourafter petitioner reported seeing him would havedestroyed the already tenuous claim of probable cause and would have corroborated petitioner's claim that the police lacked a substantial belief in petitioner's guilt. 6. Accordingly, the report of the missing juvenile wascritical and would have led to a different result in the ruling on the motion to suppress. Failure to permit relitigation of the motion deniedpetitioner his rights to counsel, to reliable fact-finding procedures and to due process under the Sixth, Eighth and Fourteenth Amendments. CLAIM 31: The Trial Court Erred in Failing to Grant Severance of CountIII. 1. Priorto trial, petitioner filed a motion to sever Counts I and II from Count Ml. (CT 157). The trial court denied the motion and, after allowing petitioner to renew the 143 motion, issued a second denial. The court's denial was prejudicial error which requires the granting of the habeaspetition. 2. Penal Code § 954 provides that crimes of the same class may be joined for trial. However, it has long been held that prejudice to a defendant may require severance of separate counts even though joinder may otherwise be permissible. In fact, Penal Code § 954 provides for severance "in the interests ofjustice and for good cause shown." 3. In Williams v. Superior Court, 63 Cal.3d 441 (1984), this Court stated that permissible joinder is only the beginning of the inquiry into whether a criminal defendant has been denied the rightto a fair trial because of improper joinder of counts. "[T]he joinder laws must never be used to deny a criminal defendant's fundamental right to due process and a fair trial." (/d. at 448). 4, The Williams court set forth a four-step process for determining the severability of charges: a. whether the charges would be cross-admissible in separatetrials; b. whetherfactors favor joinder; C. whether one weak case would be bolstered by joinder with a stronger one,or, alternatively, whether two weakcases will be strengthened by joinder; and d. whether one or more charges wasa capital case. In petitioner's case, examination of each of the Williams steps compels severance. 5. Theinitial step in a severance determination is to examine the cross- admissibility of the offenses, that is, "had the severance motion been granted, would the evidence pertinent to one case have been admissible in the other case under the Rules of Evidence whichlimit the use of character evidence or prior similar acts to prove conduct." (/d. at 448.) In this step, trial courts are guided by the well-settled principlesrelating to the use of character evidence to prove conduct. a, Evidence Code § 1101 subdivision (a) forbids "evidence of a person's 144 6. characteror a trait of his character . . . to prove his conduct on a specific occasion." However, subdivision (b) of that provision exempts from the bar against admissibility "evidence that a person committed a crime,civil wrong or other act when relevant to prove somefact . . . other than [a person's] disposition to commit such acts." The provision lists a number of familiar—but frequently misapplied—avenues of admissibility for otherwise inadmissible unchargedacts: "Motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In People v. Thompson, 27 Cal.3d 303 (1980), this Court explained the admissibility of uncharged offenses: Evidence of an uncharged offense is usually sought to be admitted as “evidencethat, if found to be true, proves a fact from which an inference of another fact may be drawn.' [Citations.] As with other types of circumstantial evidence, its admissibility depends upon three principal factors: (1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material facts; (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citations.] In orderto satisfy the requirement of materiality, the facts sought to be proved maybeeither an ultimate fact in the proceeding or an intermediate fact ‘from which suchultimate fact [] may be presumedor inferred.’ [Citation.] Further, the ultimate fact to be proved must be ‘actually in dispute.’ [Citation.] If an accused has not ‘actually placed that [ultimate fact] in 1ssue,' evidence of uncharged offenses may not be admitted to proveit. [Citations.] The fact that an accused has pleadednot guilty is not sufficient to place the elements of the crimes charged against him “in issue.’ [Citation.} Id, at 315 (footnotes omitted; emphasisin original). In the instant case, the killing of Carter would have nobearing on thekillings in Counts IJ and II, and vice versa. a. Atissue in the 1976 murders, Counts J andII, was the perpetrator's identity. Thus, other-crimes evidence would only be admissibleif it bore on that issue. Evidence of "commonplan, schemeor design" is considered an "intermediate fact" which, if properly shown, can prove the "ultimate fact" of identity. In 145 other words, by showing a defendant's mark—"the criminal's calling card, as it were" (People v. Tassel, 36 Cal.3d 77, 86 (1984))—through evidence of similar past offenses, the identity of the perpetrator of a similar charged crime can be proved. Thetest for similarity, however,is strict: In ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whetheror not the uncharged offense serves "logically, naturally, and by reasonable inference"to establish that fact. [Citations.] The court must "look behindthe label described in the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examinethe precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.” [Citation.] If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citations. | People v. Thompson, 27 Cal.3d at 316 (emphasis in original). Here, the only common marks shared between thefirst two crimes and the third was that the victims were young boys. However, Carl Carter, Jr., at age seven, was significantly younger than the other two. The differences between the crimes are many. The mannerofkilling in Counts IJ and II was by knife, while in Count ITI the victim was strangled. In CountIII, the victim was knownto petitioner and the killing was alleged to have occurred in petitioner's home, while in Counts IJ andII, the victims were strangers in a public park. Thefact that all three victims were young boysis simply not enough to makethethird killing admissibleat a trial in the first two. Just as Count HI would be inadmissible at a trial on Counts I andII, the converseis true, that Counts I and II would be inadmissible at a trial on Count II. The issue in Count III was intent. Thus, the first two killings would only be admissible if they were probative of that issue. They were not. Jd. at 321. Assuming, arguendo, that Counts I and II would be admissible on someissue pertinent to CountIII, or vice versa, the inquiry as to admissibility does not 146 7. stop here. The decision in Thompson mandatesthatthe trial court examine any ruleor policy limiting the introduction of relevant evidence: "Even if evidenceof other crimesis relevant under a theory of admissibility that does not rely on proving disposition, it can be highly prejudicial." id. at 318. In short, the probative value of this evidence must outweighits prejudicial effect." ibid. In the instant situation, the prejudice from admitting the uncharged murders at a trial on either Counts I and IT or on CountIII would be overwhelming, and the probative value, if any, would be minimal. Thus, Counts I and IT would be inadmissible at a separate trial on CountII], and likewise, Count ITI would be inadmissible at a separate trial on Counts I andII. The next determination to be madein a severance analysis is whether factors exist which favor joinder. Thetraditionally regarded benefits ofjoinder were set forth in People v. Matson, 13 Cal.3d 35, 41 (1974): "jomder of related charges . . . ordinarily avoids needless harassment of the defendant and the waste of public funds which mayresult if the same general facts were tried in two or moreseparatetrials. a. att Thefirst concern, harassment of the defendant, was not a consideration in this case, as petitioner himself moved for severance. There were thus no significant, legitimate factors favoring joinder. Counts I and II were considerably weaker than Count II. Although there was an alleged confession to all counts, Count III was supported by some physical evidence, while none wasintroduced on Counts | andII. Furthermore, an identity defense was offered to Counts I and II, while none wasoffered in CountIII. Additionally, the evidenceelicitedat trial from eyewitnesses as to the 1976 case was favorable to defendant, in that the identifications and descriptions of 147 persons seen in the park were equivocal. This evidence would have had a clearer beneficial impact if these cases had been tried apart from CountIII. 8. Lastly, and most importantly, this was a capital case, made so only through joinder. a. Counts I and II carried no possibility of a death sentence and none could attach if they had been tried separately from CountII. b. In addition, there were antagonistic defenses to the counts; there was significant evidence as to Counts I andII that other parties were responsible while the central defense in CountIII was the possible psychiatric evidence going to the degree of the criminal act. C. This psychiatric evidence was potentially contradictory to the defense in the other counts and required revelation to the jury on CountIII of confidential information which could be used against petitioner on Counts I and II. This was a capital case through joinder only and therefore, coupled with the other reasonsset forth above, joinder was highly prejudicial in this instance. Therefore, the trial court erred in denying the motion. 9. There is “a high risk of undue prejudice whenever. . . joinder of counts allows evidence of other crimes to be introduced in trial of charges with respect to whichthe evidence would otherwise be inadmissible.” Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998). Misjoinder which “result[s] in prejudice so great as to deny [a defendant] his Fifth Amendmentright to a fair trial” suffices to show a constitutional violation. Jd. 10. Misjoinder exacerbates “the human tendency to draw a conclusion whichis impermissible in the law: because he did it before, he must have doneit again.” United States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1985). 11. Petitioner was entitled to a reasoned determination of his culpability for the charged crimes. By joining unrelated charges which required antagonistic defenses, the 148 trial on the joined charges was fundamentally unfair in violation of Fifth and Fourteenth Amendment due process guarantees and heightened capital case reliability under the Eighth Amendment. 12. It also led to the likelihood that the jury would concludethatif petitioner killed Carter, he must have killed the other two victims, regardless of the evidence presented on the other counts. However, there was a great disparity in the strength of evidence on Counts I and II as compared to CountIII. 13. Charging multiple unrelated counts of murders involving children wasalso likely to inflame the passions of the jury, and prevent reasoned deliberation and a just verdict. It violates due process, as well as the Eighth Amendmentprohibition of cruel and unusual punishment, to convict and sentence a defendant to death based on passion and not reasoned deliberation. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 319-328 (1989). 14. “[I]t is much moredifficult for jurors to compartmentalize damaging information about one defendant derived from joined counts, than it is to compartmentalize evidence against separate defendants joinedfortrial.” Studies establish “that jomnder of counts tends to prejudice jurors’ perceptions of the defendant” and that misjoinder which “resulted in prejudice so great as to deny [a defendant] his Fifth Amendmentrightto a fair trial” suffices to show a constitutional violation. Bean v. Calderon, (quoting United States v. Lane, 474 U.S. 438, 446 fn.8 (1986); see also Lucero v. Kerby, 133 F.3d 1299, 1315 (10th Cir.) (“Courts have recognized that the joinder of offenses in a single trial may be prejudicial when thereis a great disparity in the amount of evidence underlying the Joined offenses. One danger in joining offenses with a disparity of evidenceis that the State may be joining a strong evidentiary case with a weaker onein the hopethat an overlapping consideration of the evidence [will] lead to convictions on both.”) This creates “the human tendency to draw a conclusion which is impermissible in the law: because he did it before, he must have doneit again.” United States v. Bagley, 772 F.2d 482, 488 (9th 149 Cir. 1985). 15. By joining the twosets of crimes, the prosecutor was able to bootstrap a weak case for two killings with slightly stronger, although fabricated, evidence ofthe Carter killing. By stressing his speculation aboutlurid details of the sexual nature of the Carter killing, the prosecutor inflamed the passionsof the jury with the result being that petitioner did not receive the reasoned consideration of his guilt and punishment which the constitution required. It is reasonably likely that had the charges not been improperly joined, petitioner would not have been convicted of special circumstance murder and been sentenced to death. 16. Had Counts | and II not been joined,it is likely that petitioner would not have been convicted on those counts. Without those convictions, Count III would not have been death eligible, since the sole special circumstance at the secondtrial was multiple-murder. If that charge was no longer death eligible, the jury would not have been death-qualified, further lessening the likelihood of a conviction offirst-degree murder on CountI. 17. This improper joinder violated petitioner’s right to due process under the Fifth and Fourteenth Amendments, to a fair trial by an impartial jury under the Sixth Amendmentand heightened capital case reliability and freedom from cruel and unusual punishment under the Eighth Amendment. Reversal is mandated, as the judgmenthere was entirely “swayed bythe error,” Kotteakos v. United States, 328 U.S. at 765, and the error had substantial and injurious effect or influence in determiningthejury's verdict, resulting in actual prejudice. Brecht v. Abrahamson, 507 U.S.at 623, 637, quoting Kotteakos, 328 US. at 776. 18. The prosecutor’s arguments supporting joinder were meritless. He argued that because “the nature of the defense in this case is somesort of a psychiatric defense,” joinder was proper because facts of all murders would necessarily be cross-admissible. (RT A42). 150 19. The prosecutor also argued that joinder was proper because “[w]e don’t have any identity issues. Mr. Memrotells us that he did it in this case.” (RT A43). The defense at trial was mistaken identity. While trial counsel did concede the Carter killing, counsel denied anyrole in the 1976 killings. The prosecutor’s assertion that a purported confession existed did not dictate that the defense could not contest petitioner’s identity as the 1976 killer. | 20. While discussing defense counsel’s motion for severance,trial counsel said “aside from what I mentioned in chambers.” The in camera discussion held in chambers was not recorded and was neverreconstructed. (RT A41). It is impossible at this time to assess whatoccurred during that off-the-record session. Petitioner’s constitutional right to be present wasalso violated, since he was excluded from that in-chamberssession. 21. In makingits ruling denying severance, the court also lackedcritical evidence. At the time of the severance motion, the 400 pages of discovery, consisting largely of Bell Gardenspolice reports detailing alternate suspects, had been kept from the defense, and thus from the court. These reports included three individuals who admitted to taking part in the 1976 homicides, as well as others who had been identified by eyewitnesses from the park. Thus, petitioner was denied crucial evidence which would have enabled him to mak an adequate showing regarding how the defenses would be antagonistic and the resulting prejudice from the joinder. 22. After receiving the discovery and after a new case (People v. Smallwood) wasdecided, trial counsel renewed the motion for severance. (See RT 132). Trial counsel requested an ex parte conferenceso thattrial counsel could explain to the court how the defense would be antagonistic. Thetrial court refused, stating: DueProcessis a two-waystreet; and to me, I will not condone a procedure whereat a point in the proceedings where youare asking for a separate trial, you say, well, we are going to tell you why we need a separate trial but the prosecution can’t know aboutit. If that’s reversible error, it’s reversible error; but | won’t condonethat procedure. 151 (RT 134-35). 23. Thetrial court thus requiredtrial counsel to explain to the prosecution what it’s defense was goingto bepriorto trial, or to forego its severance motion. Trial counsel did present argumentregarding severance. Thetrial court erroneously concluded that no new circumstances existed, which warranted reversing the prior ruling denying severance. This decision was flawed based on the importance of the new discovery. It also violated petitioner’s Sixth Amendmentright, as the court required trial counselto discloseit’s entire defense to the prosecutor. 24. Denial of the severance motion denied petitioner his right to a fundamentally fair trial and due process of law as guaranteed by the Fourteenth Amendment. See Featherstone v. Estelle, 948 F.2d 7941, 3051 (9th Cir. 1991); Tribbitt v. Wainwright, 540 F.2d 840 (Sth Cir. 1976). CLAIM 32: The Trial Court Erred in Failing to Conduct an Jn Camera Hearing Regarding the Renewed Severance Motion. 1. Petitioner's motion for severance wasinitially denied by Judge Long after he held an in camera hearing regarding the inconsistent defense that petitioner planned to offer to the separate counts. (CT 281). Trial counsel renewed the motion after this Court renderedits decision in People v. Smallwood, 42 Cal.3d 415 (1986). (CT 233). That motion wasfiled in November 1986 but not heard until February-March 1987. (CT 353). By that time Commissioner John A. Torribio was assigned to handle the capital case. 2. Atthat hearing, trial counsel asked Commissioner Torribio for permission to make an in camera presentation of the inconsistent defenses, which was one basis for granting the motion. (RT 134). On his own motion, and without any objection to this in camera procedure by the prosecutor, Commissioner Torribio erroneously denied the defense the opportunity to present the supporting evidence in camera. (RT 134-135). 3. The denial of the request for an in camera hearing prejudiced petitioner by 152 coercing him to choosethe assertion of one constitutional right to the detriment of another. Thus, in order to protect his right to counsel under the Sixth Amendmentandhis right against self-incrimination under the Fifth Amendmentand notto give the prosecutor an unfair preview of the planned defense strategy, petitioner was forced to give uphisright to due process of law byfailing to present his basis for severance of the charges. The Supreme Court has long held that it is a violation of a defendant's rights to force upon him a situation where he must waive one constitutional right simply to assert another. See, e.g., Simmons v. United States, 390 U.S. 377 (1968). 4, Thetrial court denied the request solely on the basis that it would purportedly be “unfair” to the prosecution. (RT 134-135). 5. Following its refusal of an in camera hearing, the court denied the severance motion without the benefit of the details concerning the inconsistent defenses to the charges. (RT 186). 6. In doing so, the court ignored the purpose for which in camera presentations may be madebyeither party and the interests served by such an ex parte proceeding. For example, the prosecution can present a confidential informant at an in camera hearing pursuant to Evidence Code § 1042; defense counsel can present a request for funds pursuant to Penal Code § 987.9 in camera. 7. Inexplicably, the trial judge later permitted an in camera hearing upon defense request barely a month after denying the request on the severance motion. In that instance, the judge allowed defense counsel to present in camera an offer of proof regarding the contents of notes that had been confiscated from petitioner. (RT 4/6/87). The purpose behind the two in camera hearings wasidentical: to protect petitioner's right not to disclose attorney-client confidential matters in the process of asserting another constitutional right. The court had no valid reason for denying the in camera session during the severance hearing. 153 8. The denial of this right must be measured under the Chapman standard because the information which would have been presented fully supported the granting of the severance motion. At the prior in camera hearing, defense counsellaid out the absolute conflict in the defense to the two sets of charges. (RT 4/18/86). Hadthetrial court examinedthese facts as well as the general arguments put forth in the open session, the severance motion would have been granted. The court was correct whenit noted on the record that it may have beenreversible error to do so. (RT 134-135). 9. Reversal of all counts is mandated because of the denial of the request to hold the in camera hearing. CLAIM 33: The Trial Court Erred in Denying Petitioner’s Motions for New Counsel. 1. The Supreme Court has recognized repeatedly the central role of the defendant's right to counsel in the criminaljustice system.. See, e. g., Holloway v. Arkansas, 435 U.S. 475 (1978); Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 U.S. 853 (1975); Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideonv. Wainwright, 372 U.S. 335 (1963); Chandler v. Fretag, 348 U.S. 3 (1954); Glasserv. United States, 315 U.S. 60 (1942); Powell v. Alabama, 287 U.S. 45 (1932). The Supreme Court has describedthis right as “fundamental,” (Gideon, at 344), and hasstated that “[the] assistance of counsel is often a requisite to the very existenceof a fair trial.”” Argersinger, at 31. 2. In spite of this vast body of law recognizing the necessity of a working attorney-client relationship, the trial court eviscerated petitioner’s right and forced him to accept representation from attorneys where there was a complete breakdownin the attorney-client relationship. Petitioner received ineffective assistance of counsel dueto these conflicts which violated petitioner’s Sixth Amendmentrightto the effective assistance of counsel. 154 3. On May 9, 1986, petitioner asked Judge Long for new counsel to be assigned,citing the “lax and unconscientious performance”of his attorneys. (RT A59). Petitioner also asked to be sent back to San Quentin. The court did not address petitioner’s Marsden (People v. Marsden, 2 Cal. 3d 811 (1970)) request and denied the request to be returned to San Quentin. 4. On June 6, 1986, petitioner again requested that counsel be removed and new counsel assigned. The court held an in camera hearing to discussa letter that petitioner filed with the court, dated May 20, 1986, outlining his complaints against his attorneys.’° (RT A66-A151). The complaint detailed the: complete and irreparable breakdown and the continuing total lack of any meaningful attorney/ client relationship, my continuingtotal lack of any confidence and and/or[sic] trust in these attorneys, their repeatedly demonstrated lack of honesty with me,andtheir totally inexcusable lack of diligence in investigating and preparing a proper and adequate defense inthis case. (RT A71). 5. Petitioner explained that before counsel was appointed, counsel had promised to keep petitioner apprised of all developments in the case and had agreedto consult with petitioner while makingcertain strategic decisions. (RT A72-A73). Petitioner cited examplesoftrial counsel’s lack of diligence. Petitioner had urged counsel to attempt to locate two key eye-witnesses; by the time the hearing washeld, one ofthe witnesses was nolongeravailable and counselstill had not attempted to locate either one. (RT A73-A74). Neither of the witnesses were named, but both were relevantto pre-trial motions and one “claimed he not only had importantfirst-hand information . . . but could also provide us with names andlocations of a number of other people who could and most likely would testify similarly.” (RT A740). Petitioner’s complaint concluded by noting that counsel was unable to adequately “deal with security problems and housing conditions” '° This letter was entered as Court Exhibit 1 and is currently sealed. 155 in the jail. See also Claim 7. (RT A77). 6. Trial counsel Peter Larkin and Michael Carney deniedpetitioner’s claims, after which Judge Long announced that he would take the weekend to decide the request. On June 9, 1986, Judge Long deniedpetitioner’s motion. (RT A152-157). 7. Six monthslater, after the court had continuedthetrial over petitioner's objection, in violation of his right to a speedytrial, petitioner again renewed his Marsden motion on November 3, 1986. The motion was made before Commissioner Torribio, who had replaced Judge Long following Judge Long’s recusal due to the appearanceofbias. After issuing continuance after continuance over defendant’s objections, on March 25, 1987, the court held a Marsden hearing and allowed petitioner to explain counsels’ ineffectiveness. (RT 200). At the outset of this hearing, petitioner requested that the court provide himwith a transcript of the prior hearing because he continued to have the same types of problems and he could not rememberthem in detail. The court noted that this was "a very reasonable request, but that couldn't be done." (RT 11/3/86 at 25). 8. Petitioner complained that: a) he was not being consulted by trial counsel on strategy; b) trial counsel decided, overpetitioner’s objections, to concede guilt on Count III; c) trial counsel failed to request Pitchess materials and petitionerfelt that the issue would not be preserved for appeal if they were not at least requested; d) trial counsel was unprepared; ande)trial counsel had not madefull efforts to locate witnesses. (RT 199). 9. The court noted that the matter had been assignedfortrial and that the court was now running upagainst the 10-day rule under Penal Code § 1382. The court indicated that petitioner had refused to waive time on the case and he could notget the transcript in less than 7-10 days; therefore, the court felt it had no choice but to deny the request for the transcript.'' The court also noted that those prior claims had been heard and denied by '' Thetrial court noted that there would be no continuances withoutpetitioner's personal waiver because of the respect the judge had for the right to a speedytrial and his belief that these rights are 156 Judge Long and, thus, could not be raised again. Petitioner contended that they were indicative of the continuing problems with defense counsel. 10. Rather than assessing the individual concerns enumerated bypetitioner, the court laudedtrial counsel’s reputation as effective and rested on the imminenceoftrial to reject the request: The problem is that Mr. Larkin is a respected capable attorney. Heis going to makecertain suggestions to you asto the strategy in how to proceed. Sometimesthe client doesn’t understand it or doesn’t acceptit, but at the present time, _ particularly in view ofthe fact the matter is scheduledfortrial April 1“, and obviously no other counsel can pick this case up and be ready by April 1“. There has been numerous continuancesof this matter. (RT 200). Petitioner responded that he had “been asking for new counsel for nine months now.” (RT 200). The court recognizedthat fact but rejected petitioner’s request without inquiring into the substance of the conflict. 11. However, the only reason the trial was imminent wasthatthe trial court had summarily rejected petitioner’s prior requests for new counsel. The court, by its own actions, created the situation where there was not enough time to appoint new counsel and then used that as a basis to deny petitioner’s motion. 12. The fact that trial counsel had a reputation for competency was not probative of whether a constitutionally adequate attorney-client relationship existed and whether counsel wasrepresenting petitioner effectively. The court was required to hear and to consider specific evidence of the representation before ruling on the merits. See People v. Crandell, 46 Cal. 3d 833 (1988). The court’s tone and tautological reasoning indicatedits personalto the defendant. (RT 11/3/86 at 72). However, after denying the Marsden motion, the court almost immediately granted defense counsel's request for a continuanceoverthe strenuous objection of petitioner. Once that continuance wasgranted, the transcript ofthe prior hearing should have been madeavailable to petitioner. 157 w & intentnot to give serious considerationto petitioner’s legitimate request. Havingfinally decided to hold a Marsden hearing, it was incumbenton the court to give petitioner a fair hearing and addresshis individual concerns. 13. At this hearing, petitioner again complainedthat he did nottrust defense counsel because they had notkept their promises to him regarding providing discovery and conducting a properinvestigation. (RT 11/3/86 at 3). Petitioner specifically complained about the refusal of counsel to interview a witness who hadallegedly provided information to the police that led to petitioner's arrest. Defense counsel stated that he believedthis witness would hurt the motion to suppress evidence but admitted that he had not conducted any interview to support that opinion. Petitioner contendedthat this was precisely the problem: counsel could not make an informed decision until the witness was interviewed. 14. Petitioner also complained that a witness central to the Pitchess motion had not been interviewed. Defense counsel said that he had tried to locate the witness after the June Marsden hearing but the witness was now unavailable. (RT 11/3/86 at 17). 15. Petitioner also complained that several medical tests were not conducted because defense counsel, without any investigation whatsoever, “determined” they were not relevant. (RT 11/5/86 at 55). Petitioner also complained that defense counsel had not obtained petitioner's medical records from Atascadero State Hospital. (RT 11/5/86 at 60). 16. At the conclusion of the hearing, the court denied the Marsden motion. (RT 11/5/86 at 60). A defendant cannot be forced to choose between incompetent counsel and no counsel at all without destroying the fundamental fairness and accuracyof the criminal proceeding. Crandell v. Bunnell, 144 F.3d 1213, 1216 (9" Cir. 1998). Here,trial counsel presented petitioner with just such a choice. 17. Petitioner renewed the request for new counsel on March 25, 1987 shortly before trial began. Heraised twoseparate issues: a) defense counsels’ intention to concedepetitioner's guilt to a second-degree murder charge on CountIII overpetitioner's 158 specific objection; and b) defense counsels’ failure to seek Pitchess material on additional detectives from South Gate Police Department. (RT 3/25/87 at 66). The court again denied the motion based on the imminenttrial date. 18. After the verdicts in the guilt phase were returned and prior to the penalty phase,petitioner renewed his request for new counsel on June 3, 1987. (RT 2893). Petitioner stated that there was no attorney-client relationship and he objected again to the concession of guilt in the Carter murder andto the failure to be kept informedofthe penalty phase preparations. (RT 2893). 19. The Ninth Circuit has eloquently spoken about the requirements of representation by counsel with whom a defendanthas a conflict: Wethink, however, that to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him ofthe effective assistance of any counsel whatsoever. See Entsminger v. Iowa, 386 U.S. 748, 87 S. Ct. 1402, 18 L. Ed. 2d 501 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Of course, a court is not required to provide an indigent accused with any particular attorney whom he maydesire, and wethink that the state court might very properly have required Brownto accept the assistance of some otherofthe great number of competent attorneys associated with the Public Defender's office of Los Angeles County. The problemarises because the state court did not, in our opinion, take the necessary time and conduct such necessary inquiry as might have eased Brown’s dissatisfaction, distrust, and concern. And, wethink it not unreasonable to believe that had Brown beenrepresented by counsel in whom hehad confidence he would have been convicted, if at all, of no more than the offense of manslaughter. Brown v. Craven, 424 F.2d 1166, 1170 (9" Cir. 1970). 20. Petitioner expressed his dissatisfaction and general refusal to cooperate with trial counsel from the beginning. Thetrial court was obligated to take some measures to correct the situation. 21. A defendantis “entitled” to discharge his appointed counselif “defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” People v. Crandell, 46 Cal.3d 833, 854 (1988)(citing People v. Marsden, 2 Cal.3d 118, 124 (1970)). This Court has consistently held that 159 where“the defendant’s right to the assistance of counsel would be substantially impaired,”’there is no discretion: a defendant’s request to have his counsel replaced must be granted. People v. Moore, 47 Cal.3d 63, 76 (1988) (citing People v. Smith, 38 Cal.3d 945, 956 (1985) and People v. Carr, 8 Cal.3d 287, 299 (1972)). As explained in People v. Sanchez, 12 Cal.4th 1, 36 (1995), the essential consideration in evaluating the ongoing viability of an attorney-client relationship is trust. Federal law is similar. Where there is a “serious breach oftrust and a significant breakdown in communication that substantially interfere[s] with the attorney client relationship,” it is error to deny a client’s motion to substitute counsel. United States vy. Adelzo-Gonzalez, 268 F.3d 772, 779-780 (9" Cir. 2001). Due to the lack oftrust and the inability to confer, the attorney-client relationship was completely undermined. Under both California and federal law,trial counsel should have been removed. See, e.g., Crandell, 46 Cal.3d at 854; Adelzo-Gonzalez, 268 F.3d at 779-80. 22. The Sixth Amendmentrequires an appropriate inquiry on the record into the grounds for a Marsden motion and the matter must be resolved on the merits before the case goes forward. Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc). If failure to conduct the proper inquiry results in the constructive denial of counsel, it constitutes per se error. /d. at 1027. 23. Petitioner was denied his Sixth Amendmentright to counsel because there was a conflict and subsequent breakdown of communication between the attorney and the client that prevented effective representation. Schell v. Witek, 218 F.3d 1017 (9"Cir. 2000) (en banc)(stating that defendant's constitutional rights are violated where “the conflict between [the client] and his attorney had becomeso great . . . that it resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment.”) “To compel one charged with [a] grievous crime to undergoa trial with the assistance of an attorney with whom he has become embroiledin irreconcilable conflict is to deprive him 160 of the effective assistance of any counsel whatsoever.” Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). 24. Thefailure to hold an adequate hearing and examinethe nature of the dispute between petitioner andtrial counsel and the breakdownin the relationship between them, violated petitioner’s constitutional rights. Summary denials based on conclusory statementsare insufficient. See, e.g., Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982) (““Thus,the state trial court’s summary denial of a defendant's motion for new counsel without further inquiry violated the Sixth Amendment.”) (internal citations omitted). The Sixth Amendmentrequires on the record an appropriate inquiry into the grounds for such a motion and that the matter be resolved on the merits before the case goes forward. See Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). “Given the commands of Sixth Amendmentjurisprudence, a state trial court has no discretion to ignore an indigent defendant’s timely motion to relieve an appointed attorney.” Schell v. Witek, 218 F.2d 1017, 1025 (9" Cir. 2000) (en banc). 25. The reasons for the requirement of a more searching inquiry are many: A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competenceofhis attorney which are not apparent to the trial judge from observations within the four corners of the courtroom.Indeed, [when] inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whethertrial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choiceoftrial tactics and strategy. Thus, a judge whodenies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competencyofthe attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention is lackingin all the attributes of a judicial determination. People v. Marsden, 2 Cal. 3d 118 (1970) (Internal citations omitted). 161 26. Thetrial judge’s duty to give a fair hearing to petitioner did not merely require him to passively listen to petitioner, but required an active, “careful inquiry into the defendant’s reasons for claiming incompetence.” People v. Ivans, 2 Cal. App. 4th 1654 (1992). Thetrial court did not make such an inquiry. To the contrary, the court did not even address petitioner’s allegations. The court merely announcedthat trial counsel “is a respected capable attorney,” and denied the motion. 27. The error was not merely the denial of the Marsden request, though that denial was indeed erroneous, but wasalso the failure to even consider the request. By failing to consider petitioner’s claims, the trial court denied petitioner his rightto effective representation and deprivedpetitionera fair trial. His rights under the Sixth Amendment and Fourteenth Amendments were violated. By ignoring the rights and privileges established in Marsden, the trial court violated petitioner’s rights under state law and the state constitution, which deprived petitioner of a state-created liberty interest in violation of the Due Process Clause. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974). 28. At each hearing, petitioner noted that he was not qualified to represent himself and that he needed the assistance of counsel regarding the conductofthe hearing on the Marsden issue. Moreover, immediately after the denial of the first motion, petitioner wrote to the judge asking for assistance of counsel in seekingpretrial review of the court's ruling. a. Petitioner knew that he was not qualified to represent himself and even acknowledged such to the court. He was facing the most severe penalty possible and understood that there were complex issues, especially in light of the fact that his conviction had already been reversed. b. At nopoint did the court inform petitioner of the showing he would be required to makein order to have his counsel relieved; nor did the court considerappointing the specifically requested independent counsel to advise 162 or assist petitioner in making the requisite showing. C. Petitioner's court-appointed trial counsel neverfactually disputed the complaints but merely made conclusory statements that they were expending substantial time on his case. They had a clear conflict of interest with their client on this matter and did not honorhis request to seek pretrial review of the denial of the motion. d. The attorneys misrepresented to the court the amountof time they were spending on petitioner’s case. For example, co-counsel Carney told the court that he had spentat least 50 hours researching a Sixth Amendmentissue (RTA 81); however, his time records subsequently filed with the court reflect only 8 hourstotal for preparation of that motion. (CT 434). 29. Petitioner could not contradict such assertions oftrial counsel because he had no access to independent counsel who could fully investigate and represent him in these hearings. 30. The record showsthat thetrial court unreasonably failed to discover these discrepancies. The record also demonstrates that trial counsel misrepresented significant facts to the trial court. 31. In an analogouscase ofself-representation on a habeaspetition following imposition of a death sentence, the Ninth Circuit described the pitfalls the indigent defendantfaces in sucha situation: Compoundingthis burden,the petitioner is often illiterate or poorly educated and yet must decipher a complex maze ofjurisprudencein order to determine which of his constitutional rights, if any, may have been violated. Such task is "difficult even for a trained lawyer to master," and, understandably, is often beyondthe abilities of most prisoners. [Citation.] Brown v. Vasquez, 952 F.2d 1164, 1167 (9th Cir. 1991). 32. The denial of petitioner's request for counsel resulted in a denial ofhis right to counselat a critical stage of the proceedings. 163 33. Thetrial judge also used the assertion of petitioner's speedy trial rights as a pretext to deny him the opportunity to prepare fully for the Marsden hearings. At the second hearing in November1986, petitioner was denied counselto assist him. Additionally, he was informed that because he had not waived his nght to a speedytrial, the court would deny his "reasonable request" for a transcript of the prior Marsden hearing because of speedy-trial time constraints. The judge spoke of his "respect" for the speedy trial right and how he considered this right personal in nature and waivable only by the defendant. Allegedly because of the court's desire to honorthis right, he denied the request for a transcript and gavepetitioner two days to gather his notes and present his claims on the motion. However, once the judge denied the motion for new counsel, he immediately continuedthe trial again solely on the request of defense counsel for another two months and eventually for a total of four months after this Marsden hearing, over the strenuous objection ofpetitioner. 34. Atthe last Marsden hearing, the court used the proximity ofthe trial date as the sole reason to deny petitioner's motion finding now that the matter was too close to trial for the court to grant the motion. Paradoxically, the trial court used petitioner's speedytrial mght to deny petitioner’s right to counsel and his right to counsel to deny his speedytrial right. Thus, he was denied both rights by sleight of hand. 35. Throughout these proceedings, the trial court denied petitioner’ss rights underthe state and federal constitutions. The court continually used petitioner's assertion of his night to a speedytrial as a means of denying him full and fair hearing on his claims of ineffective assistance of counsel. It has long been held improper for a court to burden the defendant's exercise of a constitutional right by requiring the relinquishment of another. See, e.g., Simmons v. United States. 36. After petitioner was convicted in the guilt phase ofthe trial, he again moved for new counsel. Then, the trial court failed to apply the appropriate standard for 164 determining the motion. Following conviction, under California constitutional standards, a defendant must present only a "colorable claim that he was ineffectively represented at trial" in order to have the court appoint counsel to fully investigate and present the motion. People v. Stewart, 171 Cal.App.3d 883 (1985); People v. Garcia, 227 Cal.App.3d 1369 (1991); People v. Walker, 14 Cal.App.4th 1615 (1993). 37. Petitioner was complaining about the implicit entry of a guilty plea to the murder of Carl Carter, Jr. This was the equivalent to a motion to withdraw a guilty plea and mandated the appointment of new counsel to investigate the claim. 38. Becausethetrial court denied petitioner’s right to a full and fair hearing on the Marsden issues andhis right to appointment of counsel to pursue these issues, the convictions mustbe reversed. 39. When an indigent defendant seeks to have his appointed counsel removed fromhis case, the court under California constitutional standards must considerspecific examples of the inadequate representation raised by the defendant. People v. Webster, 54 Cal.3d 411, 435 (1991). Once the court has granted a fair hearing to the defendant, the court must exercise its discretion in deciding whetherto grant the motion. "[D]enial of the motion is not an abuseofdiscretion unless the defendant has shownthat a failure to replace the appointed counsel would ‘substantially impair’ the defendant's right to the assistance of counsel." ibid. The defendant must demonstrate either constitutionally inadequate assistance of counsel or a fundamental breakdownofthe attorney-client relationship. id. at 436. 40. Here, petitioner met both parts of the test. Defense counsel admitted that they had failed to contact material witnesses regardingthe pretrial motions.'? At least one witness became unavailable becausetrial counsels’ failure to pursue the investigative lead '? Tn fact, almostall of the "pre-trial motions" were held in conjunction with the trial because of the lack of advance preparation by trial counsel. 165 provided bypetitioner in a timely fashion. This witness wascritical on the central issue in the case—the validity of the confession. Another witness was nevercalled on the motion to dismiss for interference with attorney-client confidentiality, which defense counsel referred to as a motion that would requirethe entire case to be dismissed. The examples broughtto the trial court's attention by petitioner reflected constitutionally inadequate counsel and mandated granting the motion. 4}. Moreover, there existed a complete and utter breakdown ofthe attorney- client relationship. a. Petitioner did not complain of any problems with counselorraise the Marsden motion until almost a year after the initial appointment of counsel. Hecooperated in giving them more than adequate time to become familiar with and prepare his case. The recordreflects that 1t was only after it became obviousthat they were not reasonably performingtheir job that he appropriately sought a change in counsel. As they resisted his efforts and contradicted his testimony in these hearings,his distrust of them legitimately increased. During almostall of 1986, petitioner and his attorneys wereat odds with each other. The relationship continued to deteriorate as counsel failed to adequately investigate and prepare the defense case in a professional and timely manner, thus requiring counsel to repeatedly overrule petitioner's exercise of his right to a speedy trial. Counsels’ time records (unavailable to petitionerat the time) show that they were not expending the amountof time reasonably necessary to bring the case to a timely trial date. For example, between June 1986 and November 1986, following another three continuances over petitioner's objection,trial counsel together averaged less than five hours per week on the case. (CT 288, 334). 166 C. They had no excusefor the abandonmentofpetitioner and his assertion ofhis right to a speedy trial. Their refusal to consider his interests caused a fundamental breakdownin their relationship and required their removal from the case. 42. In addition, petitioner had entered a plea of not guilty to the murder of Carl Carter, Jr. He was informedbytrial counsel prior to the beginningoftrial that counsel would concedeguilt on this count in the opening statement and at closing argument. Petitioner objected strenuously to this approach and advised the court. Despite this objection, counsel conceded guilt on that count and argued only that it was nota first- degree murder. (RT 2796-2797). In essence, counsel, without a specific waiver from his client and overhisclient's specific objection, entered an implicit guilty plea to the charge of second-degree murder. Such abandonmentofa client is grounds for reversal for ineffective assistance of counsel. See United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991). The trial court was warned aboutthis action but took nosteps to preserve petitioner's rights, either by appointing new counselor taking a waiverofrights on the record. See Boykin v. Alabama, 395 U.S. 238 (1969); In re Tahl, 1 Cal.3d 122 (1969). 43. Althoughthis was not a “close case” and new counsel should have been appointed, any doubt about whethertrial counsel should have been relieved should have beenresolvedin petitioner’s favor. As discussed herein,trial counsel were also necessary witnesses in the case. Their role as witnesses conflicted with their role as petitioner’s counsel and further necessitated their removal. Counselfailed to inform petitioner of these rights, further demonstrating (a) their conflict of interest and (b) the lack of relationship between counsel andtheirclient. CLAIM 34: The Trial Court Erred in Failing to Grant Petitioner’s Requests to be Housed in High Security. 1. In August 1985, counsel for petitioner requested that petitioner be housed in 167 the high security, individualized cells at Los Angeles County Jail. The request was made for petitioner’s security and to avoid contact with jailhouse snitches. (CT 322). The court issued a recommendation to the Los Angeles County Sheriff requesting separate housing. (CT 322). 2. On December3, 1986, trial counsel informed the court that petitioner had transcripts stolen from his cell while at the Hall of Justice and requested an order or recommendation to provide petitioner with separate housing: WhatI request of the court would be an orderor at least recommendation — I have asked for this before from other judges. We have gotten the recommendation; however, it has never been followed . . . He is now in a row where some snitches have been placed and now someofthose snitches are — they are professional snitches . . . one of them is next door to him and since that time, the District Attorneyis getting calls saying I have got a snitch that is going to testify. The last snitch that I heard was goingto testify, I heard aboutit before the District Attorney did . . . we have never had snitchesin this case before. (RT A-312-3, A-312-4). 3. The court agreed with counsel and said he would “recommend and encourage the Sheriff's department”to provide petitioner with separate housing. The Court told Mr. Larkin that “I certainly think that you have shown adequate grounds,” thoughit claimed that the final decision was the Sheriff's to make. (RT A-312-5). 4. By January 9, 1987, over a month after the court issued its recommendation, petitioner still had not been provided separate housing. Trial counsel had requested that petitioner be housed separately from the snitches for over a year. (RT 69). By this time, however, four jailhouse snitches had contacted the prosecutorto falsely testify against petitioner. 5. Trial counsel explained this dilemmato the courts: All of these informants have been placed in the row where Mr. [Reno] has been placed. They’ve been placed by each other also, and every time we come back to court we have a different informant that’s involved in this case. (RT 70). 168 6. The judge finally issued a tentative order for petitioner to be housed separately. The court addedthat if the order was not complied with, no additional snitches, with the exception of the four already preparedto testify, would be allowedtotestify. (RT 69). The only rationale for this order was the Court’s suspicion that the snitches’ testimony at best lacked credibility, and at worst, was perjury. 7. Even with the order, however, by January 14, 1987, petitioner was not moved to a different row. The prosecutor brought this fact out in court in an attempt to evade the court’s threat of disallowing new informantsto testify. He explained that more informants had been coming forward who “I would think wouldn’t violate the spirit of the court’s order” when you take “the literal words that the court spoke the other day.” (RT 98). 8. At this point, not only were snitches on the same row aspetitioner, but Sidney Storch, another well knownprofessional snitch, was in the neighboring cell. (RT 98). Professional snitch Michael Sterioti was housed only two cells away. (RT 12). Professional snitch Leslie White was housed on the same row aspetitioner. Trial counsel’s repeated requests to have petitioner housed separately were ignored. 9. Ultimately, Storch, Sterioti, White and Anthony Cornejo all testified before the court. Anthony Cornejo testified at the §402 hearing and was instrumental in having petitioner’s confession admitted. Cornejo claimed that while on a bus, petitioner admitted that his confession was voluntary and that he was fabricating the accusation that the confession was coerced: He admitted to making the statements to the police. He admitted making the statements freely to the police. And he said — The quote was, “that was the only thing I had going for me on myappeal wasto say that I was beat up and coerced and had the statements beat out ofme... I asked him, were your Miranda warnings read. Hesaid, yes, they were. (RT 996). 10. The defense vigorously opposed the admission of the confession on the basis that the confession was both involuntary and false. Cornejo “corroborated”the police 169 officers’ testimony and directly impeached this defense. Cornejo provided a basis for denying petitioner’s motion to suppress the purported confession. 11. Thetrial court’s refusal to rule on the admissibility of Cornejo’s testimony before the jury added uncertainty and further prejudiced the defense. (RT 993). Trial counsel was unable to adequately prepare a defense because the admissibility of critical evidence in rebuttal was uncertain. 12. The prejudice caused bythe failure to move petitioner away from the snitches was great. Prior to ruling on the admissibility of petitioner’s purported confession in the hearing, the trial court heard from four snitches, one of whomtestified about petitioner’s purported confession. Had petitioner received the special housing counsel had requested, this snitch testimony would have been unavailable. Cornejo’s testimony in particular was one of the key factors that led to petitioner’s conviction. 13. Cornejo’s testimony wasperjurious and the prosecutor committed misconductin putting it before the court. 14. Thefailure to issue an order for separate housing until after the prosecution had ample opportunity to arrange for jailhouse snitchesto testify denied petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 35: The Trial Court Erred in Failing to Order Separate Transportation for Petitioner. 1. Petitioner was repeatedly transported on buses with known jailhouse snitches. This transportation continued even after informants claimedthat petitioner confessed to them and after they had already contacted the prosecutorto testify against petitioner. Nevertheless, the Sheriff’s Department continuedto transport petitioner with the professional snitches. 2. Thetrial court initially respondedto petitioner’s request for separate transportation dismissively. On December3, 1986, the court claimed that transportation 170 e s u > arrangements were up to the Sheriff and he was powerless to order the Sheriff to do anything differently. (RT A-312-5). 3, Trial counsel again asked that petitioner be provided special transportation for the following day. There had been “a problem with Mr. Comejo”last time petitioner had been transported with the snitches and counsel had information that at least one of the snitches was scheduledto be on the bus with petitioner the following day. (RT A-312-7). Thetrial court issued a very limited order: I will order special transportation Friday, December 5. I will order special transportation for this date only. It is not meant to be any kind of a conclusive order or to be arguedthat I have ordered it once; therefore, I have to order it forever. (RT A-312-8). 4. Trial counsel raised the issue of petitioner’s being transported with known professional snitches on December 5, 1986. The court explained that the Sheriff's job of transporting prisoners wasdifficult, and providing separate transportation would require another available vehicle. (RT A-319). 5. Trial counsel noted that White, Sterioti and Cornejo wereall transported on the bus with petitioner, yet only Cornejo had a case pending at that courthouse. The court refused the request: I like my orders followed, and if they are not, I take it as —- I am not going to put myself in a position of having myorders ignored becausetheyareillegal. It seems incumbent upon an effective judicial system that orders are framed so they can be enforced. As to the Sheriff's department, he controls prisoner population and decides where they are housed, what their food is, what they are dressed in, how they aretreated as long as they get to and from court on time. (RT A320). The court was less concerned with the violation of petitioner’s constitutional rights by the prosecutors use of professional snitches than it was with the appearanceof the Sheriff flouting the court’s order. 6. On January 9, 1987, petitioner wasstill regularly transported on a bus with 171 e s u a ) wv jailhouse informants. Trial counsel renewedhis request to have petitioner transported separately. Thetrial court again denied the request stating that the order would be unenforceable. (RT 76). 7. On April 3, 1987, petitioner told the court that Anthony Cornejo had threatenedhis life while being transported to court. 8. Thereafter, the trial court issued an order prohibiting any “known, present snitches” to be transported on the samebusas petitioner. (RT 290). The judge ordered that if any snitch wastransported with petitioner he would be barred fromtestifying. 9. The prosecutor noted that trying to order the Sheriff's Department to do anything1s “like talking to a polar bear” and suggested that the court order the Commander of the Jail appear in court so that the court could issue the order effectively. Previously, the court had claimed that there was no wayto order the Sheriff's Department to do anything, but since nowthe snitches were “consuming the time of the court and counsel,” the court found a way afterfour snitches had been permitted to ride with petitioner and come up with stories to offer the prosecutor. (RT 290). There was no subsequent indication that the trial court lacked the authority to issue this order or ensure compliance with it. 10. During petitioner’s first trial in 1979, that trial court had no difficulty issuing special transportation orders. Thetrial court issued an order to provide special transportation for petitioner, which was never rescinded. Thejail-court liaison officer fromthe Sheriff's Department had suggested that petitioner be provided separate transportation. Hetoldtrial counsel that he “was probably going to arrangeit for the defendant regardless of whether there was a minute order from the court, but that it would help him tremendously if there was a minute order indicating that the Court preferred .. . special transportation.” (1979 RT 678). Thetrial court concurred with the Sheriff's Department’s request and issued an order providing special transportation for petitioner. 172 Thejail-court liaison did not indicate that the judge’s orders would likely be unenforceable. To the contrary, he suggested that providing the transportation would be moreeasily effected if an order was issued. 11. Thetrial court in the secondtrial failed to renew the order or ensure compliance with the prior order requiring separate transportation. Although the order was never rescinded,it wasstill necessary to be reordered. Thetrial judge also knew that the transportation arrangements were improperandthat the snitches could not be trusted. The trial court stated that: “Cornejo has been examined to determine his involvementin the snitch industry. It seems to methat to say that, ‘Well, on the bus he then told methis, that, and the other thing, strains credulity beyond belief.” (RT 76). Nonetheless, both the failure to issue a separate housing order and separate transportation order provided the four snitches the opportunity to manufacture false testimony. The error was exacerbated by the trial court’s failure to exclude Cornejo’s testimony at the suppression hearing and the court’s admission of that testimonyattrial. 12. The commissionersaid that Cornejo’s testimony “strained credulity,’ when he held that the confession was admissible after Cornejo testified at the admissibility hearing. Whentrial counsel filed a motion to have the jailhouse informant testimony surpressed, the court deferred the motion until the prosecution waspreparedto call the informants as witnesses during trial. (RT 371). The threat of having Anthony Cornejo, an adverse witness who wasalready allowedto testify at the §402 hearing, or one of the other three snitchestestify, hamperedtrial counsel’s ability to attack the validity of the confession as he otherwise would have, knowingthat the threat of that perjured testimony hung overhis head. 13. Cornejo’s testimony wasa direct result of the commissioner’s refusal to issue an order providing separate transportation. It resulted in false testimony in violation of petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. 173 CLAIM 36: The Trial Court Committed Constitutional Error In Considering Jailhouse Snitch Anthony Cornejo’s Testimony During the Hearing. I. Knownjailhouse snitch Anthony Corenjo testified at an admissibility hearing regarding petitioner’s purported confession to him. He claimed that he had been incarcerated in LA County Jail for 1] months and that he came to court on July 17, 1986. Hesat near petitioner because they were both in the cage designated for special handling inmates. According to Cormejo, petitioner said he was involvedin a case of 3 murders whichhadjust been reversed. Petitioner said he hadto lie to his attorneys about statements being coerced, although the statements were madefreely. (RT 993-996). 2. Cornejo’s testimony was perjured. See Claim 9. The use of Cornejo’s perjured testimony renders petitioner’s conviction illegal under United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667, 678-680 (1985). A conviction “obtained by the knowing use of perjured testimony is fundamentally unfair and mustbeset aside if there is any reasonable likelihood that the false testimony could have effected the judgmentofthe jury.” Jd. 3. The use of Cornejo’s perjured testimony in securing petitioner’s conviction, even if done in good faith, was fundamentally unfair. United States v. Young, 17 F.3d 1201, 1203-1204 (9th Cir. 1994) (defendantentitled to new trial whether or not prosecutor knewtestimony wasfalse). Even if the prosecutor had no knowledgeof Cornejo’s perjury, petitioner’s conviction still could not stand because there was “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” See, United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989) (quoting Bagley.) 4. The commissioner wasentitled to know that Cornejo expected, and had previously received, beneficial treatment in exchange for his cooperation against petitioner. See, Pyle v. Kansas, 317 U.S. 213 (1942); Giglio v. United States, 405 U.S. 174 w u 150 (1972) (co-conspirator’s “credibility as a witness was . . . an importantissue in the case, and evidence of any misunderstanding or agreementas to a future prosecution would be relevant to his credibility and the jury was entitled to know ofit’). 5. A prosecutor’s nondisclosure of benefits given to a witness in exchange for his testimonyis a violation of due process andfairtrial rights if the undisclosed evidence was material. Singh v. Prunty, 142 F. 3d 1157 (9"Cir. 1998) (citing United Statesv. Bagley at 678). Evidenceis materialif there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Jd. at 682. The reasonable probability standard is met when the evidentiary suppression “undermines confidence in the outcomeofthetrial.” Singh v. Prunty, (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995). 6. Petitioner’s conviction warrants reversal because the commissioner was led to believe that Cornejo had received no promise of leniency for his testimony. See Napue v. Illinois, 360 U.S. 264 (1959) (conviction reversed because prosecution witness falsely testified he had not received promise of leniency in exchangefor his testimony and because prosecutor failed to correct the false testimony). 7. A conviction obtained bythe state’s knowing use of false testimonyis illegal, even if the false testimony goes only to the credibility of the witness. Jd. The “truthfulness and reliability of a given witness may well be determinative of guilt or innocence,andit is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. ... Thatthe district attorney’s silence wasnotthe result of guile or a desire to prejudice matterslittle, for its impact was the same,preventing, as it did, a trial that could in any real sense be termed fair.” Id. at 269-270; see also Giglio v. United States, at 154 (failure to disclose to defendant promise madeto key witness that he would not be prosecutedifhe testified violates due process); Brown v. Wainwright, 785 F.2d 1457, 1464-1465 (11" Cir. 1986) 175 (“The thrust of Giglio and its progeny has been to ensure that the jury knowsthe facts that might motivate a witness in giving false testimony . . .[which] could . . . in any reasonable likelihood have affected the judgmentof the jury.”). 8. Had the commissioner knownof the promises made to Cornejo, it would have been able to properly weigh his credibility without the resultant prejudice to petitioner. Had the commissioner knownaboutthe benefits conferred to Cornejo for his testimony, his ruling and the judgment would have been different. As a result, petitioner’s conviction and sentence violate the due process clauses of the Fifth and Fourteenth Amendments, as well as his Eighth Amendmentright to reliable sentencing. CLAIM 37: The Trial Court Erred in Admitting Evidence from Jailhouse Snitch Anthony Cornejo. 1, Anthony Cornejo was acting as a government agent when heallegedly elicited incriminatory statements from petitioner. Cornejo’s testimony was the product of an illegal interrogation by an undercoverpolice informant who wasplacedin petitioner’s proximity in contravention of well-established policy and with instructions to deliberately obtain such evidence. The governmentfailed to disclose this evidence to the defense. 2. Cornejo’s interrogation of Reno violated petitioner’s Sixth Amendmentright to counsel. Under Massiah v. United States, 377 U.S. 201 (1964), the Sixth Amendment right to counsel is violated when the government places an undercover informantin proximity to a defendant whois represented by counsel on pending charges, in a waythat creates a likelihood that the informantwill elicit incriminating statements. Such a likelihood is created, for example, by encouraging the informant to develop a relationship of trust and confidence with the defendant on the understandingthat the informantwill be paid for any incriminating information he purportsto elicit. United States v. Henry, 447 U.S. 264 (1980). Such a violation requires that any evidence obtained by the informant be 176 excluded from the defendant’s trial. Massiah v. United States. 3. Cornejo acted as an undercover police informant who, for benefits supplied by the government, was deliberately transported with petitioner underinstruction to deliberately elicit incriminating evidence in violation of the rule ofMassiah. It is also clear that the governmentfailed to disclose the factual basis of the Massiah claim to the defense and further kept the defense in the dark by allowing Comejoto lie about the circumstances ofhis testimony. 4, Statements obtained bya jailhouse informant are taken by interrogation. The right to counsel is violated where the informant “took someaction, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmannv. Wilson, 477 U.S. 436, 459 (1986); United States v. Henry, at 270. “There is a distinct difference between passively receiving information provided by enterprising inmates and striking deals with inmates — whether based on coercion or enticement — to gather as much information as possible from other inmates... .” United States v. York, 933 F.2d 1348, 1357 (7" Cir. 1991). 5. A constitutional violation may occur evenif there is no formalized agreement with an informant. Governmental agreements to reward an informantfor his services need not be “explicit or formal, and are often inferred from evidencethat the parties behaved as though there were an agreement between them, following a particular course of conduct, over a sustained period of time.” /d. citation omitted. 6. Under Henry, the governmentdeliberately elicits statements when: (1) the informant acted underinstructionsas a paid informant for the government; (2) the informant appearedto be just another inmate; and (3) the defendant wasin custodyat the time the informant engaged him in conversation. /d. An informant need not have received monetary compensation to be considered a “paid informant.” See United States y. Brink, 39 F.3d 419, 423 n. 5 (3Cir. 1994) (“any informant whois offered money,benefits, 177 ® ad d ” preferential treatment, or some future consideration, including, but not limited to a reduction in sentence, in exchangefor eliciting information is a paid informant”). 7. Contrary to Comejo’s testimony, at the time the governmentplaced him in petitioner’s proximity, he had a long history as an undercoverpolice agent. He was granted substantial benefits by the governmentin consideration for his obtaining incriminating evidence against petitioner, which wasalso contrary to his testimony. Cornejo had a pattern of allegedly obtaining incriminating evidence underinstructions from the government and actively soughtto elicit such information in petitioner’s case. Cornejo’s testimony against petitioner was the product of his deliberate placementin petitioner’s proximity with instructions to obtain incriminating evidence in exchangefor benefits. 8. Pursuant to Henry, Cornejo appeared to be just another inmate and petitioner was incarcerated when his statements wereelicited. 9. Petitioner’s Sixth Amendment rights had attached at the time of Cormejo’s purported conversation. 10. The conversation to which Cornejo testified occurred at the time that petitioner was incarcerated for the very crime about which Comejo testified. Kirby v. Illinois, 406 U.S. 682 (1972). 11. Comejo’s testimony violated petitioner’s Fifth Amendmentrights as well. Whereevidence of a defendant’s incriminating statements is sought to be admitted, the government must provethat the statements were voluntarily given. Statements elicited by a government agent without a prior Miranda warmingare involuntary andtherefore inadmissible. 12. No Miranda wamingswere given to Mr. Reno. 13. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court precluded the introduction into evidence of statements made to government agents pursuantto custodial interrogation unless preceded by a knowing, voluntary waiver of constitutional 178 rights. Here, Mr. Reno wasin custody and, given the incentives provided to Cornejo,his active attempts to obtain incriminating information about Mr. Reno’s case andhis pattern and practice of allegedly obtaining such information in exchangefor benefits from prosecutors, demonstrates that constitutionally prohibited interrogation occurred. 14. In addition, the introduction of Cornejo’s testimonyviolated petitioner’s due processright to fair trial on guilt and penalty and his rights under the Eighth and Fourteenth Amendmentsto present mitigating evidence andto a reliable determination of the appropriatenessof the death penalty. The Eighth Amendmentrequires heightened reliability in the process by which a decision is made to sentence a defendant to death. Woodson v. North Carolina, 482 U.S. 280, 305 (1976) . This evidence deprived petitionerof a trial on guilt and special circumstances incorporating “that fundamental fairness essential to the very concept ofjustice” Kealohapaule v. Shimada, 800 F.2d 1463, 1465 (9" Cir. 1986), unfairly impugnedpetitioner’s testimony that the confessions were involuntary and ultimately resulted in a fundamentally unreliable decision on death as the appropriate penalty. Johnson v. Mississippi 486 U.S. 578 (1988) . 15. Petitioner’s Sixth and Fourteenth Amendmentrights to effective assistance of counsel and to cross-examine and confront adverse witnesses were also violated by the state’s use of Cornejo’s testimony and the introduction ofhis illegally obtained evidence. By makingspecial arrangements to place Cornejoin petitioner’s proximity with instructions to deliberately obtain incriminating evidence andbyfailing to disclose these circumstancesto the defense, the state prevented petitioner’s trial counsel from effectively cross-examining Comejo. Davis v. Alaska 415 .S. 308 (1974), and thereby rendered counselineffective. 16. The evidence obtained in violation of petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights more likely than not affected the judge’s decision on admissibility of the confessions, which then affected the jury’s verdict and sentence. The 179 false evidence about Cornejo’s past and the circumstances which generated his testimony was highly material to the trial court’s ruling. Had petitioner been provided with the facts about Cornejo’s placement during transport as a police agent, he could have made a meritorious motion to exclude the testimonyin its entirety under Massiah and Henry. 17. The remedy for a Massiah violation is exclusion of the evidencetainted by the violation of the right to counsel. United States v. Morrison, 449 U.S. 361, 365 (1981). The use of Cornejo’s illegally-obtained evidenceat petitioner’s capital trial offends the most fundamental rights guaranteed by the federal constitution. 18. To the extent that trial counsel failed to adequately challenge the admission of this evidence, counsel rendered ineffective assistance of counsel. 2. GUILT PHASE. CLAIM 38: The Trial Court Denied Petitioner his Right of Cross- Examination and to Present a Defense. l. The prosecution presented Mary Ella Fowler, Scott Fowler's mother, as a witness. 2. On cross-examination, Mrs. Fowler revealed that Scott had many "older" friends. Defense counsel, however, was precluded from asking Mrs. Fowler the age of these “older” friends. (RT 2354). This restriction was a denial ofpetitioner's constitutional right of confrontation, to meet the charges and to present a defense. 3. The prosecution's theory in this case wasthat petitioner befriended Scott Fowler on the night of the murders. With Mrs. Fowler's statement, and nothing more, the jury could infer that befriending Fowler would havebeeneasy, since Fowler had "older" friends. Fowler was 12 years old and thus the term "older friends" could cover a broad range of individuals. 4. Mrs. Fowlertestified on direct examination that Scott went to the park with Ralph Chavez on the night of the murders. The age of those friends and further questioning 180 may have tended to show that Fowler and Chavez met someoneelseat the park that evening. The cross-examination could haverevealed that Scott's "older friends" included dangerous pedophiles, as was evident in the 400 pages of withheld discovery. (See Exhibit S-A). 5. Counsel should have been permitted further inquiry of Mrs. Fowler. The question wasreasonablyrelated to the scope of direct testimony. The clear purpose of the questions wasto elicit background information about Fowler's "older" friends and contacts to show that they may have been responsible for the killings. 6. If counsel had been permitted to question Mrs. Fowler and she had revealed that most of Scott's "older" friends were 16, then doubt would becast on the proposition that Fowler spoke with petitioner. Additionally, probing into this area would almost undoubtedly have revealed other persons whom Fowler may have meton the night of the murders. 7. Thecritical role of cross-examination forms one ofthe basic tenets of criminal law. "Cross-examination of a witness is a matter of right," Alford v. United States, 282 U.S. 687 (1930). The right of cross-examination is a "primary right" secured by the confrontation clause of the Sixth Amendment. Douglas v. Alabama, 380 U.S. 415, 418 (1964). The Alford court addressed the denial of cross-examination for impeachment purposes, but the scope of cross-examination1s broad, regardless of whether the witnessis being questionedfor bias orto affirmatively supporta defense theory. Olden v. Kentucky, 488 U.S. 227 (1988). Either way, counsel may not be sure of what will be elicited but the impact on guilt or innocence by that which is ultimately divulged may begreat. 8. Similarly, the right to confront the charges andthe right to present a defense are bedrock constitutional guarantees which are implicated here by the court’s erroneous refusal to allow cross-examination of Ms. Fowler. 9. Petitioner was prejudiced bythe denial of cross-examination of Mrs. Fowler in violation of the rights to confront the charges andto present a defense. Although her 181 testimony on direct wasbrief, she was potentially the bearer of more probative information to the identity of persons with whom Fowler and Chavez associated, and whether it was possible that her son would have so quickly befriended someonepetitioner's age. (See, e.g., Exhibit S-A). CLAIM 39: The Trial Court Erredin Failing to Take a Personal Waiver Under Boykin-Tahl. 1. Prior to the beginningoftrial, petitioner sought to relieve his counsel in several Marsden hearings. Petitioner complainedat a hearing right before trial that his attorney was planning to concedehis guilt, over his specific objections, of the murder of | Carl Carter, Jr. (Count II; RT 3/25/87 at 66). Thetrial court denied the request to remove counsel and refused to take further action in regard to petitioner’s objection. During his opening statement, defense counsel, against the express directive of his client, conceded that Mr. Reno wasguilty of second degree murder. (RT 2285). Counsel conceded guilt on this count in his closing argumentto the jury as well. (RT 2796-2797). The prosecutor hammeredon this concession in his rebuttal argument. (RT 2851). 2. This action by trial counsel wasin effect the equivalent of a guilty plea to a murder charge and as suchit required an on-the-record waiverofpetitioner's rights as to this count. See Boykin v. Alabama, 395 U.S. 238 (1969) and Jn re Tahil, 1 Cal.3d 122 (1969). 3. Counsel's unauthorized concession of guilt was not within the attorney's range of strategic or tactical decision-making. Rather, such conduct constituted a violation of the duty offidelity to counsel's client and deprived petitioner of his right to counsel. 4. This act of ineffective assistance constitutes a breakdownin the adversarial process protected by the Sixth Amendmentandis therefore reversible per se. It is not subject to the prejudice analysis ordinarily required by Strickland v. Washington, 466 U.S. 668 (1984). 182 Whatevertrial strategy or tactics an attorney may employin the defense of an accused he maynotentera plea of guilty to a felony without the consentof his client. Penal Code, section 1018. It is a violation of his duty of fidelity to his client to assumea position adverse or antagonistic to him withoutthelatter's free and intelligent consent an attorney may not surrender any substantial right of the accused,[citation omitted] nor may he impair, compromiseor destroyhisclient's cause ofaction. People v. Davis, 48 Cal.2d at 256. 5. Counsel acted directly against the clearly stated directive of his client in making this concession in opening as well as closing statements. Counsel entered a guilty plea to second-degree murder without the consent and overthe specific objection of petitioner, depriving petitioner of a jury trial on CountIII. 6. This error was compoundedbypetitioner's clear, on the record objection to the admission during the Marsden hearing immediately precedingthetrial and, thus, requires reversal of the guilt and penalty verdicts. CLAIM 40: The Trial Court Erred in Admitting Prejudicial Cumulative Photographsof the Victims. 1. Many photographsof the victims were introduced into evidence, to which petitioner's counsel objected as being cumulative and prejudicial. Five photographs of Carl Carter, Jr. were admitted. (People's Exhibits 15A, B, C, F, 91; RT 2398, 2399-2401, 2414). The District Attorney argued that the photographs were necessary to show the cord around Carter's neck. (RT 2401, 2414). Defense counsel agreed to stipulate that a cord wasdepicted and further offered that there would be no contention that Carter died by any meansother than strangulation by a cord. (RT 2401, 3142). The District Attorney arguedit was necessary to show the cord becauseit helped to prove malice by means of showing pressure and force. (RT 3142). However, due to the advanced state of decomposition,it is possible that the bloating of the body contributed to the tightness of the cord and so the prosecutor's argument was misleading. 2. Four photographs of Scott Fowler were admitted (People's Exhibits 22A, B, 183 C, 52A) and three photographs of Ralph Chavez were admittedat trial (People's Exhibits 24A, B, 25B; RT 2416-2418). The photographs were cumulative and prejudicial. 3. Understate law, in order to admit homicide victim photographs “the trial judge had to determinethe probative value of the photographs, contrasted with the danger of undueprejudice to the defendant.” People v. Boyd, 95 Cal.App.3d 577, 589 (1979) 4, Thetrial court's rulings in this case were erroneousas the photographs provided no probative value to the contested point. The cause of death of the victims was never disputed and counsel even offered to stipulate to this issue. Additionally, the coroner's testimony was thorough concerning the cause of death and type of wounds. It was not necessary to illustrate the issue with numerous and wholly unnecessary photos, and was thus unconstitutional. 5. The photographs of Carter showed a state of advanced decomposition. There was no legitimate purpose served bythe introduction of multiple photographs other than inflammation of the passion ofthe jury. 6. In this case, the trial court abusedits discretion in admitting the photographs. "Unnecessaryadmission of gruesome photographs can deprive the defendant of a fair trial and compelreversal." People v. Cavanaugh, 44 Cal.2d 252, 268-269 (1955). Their introduction "supplied no more than a blatant appeal to the jury's emotions. [Its] prejudice-arousing affect heavily outweighed[its] probative value." People v. Smith, 33 Cal.App.3d 51, 69 (1973). 7. The photographsadded to the highly inflammatory nature of the crimes- the murder of a child. They graphically showed the physical results of the crimes, yet proved nothing at issue. The only issue as to Carter was the degree of the offense, but the photographsdid notaid in helping the jury to make that determination. Theissueasto the 1976 murders was identity. While there was no physical evidence tying petitioner to those matters, the photographs served as physical evidence to inflamethe jury. 184 8. After seeing the photographs, the jury felt compelled to convict someone. The extreme prejudice from the photographs cannot be doubted and therefore the convictions must be overturned. 9. Introduction of the photographsalso violated petitioner's right to a fundamentally fair trial as guaranteed by the Fourteenth Amendmentandto a reliable determination of guilt in a capital case as guaranteed by the Eighth Amendment. With regard to thelatter, the error was particularly egregiousin light of the trial court's instructionsto the jury thatit considerall guilt phase evidence in determining the penalty, even if it was unrelated to any specific statutory factor in aggravation or mitigation (CALJIC 8.84.1). CLAIM 41: The Magazines and Photographs of Young Boys Were Improperly Admitted. 1. Attrial, 15 photographs and 11 magazines with photographs were admitted into evidence. The photos and magazines depicted boys. At an admissibility hearing on the issue, Sgt. Carter testified that the photos and magazines had been found onpetitioner's coffee table in a manila envelope and on shelvesin the living room (RT 2452, 2453). Over defense objections, the court ruled that the photographs were admissible under Evidence Code § 1101(b) in order to show motive and intent. (RT 2457). 2. While only 15 photographs and 11 magazines were admitted, Officer Carter falsely testified in front of the jury that he found "literally hundreds of pictures, thousands." (RT 2463). Upon questioning by defense counsel, Carter stated that he did not have the "hundreds, thousands" of pictures. Defense counsel requested that Carter's answer as to the numberof | pictures be stricken and the court stated that it would take the matter up later. RT 4642. The matter was not readdressed. 3. Prior to Officer Carter's testimony, the court read a limiting instruction to 185 & the jury informing them that they could use the photographs to show characteristic method, plan or schemein order to show intent and motive. (RT 2463). During the conference on instructions, the court again explained, out of the presence of the jury, its rationale for the admissibility of the evidence: It seems to me that the photographs and the magazines show a morbid interest in young boys. "It's extremely importantto realize that those books and magazines do not deal with adults, they deal with children. I think that under any understanding is something that is an issue in this case. It goes to the defendant's motive and intent which is—whichare issues in this case. It is not introduced for any other purposes. (RT 2725). 4. The photographs wereirrelevant to any legitimate issue in the case. Moreover, state law holds that: "Evidence of a person's character or a trait of his character (whetherin the form of an opinion, evidence of reputation, or evidence ofspecific instances of his conduct) is inadmissible when offered to prove his conduct on a specific occasion.” Evidence Code § 1101(a). 5. Here, however, the court admitted evidenceofpetitioner's conduct, 1.e., possession of photographs of young boys, in order to show petitioner's "morbid interest in young boys"as a link to somehow provethat petitioner was guilty of the charged crimes. 6. The photographsthus constituted inadmissible evidence ofpetitioner's disposition and the error was manifestly prejudicial. 7. "As a general rule, evidence that the defendant committed other crimesis inadmissible if offered solely to prove a criminal disposition on defendant's part." People v. Thomas, 20 Cal.3d 457, 464 (1978). As this Court has repeatedly explained, the purposes of the foregoing exclusionary rules are threefold: "(1) to avoid placing the accusedin a position in which he must defend against unchargedoffenses, (2) to guard against the probability that evidence of such uncharged acts would prejudice defendantin the mindsof the jurors, and (3) to promote judicialefficiency by restricting proof of 186 & extraneous crimes." Ibid. 8. Evidence Code § 1101(a) forbids character evidence to show a person's propensity to commit a crime. Subdivision (b) exempts from the bar against admissibility "evidence that a person committed a crime, civil wrong, or other act when relevant to prove somefact... other than [a person's] disposition (b) goes on to list a numberof familiar—but frequently misapplied—avenuesof admissibility for otherwise inadmissible uncharged acts: "Motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." 9. In People v. Tassel, 36 Cal.3d at 83, this Court "acknowledge[d] that our pronouncementsin the area of ‘other crimes’ evidence have not been entirely consistent." But Tassel pointed to People v. Thompson, 27 Cal.3d 303 as being helpful "to isolate and identify the various considerations which play a part in determining the admissibility of such evidence." Tassel, 36 Cal.3d at 84. Indeed, Tassel emphasized the point in Thompson “that the question of weighing probative value against prejudicial effect does not evenarise, unless the disputed evidenceis relevant to an ultimate fact ‘actually in disputeibid. In Thompson, this Court stated: Evidence of an uncharged offense is usually sought to be admitted as "evidencethat, if found to be true, proves a fact from which an inference of another fact may be drawn." [Citation.] as with other types of circumstantial evidence, its admissibility depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material facts; (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citations.] 27 Cal.3d at 315 (footnotes omitted, emphasis in original). 10. The photos here fail both the tendency and relevancy prongs of Thompson. At issue in this case waspetitioner's identity as to the first two offenses and his intent as to the third. The court admitted the evidence as to the issues of intent and motive. Motive has been described as an "intermediate fact," and thus "not necessarily material" absent a 187 e s showingthat it "tends logically and reasonably to prove an ultimate fact whichis in dispute" id. at 315, fn. 14. The ultimate fact in dispute in this case wasintent. 11. Mr. Reno's possession of photographs of nude boys, which violated no law, does not provide any motive as to any intent he may have had, other than, perhaps, to take photos of Carter. There is no logical connection between possession of the photographs and any inference of intent to commit murderora violation of § 288. 12. In fact, the only way in which the jury could possibly have usedthis as evidence of motive wasto infer that because petitioner possessed these photographs, he must have had, in the wordsof the court, a "morbid interest in young boys" and therefore he must have possessed the requisite intent needed for the crimes. 13. The court constitutionally erred in admitting the evidence underthe guise that it was probative of motive. It was also an improperuse of the motive exception to Evidence Code § 1101(a). Petitioner's possession of photos and magazines that were perfectly legal provides no basis for a motive for the charged crimes. 14. The court also admitted the evidence under the intent exception of Evidence Code § 1101(b). Even thoughintent wasatissue as to the killing of Carter, the photos were improperly admitted because the jury had to infer from the evidence that because petitioner, an artist and photographer, possessed perfectly legal photos of young boys, he was some type of "deviant,” and therefore he must have possessed the requisite intent to perpetrate a violation of Penal Code §§ 187 and 288. This reasoning isillogical and unsupported by any evidence. It is simply bad character evidencein its purest form. Such reasoning would in effect allow accusations of murderto be leveled at anyone in possession of such materials. 15. The possession of legal, non-sexual photographs of nude young boysis not evidence of whetherpetitioner had the requisite intent necessary for a conviction ofthe murder of Carter. It does not follow that anyone who possesses pictures of nude boys also 188 harborsthe intent to kill young boys. 16. Thompson mandatesthat the court examineanyrule orpolicy limiting the introduction of relevant evidence: "Even if evidence of other crimes is relevant under a theory of admissibility that does not rely on proving disposition, it can be highly prejudicial." id. at 813. In short, "Under Evidence Codesection 253 the probative value of this evidence must outweigh the prejudicial effect." ibid. One leading commentator has explained: The significance of the Thompson case lies in its holding that, when evidence is offered that a defendant committed an offense other than for which heis on trial, its relevancy to prove some disputed fact on a theory in addition to its relevancy as charactertrait or propensity evidence—suchasintent, motive, modus operandi—mustbe substantial on the theory tendered in order for the probative value of such evidenceto be considered as outweighing the manifest danger of undue prejudice, to avoid exclusion under Evidence Codesection 253, even though not barred by Evidence Code section 1101(b). 2 Jefferson, Cal. Evidence Bench Book(2d ed. 1982), § 33.6, p. 1211 (emphasis omitted). 17. Thus, even if the disputed evidence could have been admitted becauseit fell into a legitimate avenue of admissibility, the court wouldstill have to engage in a balancing test. There is no evidencethatthe trial court engaged in such a test. Here, the disputed evidence wasprobative of petitioner's character, not intent, and as to any intent, its value would be severely outweighed byits prejudice. The material was highly inflammatory and could serve only to alarm the jury, which was considering charged crimes against children, rather than providing them with proper evidence for adjudicating the casefairly. 18. State law evidentiary errors, such as this, which rendera trial fundamentally unfair violate the Due Process Clause of the Fourteenth Amendment. Estelle v. McGuire, 502 U.S. 62 (1991); Jamal v. VanDeKamp,926 F.2d 918, 919 (9th Cir. 1991); and Henry v. Estelle, 399 F.2d 3241 (9th Cir. 1993). 19. In a capital case, such errors can also lead to the risk of an arbitrary and capricious imposition of the death penalty in violation of the Eighth Amendment, 189 particularly when,as in the present case, the jury was explicitly instructed to take into accountall guilt phase evidence in deciding the penalty. CALJIC 8.84.1. 20. The introduction of this evidence wasviolative ofpetitioner's right to due process as guaranteed by the Fourteenth Amendment(see McKinney v. Rees, 939 F.2d 1378 (9th Cir. 1993); Henry v. Estelle, 993 F.2d 3241), as well as petitioner's rights under the Fifth and Eighth Amendments andconstitutes an arbitrary denial of state law rights, in violation of due process. Mr. Reno's First Amendmentrights were also violated by the use against him of the possession of otherwise legal magazines and photographs. cf. Dawson vy. Delaware, 503 U.S.159 (1992). CLAIM 42: Confining Defendant to a Marked Squad Carin Full Sight of the Jury While the Jury Viewed the Crime Scene Wasa Deprivation of Petitioner’s Fifth Amendment, Sixth and Fourteenth Amendment Rights. 1. Trial counsel requested that the jury be allowed to view the crime scene. (RT 2538). The court granted the motion. The view occurred on May 11, 1987. (RT 2539). 2. Pursuantto the court’s order, 1) petitioner was transported in a black and white squad car; 2) waited in the vehicle shackled with leg and waist chains with officers present; and 3) with the car windowleft open. (RT 2547). 3. Thetrial court issued the restrictive order despite trial counsel’s stated intention to take testimony at the scene. (RT 2545). Trial counsel objected to the shackling of petitioner. The court responded, without further hearing, that ““Mr. Memro can complain all he wants.” (RT 2548). While at the scene, petitioner could not hear what was said due to the distance betweenhis car and the location of the jurors and court personnel. 4. A defendanthasa right to be present at his own trial. “A leading principle that pervadesthe entire law of criminal procedureisthat, after indictment found, nothing shall be donein the absenceofthe prisoner.” Lewis v. United States, 146 U.S. 370 (1892). According to the Ninth Circuit Court of Appeals: “The rule includes the defendant’s right 190 to be present wheneverthe court communicates with the jury.” Bustamante v. Eyman, 456 F.2d 269 (1972) (citing Shields vy. United States, 273 U.S. 583 (1927)). 5. In Snyder v. Massachusetts, 291 US 97, 107 (1934), the Supreme Court held that “a defendant has a right to be present in his own person wheneverhis presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” 6. Here, Mr. Reno’s presence was necessary in order to view andhearthe testimony evidence presented to the jury so that he could adequately participate in his defense. Mr. Reno was unable to hear any of what transpired because he was confined to the squad carat the jury view of the crime scene. 7. Thetrial court failed to consider any alternatives to the procedure, despite their availability. In People v. Walther, 263 Cal. App. 2d 310, 323, the defendant was transported on the bus with the jurors so that the defendants right to be present was preserved. The defendant was guarded and every effort was taken to ensure the safety of the jurors. 8. Thetrial court’s error was further exacerbated by the failure to transcribe the proceedingsso that petitioner could read the transcript so objections could have been preserved for appeal. See Bustamante v. Eyman: Section 753(b) of the Court Reporter Act requires that a reporter “shall record verbatim by shorthand or by mechanical means . . (1) all proceedings in criminal cases had in open court.” 28 U.S.C. § 753(b). This rule is mandatory and supplants any inconsistent local court practice. See United States v. Taylor, 607 F.2d 153, 154 (Sth Cir.1979). United States v. Cashwell, 950 F.2d 699 (1992). Notranscript of the proceedings was made and defendant wasleft ignorant of the testimony given. Consequently appellate and habeas counsel were handicapped by this omission. 9. Atthe jury view, the defendant was confined in leg and waist chains and was kept in a black and white squad car apart from, but in full sight of, the jury. 191 10. In Illinois v. Allen, 397 U.S. 337 (1970), the Court emphasized that a defendant maybe prejudiced if he appears before the jury bound and gagged. “Not only isit possible that the sight of shackles and gags might havea significant effect on the jury’s feelings about the defendant, but the use of this techniqueis itself something of an affront to the very dignity and decorum ofjudicial proceedings that the court is seeking to uphold.” Id., at 344. 11. The underlying principle of these casesis that the jury will not be able to separate certain aspects of a defendant’s character and the defendant’s treatment by the court from its duty to determine the facts of the case before it. Factors implicating the defendant’s character, behavior and treatment may affect the jurors in a particularly insidious manner: Even though a practice may beinherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused. This will be especially true when jurors are questionedat the very beginning of proceedings; at that point, they can only speculate on how they will feel after being exposedto a practice daily over the course of a long trial. Whenever a courtroomarrangementis challenged as inherently prejudicial, therefore, the question must be not whetherjurors actually articulated a consciousness of some prejudicial effect, but rather whether “an unacceptable risk is presented of impermissible factors cominginto play,” Williams, 425 U.S., at 505. Holbrook v. Flynn, 475 U.S.at 568. 12. Not only waspetitioner shackled, he was confined in a squad car away from, but not out of sight of, the jury. This separation brings about the same concernsfor the dignity of the defendant, his presumption of innocence andhis ability to communicate with his attorney that shackling presents. Despite the fact that the jury was supposed to presume the petitioner innocent, the image givento the jury wasthat petitioner was a threat who neededto be separated from civilization. 13. Itis for this reason that the courts require that the less severe alternatives be considered. See Holbrook v. Flynn. Thetrial court failed to consider such alternatives. 192 14. Compelling a prisoner to wear prison clothesat trial violates his due process rights under the Fourteenth Amendmentand his presumption of innocence. Felts v. Estelle 875 F. 2d 785 (1989). The Ninth Circuit explained: “Compelling a defendant to appearat trial in prison garb is impermissible because the constant reminder of the defendant’s incarcerated status mayaffect jurors’ perception of him or her as a wrongdoer.” United States v. Olvera 30 F. 3d 1195 (1994). 15. Mr. Reno’s confinement to a black and white squadcarleft little doubt in the minds of any observer, that he was a wrongdoer who required security, confinement and isolation or separation. Confining petitioner to a squad car showedthatpetitioner was guilty, without him having been found so. 16. Trial counsel failed to object to the confinementofpetitioner to the police car. Trial counselfailed to ensure that petitioner was able to hear whattranspired during testimony at the view. There werenotactical reasons for counsel to not object. Failure to do so constituted ineffective assistance of counsel under Strickland v. Washington 466 U.S. 668 (1984) and deniedpetitionera fair trial. 17. Similarly, appellate counsel wasconstitutionally ineffective for failing to raise these claims on appeal. Douglas v. California, 372 U.S. 353 (1963); Evitts v. Lucey, 469 U.S. 387, 396 (1985); see also Coleman v. Thompson, 501 U.S. 722, 755 (1991). To the extent that any claims includedin the petition could have been broughtbyprior state counsel, prior counsel rendered ineffective assistance of counsel in violation of the Sixth Amendmentby not bringing those claims. To the extent that the claims were available,it was constitutionally ineffective assistance of counsel not to bring these claims during prior proceedings. See, e.g., Murray v. Carrier, 477 U.S. 478, 496 (1986) (“rightto effective assistance of counsel . .. may in a particular case be violated by even an isolated error if that error. . . is sufficiently egregious and prejudicial.”). Petitioner should not be penalized for appointed counsel’s ineffective assistance, especially in light of petitioner’s 193 many attempts to have him removed from his representation. Had counsel rendered effective assistance, the claims could have and would have been broughtin thefirst instance. CLAIM 43: Shackling Petitioner in Court Deprived Him of His Fifth, Sixth, Eighth and Fourteenth Amendment Rights. 1. On Jan. 9, 1987, the court observed that petitioner was shackled in court. (RT 60). The court noted that the shackling was in direct contravention ofhis order. 2. On June 3, 1987, petitioner was again shackled while in court. (RT 2893-6). 3, On June 8, 1987, petitioner was again shackled while in court. (RT 2926). 4. Mr. Reno’s visible shackling violated his nghts to due process, to an impartial jury and to a reliable determination of guilt and sentence underthe Fifth, Sixth, Eighth and Fourteenth Amendments. 5. The constitutional guarantee ofa fair trial includes the assurancethat a defendantin a criminal action shall come before the jury clothed with a presumption of innocence, and that presumption mayonly be dislodgedby a finding beyond a reasonable doubt, based on competent evidence presented at the defendant’s trial, that the defendantis guilty of the offense or offenses charged. Estelle v. Williams, 425 U.S. 501, 503 (1976). 6. The visible shackling of the accusedis inherently prejudicial. Holbrookv. Flynn, 475 U.S. 560, 568-569 (1986); Elledge v. Dugger, 823 F.2d 1439, 1451, mod., 833 F.2d 250 (11th Cir. 1987), cert. den., 458 U.S. 1014 (1988). Chains, like prison garments, are unmistakable indications of the need to separate a defendant from the community at large. Holbrook, 475 U.S. at 569. Theyare to be used only as last resort (Spain v. Rushen, 883 F.2d 712, 728 (9th Cir. 1989), cert.den., 495 U.S. 910 (1990)), and only where necessary to serve an essential state interest specific to a particulartrial. Kennedy v. Cardwell, 487 F.2d 101, 111 (6th Cir. 1973), cert. den. 416 U.S. 959 (1974). Because of the fundamental interests at stake, any decision to employvisible restraints is 194 » » subject to “close judicial scrutiny” on review. Estelle, 425 U.S. at 504. 7. Shackling also offends the confrontation clause. J/linois v. Allen, 397 U.S. 337, 344 (1970). The Allen court identified three wrongs in shackling: A juror may be prejudiced against a defendant after seeing him shackled; shackles may confuse and embarrass the defendant, thereby impairing his mental faculties; and they may cause him pain. 8. Spain v, Rushen, 883 F.2d 712, 726 (9th Cir. 1989), further discussed problems whicharise from shackling: (1) Physical restraints may cause jury prejudice, reversing the presumption of innocence; (2) Shackles may impair the defendant’s faculties; (3) Physical restraints may impede the communication between the defendant andhis lawyer; (4) Shackles may detract from the dignity and decorum ofthe judicial proceedings; and (5) Physical restraints may be painful to the defendant. 9. The Ninth Circuit has also recognized that shackling is extremely prejudicial in a weak case where the evidence is not overwhelming. Dyas v. Poole, 309 F.3d 586, 588 (9" Cir. 2002). In Dyas, the defendant was forced to wear leg shackles in the courtroom and was shackled while being led to and from the courtroom duringhertrial for first degree murder and robbery. Thetrial judge, in denying the defense request to prohibit shackling, stated that he did not believe that the leg shackles would be “‘so visible that they come to the attention of the jury at all unlessit's brought to their attention’ andthat the nature ofthe case was suchthat he preferred the defendants to wearleg restraints.” Dyas, 309 F.3d at 587. 10. The district court in Dyas held an evidentiary hearing and the defense 195 presented “[t]hree jurors, one prospective juror who had been excused, members of Dyas's defense team, and Dyas... One of the jurors and the prospective juror had been able to see Dyas's shackles from the jury box. Another juror recalled seeing Dyas in shackles in the hallway outside the courtroom. Dyastestified that the shackles caused her pain and inhibited her communication with her attorney, although she had not complained ofthese problems during thetrial. The magistrate judge recommendedthat the district court grant a writ of habeas corpus,finding that there was prejudice becauseat least one juror was able to see the shackles and the evidence was not overwhelming. Thedistrict court adopted the recommendation and granted the writ.” Dyas, 309 F.3d at 588. 11. In affirming the District Court’s habeasrelief, the Ninth Circuit held: When a defendant has been unconstitutionally shackled, the court must determine whether the defendant was prejudiced. See Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002). Our conclusion that Dyas was prejudicedis virtually compelled by our decision in Rhoden v. Rowland, 172 F.3d 633 (9th Cir. 1999). There we pointed out that shackling duringtrial carries a high risk of prejudice becauseit indicates that the court believes there is a "need to separate the defendant from the community at large, creating an inherent danger that a jury may form the impression that the defendant is dangerous or untrustworthy." Rhoden, 172 F.3d at 636 (citing Holbrook v. Flynn, 475 U.S. 560, 568-69, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986)). Prejudice is particularly likely here becauseat least one juror saw Dyas's shackles during thetrial from the jury box. /d. ("Whenthe defendant's erroneous shackling has been visible to the jurors in the courtroom, we have found the shackling warranted habeasrelief."). It 1s likely that other jurors saw the shackles, but if even one juroris biased by the sight of the shackles, prejudice can result. See Parker v. Gladden, 385 U.S. 363, 366, 17 L. Ed. 2d 420, 87S. Ct. 468 (1966) (a defendantis "entitled to be tried by 12, not 9 or even 10, impartial and unprejudicedjurors"). Twoother factors increased the risk that Dyas was prejudiced bythe juror or jurors having seen the shackles. Dyas was charged with a violent crime, increasing the risk that "the shackles essentially branded[her] as having a violent nature." Rhoden, 172 F.3d at 637. Moreover, the evidence against Dyas was not overwhelming,a fact reflected in the length of the jury's deliberations. Because the case wasclose, an otherwise marginal bias created by the shackles may have playeda significantrole in the jury's decision. Jd. Dyas, 309 F.3d at 588. 12. In Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995), the Court concludedthat “yt is a denial of due processif a trial court orders a defendant shackled withoutfirst 196 engaging in a two-step process. First, the court must be persuaded by compelling circumstances ‘that some measure [is] needed to maintain security of the courtroom.’ Second, the court must ‘pursuelessrestrictive alternatives for imposing physical restraints.’” Jd. (citations omitted); see also, United States v. Baker, 10 F.3d 1374, 1401 (9th Cir. 1993). 13. Due process requires the trial court to engage in an analysis of the security risks posed by the defendant and to considerless restrictive alternatives before permitting a defendantto be restrained. See Stewart v. Corbin, 850 F.2d at 497-98. Here,thetrial court ordered that petitioner be unshackled in court but the sheriff continuedto violate the order and petitioner’s constitutional rights. 14. As identified in Spain v. Rushen, shackling a defendant can make communication with counsel difficult thus violating the Sixth Amendment. Strickland v. Washington. Implicit in that guarantee is the right to communicate with counsel, which in this case was violated by petitioner’s continued shackling and the resulting mental strain that it caused. The court failed to take necessary steps to alleviate these difficulties. The result wasthat petitioner’s rights to effective assistance of counsel, due process,a fair trial and heightened capital case reliability were violated. CLAIM 44: Petitioner’s Due Process Rights Were Violated When the Trial Court Admitted Character Evidence and Instructed the Jury to ConsiderIt. 1. The prosecution sought to have numerous photographs and magazines admitted into evidence. (RT 2457). The photos had been seized from defendant’s home one weekafter the Carter homicide. Someof the images depicted nude boys and men. The court admitted some of the images into evidence on the theory that the pictures showed a “characteristic method, plan or scheme in the commission of criminal acts similar to the method plan or scheme used in the commission of the offense in this case which would tend to show the existence of the intent.” (RT 2463). There was no evidencethat any of 197 the images were used in any wayto entice Carter. And, absolutely no connection was made between the photos and the 1976 killings. 2. The pictures were highly prejudicial and were admitted for no legitimate purpose. The images highlighted the fact that petitioner was homosexual and portrayed him as a “pervert.” Admitting the evidence waserror and the “limiting” instruction given exacerbated the prejudice. | 3. UnderCalifornia Evidence Code Section 1101, bad character evidence may not be introduced to show a proclivity or tendency to commit crimes. The introduction of impermissible character evidenceis a violation of a state statute but can also rise to the level of a constitutional Due Process violation: “state procedural and evidentiary rules may countenanceprocesses that do not comport with fundamental fairness. [Citations omitted] The issue for us, always, is whether the state proceedingssatisfied due process.” Jammal v. Van de Kamp, 926 F.2d 918 (9" Cir. 1991). Prejudice, injected in a trial, can taint the trial to the point wherea petitioner is fundamentally deprived ofa fairtrial. Kealohapauole v. Shimoda, 800 F.2d 1463 (9" Cir. 1986); see also Engle v. Issac, 456 U.S. 107 (1982). 4. It is improper to convict a defendant and sentence him to death based on irrelevant evidence concerning his interests and beliefs. It violates a defendant’s Fourteenth Amendmentrights to do so. See, e.g., Dawson v. Delaware, 503 U.S. 159 (1993). Here, the photos of boys introduced against petitioner was highly prejudicial and irrelevant to the charges. The admission of the nude photographs and magazines rendered petitioner’s trial unfair and constituted a Due Process violation because the jury was prejudiced to the point whereit “tainted the fundamental fairnessofhistrial.” Guam v. Shymanovitz, 157 F.3d 1154 (9" Cir. 1998); see also Cohn v. Papke 655 F.2d 191 (9" Cir. 1981). . 5. This Court has heldthat: 198 in order to be relevant as a common design or plan, evidence of uncharged misconduct must demonstrate not merely a similarity in the results, but such a concurrence of commonfeatures that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. People v. Ewoldt (1994) 7 Cal. 4th 380, 402, 867 P.2d 757. People v. Catlin, 26 Cal. 4th 81 (2001). None of the photographs depicted acts of violence. Mostof the pictures were not sexually graphic in any way, depicting only nude males. 6. Thetrial court confirmed that this evidence had nodirect relationship with the case: “It goes to the defendant’s motive and intent whichis -- Whichareissues in this case ... There is nothing to support a position that Carl Carter was aware of them, saw them, I agree with that. That is not the pot.” (RT 2725). 7. There was no evidence that Reno had used the photographsaspart of a scheme, or for any particular purpose whatsoever. The only “motive or intent” which could be found from the photos wasthat petitioner may have had “perverted” interests. Thetrial court’s argument amounted to finding that, based on the pictures, defendant was a pervert, so he likely acted like a pervert with Carter. The rules prohibiting character evidence as propensity evidence were designed to prevent just such arguments. 8. Independently, the court did not balance the prejudicial effect that photographs depicting nude boys would have onthe jury against its negligible probative value. The trial court summarily rejected counsel’s objection and admitted the evidence based on the theory that “It seems to me that the photographs and the magazines show a morbid interest in young boys.” (RT 2725). 9. The “morbid interest in young boys”is not a required elementto prove in a criminal case. It made nological or legal sense to admit it. Perplexingly, thetrial judge said: Jesus, why can’t they be girls? Jesus. Are you taking this down as we’re talking? You didn’t put that why can’t they be 199 & girls, did you? Then the court said: The record should reflect we’re in chambers. Mr. Memro’s notpresent. It’s just the three attorneys. Mr. Millett has broughtin all of the photographic material that was referred to by | Deputy Carter plus nine magazines and one book whichare all homosexual material involving, it appears, men only. (RT 2439). 10. The prosecutor compoundedthe prejudice of petitioner’s sexual orientation in his closing argument. Mockingpetitioner as if he were musing before killing the victims, he said: “Well, let’s see. If I kill this young boy, what will happen? They’ll probably send meto prison, but that won’t be so bad. They’ll feed me and take care of me, and it will be a lot of security. And since I don’t like — I have no interest in women anyway, that part of it won’t be so bad.” (RT 2786). These remarks implied that petitioner should not be sent to prison because, due to his homosexuality, he would enjoy it. This argument wasparticularly improper, since in the guilt phase, the prosecutor should not have commented on potential sentences or punishment. 11. Courts recognize that photos aimed at male homosexuals are highly prejudicial in nature. 12. In Guam v. Shymanovitz, 157 F.3d 1159 (9"Cir. 1995), the prosecution introduced magazines depicting homosexual pornography to show intent to molest minors and to prove that the defendant knew that molestation was illegal. The Court found the prosecution arguments implausible. The mere possession of reading material that describes a particular type of activity makes it neither more norless likely that a defendant would intentionally engage in the conduct described and thusfails to meetthe test ofrelevancy under Rule 401. This circuit has never held otherwise.. . . neither the defendant's possession of the ... magazines, norof anyofthe articles contained therein, was probative of whether the touching ofthe alleged victims’ genitals was intentional or whether the touching actually was or could be construed as being for sexual purposes. At the very most, 200 w v Shymanovitz's possession of the sexually-explicit magazines tended to show that he had aninterest in looking at gay male pornography, reading gay male erotica, or perhaps even, reading erotic stories about men engaging 1n sex with underage boys, and notthat he actually engagedin, or even had a propensity to engage in, any sexual conduct of any kind.In any event, propensity evidenceis contrary to “the underlying premise of our criminal system, that the defendant mustbetried for what he did, not whoheis.” United States v. Vizcarra-Martinez, 66 F.3d 1006, 1014 (9th Cir. 1995) (internal citations omitted). 13. In Vizearra-Martinez, the Ninth Circuit held that even if the literature was relevant, its probative value was heavily outweighed byits prejudice. The Court basedits ruling on several decisions holding that pornographic materialis especially prejudicialifit is homosexual in nature. See United States v. Gillespie, 852 F2d 475 (1988); Cohnv. Papke, 655 F.2d 191 (9" Cir. 1981); United States v. Birrell, 421 F.2d 665 (9" Cir. 1970). “The jury’s inference that Shymanovitz was gay could in all likelihood have caused it also to infer that he deviated from traditional sexual normsin other ways, specifically that he engagedin illegal sexual conduct with minors.” Shymanovitz, 157 F.3d 1159. 14. Prejudice is manifest when the homosexual material depicts “sexual activity that the jurors would perceive as deviant,” which is “particularly prejudicial to a defendant accused of sexual misconductor other related misconduct with minors.” Shymanovitz, 157 F.3d at 1160. 15. The photographs and magazines depicting young boys and heightened the prejudice even further. Thetrial court remarked aboutthe particularly prejudicial effect of the materials: “These are not photographs of grown men. Theseare not photographs of women. These are photographs of young boys. And I mean young.” (RT 2459). 16. There was no evidencethat the magazines and photographsexistedat the time of the crimes,as the trial court confirmed. Thus, they could not be relevant to the question of intent. The Ninth Circuit has explained that possession of this material is not 201 sufficiently relevant and is unfairly prejudicial so as to prohibit its admission: Under the government's theory, the case against an accused child molester would be stronger if he owned a copy ofNabokov's Lolita, and any murder defendant would be unfortunate to havein his possessiona collection of Agatha Christie mysteries or even James Bondstories. Woe,particularly, to the son accusedofpatricide or incest who has a copy of Ocdipus Rex at his bedside. Shymanovitz, at 1159. 17. Moreover, here the evidence wasancillary, unlike Shymanovitz and Gillespie, and thus its probative value was far less. The images were notrelevantto the elements of the crime, but rather, presented impermissible character evidenceto the jury. “There wasa clear potential that the jury may have been unfairly influenced by whatever biases and stereotypes they might hold with regard to homosexuals” Cohn, 655 F.2d 191. 18. Thetrial court instructed the jury with a modified version of CALJIC 2.50. The court instructed: Certain books, magazines and photographs werereceived in evidence. Such evidence was not received and maynot be considered by youto provethat he is a person of bad character or that he has a disposition to commit crimes. Such evidence wasreceived and may be considered by you only for the limited purpose of determining if it tends to show: The existence of the intent which is a necessary elementof the crime of lewd act with a child. A motive for the commission of the crime charged. For the limited purpose for which you may consider such evidence, you must weighit in the same manner as you doall other evidence in this case. You are not permitted to consider such evidence for any other purpose. You were so advisedat the time that the items were offered in evidence. 19. The instruction itself was improper and if anything, served toalert the jury to the many ways in which they might consider petitioner’s homosexuality. Further, possession of reading material does not qualify as a bad act. Shymanovitz, at 1159. The instructions inapplicability is evident from thetrial court’s manipulation by changing the caption from “evidence of other crimes” to “Certain books, magazines and photographs were received into evidence.” (RT 2746). 20. ‘In any event, as in Gillespie, the potential for prejudice in cases where 202 attention is drawnto the sexual orientation of the defendant is heightened to the point that curative instructions do not remedy the damage. See also United States v. Merino- Balderrama 146 F. 3d 758 (9" Cir. 1998). In Merino-Balderrama,the court foundthat a pornographic film wasprejudicial and should have been excluded. The court held that a curative instruction wasinsufficient to limit the prejudice. 21. Moreover, admission of the evidence itself was error and CALJIC 2.50 did not cure the prejudice caused by the evidence. Theinstruction remindedthejury aboutthe controversial material and suggested that they consider the evidence to determine the existence of intent or motive. Neither the court nor the prosecution wasable to articulate any theory of admissibility involving intent or motive. Left without any legitimate use for the evidence, the jury wasleft with evidence of bad character in the form ofa pile of highly prejudicial male homosexual pornography. 22. Insofar as trial counsel could have effectively objected to the admission of evidence or rebutted the court’s theory of admissibility or otherwise objected, trial counsel failed to render effective assistance of counsel. Strickland, 466 U.S. 668. 23. To the extent that appellate counsel failed to raise the improper admission of evidence previously, appellate counsel rendered ineffective assistance of counsel. Jd. CLAIM 45: Allowing the Admission of the Magazines, Photographs and Books Violated Petitioner’s Eighth and Fourteenth AmendmentRights. 1. Admitting the magazines, books and photographsillegally seized from petitioner’s apartment and usingit as bad character evidence contravened “the prohibition against convicting a defendant due to his status rather than his act.” Robinsonv. California 370 U.S. 660 (1962) (holdingit to be cruel and unusual to punish a defendantfor his drug. addiction rather than his criminal act); see also People v. Fitch, 55 Cal. App. 4th 172 (1997). Convicting petitioner based on his status violated petitioner’s Eighth and Fourteenth Amendmentrights. 203 a 2. This doctrine has been held to apply to both status crimes and to non-criminal conditions, such as mentalillness and retardation. Welsch v. Likins, 373 F. Supp. 487 (1974). Applying the mentalillness line of reasoning to specific mental illnesses, a defendant “could not, of course, be convicted merely of ‘being a child molester’” even if he is charged with a specific act of molestation. Hart v. Gomez, 174 F.3d 1067 (9" Cir. 1999). The prosecutor must provethat the defendant committed the specific act for which he is charged, without resorting to propensity evidence to allow the jury to inferthat because defendant is perceived as a “child molester” he therefore molested this specific child. Hart basedits ruling on evidence which was not admitted that would haveraised substantial doubt with the jury. Without the evidence, the jury convicted him on the perception that he was a child molester. 3. Petitioner’s jury was allowed to consider character evidence painting him as a child molester. The photos featuring young boys served as an invitation to the juryto convict petitioner based on his mental disease, rather than the crimes for which he was charged. The evidence was presented and could only have been used bythe jury to infer that because petitioner possessed images of nude children, he likely committed the crimes charged. 4, Introducing the nude photos focusedthetrial on his status rather than on his purported actions. The constitution forbids this method of prosecution. CLAIM 46: The Trial Court Erred by Overruling Trial Counsel’s Objection for a Failure to Comply with a Discovery Order by the Bell GardensPolice Department and for Allowing it to Be Introduced as Surprise Testimony,in Violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment Rights. 204 1. During testimony at the 1987 trial, Officer Barclift testified for the prosecution that the Bell Gardens police never made mention to anyoneoutside law enforcement of the fact that a piece of the plastic container found at the scene had been cut in a specific manner. (RT 2504). Trial counsel never received this information as part of discovery or otherwise and objected to the testimony. (RT 2505). 2. The discovery order required the production of “any lists of items or evidencenot released to the newspapersprior to defendant’s arrest; any lists of any items not knownto be available; and any other evidence or other reports which mayberelated to the above entitled case...” (RT 2514). The prosecution failed to turn over in discovery any of the police reports that mentioned the information about the plastic container in violation of the discovery order. 3. The defense was entitled to the information beforetrial rather than having it used as a surprise tactic during testimony. The court found: “Firstofall, it’s already in the record. At this point in timeto sustain an objection to me would be a mootact. Also, based uponthe state of the record | don’t see how it would in any way, shape or form be of any particular surprise or disaster to the defense.” (RT 2507). The fact that the evidence wasin the record had no bearing on whetherit was a violation of the discovery order because it entered the record through Barclift’s testimony. 4. This evidence amounted to an “unfair surprise”on trial counsel because counsel had not been provided any discovery that would have allowed counselto prepare the defense for the testimony. This use oftrial by ambush was a DueProcessviolation, depriving petitionerofa fairtrial. Oneof the principal goals of discovery is to prevent “trial by ambush.” Brandon v. Mare-Bear, Inc., 2000 U.S. App. LEXIS 12585 (2000). Failure to disclose discovery which impacts the defense’s ability to prepare or presentits case constitutes unfair surprise. United States v. Golyansky, 281 F.3d 1330 (2002). A defendant must have a meaningful opportunity to deny or explain the State's 205 evidence used to procure a death sentence. See Gardnerv. Florida, 430 USS. 349, 362, 51 L. Ed. 2d 393, 97S. Ct. 1197 (1977). Duvall v. Reynolds, 139 F.3d 768 (10" Cir. 1998). Trial counsel had no time to prepare to rebut the testimony given by Officer Barclift. 5. Trial counsel was entitled to an opportunity to rebut the assertion that only the Bell Gardens Police and the killer knew of the plastic bottle with the piece cut out. Such testimony washighly incriminating. The prosecution’s theory wasthat only the killer knew ofthe cut bottle and that petitioner’s description of cutting the bottle in his confession wasproofof his guilt. The court denied counsel’s objection, apparently under the theory that petitioner’s guilt was so obvious that there was no harm in allowing the testimony: You have two separate confessions, given to two separate police agencies. You have one confession corroborated by the defendant taking the police to the scene of the crime andthe police going to those locations where remnants or evidence of the crime have been secreted by the defendant and finding him in the exact location, So with this bit of evidence at this point to me is a — well, it’s almost guilding [sic] the Lilly. It seems to methat atthis pointto raiseit to the level of some kind oferror is — it’s not appropriate. (RT 2507). 6. This analysis missed the point. The issue presented was whether a discovery violation took place. The quanta of other evidence wasnot relevant in determining whether the prosecution’s failure to turn over this evidence was a discovery violation. The fact that other evidence existed implicating petitioner in the crimes madethis violation more prejudicial. If this evidence was the only evidence implicating petitioner, it might have been easily contested. This evidence, in conjunction with other evidence, madea stronger case for guilt. This evidence needed to be rebutted and it could not be rebutted without adequate notice.. 7, Trial counsel pointed out that there was“absolutely nothing to connect Mr. Memro to those murders [Fowler and Chavez] except his confession.” (RT 2507). The 206 vu judge conflated the two crimes; petitioner never led the police to the site of the 1976 double homicide. This ruling is another reason why severance should have been granted because the evidence against petitioner was so thin regarding the 1976 double homicide. See Claim 26. 8. The strength of the evidence was immaterial to the objection. The court never considered the objection on its merits, instead deciding that the general evidence of petitioner’s guilt was sufficientjustification to overrule trial counsel’s objection. After the objection was overruled,trial counsel asked for a mistrial. This too was denied. “Mr. Larkin: Is the court going to do nothing aboutthe prior orderor the officer’s testimony? The Court: That’s correct.” (RT 2517). 9. WhenOfficer Barclift was allowed to resume his testimony,trial counsel attempted to bring out the failure to comply with the discovery order on cross-examination. Trial counselasked about the discovery order directing him to inform the defense about the bottle. The court sustained the prosecution’s objection that “the order does notsay that.” Trial counsel asked if the order could be read into evidence. Thetrial court refused the request. (RT 2521). 10. These actionsbythe trial court further exacerbated the discovery violation. First, trial counsel was ambushed by undisclosed evidence because ofthe violation of the discovery order. Then, the court refused to allow counsel to inquire into the validity of that evidence. Denying petitioner the right to cross-examine a witness whotestified against him on evidence presented in the testimonyis a denial of petitioner’s Constitutional right of Confrontation and Cross-examination. “Cross-examination is the principal means by whichthe believability of a witness andthe truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974); see also Kentucky v. Stincer, 482 U.S. 730 (1987). A criminal defendantstates a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross- examination designed to show a prototypical form ofbias on the part of the 207 witness, and thereby 'to expose to the jury the facts from whichjurors. . could appropriately draw inferencesrelating to the reliability of the witness. Davis v. Alaska, 415 U.S. 308, 315-316 (1974); see also Olden v. Kentucky, 488 U.S. 227 (1988). Thetrial court violated petitioner’s right to confrontation and cross- examination. 11. Thefailure to provide discovery and to allow cross-examination violated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 3. GUILT PHASE JURY INSTRUCTION CLAIMS. CLAIM 47: The Court Erredin Failing to Give Defense Requested CALJIC 2.91. 1. At the conference on instructions, the defense requested CALJIC 2.91, which reads: The burden is on the State to prove beyond a reasonable doubtthat the defendantis the person who committed the offense with which he is charged. You must be satisfied beyond a reasonable doubtof the accuracy ofthe identification of defendant as the person who committed the offense before you may convict him. If, from the circumstancesofthe identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find himnotguilty. 2. In denying that request, the court responded, "There has been nobody identifying the defendant as the person who committed the crime and,therefore, to me, to this court, it is not even applicable." (RT 2671). 3. It was error for the court notto give the instruction. While no one pointed to petitioner and said "that's him," there was identification evidence and documentation concerning photographs. 4. Jose Feliciano who had beenin the park on the evening of the murders of Fowler and Chavez, identified various photos of suspects as persons who were in the park that evening. The photos depicted persons other than petitioner. He also identified in court a photo ofpetitioner as looking like one of the people he saw. 5. During argument, the prosecutor commented onthe identification. 208 There is some significance apparently attached to the fact that Jose Feliciano has identified some other people. Now— when counsel makesreference to the fact that if we had morepictures we could show you. More presumably, if he had an opportunity to look at a few more people. Well, he has identified five. At one time or another I believe he's identified these two people who,incidentally, other than have long hair, beards and mustaches,I think you'll agree don't look anything alike. He's identified them as the presumably the person in the composite, and he hasidentified these three people presumably as the other person. And in court he says this looksa lot like that person that he described as the not being the long haired bearded person but the darker Mexican type person. And that's Mr. Memro. Now,there is a rather striking similarity in a general sort of wayto all these people. Eddie Ledlow, Richard Lathrop, John Amett and Harold Memro. Let's also consider the facts and circumstancesofthis so- called identification process. These young people are— they are young today, and theyare really young when this happened. Theyare ten, eleven years old. Andtheyaretelling us what happened eleven years ago. An apparently somewhat inaccurate process. They were very youngat the time, and I supposeit is a natural sort of thing that young people wantto be helpful. Mr.Feliciano identifies five people as the two people he saw andthat's pretty helpful. Scott Bushea claims that he never got any closer to any of these people than about from where the witness stand over to the end of the—end of the courtroom. [| think we agreed that that was 38 to 40 feet. I believe everybody has indicatedthatit was dark. So nobody gottoo close other than, I believe, Jose Feliciano, who got up and talked to someone. That's my recollection of the testimony of the young people. And contrary to what Mr. Larkin states, there was one person in the courtroom who said there was some similarity to Mr. Memro; and that was noneother than Jose Feliciano, who got up close to these people. And he lookedat this picture and he said, yeah, that was the one—that looked like one of them. And that's Mr. Memro. (RT 2030-2832).'? Thus, the prosecutor was arguing that petitioner had been identified by Feliciano. 6. This Court has held that: it is error to refuse to give an instruction requested by a defendant which directs attention to evidence from which a reasonable doubt of guilt could be engendered. _ [Citation.] This applies with equal force to a refusal to give a requested instruction which deals with identification in the context of a reasonable doubt. [Citation.] _ People v. Hall, 28 Cal.3d 148, 158-159 (1980). '? The actual photo lineup hadbeen "lost" by the prosecution and could not be shown to thejury. 209 7. Thetrial court rejected the instruction because it believed there was no positive identification of petitioner. However, the defense to the crimes charged in Counts I and II wasidentity and various personstestified to the suspects seen at the park and the resemblanceor lack thereof to petitioner. 8. Additionally, the prosecutor, in his closing argument, clearly tried to mitigate the effects of the lack of a surefire identification. The gist of his argument wasthat Feliciano had identified persons bearing a resemblanceto petitioner and so, perhaps, it was actually petitioner whom he saw that evening. The prosecution inferred that because the conditions surrounding the identification were not optimum,Feliciano may,in fact have identified other persons when in fact he saw petitioner. 9. This situation madetheidentity instruction crucial. The prosecutor asked the jury to infer that petitioner was the person at the scene, despite Feliciano's less than surefire identifications. The requested instruction, which properly states the law, would have informed the jury that it must be sure of the identification beyond a reasonable doubt. No link was madefor the jurors between reasonable doubt and identification so as to help them determine whether the prosecution had metits burden of proof. Instead, the prosecutor's argumentessentially told the jury not to be concerned with Feliciano's sketchy identification. 10. The court also failed to give petitioner's specially drafted instruction, which stated: "The identity of the perpetrator of each of the crimes charged in the information must be proved beyond a reasonable doubt." (CT 524). Identity was the central issue in Counts I and II, since there was no physical evidence whatsoever connecting petitioner to those crimes. In the absence of any instructions, the jury may well have been misled by the prosecutor's argumentinto believing that Feliciano's shaky identifications of persons who resembled petitioner proved that Feliciano actually saw petitioner at the scene that evening. 11. Thetrial court's error in failing to give the requested identity jury instruction 210 created an impermissible risk that the conviction and sentence of death were arbitrary and unreliable in violation of petitioner's due process rights under the Fifth, Sixth and Fourteenth Amendments. CLAIM 48: The Court Erredin Failing to Sua Sponte Instruct on the Lesser Offenses Included Within the Felony Charge of Lewd Act with a Minor. 1. The court instructed the jury as to the elements of the offense of lewd act with a minorandits relation to the felony murder charged in Count III. (RT 2756). The instructions came from under former CALJIC 10.30. However, the court did not provide the jury with any instructions on the lesser charges included within the greater lewd-act offense. The lesser included offenses which should have been instructed on include misdemeanorchild molest, based on the fact that the mere taking the boy to photograph him wasnot a lewd act (which was nota crimeat the time), and contributing to the delinquency of a minor under Penal Code § 272. Failure to instruct fully as to these potential lesser offenses prejudiced petitioner by not providing the jury with the range of choices necessary to determine whether the conduct of petitioner was such that he should be eligible for imposition of the death penalty. 2. Under California law, the trial court has a sua sponte duty to instruct on necessarily included offenses when the evidence raises a question about the existence of the elements of the greater offense. People v. Wickersham, 32 Cal.3d 307 (1982). The facts presented to the jury created a clear question on whetherall the elements of the lewd act felony had been proven. 3. The court, at the preliminary hearing, had dismissed a sodomy chargefor lack of evidence and the prosecution neverrefiled that charge in superior court. The court at the first trial had found the felony-murder special circumstance based on the lewdactto be not true. At the retrial, the prosecution argued that the murder was a premeditated murder and that it was committed in the course of a lewd act. Had the prosecution charged the 211 underlying felony of lewd act with a minor, petitioner would have been entitled to the lesser included offense instructions. The fact that the prosecutor chosenotto file a felony charge in the Information should notrestrict the range of choices open to consideration by the jury. 4. The evidence presented to the jury showed only that (a) petitioner and Carter wentto petitioner's home for the purpose of taking photographs, (b) Carter wanted to leave, and (c) petitioner choked him impulsively. The prosecutor argued that the lewd act might be the allegedly attempted act of intercourse even if done after death or the touching ofthe victim in the act of choking him. (RT 2846-2847). 5. The lack of explicit definitions of the potential lesser included offenses prevented the jury from considering the range of misdemeanoroffenses that petitioner might have committed instead. Had the jury beeninstructed on such lesser included offenses and found that they more accurately fit the circumstances of what had occurred, petitioner could not have been convicted of first-degree murder on a felony-murder theory and thus madeeligible for the death penalty. 6. A conclusion by the jury that any one of these offenses more properlyfit petitioner's acts would haveresulted in a non-death-eligible verdict. Thus, failure to define the range of conductfor the jury resulted in unreliable guilt and penalty verdicts in violation of the Eighth Amendment. CLAIM 49: The Court Erredin Failing to Instruct Pursuant to CALJIC 17.01 that the Jury Must Unanimously Agree on the Act Constituting the Underlying Felony Charge. 1. Wheneverseveral different acts might constitute a violation of a statute, the jury mustbeinstructed that "all jurors must agree that he committed the same act." CALJIC 17.01. In regard to CountIH, the prosecutor presented numerousacts, any one of which he argued may have constituted the underlying felony. For example, the prosecutor argued that the general touching of the victim during strangulation or the alleged attempted post- 212 mortem anal intercourse could each bethe basis for a lewd act finding. (RT 2846-2847). 2. Because the prosecution relied on discrete acts to support its theory of the commission of the felony, petitioner was entitled to an instruction on the unanimity requirementin this context. The jury was erroneously told they could convict evenif there was no unanimity that petitioner committed any one of the acts which may have been a predicate fact for proof of the felony. 3. The failure to provide this requested instruction requires reversal of CountIII because the failure to require the unanimity of the jury created a risk of an arbitrary and capricious finding of guilt in a capital case in violation of the Eighth Amendment. CLAIM 50: The Trial Court Committed Reversible Error By Failing To Instruct the Jury That Shackling Had No Bearing on the Determination of Guilt or Penalty. 1, As discussed in detail in Claim 37, petitioner was shackled and confined to a marked police car during the jury view of the Ford Park crime scene. Petitioner was isolated from the jury, unable to hear or see what transpired at the scene during the taking of testimony. He wasseparated from the jury and evidence by shackles, the squad car and distance. 2. The trial court committed constitutional error whenit failed to instruct the jury to disregard petitioner’s shackles and chains. 3. Thetrial court was required to “instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt.” (People v. Duran, 16 Cal.3d 282, 291-292 (1976)). In Duran, this Court held: Webelievethatit is manifest that the shackling of a criminal defendant will prejudice him in the minds of the jurors. When a defendant is charged with any crime, and particularly if heis accused of a violent crime, his appearance before the jury in Shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimesofthe type alleged. See Illinois v. Allen (1970) 397 U.S. 337, 344. Id. at 290; emphasis added. 213 4. Federal constitutional law mandates the giving of this instruction under the Fifth, Sixth, Eighth and Fourteenth Amendments. See //linois v. Allen, 397 U.S. 337, 344 (1970). 5. Thetrial court’s error deprived petitioner of the procedures designed to ensure the reliability of the evidence considered by the jury, depriving petitioner of due process of law anda fair trial. “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Estelle v. Williams, 425 U.S. 501, 503 (1976); Irvinv. Dowd, 366 U.S. 717, 722 (1961). | 6. Thetrial court’s error deprived petitioner of a state createdliberty interest. Liberty interests are protected by the due process clause of the Fourteenth Amendment even whenthe liberty interest itself is a statutory creation of the state. Wolff v. McDonnell, 418 U.S. 539 (1974); Vitek v. Jones, 445 U.S. 480 (1980); Hewitt v. Helms, 459 U.S. 460 (1983); Hicks v. Oklahoma, 447 U.S. 343 (1980). 7. In Hicks v. Oklahoma, 447 U.S. 343, the Supreme Court held: Where... a State has provided for the imposition of criminal punishmentin the discretion ofthe trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the [proper] exercise ofits... discretion . . . and that liberty is one that the Fourteenth Amendmentpreserves against arbitrary deprivation by the State. Id., 447 US.at 346. 8. The failure to give the Duraninstruction violated state and federal due process under the Fourteenth Amendmentas well as the Eighth Amendmentguarantee to heightened capital case reliability. 214 CLAIM 51: TheTrial Judge Deprived Jurors of Their Fact Finding Role by Ordering Them to Presume That Petitioner’s Purported Confession Was Voluntary, in Violation of Petitioner’s Fifth Amendment, Sixth Amendment, Eighth Amendmentand Fourteenth AmendmentRights. 1. During the prosecutor’s direct examination of Officer Sims, the judge sua sponte commandedthejury: [Y]ou will take as a given fact that Mr. Memro was properly advised ofhis constitutional rights and that he waived them. I don’t want any have[sic] you deciding thank [sic] you haven’t heard all magic recitation and you’re going to be now deciding whether he’s been advised of his rights. That 1s a question that’s decided by the court. So for your purposes you will assume he’s been properly advised of his constitutional rights and that he’s waived and given up those rights. (RT 2378). This admonishment was not requested by either party. It was given by thetrial court sua sponte. 2. Instructing the jury to presumethat the Miranda warningswerevalidly given and that petitioner voluntarily waived them eliminated the jury’s role as fact-finder. As a result of informing them ofthis “evidence,”it led the jury to believe that the confession, which purportedly followed upon the alleged Miranda warnings, was also voluntary and therefore true, a fact vigorously denied bypetitioner. 3, Attrial, and now,petitioner alleged that his confession wasfalse and that he was coerced by law enforcement. The police coercion, supported by evidence and witness testimony, would have cast doubt on the veracity of the alleged Miranda warnings and the confession. The jury was entitled to reject the confession as involuntary or otherwise inaccurate. 4. The jury is charged with determining the facts, based in large part on its assessmentofthe credibility of the witnesses. Trial counsel raised direct inconsistencies between the alleged confession and witness observations. Many moresignificant inconsistencies existed but were not raised before the jury. The jury wasentitled to hear the evidence and determine whether the confession was involuntary andfalse. 215 5. The jury should have determined whetherthe officers were credible witnesses and weretruthful in their account of the giving and alleged waiving ofMiranda warnings and subsequent involuntary confession. Instructing the jury to accept that Miranda warnings were given and then waivedby petitioner was erroneous. All of these considerations were taken from the jury and decided bythetrial judge instead. 6. It is axiomatic that juries generally decide issues of fact, while the judge decides issues of law. Depriving the jury ofits fact-finding role violated petitioner’s Due Process and Sixth Amendmentrights. United States v. Gaudin, 28 F.3d 943 (9"Cir. 1994). 7. Juries are the constitutional tribunal providedfor trying facts in courts of law. Berry v. United States, 312 U.S. 450 (1941); Ring v. Arizona, 536 U.S. 584 (2002). In “criminal jury cases the jury considers the facts and applies the law as givenit by the court.” People v. Grana, | Cal. 2d 565 (1934). 8. Makingthis factual determination instead of allowing the jury, invaded “the fact-finding function, which in a criminal case the law assigns to the jury.” Sandstrom v. Montana, 442 U.S. 510 (1979) (citing United States v. Gypsum Co., 438 U.S. 422, 446); see also Carella v. California, 491 U.S. 263 (1989). 9. Wisely, this Court long ago said that it is improperfor a judge to “take away their exclusive right to weigh the evidence and determine the facts. .. the judge shall decide upon the law, and the jury upon the facts, and that the former shall not invade the province nor usurp the powersofthe latter.” This Court found: “The judge has no more right to control the opinion of the jury upon a matter of fact than the jury haveto disregard the directions of the judge upon a matter of law.” People v. Chew Sing Wing, 88 Cal. 268 (1891) (citing People v. Ybarra, 17 Cal. 171). 10. Here, the error was worse because the truthfulness of the purported confession was disputed. Eyewitness testimony contradicted the account of the murderas 216 described in the “confession.” Somefacts, like the length of the knife, the number of assailants present and the timing of events were irreconcilable. The truthfulness of the confession was squarely disputed before the jury. 11. Although the judge madea determination on voluntariness for purposes of admissibility, the jury was entitled to determine voluntariness and accuracy in deciding guilt. People v. Lindsey, 27 Cal. App. 3d 622 (1972). The jury was entitled to “disagree with the judge, find the confession involuntary, and ignoreit.” Jackson v. Denno, 378 US 368 (1964). 12. The instruction to the jury took away the defendant’s right to have a jury decide issues of fact and determine if the confession was voluntary and accurate or involuntary and false. Refusing to allow the jury to determine whether the Miranda nghts were properly given and subsequently waived deprived petitioner his right to a jury determination of the voluntariness of the confession, and constituted constitutional error. CLAIM 52: The Trial Court’s Improper Instruction to the Jury Amounted to Improper Vouching. I. Thetrial court’s instruction that petitioner’s confession was voluntary injected improper vouching for the prosecution police officer witness. The instruction said that the judge had determinedthat the police officers were credible and truthful witnesses. However, that determination was one which the jury was required to decide. 2. Here, the witnesses were police officers and agents of the government. The appearancethat the prestige of the government was behind these witnesses and supported their credibility was especially stark. 3. Vouching ordinarily occurs when a prosecutor improperly buttresses a witnesses testimony. 4. Usually, “improper vouching occurs when the prosecutorplaces the prestige of the governmentbehind the witness by providing personal assurancesof[the] witness’s 217 veracity.” (internal quotation marks omitted); United States v. Kerr , 981 F.2d 1050 (9" Cir. 1992) (citing United States v. Roberts, 618 F.2d 530 (9"Cir. 1980). Here, it was worse because the judge worked for the government. The effect was magnified since the purportedly “neutral” court wastelling the jury what conclusion to reach. Thetrial court’s comments indicated “that information not presented to the jury supports the witness's testimony” and constituted improper vouching. Roberts v. California; see also United States v. Simtob, 901 F.2d 799 (9th Cir. 1990). 5. The court’s vouching prejudicedpetitioner to the point where he was deprived ofa fair trial, and constituted a Due Process violation. Reversal is warranted under the Fifth, Sixth, Eighth and Fourteenth Amendments. See e.g. Washingtonv. Hofbauer, 228 F.3d 689 (2000). CLAIM 53: The Trial Court Erred in Failing to Instruct the Jury That Count I Was Charged as Second Degree by Law, Which Is the Maximum Charge the Facts Can Support. 1. Trial counsel filed a motion askingthat the jury be instructed that the maximum degree for Count I could only be murderin the second degree. The motion was based on thetrial court’s verdict during thefirst trial in 1979 that the Fowler killing was second-degree murder. 2. The prosecution argued that if the judge instructed the jury that Fowler was second degree,it “may confuse the issues insofar as the Chavez murderis concerned.” (RT 2224). Defense counsel observed that he had moved for severance,in part in order to avoid such confusion and the prosecution had vigorously opposed the motion. (RT 2224). The prosecution neverclarified why analogizing the two murders would be improper. Nor did the government explain in what way the jury would be “confused.” 3. Whenthe court asked the prosecution to explain its position, the prosecutor said: Well, I’mnot sure that the verdicts objectively make a lot of sense from the 218 first trial. And I’m not saying that to be critical or anythinglike that, I just think that that’s a fact. And for the jurors to hear essentially two murdersthat are moreorless identical as to counts 1 and 2 and to be told that count 1 is a second degree murder, I think is very prejudicial to the prosecution. (RT 2222). 4. As a matter of law as applied to the facts, the court had determinedthat the Fowler killing was, at most, second-degree murder. Double jeopardy principles barred revisiting this determination, since the conviction of second-degree murder wasin effect an acquittal of first-degree murder. See, e.g., Sorola v. Texas, 493 U.S. 1005 (1989); Arizona v. Rumsey, 467 U.S. 203, 211 (1984); Bullington v. Missouri, 451 U.S. 430 (1981); Brown v. Ohio, 432 U.S. 161 (1977). 5. Second degree murder was the maximumcharge that could be found, although the jury wasentitled to find petitioner guilty of lesser included offenses or no offense at all. There would have been noerror informing the jury that the Fowler killing was charged only as a second-degree murder. Such an instruction was accurate and would have aided the jury’s understanding of the law applicable to these facts. Moreover, giving that instruction would have affected how counsel was able to proceed on the case generally and particularly in closing argument. 6. Petitioner was entitled to provide accurate instructionsto the jury, particularly where doing so could render him ineligible for a death sentence. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994). 7, It violates due process if a defendant’s jury is not accurately instructed on the law, or if as a result of instructions, the jury applies an incorrect legal standard. See, e.g., Victor v. Nebraska, 511 U.S. 1, 5 (1994); Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993). 8. If the jury found that petitioner was guilty of second degree murder in Count I, it was legitimate for them to relate that count to the other crimes and find second degree 219 murder at most. Drawing an analogy between two analogous murders was not confusing,as the prosecutor alleged. It was legitimate and logical and consistent with the behavior. Had the jury determinedthat the Fowler and Carter killings were analogous, the jury would have concludedthat the Carter killing was at most second-degree murderandthuspetitioner would have beenineligible for the death penalty. 9. Ultimately, the judge gave CALJIC 8.75 andinstructed: Count 1 charges murderin the second degree as a matter of law. This is for reasons which do not concern your deliberations and about which you must not speculate. (RT 2766). This instruction left the erroneous impression that Count I may have been limited to second-degree murder because of some legal technicality and not because of a prior factual determination. The instruction not to speculate prevented the jury from recognizing the factual basis for the second degree finding. 10. This instruction was prejudicial becauseit largely prohibited the jury from relating the facts of Count I to Count II, which were close in time. Scott Fowler was allegedly killed suddenly after making a derogatory comment about homosexuals which triggered a violent rage in the killer. Ralph Chavez wasallegedly killed moments later when he was awakened by the commotion. The second murder could have been construed as a continuation ofa first voluntary manslaughterheat of passion killing. 11. The instruction wasparticularly prejudicial when considered in conjunction with CountIII. If the purported confession is believed, Carter was killed, like Fowler, in a sudden flash of anger after saying something that triggered a violent reaction. If the jury had been informedthat, based on the facts, as opposed to a “matter of law,” the Fowler killing was at most second degree murder,it is reasonably likely that the Carterkilling would havedictated an identical result because of the similar circumstances. 12. A conviction of second-degree murder in Count III would have made petitioner ineligible for the death penalty. Only the Carter killing was committed after 220 - California reinstated the death penalty. 13. Evenif petitioner had been convictedoffirst-degree murder on CountIII, a finding of second degree murder on Counts I and II would have been reasonably likely to lead to a sentenceoflife without parole. Thus, the failure to instruct adequately was prejudicial. 14. The instruction would have been accurate, would haveassisted the jury, was not improper and should have been given. Thefailure to instruct accurately regarding Count I fundamentally tainted the guilt phase verdicts as well as the sentence. CLAIM 54: Instructing the Jury Pursuant to CALJIC 8.31 Unconstitutionally Lessened the Prosecution’s Burden of Proof. 1. The jury was instructed on second degree murderas a killing resulting from an act dangerousto life pursuant to CALJIC 8.31. (CT 492). This instruction stated: Murderof the second degreeis also the unlawful killing of a human being as the direct causal result of an intentional act, involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for humanlife, or the natural consequences of which are dangerousto life, which act was deliberately performed by a person who knowsthat his conduct endangersthe life of another and whoacts with conscious disregard for humanlife. Whenthe killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a humanbeing. (CT 492). 2. The jury wasalso instructed on second-degree murder pursuant to CALJIC 8.30: Murderof the second degreeis the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a humanbeing but the evidenceis insufficient to establish deliberation and premeditation. (CT 491). 3. The jury convicted petitioner of second degree murder in Count I. The verdict form wasa general verdict form, which did not ask under which theory of second- 22) degree murderthe jury convicted petitioner. (CT 527). The jury waspolled as to their verdict, but not polled on the theory under which petitioner was convicted. (RT 2884-86). 4. The prosecution’s theory of the case wasthatthe killer deliberately and intentionally killed the victim when the victim insulted homosexuals. 5. Thetrial court had previously recognized that this case was not one where mental state need be implied. The court explained when looking at malice instructionsthat this case was not an implied malice case. (RT 2676). It was either an intentional killing or an unintentional killing due to rage reaction, mental illness or some other reason diminishing petitioner’s mentalstate. 6. The effect of the instruction was to remove a necessary elementof the offense of second-degree murder. Pursuant to CALJIC 8.30, second-degree murderis an intentional killing without premeditation. If CALJIC 8.31 were interpreted broadly enough, it would render 8.30 superfluous. Underthe broad reading usedto give the instruction in this case, an act which, if done intentionally, would cause the death of a person, would necessarily also qualify as an act which the natural consequences of were dangerousto humanlife. This reading cannotbe correct, as it renders an entire instruction, CALJIC 8.31, meaningless. 7. Instead, CALJIC 8.30 and 8.31 must refer to two alternate theories of second-degree murder. This reading is consistent with the common-law understanding of ‘reckless indifference’ second-degree murder. 8. This theory is simply not applicable to Count I. There, Fowler wasa specific person and not one of a nameless, faceless crowd. Theact itself demonstrates that it was designed to kill. Thetrial court recognized this when it found that this was not an implied malice case. (RT 2676). Having recognized that the murder was not an implied malice murder, it was improperto instruct pursuant to 8.31. That instruction is only appropriate in cases of implied malice: 222 California law, in turn, recognizes three theories of second degree murder. The second, of particular concern here, is implied malice murder. (See CALIJIC No.8.31 [Murder of the second degreeis [also] the unlawful killing of a human being when: [P] 1. The killing resulted from an intentional act, [P] 2. The natural consequencesofthe act are dangerous to humanlife, and [P] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, humanlife. [P] Whenthe killingis the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a humanbeing.”].) People v. Swain, 12 Cal.4th 593, 601 (1996). 9. Instructing on CALJIC 8.31 eliminated the requirementof finding an intent to kill by applying the inapplicable theory of recklessness to an act which otherwise required a “specific” showingofintent. 10. The prosecution has the burden of proving each element of an offense beyond a reasonable doubt. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975); Sandstromv. Montana, 442 U.S. 510 (1979), Patterson v. New York, 432 U.S. 197, 214-215 (1977); In re Winship, 397 U.S. 358, 364 (1970) (“The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which heis charged.”). Here, the erroneousjury instruction relieved the prosecution of that burden. 11. The error of this instruction was exacerbated by the archaic language used in it. This Court explained: As we have shown,the term “wanton”has various applications connoting conscious Or knowing acts, andis firmly rooted in the commonlaw.Still, the term is not in commonuse in contemporary daily speech, and there remains the possibility that many laypersons will be unfamiliar with its meaning. We see no “compensating advantage”to the continuing use of obscure phraseology to instruct jurors on the complexities of homicide law. People v. Dellinger, 49 Cal.3d 1212, 1221 (1989). 12. In the end, not only was an element of second-degree murder removed,it was replaced with “obscure phraseology” unfamiliar to jurors. 223 13. The verdicts rendered violated petitioner’s constitutional rights. Thetrial court failed to instruct on a necessary element of the charged offense. The jury was thus not required to find that element beyond a reasonable doubt. 14. Petitioner’s conviction on CountI and the penalty verdict must be reversed, as it is reasonably likely that the unlawful conviction on CountI contributed to the jury’s verdict in the penalty phase. Both verdicts violate petitioner’s Sixth Amendment night to have all necessary elements determined by the jury, as well as his Due Process right under the Fifth and Fourteenth Amendments and heightened capital case scrutiny under the Eighth Amendment. CLAIM 55: The Trial Court Erred by Giving a Misleading Jury Instruction, When a More Precise Instruction Was Requested by Trial Counsel and Violated Petitioners Due Process Rights under the Fourteenth Amendment. 1. Thetrial court instructed the jury pursuant to CALJIC 8.75, in relevantpart: If you unanimously agree that the defendantis guilty of said offense charged in both counts 2 and 3, you will have your foreman date and sign the verdict form to which yourverdicts apply. 2. Tnal counsel objected to the wording of CALJIC 8.75 as misleading and inaccurate. The insertion of the word ‘both’ was misleading; he requestedthatit be replaced with ‘either or’. (RT 2768). 3. The court overruled trial counsel’s objection andstated: [’m not going to turn this into a Philadelphiaset of instruction. You’ve noted your objection. I’m just goingto overrule it just because we keep pampering [sic] with these until they make Shakespear look —. . You can coverit in your argument, and I think that I would hopethat both counsel are going to address the jury verdicts and how to go through them. (RT 2722). 4. The instruction was reasonably likely to confuse the jurors who might think that they had to return a verdict of guilty on both charges. It violated petitioner’s right to have the jury render an individual determination on each charge. See generally Bean v. Calderon, 163 F.3d 1073 (9"Cir. 1998) (requiring separate consideration and 224 determination of counts). 5. The court’s refusal to alter the instruction was basedsolely onits feeling that too much time had been spent changing the wording ofthe instructions already. 6. The Eighth Amendmentrequires a heightened degreeof reliability in capital cases. See, e.g., Caldwell v. Mississippi, 472 U.S. 320 (1985). Minimal effort would have been involvedin altering the instruction so that it was not confusing and misleading. The Eighth Amendmentrequired the court to exert such minimaleffort in this capital case, rather than (1) allowing an incorrect statement of law to go to the jury and (2) relying on counsel to clear up that erroneousstatementof law. 7. It is vital, when faced with a multi-count information, that the jury make a determination of each charge separately. The jury “must consider the evidence applicable to each offense as though it were the only accusation.” People v. Holbrook, 45 Cal. 2d 228 (1955). This requirement should have been madeclear to the jury. Altering one word in the proposedinstruction was necessary to explain the jury’s role. 8. The misleading instruction prejudiced petitioner by linking a non-death eligible count with a death eligible one. Count II] was the only count which was death eligible. Counts I and II took place in 1976 while California did not have the death penalty. This linkage unfairly skewed the jury toward botha first degree murder conviction on Count I anda true finding of the sole special circumstance of multiple murder. 9. Count I was, at most, second degree murderas a matter of law. The facts of Count III were markedly similar to Count I. The facts of Count II created an additional basis for a first degree murder conviction — namely, killing a witness. By linking CountIII with CountII, the instructions unfairly increased the likelihood that the jury would find Count II to be first degree murder, and thus death eligible under the multiple murderspecial circumstance. If the jury thought that CountIII was second degree murder and CountII was first degree murder and understood the jury instruction to require them to find the same 225 t s verdict on both counts as the instruction stated, then it is reasonably likely that the jury found thatfirst degree verdict on Count III was mandated bya first degree verdict on Count II. This finding transformed an otherwise non-death eligible verdict into a death eligible one. 10. The instruction was misleading and ambiguous and should have been changed when requested bytrial counsel. Failure to do so was constitutional error and deprived petitioner of his Due Process rights under the Fourteenth Amendmentas wellas his rightto a jury trial under the Sixth Amendment, and heightened capital case reliability under the Eighth Amendment. 4. PENALTY PHASE. CLAIM 56: The Trial Court Erred in Rejecting the Waiver of Jury for the Penalty Phase. 1. Prior to the guilt phase, petitioner moved the court to waive the jury at the penalty phase. (CT 331). The court improperly denied the motion. The court found that the prosecution wasentitled to a jury trial and the prosecutor refused to waiveajury in the penalty phase. (RT 188-189). 2. Though the Supreme Court has recently held that a defendant has a federal constitutional right to a jury trial on penalty (Ring v. Arizona, 536 U.S. 584, 609 (2002),at the time of petitioner’s trial there was no federal constitutional right to a jury penalty determination, (Spaziano v. Florida, 468 U.S. 447, 465), nor was there a comparablestate constitutional right. People v. Robertson, 49 Cal.3d 18, 36 (1989). However, since California had enacted a statute establishing jury determination of penalty in capital cases, this right could not arbitrarily be denied a defendant. See Hicks v. Oklahoma, 447 U.S.at 346. 3. Since the right to a jury trial is statutorily determined, one must examine the 1977 death penalty law to determine whetherpetitioner had a right to waive jury trial and 226 i whetherthat right could be denied by the prosecution's failure to consent to the waiver. Underthat statute, there was no provision for the prosecution to bar a defendant's waiver of jury if a jury heard the guilt phase. a. 4. FormerPenal Code § 190.4(b) established that a defendant had the nghtto a jury determination of penalty even if a court sitting without a jury was the trier of fact in the guilt phase. A waiver of a jury wasstatutorily conditioned upon agreementby both the defendant and the prosecution. However, when a jury wasthetrier of fact in the guilt phase, Penal Code § 190.4(c) required that the samejury hear the matter "unless for good cause shown the court discharges the jury in which case a new jury shall be drawn.” The statute did not provide for prosecution agreementto the waiverofthat jury at the penalty phase. Moreover,the statute specifically gave the prosecution a right to waive the jury under certain circumstances, but wassilent in regard to the situation in petitioner's case. Accordingly, it must be assumedthat the legislature did not intend for the prosecution's right to waiver to be applicable to a case like petitioner's. While there may be no federal constitutional right to the waiver ofjury over the objection of the prosecution, the denial of a waiver by the defendant can deny the defendant the due process of law guaranteed by the Fourteenth Amendment. Singerv. United States, 380 U.S. 24 (1965). The Singer court noted that "there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the government's insistence ontrial by jury would result in the denialto the defendant of an impartialtrial." id. at 37. 5. There were "compelling reasons”for the grant of petitioner's waiver of a penalty jury. Joined together fortrial were non-capital cases with a capital murdercharge; 227 & the only evidence connecting petitionerto the first killings was his alleged confession made almost two years after the crimes. The defense presented to the jury at guilt phase wasa denial of responsibility for the first killings together with an admissionto the last one. Petitioner's motions for severance were opposedby the prosecution and had been deniedat the time of the denial of his waiver ofjury trial. Thus, the guilt phase jury would hear highly inflammatory evidence aboutthe killings of three children and antagonistic defenses to those killings. The defense rightly believed that a jury having heard this guilt phase would notbe able to fairly determine the appropriate penalty. 6. Because the jury was also going to determine the penalty, the jury panel was required to be "death qualified." The acceptance of the jury waiver prior to the guilt phase would have rendered the death qualification of the jury unnecessary. Here, nine potential jurors were removed from the panel solely becauseof their opposition to the death penalty. Thus, petitioner was denied his right to a fair cross-section of the community in violation of the Sixth and Fourteenth Amendments because of the improper denial of his waiver of jury for the penalty phase. 7. In the face of these compelling reasons, the prosecutor merely stated that he did not want to waive jury. The state does not have either a statutory or constitutional right to a jury trial in a California criminal case. The harm to petitioner wasso greatthat the denial of his waiver resulted in an unfair trial at both the guilt and penalty phases, thus denying him the right to the due process of law under the Fourteenth Amendmentandhis right to reliable sentencing in a capital case as guaranteed by the Eighth Amendment. CLAIM 57: The Trial Court Erred in Failing to Order Trial Counsel to Inform Petitioner of the Penalty Phase Preparation and Plan. 1. Following the guilty conviction and priorto the start of the penalty phase, petitioner made a motion, out of the presence of the District Attorney, to relieve counsel, or, in the alternative "[o]rder them to tell me whathe is going to doat the penalty phase." 228 (RT 2893-1). 2. Petitioner thereafter explained that his attorneys refused to disclose their plans concerning the penalty phase. Petitioner stated "I have no idea whatsoever"referring to what counsel had planned. id. The court respondedthat it would not order counsel to interfere with the attorney-client relationship. id. Petitioner then told the court "There isn't any relationship. Theyare telling me I don't have a right to know what's going to be doneat the penalty phaseofthe trial." id. When asked to explain, defense counselstated that petitioner did not want evidence presented at the penalty phase andthatpetitioner had told defense counsel he would make sure that witnesses who were contacted would not show up. (RT 2893-2), 3. Petitioner explained: I don't know whoheis planning on calling. I haven't talked to anybody about not showing up or anything like that because | haven't had any idea whoheis planning on because I have no idea whatheis talking about. I believe I have a right to know what is going to be doneat the penalty phase or whatisn't going to be done. (RT 2893-3). 4. Responding, the court said to counsel, not petitioner: Mr. Larkin, I am not going to tell you what to do. That's ultimately your decision. It would seem to me that it would be important to discuss what's going to happen with yourclient. If your client takes steps to prevent that, that does not in any way, shape or form reflect back on you. Twice more, the court replied that it would not order defense counsel to respond to petitioner's request to be apprised of what wasto occurat the penalty phase. (RT 2893-4, RT 2893-6). 5. Thetrial court's refusal to act in responseto petitioner's request resulted in the deprivation of effective assistance of counsel. Once apprised of the problem, the court was duty boundeitherto ordertrial counsel to confer with petitioner regarding the penalty phaseor, in the alternative, to relieve counsel. 6. Trial counsel failed in his duties by refusing to consult with petitioner. A 229 criminal defendant has the right under the California and United States Constitutions to be informedof decisions in his case, even if counsel controls tactical decisions. Indeed, the right to counsel and the right to be "personally present with counsel"at trial (California Constitution, Art. I, § 15) would be illusory if counsel were allowed to keep secret from his client his plans for trial. Such action by trial counsel also deprives a defendantof his Sixth Amendmentright to counsel. 7. Petitioner was effectively prevented from consulting with his counsel because counsel refused to talk to him about the penalty phase preparations. It is irrelevant that at some earlier time they may have discussed the penalty phase. Petitioner had an ongoing right to consultation with counsel about the most important eventin his life. 8. Counseltold the court that he had explained "what's going on"to petitioner and that he simply was not informing him of the witnesses he was contacting. (RT 2893-5). The witnessesto be called, however, are a significant portion of "what's going on" in a case. It can hardly be said that an attorney is keeping his client informedas to the proceedings by merely informing him that he is contacting witnesses, without telling his client who heis contacting, who he intendsto call to testify or what testimony he expectsto elicit. 9. Defense counsel's asserted reason for not discussing the penalty phase preparations with petitioner, i.e., that petitioner was allegedly going to somehowinterfere, was disputed by petitioner. In fact, petitioner insisted that he had notinterfered with any attempts to consult witnesses. The court, faced with a clear breakdownin the attorney- client relationship, made no attemptto resolve the matter. Additionally, even if it were shown that petitioner somehow wanted to "sabotage" his court-appointed attorneys' planned defense, there wouldstill be no compelling reason to deny him participation in penalty phase preparation . 10. ‘In part because of this breakdown in communications between client and counsel, the defense only presented one witness at the penalty phase. Indeed, this Court’s 230 opinion summarizes the defense penalty phase case in one paragraph. People v. MemroII, 11 Cal. 4th 786, 816 (1995). Had petitioner received the cooperation of counsel, extensive mitigating evidence would have been presented. 11. Given the one witness showingat the penalty phase becauseofthis breakdownin the attorney-client relationship and the fact that the court repeatedly refused to replace ineffective counsel, the prosecution cannot sustain its burden and the death sentence mustaccordingly be reversed as violative of petitioner's federal andstate constitutional rights to the assistance of counsel anda rational, reliable and individualized sentencing determination and Sixth and Eighth Amendments. CLAIM 58: The Trial Court Erred in Admitting Petitioner's Testimony at the Penalty Phase. 1. Petitioner was permitted by the court to make a statementto the jury at the penalty phase. Hetestified: While I do not concede the truth, accuracy, or correctness of the jury's verdicts, I do feel that since the jury has returned the verdicts of guilty in the maximum degree possible on all counts and the special circumstance,that they should also now return with a verdict of death as the appropriate penalty. Thank you. (RT 2969). 2. The court neither counseled petitioner as to his decision to testify, nor gave aninstruction to the jury concerning petitioner's testimony. The court realized that petitioner's testimony wasirrelevant to the factors that must be considered bythe jury in reaching the penalty determination. 3, The court noted, outside the presence ofthe jury, that petitioner's testimony "goes to [his] reasons for wanting the death penalty as opposed to whetherornot the penalty is the appropriate punishment." (RT 9692). This was error which mandatesreversal of the penalty. The effect of petitioner's testimony was to compel the death penalty. 4, The lack of an instruction was exacerbated by the prosecutor's improper cross-examination of Mr. Reno and his emphasis on Mr. Reno's testimonyin his closing 231 argument. Indeed, the prosecutor askedthe jury to grant petitioner's request. (RT 2981). 5. Mr. Reno's unlimited testimony wasat least as devastating as a situation in which the jury was not presented any mitigating evidence. Petitioner's testimony relieved the jury ofits full responsibility to fix the penalty based upon the proper statutory factors. Instead, it led the jury to believe that it could return the death penalty simply because the petitioner requested it rather than because the statutory factors warranted it. 6. Indeed, the testimony wastotally irrelevant to any statutory factor in aggravation or mitigation under California law. 7. This likely lead to a feeling of diminished responsibility for the jurors’ actions and therefore the penalty verdict was unreliable and arbitrary in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. 5. CLAIMS RELATING TO PENALTY PHASE INSTRUCTIONS. CLAIM 59: The Trial Court Failed to Tailor the Instruction Concerning the Factors in Aggravation Which the Jury Could Consider. 1. At a discussion regarding the penalty phase jury instructions, defense counsel requested that the following factors be omitted from CALJIC 8.84.1 because they were not relevant to the case: €. Whetheror not the victim wasa participant in the defendant's homicidal conduct or consented to the homicidal act; 1. The defendant's age at the time ofthe offense; j. Whetheror not the defendant was an accomplice to the offense and his participation in the commission of the offense wasrelatively minor. (RT 2898). 2. The court omitted factor (i) but permitted the other irrelevant factors to remain before the jury as sentencing criteria to be consideredin this case. 3. In arguing that factors (e) and (j) were relevant, the prosecutor told the court 232 "whether or not the victim is a participant goes to the gravity of the defendant's conduct so it is more serious" and "the offense is more seriousif he is not an accomplice." (RT 2899). The court agreed with this argument. (Id.) 4. During closing argument, in referring to these factors, the prosecutorstated: Whetheror not the victim wasa participant in the defendant's homicidal conduct. Obviously that wasn't the case in anyof these crimes. Whetheror not the defendant was an accomplice to the offense and his participation in the commission ofthe offense is relatively minor. And again that's not the situation. He didit all. (RT 2977-2978; emphasis added). 5. The unedited instruction, coupled with the prosecutor's argument, constituted prejudicial error becauseit permitted the jury to consider the lack of mitigating factors as factors in aggravation. The prosecutor's comments were not simply that the factors did not apply, but rather his argument wasthat petitioner should be punished because these mitigating factors were absent. The prosecutor's earlier argument to the court underscored his position that the absence of factors was not simply neutral. 6. This Court has held thatit is error for the prosecutor to argue that a lack of mitigating factors could be countedas factors in aggravation. People v. Davenport, 41 Cal.3d 247 (1985). Although this Court later held that the failure to delete inapplicable factors did not constitute reversible error (People v. Ramirez, 50 Cal.3d 1158, 1198 (1990), here the failure to tailor the instruction interjected irrelevant and confusing considerations into the jury's sentencing calculations, in violation of the Fifth, Eighth and Fourteenth Amendments. 7. Moreover,the court's application of Ramirezin this case constituted a retroactive and ex postfacto application of substantive law, in violation of due process. 8. The penalty determination must be based upon "consideration of the character 233 and record of the individual offender and the circumstancesof the particular offense." Woodson v. North Carolina, 428 U.S. at 304. "The focus must be on his culpability .. . for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence." Enmundv. Florida, 458 U.S. 782 (1982), quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978). To reach a reliable verdict, the jury must be given "guidance regarding the factors about the crime and the defendantthatthe state, representing organized society, deemsparticularly relevant to the sentencing decision." Greggv. Georgia, 428 U.S. 150, 158 (1976). 9. The jury in this case wasled to believe, by the improperinstruction and the prosecutor's argument, that because the victims were notparticipants in the crime and petitioner acted alone, rather than as an accomplice, weighed in favor of the death penalty. This created an impermissible risk of an arbitrary and capricious verdict of death. Forthis reason, the sentence mustbe overturned. CLAIM 60: The Trial Court Erred in Failing to Instruct on the Elements of the Uncharged Offense at the Penalty Phase and in Describing that Offense in Highly Inflammatory Language. I. The prosecution introduced evidence at the penalty phase that petitioner had assaulted David Schroeder in 1972, when Schroeder was a young boy. 2. The court considered the appropriate instruction to give to the jury regarding this offense. 3. The prosecution initially requested a Penal Code § 245 instruction for assault with intent to do great bodily injury. (RT 2935). In the same discussion, the prosecutor noted that petitioner had been convicted of a violation of Penal Code § 273(d), corporal punishmentupon a child. (RT 2936). That conviction had been held bythetrial court to be unconstitutional for all purposes. 4. Nevertheless, the trial court, over the objection of defense counsel (RT 2936), adopted this definition of petitioner's actions and instructed the jury in the 234 following terms: Evidencehas been introduced for the purpose of showing that the defendant Memro has committed the following criminal activity: cruel or inhumane bodily injury on a child which involved the express use of force. (RT 2974). 5. The court did not instruct the jury on the requisite elements of this offense. 6. The court erred by failing to define the elements of the offense and by giving an inflammatory description of the offense. 7. Even thoughthe jury wastold that they hadto find that this offense was true beyond a reasonable doubt, they were not provided information that would enable them to understand what the actual elements of the offense were. Failure to so instruct therefore violated petitioner's Eighth Amendmentrightto reliable sentencing. 8. The court's use of an inflammatory description of the offense prejudiced petitioner. The jury could have been instructed in the more neutral terms of Penal Code § 245, as first requested by the prosecutor. Instead, the court opted for a definition of "cruel and inhumanebodily injury on a child" without any definition of those terms. This prejudiced petitioner, especially in light of the nature of the offenses for which he had just been convicted, and created an impermissible risk of the arbitrary and capricious imposition of the death penalty, in violation of the Eighth Amendment. CLAIM 61: The Jury Was Improperly Instructed as to the Scope of Mitigating Evidence it Could Consider. 1. During the penalty phase, petitioner's sister testified that their alcoholic father had been abusive andthat their mother wasvery strict. Shetestified to petitioner's severe headachesandhis fights with his father. She also discussed their parents! inability to | cope and cometo termswith petitioner's homosexuality. The remainder of her testimony related to petitioner's character. 2. The jury wasinstructed under former CALJIC 8.84.1(k) that it could consider 235 "any other circumstance which extenuates the gravity of the crime, even thoughit is not a legal excuse, if the crime and any sympathetic or other aspect of the defendant's character or record is a basis for a sentence less than death, whetheror notrelated to the offense for whichheis ontrial ..." 3. Because the bulk of the evidence offered in mitigation related to petitioner's background, the instruction should have been modified to include "background"asa basis for the jury's consideration of the appropriate penalty. 4. It is likely that the failure to include the word "background"in factor (k) of CALJIC 8.48.1 led the jury to believe that it could not consider a major portion of his sister's testimony. This belief was undoubtedly reinforced by the prosecutor's argument that the mitigating evidence consisted of the fact that petitioner's "sister still loves him." (RT 2978). The prosecutor omitted mention of the background evidence that had been presented in mitigation as something the jury could consider. 5. In Lockett v. Ohio, 438 U.S. 586 (1978), the Supreme Court held that the sentencerin a capital case could consider any factors concerning the defendant, even those not pertaining to the offense, in deciding whetheror not to impose the death penalty. The court noted: [Where sentencing discretion is granted, it generally has been agreedthat the sentencing judge's possession ofthe fullest information possible concerning the defendant's life and characteristics is ‘highly relevant'—if not essential— [to the] selection of appropriate sentence. [Citation.|" Id. at 602-603 citing Williams v. New York, 337 U.S. 247 (1949). 6. The cases concerning sentencing discretion have generally referred to a defendant's "character and record." Jd. at 604; Woodson v. North Carolina, 428 U.S.at 304. Thus, the language of any instruction must be broadened when backgroundevidenceis offered. Background evidenceis admissible on the subject and is properly considered by the sentencer. See, e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982). 236 7. Failure to tailor the instruction in this case prejudicially misled the jury into disregarding pertinent evidence and failing to give consideration andfull effect to constitutionally relevant mitigation evidence. This unfairly skewed the verdict toward death, in violation of the Eighth and Fourteenth Amendments. 8. The factors in aggravation in this case were relatively few—the circumstances of the crime and the single prior incident of assault. Had the jury been properly informedthatit could consider backgroundevidence,it is likely that it would have concludedthat the aggravating factors did not outweigh those offered in mitigation. 9. Instructionsthat fail "to tell the jury that any aspect of the defendant's character or background [can] be considered mitigating, and [can] be a basis for rejecting death even thoughit did not necessarily lessen culpability . . . [are] constitutionally inadequate. People v. Lanphear, 46 Cal.3d 163, 167-168 (1984) (emphasis added). - 10. Whenthe jury is instructed that it may consider a background of abuse as a child, this is in fact highly likely to influence the jury in the defendant's favor. The instruction in this case did not so informthe jury and therefore was constitutionally inadequate. Petitioner's sentence must therefore be overturned. CLAIM 62: The Trial Court Erred in Instructing the Jury that there Must be Unanimous Agreementas to Penalty. 1. Petitioner wastried under the 1977 death penalty statute. 2. That law provided in pertinentpart: If the trier of fact is a jury and has been unable to reach a unanimousverdictas to whatthe penalty shall be, the court shall dismiss the jury and impose a punishment of confinementin state prison for life without the possibility of parole. Penal Code § 190.4(b). 3. That section was later amendedbyinitiative to permitretrial of the penalty phase if there was not unanimous agreementby thejury as to penalty. 4. Under the 1977 law, the jury, in order to make a determination to impose a 237 & penalty of life without parole, did not have to be unanimous. If only one juror believed that death was not the appropriate sentence, a defendant would automatically receive a life sentence. 5. Thetrial court instructed the jury pursuant to CALJIC 8.84.2 that "[i]Jn order to make a determination as to penalty, all 12 jurors must agree." (RT 2993). 6. The instruction given here was proper under the 1978 law, but was improper under the 1977 law under whichpetitioner wastried. It was error to instruct on law which wasnotin existenceat the time the alleged crimes took place. 7. This is almost identical to the instruction given and condemned in Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992). In Mak, the Ninth Circuit found the jury instructions to be a violation of the right to due process. a. In Mak, the defendant had been sentenced to death in the State of Washington. State law presumeda sentence oflife, which could only be overcomeby a unanimousverdict that the mitigating circumstances did not merit leniency. The jury in Mak wasinstructed without objection that "[a]ll twelve of you must agree before you answera question ‘yes' or ‘no."" /d. at 624). b. The jury was then provided three choices to the question of whether there Woutwere sufficient mitigating circumstances: "yes," "no," or "unable to agree unanimously." c. The Ninth Circuit found the unanimity instruction to be erroneous. 8. Similarly, the Seventh Circuit reversed a death sentence wherea state jury in ~ Tilinois was not informed that the death penalty could not be imposed if one juror believed that there were sufficient mitigating factors to impose a life sentence. Kubat v. Thieret, 867 F.2d 351 (1989), cert. denied, 493 U.S. 874 (1989). a. The Kubat court held that the instruction was a violation of the defendant's 238 Eighth and Fourteenth Amendmentrights and reversed the sentence on that ground. b. The court further determinedthat the error was prejudicial because of the impact the instruction could have had on any one juror: Whether the jury was completely misled or merely confused would notalter our determination that Kubat was prejudiced. At worst, the jury may have retired for deliberations believing 1t had to reach a unanimousverdict on sentencing just as it had to do on the merits. At best, it may have entered the jury room confused. Indeed, even if only one juror had been confused, the reliability of the verdict is undermined. For if that one juror thoughtthat the death penalty should not be imposed, he or she might have submitted to the viewsof the other eleven because of a mistaken belief that unanimity was required. Id. at 37). 9. The court's instruction in this case not only failed to inform the jury that the verdict did not have to be unanimousto imposea life sentence, but specifically and erroneously instructed to the contrary. Unlike the jury in Mak, the jury in petitioner's case was notdirectly told the effect of an inability to agree on the sentence, thus increasing the likelihood of prejudice. 10. Theerror violated petitioner's Fifth, Sixth, Eighth, and Fourteenth Amendment nghts to a fair, reliable and individualized sentencing. CLAIM 63: The Trial Court Erred in Refusing a Lingering Doubt Instruction at the Penalty Phase. 1. Petitioner's conviction, special circumstance findings and sentence of death are illegal and were unconstitutionally obtained in violation of his Sixth, Eighth and Fourteenth Amendmentrights to fairtrial, to a reliable and accurate determination of penalty and to due processof law,as a result ofthe trial court's refusal to instruct on lingering doubt. 2. The violations of these rights, individually and cumulatively, prejudicially affected and distorted the presentation and consideration of evidence as well as every 239 factual and legal determination madebythe state courts and the jurors. 3. Had these violations not occurred, petitioner would not have been convicted or sentenced to death. 4. Thejury at the guilt phase deliberated for over two full days. At the conclusion of the penalty phase, petitioner requested an instruction on "lingering doubt" pursuant to People v. Terry, 16 Cal.2d 731 (1964). (RT 2941). The prosecutor opposed the instruction on the groundsthat it was presented in an untimely fashion. The court refused the instruction without comment. (RT 2942). 5. The refusal to give a lingering doubtinstruction was error and deprived petitioner of his constitutional rights. The failure to give the lingering doubtinstruction left the jury without a vehicle to give effect to mitigation, in violation of petitioner’s Sixth Amendmentright to effective assistance of counsel, his Eighth Amendmentrightto a fair and reliable sentence, and his Fourteenth Amendmentdueprocess right to present evidence at the penalty phase and to be sentenced in accordance with state law. Lockett v. Ohio, 438 US 586 (1978); Skipper v. South Carolina, 476 US 4 (1986). A defendant’s right to present penalty phase evidenceis critical in order to allow the jury to cometo a reasoned decision as to the appropriate sentence, and avoid an arbitrary and capricious verdict. Gregg v. Georgia, 428 US 153,189-190 (1976). It is error to refuse a properly drawn lingering doubtinstruction. cf. People v. Thompson, 45 Cal.3d 86 (1988) and People v. Cox, 53 Cal.3d 618 (1991). Trial counsel requested a proper instruction which was nevertheless denied bythetrial court. 6. The penalty phase defense centered largely on the conceptof lingering doubt and was supported bypetitioner’s testimony. 7, This Court determined: Hadthe requested instructions actually asked the jury to consider any lingering doubts about defendant's intentto kill, despite the sufficiency of evidence to support [the jury's] special finding,we might seriously consider 240 whether refusal to give such instruction waserror. In People v. Terry | 61 Cal.2d 137], we noted a defendant maycall upon such doubts in the penalty phase. [Citations.] /d., at 134-135. People v. Cox 53 Cal. 3d 618 at 678 (1991) (citing People v. Thompson, 45 Cal.3d 86 (1988)) (supercededbystatute on other grounds). 8. Building on Zhompson, this Court wrote: “As a matter of statutory mandate, the court must charge the jury ‘on any points of law pertinent to the issue, if requested’; thus, it may be required to give a properly formulated lingering doubt instruction when warranted by the evidence.” /d. (Citations omitted). As in petitioner’s case, Cox involved a first degree murder charge with a multiple murder special circumstance. The court rejected the proposed “formulation because it focused on lingering doubtas to the nature of defendant's participation rather than his guilt.” Jd. 9. Here, in contrast, petitioner’s trial counsel requested a properly formulated lingering doubt instruction which was warranted by the evidence presented through petitioner’s testimony. Thetrial court denied it nonetheless. 10. Thetrial court’s refusal of the instruction violated petitioner’s federal constitutional due processrights as it arbitrarily denied hima state created liberty interest in that instruction. Wolffv. McDonnell, 418 U.S. 539 (1974); Vitek v. Jones, 445 US. 480 (1980); Hewitt v. Helms, 459 U.S. 460 (1983); Hicks v. Oklahoma, 447 U.S. 343 (1980); Fetterly v. Paskett, 997 F.2d 1295 (9" Cir. 1993). 11. Fora jury determination of death to stand against Eighth Amendment scrutiny, the jury’s discretion must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell and Stevens,JJ). 12. Ifa State wishes to authorize capital punishmentit has a constitutional responsibility to tailor and apply its law in a mannerthat avoids the arbitrary and capricious 241 infliction of the death penalty. Part of a State’s responsibility is to define the crimes for which death may bethe sentence in a waythat obviates “standardless [sentencing] discretion.” It must channel the sentencer’s discretion by “clear and objective standards” which provide “specific and detailed guidance”andthat “make rationally reviewable the process for imposing a sentence of death.” 13. As was madeclear in Gregg, a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns ofjuries with the result that a pattern of arbitrary and capricious sentencinglike that found unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972) could occur.” Godfrey, 446 USS.at 428. 14. The Court reiterated this message in Walton v. Arizona, 497 U.S. 639, 653 (1990), saying, “Whena jury is the final sentencer, it is essential that the jurors be properly instructed regardingall facets of the sentencing process.” 15. Cox and Thompson are consistent with Supreme Court holdingsthat a sentencer may notbe precluded from considering any relevant mitigating evidence. See, e.g., Eddings v. Oklahoma 455 US 104 (1982). In Eddings, the Court explained: Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider as a matter oflaw, any relevant mitigating evidence. In this instance, it was asif the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. Id. at 837. 16. Petitioner’s jury was nevertold it could consider lingering doubt as mitigation— thus, “it wasasif the trial judge had instructed [petitioner’s] jury to disregard the mitigating evidence[petitioner] proffered on his behalf.” See id. It follows that although the jury determines the appropriate weight to be given to the mitigating evidence, the jury “may not give it no weight by excluding such evidence from their considerations.” Id. at 115; see also McDowell v. Calderon, 130 F.3d 833, 837 (9" Cir. 1997) (en banc). 242 7 ) 17. Petitioner’s guilt of the charged crimes was contested. The jury returned varied verdicts and deliberated for some two days, indicating lingering doubt. The jury was impermissibly precluded from considering relevant mitigating evidence bythetrial court’s ruling denying the lingering doubt instruction. The resulting verdictis unreliable: A jury cannotfulfill its central role in our criminal justice system if it does not follow the law.It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury mustbe properly instructed as to the relevant law andastoits function in the fact-finding process, and it must assiduously follow these instructions. McDowell v. Calderon, 130 F.3d 833, 837 (9" Cir. 1997) (en banc). 18. Thetrial court’s failure to give a lingering doubtinstruction was exacerbated by the prejudicial effect of counsel’s failure to inform the jury in argument on lingering doubt as well. Despite the fact that the evidentiary theory presented in the penalty phase centered largely on lingering doubt, the jury was never presented with a framework for consideringit. 19. The jury wasneither told by the court nortrial counsel that they were to considerit at all. There can be no doubt that the evidence was mitigating, as it might have formed the basis for a sentence oflife without parole. See Skipper v. South Carolina, 476 US. 1, 4-5 (1986) (evidence is mitigating if it “might serve ‘as a basis for a sentenceless than death’) (quoting Lockett, 438 U.S. at 601). Deprivation of a lingering doubt instruction in this case was tantamountto a deprivation of a penalty phaseattrial. 20. The central issue at the trial was the truthfulness of petitioner’s alleged “confession”regarding the first two homicides, which occurred in 1976. The jury requested a reread ofpetitioner's confession to these homicides during their deliberations. (RT 2878). 21. Given the length of the guilt phase deliberations and the re-read ofthe testimony, the lingering doubt instruction wasessential to direct the jury's deliberations at 243 the penalty phase. 22. This is especiallytrue under the 1977 death penalty law, which mandated the imposition of a life sentence if the jury was unable to reach a unanimousverdict on penalty. It only took one vote to ensure a life verdict. 23. Failure to give the instruction precluded the jury from considering and giving full effect to relevant mitigation, arbitrarily deprived petitioner of his right under state law and resulted in the arbitrary and capricious imposition of the death penalty in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 64: The Death Verdict Must Be Reversed Because the Court Failed to Instruct the Jury That the Guilt-phase Instruction to Disregard the Consequences of its Verdict Did Not Apply to its Deliberations at the Penalty Phase. 1. Prior to the guilt phase deliberations, and pursuant to CALJIC No. 1.00, the jurors were properly instructed not to consider the consequencesoftheir verdicts in making their guilt phase determinations. CALJIC 1.00, as given in this case, provides in relevantpart: You must not be influenced by pity for a defendant or by prejudice against him. You mustnot be biased against the defendant because he has been arrested for this offense, charged with a crime, or broughtto trial. None of these circumstances is evidence of guilt and you mustnot infer or assume from anyorall of them that he is morelikely to be guilty than innocent. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences. (CT 456-457). 2. At the penalty phase, the jurors were given no admonishmentto disregard CALJIC 1.00, denying petitioner due process,a fair jury trial and a reliable capital sentencing determination pursuantto the Fifth, Sixth, Eighth and Fourteenth Amendments. 3. The instruction gave the jurors the false impression at the penalty phase of this trial that they were not responsible for the consequencesoftheir verdict, by suggesting 244 that it was possible for them to discharge their duties to sentence without considering the consequences. 4. The jurors, “confronted with the truly awesomeresponsibility of decreeing death for a fellow human”, failed to “act with due regard for the consequencesoftheir decision.” Caldwell v. Mississippi, 472 U.S. 320, 329-330 (1985) (quotingfrom McGautha v. California, 402 U.S. 183, 208 (1971). The instruction had the “effect of substantially reducing the Government's burden of proof” since the jury wasnotinstructed as to the weight of its decision. See Cool v. United States, 409 U.S. 100, 104 (1972). The minimizing of the jury’s sense of responsibility impermissibly infringed upon petitioner’s jury trial rights as well. /d. 5. Underthese cases, the jury was entitled to consider sympathy for the defendant. Thefailure to instruct the jury to disregard CALJIC 1.00left the jurors the impression that they could not do so. Petitioner’s constitutional right under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated. 6. SENTENCING. | CLAIM 65: The Trial Court Erred in Denying Petitioner's Automatic Motion for Modification of Sentence. 1. At the hearing on sentencing,the trial court denied petitioner's motion for modification of the sentence under Penal Code § 190.4(e). 2. Former Penal Code § 190.4(e), the applicable law at the time, provides as follows: In every case in whichthe trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made a modification of such verdict or finding pursuantto subdivision 7 of section 1181. Inruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferredto in section 190. 3, and shall make an independent determination as to whether the weight of the evidence supports the jury's findings and verdicts. He shall state on the record the reason for his findings. 3. The court failed to follow the proper procedures. 245 4. The court considered irrelevant factors. Penal Code § 190.4(e) is clear that the court must be guided by the aggravating and mitigating circumstancesset forth in Penal Code §190.3. 5. However, the court based its denial, in part, upon petitioner's personality, expressing its opinion that petitioner was "obdurate," "truculent," "defiant," and "particularly insensitive." These are not factors that could properly be considered under Penal Code § 190.3 and are notthe type of characteristics of the offender on which a death penalty may be based. Coker v. Georgia, 334 U.S. 485 (1977). In fact, the judge's opinion as to the existence of these factors was no doubt based upon the sum ofhis experience with petitioner, through various in camera proceedings and otherpretrial hearings out of the presence of the jury. In short, the information upon which the court formedits opinion was never before the jury. 6. In addition, the court reviewed a probation report that had been ordered sealed by a previous court priorto its ruling on the 190.4(e) motion. (RT 3002, 3016- 3017). It is error for the judge to consider the probation report in this context. Peoplev. Lewis, 50 Cal.3d 262, 287 (1990). To the extent these terms are viewedas involving "lack of remorse," the findings were not limited to the time of the offense as required by California law. Petitioner refused to talk to the probation officer, who simply incorporated the prior 1979 report. Petitioner also objected to consideration of the prior report which had been sealed by the previous judge. (See Claim 83). The court's conclusion that petitioner remained "obdurate"is clearly based in part on the probation report. Because of the improperreliance on this report and its impact on the judgeas reflected in his comments, this matter should have been remanded for a new 190.4(e) hearing. It would have been improperfor the jury to condemn petitioner because of his personality, and it was therefore improperfor the court to do so. 7. Additionally, the court erred in relying on petitioner's "lack of remorse" in 246 upholding the jury's verdict. This ourt has held that remorse maybetreated as a mitigating factor and its absence may bepointed out by a prosecutor in argument. People v. Gent, 43 Cal.3d 739, 771 (1987). However, it is clear that the absence of a mitigating factor cannot be construed as a factor in aggravation (People v. Davenport, 41 Cal.3d 247), except perhaps when consideredat the time of the offense, and yet that is exactly what the trial court did in this case. 8. The court also failed to take into account the mitigating evidence of petitioner's character and backgroundoffered on his behalf during the penalty phase. The absence fromthe record of any mention of that evidence indicates that the court did not consider and reject that evidence, but rather,it failed altogether to figure it into the weighing process. This clearly constituted error under Penal Code § 190.4(e), which compels the court to take into account mitigation factors. 9. The court's failure to properly apply Penal Code § 190.4(e) was prejudicial. The factors in aggravation, the circumstances of the crime and petitioner's prior incidents were not overwhelming when comparedto the mitigating evidence offered on his behalf. Hadthe court properly weighed those factors, it may well have cometo the conclusion that the penalty should be modified. 10. The court also erred in refusing to give any mitigating weightto the lack of a prior conviction and the fact that the crimes involved circumstancesnotlikely to recur in custody. This court's decisions explain that factor (c) relates to whether a defendant previously was successfully prosecuted for misconduct e.g., People v. Melton, 44 Cal.3d 713 (1988). Generally, the facts of the crime may provide mitigation as well as aggravation, particularly where facts suggest some mental deficiency or deviant behavior. See People v. Haskett (II), 52 Cal.3d 210 (1990). The fact that the situation givingrise to petitioner's criminal conduct would not be duplicated in custody was a particularly significant factor in makinga reliable, individualized determination of the appropriate 247 penalty. Failure to consider, let alone give full effect to relevant mitigating evidence, requires reversal. See Penry v. Lynaugh, 492 U.S. 302 (1989) and Parker v. Dugger, 498 U.S. 308 (1991). 11. Thetrial court's arbitrary failure to follow state-imposed procedures denied petitioner's due process rights under the Fourteenth Amendment. 12. For the foregoing reasons, the court's evaluation of the application for modification of the death sentence was incomplete, improper and unconstitutional. CLAIM 66: The Trial Court Erred in Considering the Sealed 1979 Probation Report. 1. At thefirst trial, a probation report was prepared uponorderofthetrial court. However, the court did not read the report before imposing sentence. (RT 1939). At the conclusion of the case, the court ordered that the report be sealed. (CT I 262). 2. Petitioner refused to talk with the probation officer after his conviction at retrial. The probation officer prepared a report that incorporated the 1979 probation report. (RT 3002). Petitioner objected to the use of the prior report based on the inaccuracies in the report and the previous court order sealing that report. (RT 3016). 3. Petitioner's counsel failed to challenge the contents of this report and the trial court improperly considered the incorporated 1979 probation report during the modification motion and the sentencing in this matter in 1987. (RT 3017). 4. Petitioner exercised his right not to talk with the probation officer who prepared the report. When the officer improperly incorporated a prior sealed report, he did so without any order by the court to unseal the prior document. The unsealing could be accomplished only by an appropriate court order. Since no unsealing order was ever entered, the court erred in its consideration of the incorporated 1979 probation report in the resentencing for any purpose. 5. Petitioner hada clear right against self-incrimination at the time the 248 probation officer sought to interview him. Estelle v. Smith, 451 U.S. 454 (1981). The court erred in considering the sealed 1979 probation report in light of the on-the-record objection raised by petitioner. Indeed, the court improperly considered the refusal of petitioner to talk with the probation officer as demonstrated bythe trial court's reliance on petitioner's continued defiance in violation ofpetitioner's Fifth Amendmentright against self-incrimination. (RT 3015). E. CLAIMS RELATING TO EVIDENTIARYISSUES. CLAIM 67: There wasInsufficient Evidence that Carl Carter, Jr. was Killed in the Course of the Felony Defined by Penal Code § 288 at the Time of the Offense. 1. Summed upin its entirety, but briefly, the evidence at the secondtrial as to Count III showsthat there was insufficient evidence that Carter was killed during the course of a felony defined by Penal Code § 288. 2. The prosecutor argued that the killing of Carter was a felony murder (RT 2786-2790), that the victim was killed during the course of a violation or attempted violation of Penal Code § 288. The jury wasinstructed upon this theory. (CALJIC 8.21, RT 2754). 3. The evidence wasinsufficient to establish that petitioner committed or attempted to commit a violation of § 288 upon Carter. 4. There was no evidencepresentedat trial to prove beyond a reasonable doubt that petitioner attempted to sodomize Carter or even formedthe intent to do so, until after the victim was dead. Under California law at the time of the offense, as accepted by the trial court and as the jury wasinstructed, attempted sodomy of a body cannot form the basis for a § 288 violation or for felony murder. 5. Examination of this issue must be based solely on the evidence presentedat the second trial. By petitioner's own admission, he was bringing the boy to his room to photograph him. Atthe time ofthis act, there was no criminal offense of taking a nude 249 Le photograph of a minor (cf. Penal Code § 311.3, enacted in 1981), and there certainly was no evidencethat a violation of § 288 occurred or was attempted. 6. At the time of the killing, Penal Code § 288 provided in part: Any person whoshall willfully and lewdly commit any lewdor lascivious act including any ofthe acts constituting other crimes provided for in part I of this code, upon the body, or any part or memberthereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony... See California Statutes, 1976 chapter 1139, § 177 at 5110-5111. 7. It is well established that a violation of Penal Code § 288 requires a touching. See, e.g., CALJIC 10.30. There was no evidenceof any touching here. Although the prosecutor argued that the touching element could have beensatisfied by petitioner's placing of the clothesline around Carter's neck (RT 7482), there was no evidence to support a finding of the necessary lewd intent. Any such intent was not formed until after the death of Carter. The prosecutor's argument therefore mislead the jury as to what actually could haveconstituted a violation of Penal Code § 288. 8. The jurors’ confusion on this issue wasillustrated by their inquiry to the court: "Does Penal Code section 288 regarding the definition of a lewd act with a child apply to both living and deceased bodies?" (RT 2872). The court gave the following answer: "The crime of 288, lewd act with a child, may be committed only on living child. The attempt or the act must commencewhile the child is alive." (RT 2877). 9. While the above answer wasan attemptto clarify the issue for the jury, it only serves to underscore the insufficient nature of the evidence supporting any felony- murder theory. Following the responseto their question, the jury could not have basedits conviction upon the acts following the killing, 1.e., any attempted sodomy. Therefore, any felony-based murder finding, if any, had to have been predicated on acts that occurred prior to the killing. As stated above, these acts only amountedto petitioner's preparation to 250 photograph Carter. Any other significance placed upon those acts amounts to mere speculation that cannot support a conviction. 10. ‘In addition, conviction where there exists an insufficiency of the evidence violates the defendant's right to due process of law under the Fourteenth Amendment. Petitioner's conviction and sentence to death were fundamentally unfair, and his sentence was rendered unacceptably unreliable to meet Eighth Amendment requirements. CLAIM 68: There wasInsufficient Evidence of Willful, Deliberate and Premeditated Murderas Defined Under California Lawat the Time of the Offense in Counts IT and III. 1. In this matter, the only evidence additional to the statements of petitioner concerning the killings is the brief testimony of the coroner whostated that the cause of death in Count II (Chavez) was a "cutting woundto the neck" and in CountIII (Carter) was a rope strangulation. (RT 4242). 2. Petitioner's alleged statement regarding the two murders wasthe only other testimonyregarding the killings. Petitioner allegedly told the police that he had been at Ford Park in Bell Gardens on the evening of the Chavez killing charged in Count II. He had struck up a conversation with Fowler and wassexually attracted to Fowler. Chavez had fallen asleep and petitioner and Fowler walked a short distance away. 3. Fowler made a comment "about fucking faggots." (RT 2394). The comment upset petitioner, who grabbed his knife and cut Fowler's throat. (RT 2394). The court at the first trial had convicted petitioner of second-degree murder and the jury at the second trial was instructed that this murder was at most a second-degree murder (RT 6672). According to the police, Chavez woke up andpetitioner grabbed him and cuthis throat as well. (RT 2394-2395). Petitioner allegedly told the police that he felt bad about Chavez but he had witnessed the other attack. (RT 2501). 4, Petitioner's alleged statement supplied the only evidence regarding premeditation and deliberation in the Carter killing charged in CountIII. Officer Carter 251 LE ) said that petitioner admitted that he had invited Carter to his apartment and showed Carter the strobe lights in his bedroom. (RT 2388). At some point, Carter asked to go home. Mr. Renogot upset. Grabbed a clothesline and choked Carter with it. (RT 2388-2399). 5. Here, there wasinsufficient evidence of premeditation or deliberation in - both counts. In CountII, there was no evidence of any planningactivity. People v. Anderson, 70 Cal.2d 19, 26-27 (1968). 6. The killing of Fowler had been previously held to be a second-degree murder; the Chavez killing quickly followed the Fowler killing demonstrates the lack of planning by petitioner. 7. The circumstances that reduced the Fowler murder to second degree apply equally to the Chavez killing. While the prosecution theorized that Chavez waskilled because he "witnessed" the Fowler murder (RT 2501, 2785), this does not distinguish this killing from Fowler's, which occurred moments before. The mentally driven, rash, impulsive behavior that caused Fowler's death remainedat the time of Chavez's killing. See also Exhibit CC, Declaration of George W. Woods. 8. As to CountIII, evidence of deliberation and premeditation is lacking entirely. None of the recognized three categories of evidence existed in the evidence that waspresentedto the jury. 9. There is no evidence of planning activity. Indeed, the only rational conclusion to be drawn from Mr. Reno’s statementis that he entered the same type of uncontrollable impulsive rage involved in the killing Fowler, which had been determined to be a second-degree murder. He was with Carter and he wanted him to stay. Carter wanted to leave. Mr. Reno grabbed a clothesline and strangled Carter in an impulsive, uncontrollable mental state. 10. Second,there is no evidenceofprior relationship or conduct with Carter from whichto infer a motive to kill. There is nothing pointing to pre-existing reflection 252 rather than a rash impulse hastily executed. Indeed, the prosecutor nearly abandonedthe premeditation argument, asking the jury to reject the testimony of petitioner and speculate that murder occurred in the commission of the felony. (RT 2789). If petitioner's testimony is rejected, there is no evidence whatsoever of premeditation or motive. 11. The mannerofkilling may provide the inference of an intention to kill Carter, it does not prove any premeditation or deliberation. The evidence supports a spontaneous second-degree murder. 12. Under California law at the time of the offense, the mannerofkilling must be "so particular and exacting" that the evidence showsthat he "intentionally killed according to a ‘preconceived design.'” Jd. at 9, People v. Anderson, 70 Cal.2d at 27. The court concludedthat the ligature strangulation failed to support a finding of premeditated murder. 13. Whenall of the evidence is examined, there was insufficient evidence to support a first-degree murder conviction based upon a premeditated and deliberate theory. The unjustified killing of a human being is presumed to be at most a second-degree murder. 14. There wasinsufficient evidence to support a finding of planning, motive or premeditated mannerofkilling to support the first-degree murder conviction on Count JII. 15. Asaresult, the trial, conviction and sentence of death were fundamentally unfair, in denial of due process and rendering the sentence too unreliable to meet Eighth Amendmentrequirements. F. CLAIMS RELATING TO PROSECUTORIAL MISCONDUCT. 1. GUILT PHASE. CLAIM 69: The Prosecution's Presentation of Facts was Directly Contrary to those Contained in the Missing-Juvenile Report. I. The South Gate Police Department missing-juvenile report on Carl Carter, Jr., was prepared on October 22, 1978. The report indicates that Carter was last seen by his brother near the rear of his residence at 7:00 p.m. (1900 hours) on that date. Exhibit S-H, 253 Missing-juvenile report. 2. The prosecutor was aware ofthe true facts as set forth in the missing-juvenile report, but nonetheless committed misconduct by presenting contrary evidence. 3. Officer Sims arrested petitioner on October 27, 1978. In determining probable causefor the arrest, Officer Sims purportedly relied heavily on his alleged belief that petitioner was the last person to have seen the boyprior to his disappearance. This alleged belief was based on two purportedfacts: first, that Carter was claimed to be noticed as missing at 6:00 p.m. and, second,that petitioner admitted his presence at the Carter residenceat that time. 4. However, Simslater admitted having been aware of the contents of the missing person report at the time. Moreover, the court, in finding probable cause for the arrest, considered it significant that according to police testimony,petitioner wasthelast person with Carter prior to his disappearance. 5. The missing-juvenile report directly contradicts a significant factor upon whichthe arresting officer and the court based the probable cause determination; that petitioner wasthe last one to see Carter, at around 6:00 p.m. the day of his disappearance. 6. Furthermore, the report corroborates the statementpolice attributed to petitioner that Carter was safely walking toward his home from a nearby donut shopshortly after 6:00 p.m. The prosecutor presented the officer’s testimony supporting his probable cause determination thoughit directly contradicted the missing-juvenile report in an effort to conceal the illegality of the arrest. 7, Mr.Larkin was, or with adequate investigation would have been, aware of these facts and had notactical reason for failure to object to the prosecution's actions, but failed to do so. 8. As a result of the above, petitioner was denied a fundamentally fair trial and was denied effective assistance of counsel. 254 CLAIM 70:The Prosecution’s Failure to Inform Petitioner of the Theory of First-Degree Murder on Which it Would Rely in Proving CountIII Violated Petitioner’s Rights. 1. Petitioner wasoriginally tried on a special circumstance allegation involving a felony-murder theory. The judgeat the first trial found that allegation not true. Upon issuance of the remittitur, the prosecution amended the informationto strike that special circumstance allegation, maintaining multiple murderas the only basis for a special circumstance finding. (CT 99). 2. During the retrial proceedings, petitioner was charged in CountIII with a violation of Penal Code § 187, murder with malice aforethought. 3. Becauseof the ruling of this Court in MemroI, and after the striking of the felony-murderspecial circumstance allegations, it was incumbenton the prosecutor to inform petitioner specifically of any intention to base its case and prosecute on the felony- murder theory in CountII to allow the defense to prepare its challenge. Furthermore, the prosecutor made no reference to any particular theory priorto trial or in opening statements to the jury. 4. Therefore, based on the verdictin thefirst trial, the decision in Memro I, and the striking of the felony-murderspecial circumstance, petitioner was entitled to and did reasonably believe under the circumstances of this case that the prosecution had abandoned the felony-murder theory. Thus, he was not given adequate notice of the chargesin this matter. 5. It was only at the discussion ofjury instructions, which occurred after the close of the testimonyattrial that the prosecutor informedpetitioner that he would seek instructions on both theories of first-degree murder. Petitioner objected to the felony- murderinstruction voicing concerns based on the decision in Memro I. (RT 2727). 6. Petitioner and his attorney onretrial reasonably relied upon the decision of the trial court on the felony-murder special circumstance, the manner in which the case was 255 briefed (as one in which felony-murder wasno longeran issue), and lack of adequate notice to the contrary to conclude that respondent would not rely upon a felony-murder theory of first-degree murderonretrial. 7. After his first appeal, petitioner legally could have been forcedto standtrial again on, at most, only one theory of first-degree murder as to CountIII. In this circumstance, it was incumbent on the prosecutor was required to give fair notice of what theory would provide the basis for his case. Instead, the prosecutor made no attempt to have the charges better defined. 8. If anything, the prosecutor improperly led petitioner to the false belief that the felony-murdertheory on this count had been legally and practically abandoned. The prosecutor voiced no objection to the court's initial instructions to the jury telling them that they would haveto find a specific intent to kill to support a conviction offirst- degree murder. (RT 2275). It was only after the conclusion of testimony that the prosecutor presented his instructions on felony-murder. Moreover, the prosecutor successfully fought petitioner's attempt to have the jury polled on this very issue. 9. The prosecutor was required by the proceduralstatus of this case to provide petitioner clear notice of his theory of first-degree murder. Failure to do so violated petitioner's Sixth and Eighth Amendmentrights to notice and mandatesreversal of CountIII and the sentence of death. 10. Asa result of the above, both petitioner's guilt and penalty phase trials and sentence of death were fundamentally unfair and in denial of his Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 71: The Prosecutor Committed Misconductin Violation of Petitioner’s Constitutional Rights in Failing to Disclose Impeachment Evidence Regarding Jailhouse Snitch Anthony Cornejo. 1. Petitioner brought a motion to suppress his purported confession on the groundthat it was involuntary. At that hearing, the prosecutor called jailhouse snitch 256 Anthony Cornejo to testify. Cornejo gave false, but damaging testimony when hetestified that petitioner told him that: 1) the confession was voluntary; 2) petitioner was fabricating the accusation that the confession was coerced; and 3) suppressing the confession was petitioner’s only hope of defending himself. 2. Trial counsel renderedineffective assistance of counsel by failing to impeach Cornejo. 3. During the brief cross-examination,trial counsel asked Cornejo abouthis felony convictions and abouthis role as an informant. Cornejo admitted he wasa jailhouse “snitch” who had given testimony in the past on several cases, and was frequently held in the “snitch tank” at the Los Angeles County Jail. See Reporter’s Transcript on Appeal, People v. Memro, dated 10/16/87, pages 993 - 1006. 4. The District Attorney’s Office had in its possession documents whichfully undermined Cornejo’s credibility as a witness. 5. "{T]he individual prosecutor has a duty to learn of any favorable evidence knownto the others acting on the government's behalf in the case, including police. But whether the prosecutor succeedsor fails in meeting this obligation (whether,that is, a failure to disclose is in good faith or bad faith, see Brady . . . [citation]), the prosecution's responsibility for failing to disclose known, favorable evidencerising to a material level of importance is inescapable." Kyles v. Whitley, 514 U.S. at 437; Banks v. Dretke, 540 U.S. __, 1248.Ct. 1256 (2004); Carriger v. Stewart 132 F.3d 463, 479-480 (9th Cir. 1997). 6. This duty to learn of, and disclose, favorable evidenceto the defense, includes not just evidence in the prosecutor's possession but also such evidence "known to the others acting on the goverment's behalf" (In Re Brown, 17 Cal.4th at 879), or known to investigative or custodial agencies to which the prosecutor has reasonable access, (People v. Kasim, 56 Cal.App.4th at 1380, citing, inter alia, People v. Robinson, 131 Cal.App.4th 494, 499 (1995); Pitchess v. Superior Court, 11 Cal.3d 531, 535 (1974)), including 257 prison records (Carriger v. Stewart, 132 F.3d at 479-480)). 7. The prosecutor cannotavoid finding out whatthe "state" knows, by keeping itself in ignorance or by declining to make reasonable inquiry ofthose in position to have relevant knowledge. Jn Re Brown, 17 Cal.4th at 879, fn. 3 (citing Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984) and United States v. Osorio, 929 F.2d 753, 761 (1st Cir. 1991). Thus, a "prosecutor cannot adopt a practice ofsee-no-evil and hear-no-evil. .," particularly where the prosecutor knowsthe informant witness has obtained benefits for prior cooperation with law enforcement. People v. Kasim, 56 Cal.App.4th at 1386. 8. Here, the prosecutor had "reasonable access" to his own office, as well as Los Angeles-area law enforcement officers who had used Cornejo for information in the past. Furthermore, it remains the law that a court mayorderthat a local prosecutor provide even state wide discovery, where the data sought may be compiled from information readily available to the district attorney. People v. Coyer, 142 Cal.App.3d 839, 842-843 (1983). 9. Notably, this Court has re-affirmed the principle that district attorneys represent the State of California -- and act as State officers when preparing to prosecute and prosecuting violations of State law -- not just the County in which the caseis brought. Furthermore,all California district attorneys are directly supervised by the Attorney Generalin all matters pertaining to the duties of their office. Pitts v. County ofKern, 17 Cal.4th 340, 357 (1998), citing inter alia Cal. Con., art. V, § 13. 10. Furthermore, even apart from the foregoing,priorto trial here, the trial court issued discovery orders to nearly all the state agencies which possessed the information which was suppressedattrial, but which has emerged during the instant habeas corpus proceedings. 11. The nondisclosure of favorable evidenceis a violation of the due process clause of the Fourteenth Amendment. The Supreme Court held in Brady v. Maryland, 373 258 vu 63 U.S. 83, 87 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidenceis material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Evidence material toguilt is any evidence that “would tend to exculpate” the accused. Jd. at 88; United States v. Span, 970 F.2d 573, 582-583 (9" Cir. 1992). 12. Ifthe state has knowledge of material evidence favorable to a defendant on a question of guilt or punishment, the Fourteenth Amendmentrequires disclosure of that evidence even absent a request. Brady, 373 U.S. 83; United States v. Agurs, 427 U.S. 97, 112 (1976); California v. Trombetta, 467 U.S. 479, 480, 485 (1984). Disclosureis required of all such material evidence, whether or not that evidence would be admissible at the defendant’s trial. 13. The obligation of disclosure under Brady extends to evidence that might be valuable in impeaching government witnesses. Bagley, 473 U.S. at 676 (citing Giglio v. United States, at 154) (governmentfailed to disclose promise made to witness that he would notbe prosecutedif he testified for the government); United States v. Aichele, 941 F.2d 761, 764 (9" Cir. 1991) (prosecution mustdisclose favorable evidence when disclosure would help the defendant); see also, United States v. Strifler, 851 F.2d 1197, 1201 (9" Cir.1988). If the prosecution witness is a police informant, the fact that he has previously offered to testify against other defendants in return for consideration, or has previously madefalse accusations, is material evidence relevant to the witness’ bias, interest and motive, which might cause him totestify falsely. 14. Impeachment evidence falls within Brady because “if disclosed and used effectively, it may make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676. Under Bagley, undisclosed evidence is material “ if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient 259 vu wu to undermine confidence in the outcome. Jd. at 682. 15. The prosecutoralso presented false testimony through Anthony Cornejo regarding the alleged confession made by Mr. Reno to Cornejo. A prosecutor's knowing presentation of false testimonyis “inconsistent with the rudimentary demandsofjustice.” Mooney v. Holohan, 294 U.S. 103, 112 (1935). A due process violation occurs when a prosecutorfails to correct testimony he knowsto befalse, (Alcorta v. Texas, 355 U.S. 28 (1957)), even when the falsehood in the testimony goes solely to the witness’s credibility. Napuev. Illinois, 360 U.S. 264 (1959); see also Giglio v. United States, 405 U.S. 150 (1972) (newtrial required when governmentwitnesstestified falsely on mattersrelating to credibility and the prosecutor who servedas trial counsel should have been aware of the falsehood). 16. Thefailure to fully disclose evidence regarding Anthony Cornejo and the presentation of false testimony violated petitioner’s Due Process rights under the Fifth and Fourteenth Amendments, petitioner’s right to heightened capital case reliability under the Eighth Amendmentand renderedtrial counsel ineffective under the Sixth Amendment. All the non-disclosed information is material in each instance, and collectively, in that it raises the possibility of acquittal, and undermines confidencein the verdict, mandating reversal. See Kyles, 514 US. at 434-435; Banks, 124 S.Ct. 1256. 17. Because the errors here were deliberate and egregious, and include a pattern of prosecutorial misconduct, reversal is automatic. Brecht v. Abrahamson, 507 U.S.at 638, fn. 9. Reversal is also mandated, as the judgmenthere wasentirely "swayed by the error," Kotteakos v. United States, 328 U.S. at 765, and the error had substantial and injurious effect or influence in determining the jury's verdict, resulting in actual prejudice. Brecht v. Abrahamson, 507 U.S. at 623, 637, quoting Kotteakos, 328 U.S. at 776. 18. Prior to his testimony in this case, Cornejo wasa jailhouse snitch in several cases. In the first case where hetestified, he committed perjury. He was used very 260 infrequently thereafter as the Los Angeles District Attorney’s Office discovered he was unreliable. Memorandathatcirculated in the District Attorney’s Office between 1980 and 1990 unequivocally stated that Cornejo could not be trusted as an informant. 19. Anthony Cornejotestified in People v. Ash in late 1979. After he testified at trial, Cornejo’s co-informant William Schenley admitted to Deputy District Attorney Stephen Kay that he fed Comejo information about Ash so that Cornejo couldalsotestify. 20. Cornejo and Schenley were handcuffed together on the bus. Ash wassitting in the aisle seat across the aisle from Schenley. Ash and Schenley engaged in a conversation and Ashallegedly confessed to Schenley. Throughout the conversation, Cornejo would jerk Schenley overto his side to ask what wasbeing said, as he wassitting too far to hear. When the two returnedto the jail, Schenley told Comejo everything he had learned so that Comejo could call a DDAandtry to negotiate a deal in exchangefor his testimony. Exhibit F, Memorandum from Stephen Kay to Stephen Trott, dated 12/3/80. 21. Kay asked that a perjury investigation be launched against Cornejo. Cornejo refused to discuss the perjury allegation, though he addedthat he might reconsider “if someone would paint me a brighter picture.” Exhibit G, Investigator’s Report by Frank Kovacevich, 3/22/81. 22. Comejo offered to testify in People v. Bittaker in 1980. He was notused at trial because of his perjury in the Ash case. After hearing Schenley’s admission, DDA Kay investigated Cornejo’s reliability before putting him on the stand in Bittaker. Kay concluded that “Cornejo is without a doubt one of the most unscrupuloussnitchesthatI have ever run across in 14 years as a deputy district attorney.” Exhibit F, Memorandum from Stephen Kayto Billy D. Webb, dated 6/1/82. Cornejo was preparedtotestify that Bittaker had described the rape-murderof oneof the five girls Bittaker was accused of killing. 23. Cornejo later admitted that DDA Rudolph and Sergeant Pailett approached 261 the informants in the “snitch tank” with a plan to obtain information from Lawrence Bittaker. He admitted that he was given copies of the reports and orally briefed about the case in order to gain more specific information. When Bittaker refused to divulge any information, the inmates weretold to develop a “script” that they could agree to and testify to at trial. The script was written by William Schenly, a convicted perjurer and Comejo’s co-informant from the Ash case. 24. In People v. Douglas, in 1979, the prosecution chose not to call Cornejo because they found him to be completely lacking in credibility. DDA Saukkola interviewed Cornejo to determinehis credibility and “found Cornejo not credible at all. Cornejo was in on federal bank robbery charges and Saukkola wrote a letter to Cornejo’s attorney stating that he had not used Cornejo, did not intend to and did not find him credible.” Exhibit H, Memorandum from Law Clerk Kathy Cadyto the file, through Stephen Kay, dated 1/24/89. 25. Cormejo contacted DDA Darden in People v. Lee to report a confession he claimed he obtained from the defendant. An investigator interviewed Cornejo and Cornejo agreed to give a written statement. Cornejo told the investigators that he met the defendant in the court returnee cell at the Sheriff's inmate reception center. Cornejosaid that the defendant asked him if he knew inmate Fred McCord. When Cornejo told Lee that he did, Lee threatened to firebomb McCord’s girlfriend and family “the same way I firebombed that house with the lady... and baby...” 26. At the conclusion of the interview Cornejo refused to give a written statement. Investigators contacted the inmate reception area and weretold that there was no record of Lee being sent to court that day. The prosecutor ultimately chose notto call Cornejo becausean “investigation conducted by this office revealed that Cornejo wasa liar and could not be considered credible.” Exhibit I, Memorandum from Christopher Darden to Hecht, 1/26/89. 27. In March of 1987, an officer admitted that he placed a suspect in the “snitch 262 tank” in order to extract a confession. Four snitches allegedly obtained that confession, including Anthony Cornejo. “The only evidence establishing the [Defendant’s] guilt was a ‘jailhouse snitch’ confession. The officer testified that he placed the [defendant] in the snitch tank for the express purpose of obtaining a confession.” Exhibit J, People v. Daniels Disposition Report by DDA Seldeen, dated 3/17/87. The court held that this violated the defendant’s Sixth Amendment rights and dismissedthe case. 28. During cross-examination in this case, Cornejo wasaskedtolist all cases in which he hadpreviously testified as a jailhouse informant or expectedto testify in the near future. (RT 993-1006). An investigation into these cases by law clerks revealed that several of the cases that Cornejo listed were false in that he had nottestified. Cornejo claimedto havetestified in People v. Figueroa. DDA Frank Sunsedt told the law clerk that he knew Cornejo from having prosecuted him in a separate case and wassure that Cornejo nevertestified against Figueroa, though he noted that Cornejo might have offered to provide information. 29. Cornejo claimed he expected to be called to testify in People v. Mercurio Garcia. A law clerk reviewing the file during the informant scandal was unable to locate the case so he called DDA Frank Johnson who prosecuted the case. DDA Johnsonsaid that Cornejo was not usedat trial and that DDA Watson who conductedthe preliminary hearing did not call him either. Exhibit K, Memorandum from Law Clerk Michael Shultz, dated 3/1/90. 30. In other cases Cornejo listed, the cases were never found and no information either confirming or contradicting Cornejo’s claims was found. Exhibit K, Memorandum from Law Clerk Michael Shultz, dated 3/14/90. The case of People v. Michael Montona wasneverlocated so the law clerk was unable to determine whether Cornejo actually testified. Exhibit K, Memorandum from Law Clerk Michael Shultz, dated 3/5/90. Cornejo claimedhetestified for the US Attorney’s Office against Donald Pratt and Christopher 263 Boyce. No information on either of these cases was located. Exhibit K, Memorandum from Law Clerk Michael Shultz, dated 3/5/90. 31. Reversal is required when the court determinesthat “if disclosed and used effectively, the impeachment evidence may makethe difference between conviction and acquittal.” United States v. Bagley, 473 U.S. at 676 (1985); Bagley v. Lumpkin, 798 F.2d 1297, 1300 (9th Cir. 1986). The Court’s task is to: consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant's case, and to assess that effect in light of the totality of the circumstances. The proper inquiry is an objective one: whether the Government's failure to assist the defense by disclosing information that might have been helpful in conducting cross-examination undermines confidence in the outcomeofthe trial... . The inquiry is not how this or any other judge,as the trier of fact, would subjectively evaluate the evidence. It is, rather, how the absence ofthe evidence objectively might have affected the outcomeofthetrial. Bagley v. Lumpkin, 798 F.2d at 1300-1301. Here, the impeachment evidence was of critical effect, considering that Cornejo’s potential testimony determined what defense was presented and what evidence was introduced in support of that defense, because of the potential prejudice if Cornejo’s testimony was provided for the jurors. 32. As the Supreme Court held: Whenthe “reliability of a given witness may well be determinative of guilt or innocence,” non-disclosure of evidence affecting credibility falls within the general rule [of Brady]. We do not, however, automatically require a new trial whenever a combingofthe prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict..... A finding of materiality of the evidenceis required under Brady. A newtrial is requiredif “the false testimony could. in any reasonable likelihood haveaffected the judgmentofthe jury.. Giglio v. United States, 405 U.S. at 154; United States v. Bagley, 473 U.S. at 677. 33. Cornejo’s testimony against petitioner was substantial and material. It provided the only substantial evidencethat petitioner’s purported confessions were voluntary. The confession wasvirtually the only evidenceofpetitioner’s guilt in the 1976 killings and the primary evidenceofhis guilt in the Carterkilling. 264 34. There can be no question but that the disclosure of the information about Cornejo including his sordid history as a lying and manipulative snitch, would have been critical in cross-examining him. As such, the “confidence in the outcomeofthetrialis clearly undermined.” It is at least reasonably likely that Cornejo would have been disbelieved had he been properly impeached. Indeed, a verdict was reached only after a re- reading of Cornejo’s testimony during deliberation. It cannot be said that the outcome of petitioner’s trial might not have been more favorable to petitioner. 2. GUILT PHASE ARGUMENT. CLAIM 72: The Prosecutor Committed Misconduct By Misstating the Law During Argument. l. During his argumentto the jury, the prosecutor argued his theory of the Penal Code §288 charge. He defined Penal Code §288 as “any touching, outer clothing, on the body with the intent to arouse your own sexualdesires,” and then related that definition to the facts as described in the purported confession: so at the moment he touched this young boy, the momenthe put that clothesline around him,in addition to probably thinking of wantingto kill him, he has some sexual desire of his own... . it’s uncontroverted he’s seven. Andthat the act was committed with the specific intent to arouse, appealto, gratify the lusts, passions or sexual desires of such person or the child. (RT 2847). 2. This “explanation”ofthe law to the jury was both wrong and misleading. At that time, California courts had not adopted the ‘any touching rule’ described by the prosecutor. The touching in a charge of lewd and lascivious conduct with a minor required a lewd touching, not merely any touching. Touching the victim with a clothesline as contemplated by the prosecutor was not a “lewd” touching. 3. The applicable law regarding lewd touching was discussed in People v. Webb, 158 Cal. App. 2d 537 (1958): Placing one’s arm around the shoulder of a boy under the circumstances presentin this case cannotbesaid to be lustful, immoral, seductive or 265 degrading. The act took place in broad daylight before defendant and the boy had withdrawnto the privacy of the bungalow. Such a casual act would not be considered so unnaturalas to invite the scrutiny of even the most suspicious mind. It is inconceivable that any court would convict a man ofa violation of section 288 upon the mere proofof an act such asthis. 4. Other cases confirmed that Webb required that the touching itself must be sexual in nature, though the genitals themselves need not be touched. “It has long been held that a ‘lewdor lascivious act’ within the meaning of section 288 is not confined to genital touching. Nevertheless, the touching must be lewd.” People v. Gaglione, 26 Cal. App. 4th 1291 (1994) (citations omitted). “A lewd or lascivious act is defined as any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire. .. . In sum,it is a sexual act.” People v. Wallace, 11 Cal. App. 4th 568 (1992) (citations omitted). A lewd or lascivious act is one whichis sexually unchaste or licentious, suggestive of or tending to moral looseness, inciting to sensual desire or imagination, inclined to lechery, or tending to arouse sexual desire. People v. Pitts, 223 Cal.App.3d 606, 887 (1990). | 5. The prosecutor argued that the jury could eliminate the requirementthat the touching had to be “lewd” in orderto satisfy the elements of § 288. The prosecutor told the jury that any touching wassufficient, regardless of whether it was lewd. While the prosecutor’s argumentthat lewd intent was required, the prosecutor’s elimination of the lewd touching was erroneousandeffectively eliminated an element from the jury’s consideration. 6. Taken together, the Sixth Amendmentright to a jury trial and the Fourteenth Amendment right to Due Process indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which heis charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); In re Winship, 397 U.S. 358, 364 (1970) (“The Due Process Clause protects the accused against conviction except upon 266 proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”). In Apprendi v. New Jersey, 530 U.S. 466, 484 (2000), the Court explained “As we madeclear in Winship, the ‘reasonable doubt’ requirement‘hasa vital role in our criminal procedure for cogent reasons.” 7. It is critical that the jury be allowed to considerall elements of the charged crimes. See, e.g., Neder v. United States, 527 U.S. 1 (1999); Yates v. Evatt, 500 U.S. 391 (1991); Carella v. California, 491 U.S. 263 (1989) (per curiam); Popev. Illinois, 481 U.S. 497 (1987). The prosecutor’s arguments told the jury to do the exact opposite. The net effect of the prosecutor’s argument wasto lessen the burden of proof below that of beyond a reasonable doubt. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975); Sandstrom v. Montana, 442 U.S. 510 (1979), Patterson v. New York, 432 U.S. 197, 214-215 (1977). 8. The prosecutor’s argument violated petitioner’s Sixth Amendmentright to haveall necessary elements determined bythe jury, as well as his Due Processright under the Fifth and Fourteenth Amendments and heightened capital case scrutiny under the Eighth Amendment. | CLAIM 73: The Prosecutor Committed Prejudicial Misconduct During the Guilt Phase by Commenting on Petitioner's Failure to Testify. 1. “{T]n the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. 315, 320-321 (1959). 2. The methods used by prosecutor Millett to obtain a death sentence were reprehensible and requires reversal of the guilt and penalty phase verdicts. Misconductin argument, such as committed here, alone may be groundsfor reversing a conviction. See, e.g., Berger v. United States, 295 U.S. 78, 85-88 (1935). 3. A prosecutor, while an advocate, is also a public servant “whoseinterest, 267 therefore, in a criminal prosecution is not that [she] shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S.-at 88. It is the duty of a prosecutor not only to convict but to seek justice. See A.B.A. Standards for Criminal Justice, 2d Ed. (1982) §§3-1.1(b)(c); A.B.A. Code of Professional Responsibility. ( E C 7-3; see also Berger, 295 U.S. at 88. She has a responsibility to guard the rights of the accused as well as those of society at large. A.B.A. Standards, §§3-5.8(c)(d). This is so because “society wins not only when the guilty are convicted but when criminal trials are fair; our system ofjustice suffers when any accusedis treated unfairly.” Brady, 373 U.S.83. 4. The prosecutor is generally viewed with special regard by the jury. People v. Bolton, 23 Cal.3d 208, 213 (1979). “[T]he prosecutorial mantle of authority can intensify the effect on the jury of any misconduct.” Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir. 1985)(en banc). A criminal conviction mustbe reversedif the actions of the prosecutor “so infected the trial with unfairness as to makethe resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). 5. Here, during closing argument, the prosecutor madethe following statement: Whydoesn't he tell us about his friend that the police are looking for? Now, according to mostofthese articles, very prominentin the whole thingis that there were these two people at this park. Now why doesn't he tell us about his pal who presumably got away? (RT 2794; emphasis added). 6. This comment was directed not only generally toward petitioner's failure to testify but was specifically designed to underminethe strongest piece of evidence against petitioner's direct participation in the homicides: the fact that someoneelse not matching petitioner's description had been seen with Fowler and Chavez on the nightof the killings. 7. The prosecutor improperly violated petitioner’s right not to testify at trial. The prosecutor argued: Nowif you take- if you take those things as facts, then everything fits almost exactly with the one thing that Mr. Memrohasnever mentioned, the other 268 person. Nowonly he knows whyhe did that. Maybeit’s because somewhere downin his inner core of him, whereverthat is, says maybe I shouldn’t give them this one last great witness against me or maybe he’s just a friend that he doesn’t wantto intrude upon, doesn’t wantto get involved in this thing, and so he just keeps him quiet. I don’t know. That’s a speculation. (RT 2844; emphasis added). 8. Besides being utter speculation, the comments violated petitioner’s right not to testify. The comments led the jury to believe that it was petitioner’s responsibility to testify before the jury and provide themwith all details of the crimes. Under the Constitution, petitioner had no such duty. Practically, petitioner also would and could not do so, since he denied being involvedin the charged crimes. 9. It is reasonably likely that the jury found petitioner more culpable based on the misconductof the prosecutor. While a prosecutor “maystrike hard blows,heis not at liberty to strike foul ones.” Berger, 295 U.S. at 88. In conjunction with the ineffective assistance oftrial counsel in not preventing or remedying this misconduct, the result was a fundamentally unfairtrial. 10. The prosecutor's improper argumentdeprived petitioner of a fair and accurate determination of guilt and penalty in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 74: The Prosecutor Committed Misconduct During Guilt Phase Argument When He Took Advantage of ErroneousInstructions Regarding Count1. 1. The guilt phase was replete with errors caused by prosecutorial misconduct and exacerbated bythe ineffective assistance oftrial counsel. The pervasive misconduct and the lack of any significant attempt bytrial counsel to stem the tide of wrongdoing resulted in a fundamentally unfair trial requiring reversal of the conviction. The tenor of the trial was determinedbythe aggressive strength of the prosecutor andthe virtual abdication bytrial counsel of his role as an advocate. 269 2. By his stream of misconduct, the prosecutor underminedpetitioner’s right to present, and havethe jury fairly consider, his defense. The pervasive prosecutorial misconductdeniedpetitioner his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to a fair and reliable determination of guilt in a capital case. 3. Misconduct by a prosecutor in closing argumentalone may be groundsfor reversing a conviction. See, e.g., Berger, 295 U.S. at 85-88. A criminal conviction must be reversedif the actions of the prosecutor “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). 4. Here, the prosecutor commented during argumentto the jury that: Now,as you noticed, second degree murderis the limit that the defendant can be found guilty on as to Count 1. Nowthat’s for a special legal reason that you don’t need to concern yourself with, and yourinstruction says you need not consider yourself with. And it’s something that, since you don’t need to concern yourself with, you won’t be told the reason. (RT 2783). 5. The instruction given to the jury telling them not to consider the reason why Count 1 was second degree was erroneous because it implied that there had been a prior adjudication, at least as to Count1. 6. The prosecutor’s comments compoundedthat error and were independent misconduct becausethey told the jury that the reason why they couldn’t considerit was a “special legal reason.” (RT 2783). This description was reasonably likely to conveyto the jury that petitioner had already been tried once before on these crimes. The subject of retrial was not a properfact to put before the jury and it was misconductto do so. 7. The prosecutor further exacerbated this misconduct bystating: And whatyou might be tempted to do— and certainly hope that you don’t, because you shouldn’t- is you might take a look at Count 2 and see that in a general kind of wayit’s rather similar to Count1, therefore, it must be a second degree murder. It’s the murderthe cutting of the throat of a young boy fishing in a park, andit’s something that occurred only a few moments 270 apart. However, legally those two crimesare very different. (RT 2784). 8. The jury should have been allowed to do precisely what the prosecutor forbade them to do— concludethatsince, as a matter of Jaw, Count 1 was a second-degree murder, Counts 2 and 3 were also second-degree murder. The prosecutor’s remark that “legally those two crimesare very different” further misled the jury. 9. It was also particularly misleading, since according to the instructions and the prosecutor, the jury was not to consider the legal reason why the crime wasa second- degree murder. The prosecutor wasthus able to argue, based on this erroneousinstruction, that a secret legal rationale existed which rendered Count 1 second-degree, but also determined that Counts 2 and 3 were “legally” very different. The prosecutor should not have commented in this manner about something which thetrial court and the prosecutor said the jury should not consider. 10. It was constitutional error to give this instruction. The prosecutor took advantage ofthis instruction and applied it in a manner whichfurther violated petitioner’s right to Due Process. The resulting conviction and sentence violate petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 75: The Prosecutor Committed Misconduct by Commenting on Petitioner’s Sexuality and Potential Punishment. 1. The prosecution already inflamed the passions of the jury by introducing irrelevant and grossly prejudicial pornographic material. The prosecutor further exacerbated the prejudicial effect of petitioner’s sexual orientation in his closing argument. Mockingpetitioner as if he were musing before killing the victims, the prosecutor argued: — Well, let’s see. If 1 kill this young boy, what will happen? They’ll probably send meto prison, but that won’t be so bad. They’ll feed me andtake care of me, and it will be a lot of security. [9] And since I don’t like —I have no interest in women anyway,that part of it won’t be so bad. (RT 2786). 271 2. These remarks implied that petitioner should not be sent to prison because, due to his homosexuality, he would considerit a harsh punishment. This argument was particularly impropersince, in the guilt phase, the prosecutor should not have commented on potential sentences. 3, The prosecutor continued, speculating about whatpetitioner thought: Myincometax will be a lot less. I won’t have to buy clothes and so on. And all things on balance, that sounds pretty good. That’s the worst that’s going to happen to me. (RT 2786). 4. These statements by the prosecutor were irrelevantat the guilt phase. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994); Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104, 110 (1982); Barclay vy. Florida, 463 U.S. 939, 948-951 (1983). 5. The Due Process Clause of the Fourteenth Amendmentprohibits the criminal conviction of any person “except upon proof beyond a reasonable doubtof every fact necessary to constitute the crime with which he is charged.” Jn re Winship, 397 U.S. 358, 364 (1970). 6. The prosecutor sought to convict petitioner not based on the evidence presentedat trial, but on inflammatory and improper comments regarding petitioner’s lifestyle. The inflammatory remarks during the prosecutor's closing argument were highly improper because “[p]rosecutors may not make commentscalculated to arouse the passions or prejudices of the jury.” United States v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir. 1999). These comments were improper and require reversal. CLAIM 76: The Prosecutor Committed Misconduct by Arguing Erroneous Definitions of Second Degree Murder. 1. The prosecutor, while an advocate, is also a public servant “whoseinterest, therefore, in a criminal prosecutionis not that [she] shall win a case, but that justice shall 272 be done.” Berger, 295 U.S. at 88. The prosecutor is viewed with special regard by the jury. People v. Bolton, 23 Cal.3d 208, 213 (1979)). “[T]he prosecutorial mantle of authority can intensify the effect on the jury of any misconduct.” Brooks, 762 F.2d at 1399. 2. A criminal conviction must be reversedif the actions of the prosecutor “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). 3. Here, the prosecutor commentedthat: Now,there are a couple of definitions of second degree murder, Oneis the unpremeditated killing of another person, and that’s one theory. The other theory is any act— any act done for wanton, antisocial, base purpose and so on. I think either one of those thingsfit those facts, and I think it should just take you a moment or two to agree that the second degree murdercharge that is charged against Mr. Memro1s appropriate. (RT 2785). 4. Byarguing both theories, the prosecutor was able to effectively eliminate the elementof intent to kill required for second-degree murder. 5. The prosecutor’s argument wasthat, if petitioner performed one or more of the killings, even if premeditation or deliberation was lacking, petitioner was guilty of second-degree murder on one of two theories. Either, as an intentional killing or as a killing resulting from an intentional act, with reckless disregard for the fact that death was likely to result. 6. This argument, however, eliminated the intent requirement from second-degree murder. There was no evidence, that whoever killed the victims had anything other than the intent to kill. The reckless indifference theory is appropriate when a defendant commits an act without the specific intent to kill, but with reckless indifference to the certainty that death will result. 7. To argue that reckless indifference second-degree murder was,in effect, removing the intent requirement. Whoeverkilled the victims: either intended to kill, or did 273 & not form anyintent to do it due to diminished capacity/actuality or insanity. Reckless second-degree murder was not designed to encompasssituations such as this. There was no evidencethat these crimes were accidental, or otherwise lacking in intent. Hence, it was improper to expandthe scope of second-degree murderin this way. This argumentviolated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 77: The Prosecutor Committed Misconduct by Arguing Two Theories of First-Degree Murder in Count3, in Violation of Double Jeopardy Principles. 1. The prosecutor improperly argued twotheories offirst-degree murder regarding CountIII, despite the fact that in thefirst trial the judge found the felony murder special circumstance to be untrue. This argument deliberately violated petitioner’s rights not to be placed in double jeopardy. 2. The prosecutorstated: Now,as to Count 3, the murder of Carl Carter, Jr., there are two theories. Oneis it could be a willful, deliberate, premeditated murder, or it could be a murder that occurred during the course of a felony. The felony— during the course of attempted felony or a completed felony— that of child molest. (RT 2786). 3. The prosecutor, after summarizing the evidence from petitioner’s purported confession,stated: Well, I think if you think aboutit, and considering that he taped his hands behind his back— anybody here believe he did that after he was dead? These things didn’t happen exactly the way Mr. Memrohasstated it. These happened more than likely while he was attempting somesort of a child _molest, some sort of a sexual advanceorattack on this boy. Either that happened or because he already knew that he had killed two other boys 27 monthsearlier and had gotten awaywithit, that the same thing could happenthis time. (RT 2789). These comments demonstrate that the prosecutor actively sought to try petitioner based on both theoriesoffirst-degree murder, despite petitioner’s acquittal of the felony-murder 274 & u special circumstance. 4. Hefurther argued both theories whenhestated: He had had somesexual relations with this young boy. He couldn’t possibly let him go backandtell his father or anyone else. And there was only one thing left to do then, and he took that clothesline and, as he described.tied it in a square knot, something that presumably he remembers, and choked him to death. (RT 2789). 5. Any ambiguity in whether he argued both theories was removed whenhe stated: So he intendedto kill. It was willful. It was deliberate. It was premeditated, and it was in the commission ofa felony, that is, to commit a child molest. (RT 2789-90). 6. The prosecutor exacerbated this misconduct by arguing for a lesser burden of proof required to convict petitioner offirst-degree murder in Count III. The prosecutor explained to the jury that it need not agreeas to their theory: Now,you received an instruction that you don’t have to unanimously agree among yourselvesas to the theory to find someoneguilty offirst degree murder. Andthisis an instructionthat is specially apt as to Count 3, because I would imagine some of you are more comfortable believing that it happened during the course of a felony and some of you may be more comfortable believing that it was a willful, deliberate and premeditated murder. If six of you feel one way andsix feel the other, that’s first degree murder. (RT 2790). Oneof these theories of murder wasnecessarily rejected by the trier of fact in the first trial. To argue an inapplicable theory to the jury, and to encouragethejury to so find, impermissibly lowered the prosecutor’s burden of proof below a unanimousfinding ofall jurors beyond a reasonable doubt. 7. Whenconcludinghis initial argument, the prosecutor argued: It’s a first degree murderasto the little Carter boy, either on a willful, deliberate, premeditated murder or on the felony murderrule. (RT 2795). 275 \ 8. In rebuttal, the prosecutor argued: Does anybody have any doubt that Carl Carter, Jr. was in the process of being molested? I don’t think so. (RT 2845). The prosecutorstill clung to both theories. 9. The prosecutor also misapplied the law in arguing that the Carter killing was first degree under a felony-murdertheory: Lewdact with a child. Every person whowillfully and lewdly commits and lewdor lascivious act upon or with the body or any part of memberthereof with the child underthe age of 14 years with the specific intent of arousing, appealing to or gratifying the lusts or passions or sexual desires of such person or of such child is guilty of the crime of committing lewdact or lascivious act upon the bodyofa child. A lewd orlascivious act is defined as any touching of the body of a person underthe age of 14 years with the specific intent to arouse, appeal to or gratify the sexual desires of either party. To constitute a lewd or lascivious act it is not necessary that the bare skin be touched. The touching may be through the clothing of the child. The law does not require as an essential elementof the crime that the lusts, passions or sexual desires of either such personsbe actually aroused, appealedto or gratified. In order to prove commission of a crime of a lewd or lascivious act upon the body of a child each of the following elements must be proved, one, that a person committed a lewd or lascivious act upon the body ofa child. Now,as that definition just— or as that was just defined a few minuteslater, that means any touching,outer clothing, on the body with the intent to arouse your own sexual desires. Now,Mr. Memrosaid that he wanted to bring the kid in there to take some nude photographs. Andif you recall essentially his whole statement is when apparently Ralph,Jr., wasn’t going to go for this or whatever, he said he had to get homeearly, that made him so madthat he grabbedthis clothesline and choked him. Presumably choked him to death at that time, put him on the bed. And what did he immediately do? Herips his own clothesoff, the child’s clothes off, and as he saystries to screw him in theass. Well, what in the world is in Harold Memro’s mindthen at the time he touches that child? I mean,is this some urge that came on him after he choked him to death? Well, I certainly wouldn’t think so. As, at the moment he touched this young boy, the momenthe putthat clothesline around him,in addition to probably thinking of wanting to kill him, he has some sexual desire of his own. And I don’t know what could be a more dramatic example of that than what he just proceeds to do afterwards. The other elementis that the child be under 14 years of age. It’s uncontroverted he’s seven And that the act was committed with the specific intent to arouse, appealto, gratify the lusts, passions or sexual desires of 276 ¥) such person or of the child. And obviously it was to satisfy the sexual desires of Mr. Memro. (RT 2846-47). 10. These comments unconstitutionally misstated the law regarding lewd and lascivious acts, changing the elements of the offense charged. The prosecutor greatly expanded acts which would be criminal underthe statute. Considering that the trial court in the first trial found the felony-murder special circumstance untrue, the misconduct was particularly prejudicial. 11. The prosecutor returned to this theory when hestated: Now,back to Count 3 the Carl Carter, Jr., situation. I believe I left at the lunch break I was talking about you could believe everything that Mr. Memro says through the testimony of Lloyd Carter as to the murder of Carl Carter, Jr., and still come to the conclusion that this is a murderin the course of a child molest. Now,I think that some of you will come to that conclusion, and if you wantto use your commonsenseasI hadindicated earlier, use it a little more and decide what did happen. Again,I think that you’d cometo the conclusion that certainly things didn’t happen in the order that Mr. Memrosays. It’s so unlikely that when the boy wanted to go homethat that made him so angry that he decidedto kill him, and he did kill him; and then after that suddenly some overwhelming sexual desire comes over him, and he attempts anal intercourse with him at that particular time. Obviously what must have really happened is the deed was accomplishedfirst, and he now wasfaced with the possibility and the problem of whatin the world to do about it. He certainly couldn’t havelittle Carl Carter, Jr., going homein tears and probably injured andtelling his parents what Mr. Memro had doneto him. And Mr. Memro remembers doubtless how he handled that situation in the past, and he didit again. (RT 2850-51). The prosecutor again arguedthat petitioner was guilty of both premeditated and deliberated intentional murder and felony-murder. The problem is that the felony-murder theory was necessarily ruled outat the first trial. It violated the prohibition against double jeopardy to try him on both of these theories twice. 12. The prosecutor stressed the felony-murder theory, even thoughit had already been ruled out: 277 It was said that we don’t have to be concerned with anything that Dr. Choi had to say. He’s neutral. I don’t think that’s quite true. I think what Dr. Choi had to say regarding especially the phosphatasetest, I think, goes a long way toward refuting Mr. Memro’s statement that he was, as he puts it, unable to get a hard on. (RT 2851). 13. As discussed herein, it violated double jeopardy principlesto try petitioner on both theories, one of which wasrejected at the first trial. The prosecutor’s argument violated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 78: The Prosecutor Committed Misconduct by Unconstitutionally Shifting the Burden of Proof Onto Petitioner and His Trial Attorney. l. The prosecutor’s closing argument unconstitutionally shifted the burden of proof onto petitioner. This argumentviolated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 2. The prosecutor argued: Now,there’s no evidence in this case anywhere that suggests that these crimes are anything other than what I’ve suggested. If there is, I hope and I _ assume that Mr. Larkin will tell you whattheyare. (RT 2791). 3. The prosecutor has the burden of proving its case beyond a reasonable doubt, including proving all elementsof the crime beyond a reasonable doubt. Petitioner’s trial counsel was not required to demonstrate the contrary. 4. The prosecutor continuedtrying to shift the burden of proof onto petitioner whenhestated: There’s also nothing in the evidence to explain to us why in the world Mr. Memro would want to confess to these crimes if he hadn’t done them. (RT 2793). Petitioner was not obligated to explain any evidence. It was solely the state’s burden to proveit’s theory of the crime. 278 5. The prosecutor consistently maintained that the defense had to present a theory which logically explained all the evidence: Now,the theory— I assume the defense theory is that for some reason he wanted to falsely confess to this crime and he wanted to do it properly. He didn’t want to be caught in any lies or anything for some reason, otherwise who would be prosecuting him for these murders which he apparently wanted? Andif there’s a reason for that, perhaps we’ll hearit from the defense. I don’t know whatitis. (RT 2794). 6. Most damning, the prosecutorstated: Whydoesn’t hetell us about his friend that the police are looking for? Now, according to most of these articles, very prominent in the whole thing is that there were these two people at this park. Now why doesn’t hetell us about his pal who presumably got away? (RT 2794; emphasis added). The clear intent was that petitioner was obligated to identify the second personat the park. 7. First, placing this requirement onto petitioner was constitutionally impermissible, as a criminal defendant1s not required to put forth any evidence. Second, this argument was obviously in badfaith, since the prosecutor knew that petitioner was denying anyrole in the killings at the park. 8. At the conclusion of his argument, the prosecutor once again shifted the burden onto petitioner’s counsel: Andfinally, I’d like to leave you with a thought that I was rather significant. Mr. Larkin tells you there was one witness that camein here in the courtroom, sat up there and looked at Mr. Memro aor somethingto that effect, not one person said that he’s the one I saw outthere. Now,of course, he looks a lot different. He’s clean cut. He’s a lot older. And notwithstandingall that, Mr. Larkin wasn’t quite confident enough to ask any one of them, was myclient out there that night? (RT 2857). Trial counsel was not required to ask any questions from any witnesses. The fact that he may not have asked a certain questionis irrelevant, since under the Constitution, he need not ask any questionsatall. 9. The prosecutor’s arguments shifted the burden of proof and impermissibly 279 commented on petitioner’s right to remain silent. Under Jn re Winship, the prosecution always has the burden of proof on every element of the charged crimes. These comments violated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 79: The Prosecutor Committed Misconduct in Commenting on Retrials. 1. During argument, the prosecutorstated: Now, the defense by innuendo, Greeneis six foot two and 225 pounds. Now, it’s a small point. My recollection is Carter said he was six one and 215. Jf we havethis trial again in another 10 years, I’msure he’ll be six foot eight and 290. (RT 2829; emphasis added). 2. This commentabouta potential retrial was completely improper. The conceptofa retrial had not been addressed bypetitioner’s attorney, so the prosecutor was not rebutting any such contentions. Thetrial court had already ruled that the jury would not be informed ofthe priortrial. 3. The comments abouta retrial unfairly lessened the jury’s sense of their duty to decide the case. It unfairly insinuated that their decision would be subject to review and reversal, thus placing irrelevant concepts in their minds during deliberations which could lead to a hasty andill-considered verdict. 4. This misconduct was exacerbated bythe fact that petitioner had previously been tried on these offenses. Due to the length of time between the offenses and purported confessions and the 1987 trial, it is reasonably likely that the jury inferred that petitioner had previously been tried and convicted on all counts. This knowledge lessened the importance of the jury’s verdict, due to their perception that another jury had already convicted petitioner of these crimes. 5. By implying that anotherjury had already convicted petitioner of the charged crimes, the prosecutor lessened the jurors’ sense of responsibility. See, e.g., Caldwell v. Mississippi, 472 U.S. 320 (1985); Darden, 477 U.S. at 184, n. 15, (1986); . Duggerv. 280 Adams, 489 U.S. 401, 407 (1989); Sawyer v. Smith, 497 U.S. 227, 233 (1990). This argumentviolated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 3. PENALTY PHASE. CLAIM80: The Prosecutor Committed Misconduct by Cross-Examining Petitioner Regarding the Appellate Process. l. Atthe end ofthe penalty phase, petitioner requested, over his attorney’s objection, that he be allowed to address the jury. After initially denying the request and stating that to allow the statement would be “participating in judicial suicide” and would be “very offensive” (RT 2967), the court granted the request and stated that Mr. Reno could make the statement from his position at the defense table. (RT 2967). Followinghis ruling in responseto the prosecutor’s question of whether Mr. Reno could take the witness stand, the court stated “I’m not going to allow you to cross-examine him.” (RT 2968). 2. Petitioner was sworn and madea statement after having been assured by the judge that he would not be subject to cross-examination. (RT 2968). The full statement wasas follows: I just have a short statementI'd like to read to the jury. While I do not concede the truth, accuracy or correctness of the jury's verdicts, I do feel that since the jury has returned the verdicts of guilt in the maximum degree possible in all counts and the special circumstance, that they should also now return with a verdict of death as the appropriate penalty. 3. After petitioner gave his statement, the prosecutor sought to cross-examine on the groundsthat petitioner "has some idea he gets quicker appellate rights if he gets the death penalty." (RT 2969). On this thin reed, the trial court reversedits initial ruling barring cross-examination ofpetitioner. 4. The improper cross-examination ofpetitioner following his testimony requesting the death penalty wasas follows: Q. Mr. Memro,it is a fact, isn't it, that you intend to appeal these 281 convictions? A. I have nospecific intention to be on the automatic and non- waiver appeal in California. Q. Andit's your feeling that you'll get quicker and more direct access to the Supreme Court if you are given the death penalty rather than life without possibility of parole? A. That's a fact. It goes directly there, yes. Q. Andisn't that the reason that you're making this statement to the jury? A. No,that is not the reason. (RT 2970-2971). 5. This cross-examination, on the facts of this case, was wholly outrageous. It invited the jury to infer that the responsibility for imposing the death penalty ultimately lay with the appellate courts, not with the jury. It also invited the jury to punish petitioner for his statutory automatic appeal. 6. Thetrial court's after-the-fact changed ruling and the prosecutor's line of questioning deprived petitioner of a fundamentally fair penalty proceeding and created an impermissible risk that the death verdict was unreliable, arbitrary and capricious,all in violation of the Sixth, Eighth, and Fourteenth Amendments and the California State Constitutional analogues. CLAIM 81: The Prosecution did not Provide Adequate Notice of the Evidence it Would Present at the Penalty Phase Under Penal Code § 190.3. l. No prior act evidence was introducedat the penalty phaseofthefirst trial. 2. The prosecution did not supply notice to the defense regarding the evidence the prosecution would seek to introduce at the second penalty phase. 3. On February 6, 1987, petitioner moved to declare unconstitutional and strike a prior felony conviction as an aggravating factor in anticipation that this felony conviction might be used against petitioner. (CT 294). After a hearing on this motion, the court 282 granted the motion, declaring the prior felony conviction to be unconstitutionalforall purposes. (RT 374). The defense was again led to believe that there would be no useof the prior conviction orthe underlying acts once it had been declared unconstitutional by the court. 4. Despite the lack of notice, the prosecution presented at the penalty phase the testimony of a police officer and the alleged victim, David Schroeder, regarding the facts underlying the stricken and unconstitutional felony conviction. (RT 2904). Because ofthe lack of notice defense counsel asked only one question (whetherhestill had his clothes on whenhe lost consciousness) on cross-examination of the complaining witness. (RT 2922). 5. In addition to being a violation of the state statute, the lack of adequate notice denied petitioner his rights to adequately prepare his penalty phase defense andto a fundamentally fair and reliable determination of penalty under the Fifth, Sixth, Eighth and Fourteenth Amendments. 6. Had adequate notice been given, the defense would have been able to obtain the prior testimony of the potential witnesses for use in cross-examination. 7. In particular, Schroeder's testimonyat the 1972 preliminary hearing was vastly different from his testimony at the penalty phase. 8. Ondirect examinationattrial, Schroedertestified that he was shownpictures of nudes, was then caressed by petitioner and the next thing that happened wasthat petitioner choked him andhefelt "a blow of somesort." (RT 2920). At the preliminary hearing, there was no mention ofcaressing. 9. On cross-examination at the preliminary hearing, Schroeder said that he was given a karate shirt to put on overhis street clothes. He was standing. Accordingto his testimony: Q. That1s really basically the last thing that you rememberaside from waking up on the bed? 283 a ® a ® A. Uh-huh. Q. You are unclear as to how the injury you suffered was actually given to you; is that right? A. Uh-huh. I don't know how I did—doneit. Q. You could have been standing when you got the injury and wokeup in bed? A. Uh-huh. Q. Think back in your own mind, David, andtell me whether you suffered any other blow to your head after you went into the bedroom but before you put the karate clothes on. A. No. 10. In the absence of serious cross-examination of Schroederas to the inconsistencies in his testimony, the jury wasled to believe that the Schroeder incident necessarily involved sexual approachesfollowed bya violent attack. There was in essence a concession ofthe truth of the allegations because of the lack of preparation to meetthis evidence or any attempt to counterit. 11. The prosecution relied heavily on this prior act as the basis for the imposition of a death sentence, closing his argument to the jury with the commentthat Schroeder wasthe luckiest man in the courtroom. (RT 2977, 2983). 12. Due process and Eighth Amendmentcapital case scrutiny prohibit trial by ambush. See, e.g., Lankford v. Idaho, 500 U.S. 110, 127 (1991); Gardner v. Florida, 430 U.S. 349, 362 (1977); United States v. Chenaur, 552 F.2d 294 (9" Cir. 1977). 13. As aresult of the above, petitioner's penalty phasetrial and sentence to death were fundamentally unfair and in denial of his Sixth, Eighth and Fourteenth Amendment rights. 284 a w 4. PENALTY PHASE ARGUMENT. CLAIM 82: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument. I. The prosecutorstated, in introducing his penalty phase argument: Now,we’re in a muchdifferent position today than we were back there when we talked to you individually over that long period of time. You’ve now been convinced beyond a reasonable doubt and to a moral certainty of the guilt of Harold Ray Memroofthese offenses. (RT 2976). 2. This statement was misconduct because he used an improperdefinition of reasonable doubt. This violated the Due Process Clause. In Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) the jurors weretold: [A reasonable doubt] is one that is founded upona real tangible substantial basis and not upon mere caprice and conjecture. Jt must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasonsof the unsatisfactory character of the evidence or lack thereof. A reasonable doubtis not a mere possible doubt. Jt is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. Id., at 40 (emphasisin original). 3. The Supreme Court explained whythe highlighted portions of the instruction rendered it unconstitutional: It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to “moral certainty,” rather than evidentiary certainty, it becomesclear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Id., at 41; see also Sandoval v. California, 511 U.S. 1 (1994); Sullivan v. Louisiana, 508 U.S. 275 (1993) (finding an unconstitutional reasonable doubt instruction is not subject to harmless error analysis under Chapman,butis reversible per se); Cage v. Louisiana, 498 U.S. 39 (1990); Estelle v. Williams, 425 U.S. 501 (1976) (“The 285 presumption of innocence, although notarticulated in the Constitution, is a basic componentofa fair trial under our system of criminal justice.”); People v. Freeman,8 Cal.4th 450 (1994) (Reasonable doubt instruction not unconstitutional wheretrial court substituted “mortal evidence” for “moral evidence”; in light of Victor v. Nebraska, this Court criticizes definition of reasonable doubt found in California statute and urges revision by Legislature and/or new definition by committee which develops standard jury instructions). 4. It was improperfor the prosecutor to argue to the jury based on the concept of “moral certainty,” a concept which has been condemned by the Supreme Court. The prosecutor applied erroneous concepts of law in argumentandthetrial court failed to correct those erroneousinstructions. The result was a fundamentally unfair penalty phase, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 83: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument When He Argued Both the Felony-Murder Theory and the Premeditated and Deliberated Murder Theory. l. The prosecutor continued his course of prosecutorial misconduct by arguing the felony-murder theory in the penalty phase. The prosecutorstated: Several years later, he killed Carl Carter, Jr., pretty much the same way. He used him sexually apparently and then just threw him away. Now, Mr. Memro believes in the death penalty, too. And he would give ~ inflict the death penalty on those that crossed him in the most minor ways, that he didn’t require a jury. He didn’t require these complicated procedures that we go through, but simply if a person were to be a witness against him, that’s enough that they’re to ie. He couldn’t face Carl Carter, Sr., after what he had doneto that boy, so it was time for that boy to die and throw him away. (RT 2980). 2. Asdiscussed above, it was prosecutorial misconductto try petitioner on both a felony-murder theory and a premeditated and deliberated murdertheory, considering the nottrue finding on the felony-murderspecial circumstance. To argue both theories again in 286 the penalty phase rendered the sentence fundamentally unfair. CLAIM 84: The Prosecutor Committed Prosecutorial Misconduct in Penalty Phase Argument With His Comments About Petitioner’s Testimony. 1. The prosecutor madeirrelevant and inflammatory arguments during the penalty phase whenhestated: So he believes in the death penalty. And in fact, he’s asked a few minutes ago that you imposeit. And healso believes in life without possibility of parole, becausehe has sentencedall the loved ones of those three boysto life without possibility of parole. Do you supposethere is ever one oftheir birthdays that goes by that somebody doesn’t think of that? Or when the day rolls around that these murders occurred? They have that forever. Now whatis an appropriate punishment for Mr. Memro? I don’t knowif his statement on the stand is a very clever ploy to cause you to say, whoa,if that’s what he really wants, really, really punish him andnotgiveit to him. And oneofthe things that I’d really ask you to do, andthis is a pretty simple statement, but I want you to do the right thing. Now,I think you can make a mistake in this case. And oneis you could decide on your ownthat life without the possibility of parole is worse than death, but it really isn’t. It’s legally not worse. The instructions refer to as anything less than death. The only thing less than death in this caseis life without possibility of parole. Mr. Memrosays he wants you to give him the death penalty. Maybe he does, and maybehe doesn’t. But he has something that he’s deprived the victims of, he had life. Now the quality of life in the state prison is doubtless not the quality of life that you or I live or any of these people in the courtroom live, but it is a life. And if you think that by sentencing him to life without the possibility of parole that you’re going to cause him to sit around and contemplate this for the rest of yourlife, the rest of his life, I think you’re going to makea big mistake. You've observed him in the courtroom, and he seemsto be having for the most part a reasonably goodtime, considering the circumstances. Sometimes he laughs. Sometimes he’s joking with court personnel. Hehasa life. Scott Fowler doesn’t have a life. The Chavez boy doesn’t havea life, and neither does Carl Carter, Jr. Death is worsethanlife. (RT 2981-82). 2. As discussed above, it was error to cross-examinepetitioner about his wishes, the appellate processitself and of his knowledge of the appellate process. The 287 prosecutor further exacerbated this error by arguing to the jury based on petitioner’s purported wishes. Moreover,petitioner’s wishes regarding the death penalty were not proper evidence. Argument about them was thus improper. G. CLAIMS RELATING TO INEFFECTIVE ASSISTANCE OF COUNSEL. 1. INVESTIGATION. CLAIM85: Trial Counsel's Failure to Examine Officer Carter's ContemporaneousNotes of the Confession Constituted Ineffective Assistance. 1. At least 11 pages of notes were purportedly prepared on October 27 and 28, 1978, by Sgt. Lloyd Carter of the South Gate Police Department in connection with the arrest and interrogation of petitioner. The notes werecertified as “authentic” on February 11, 1982, more than three years after they were purportedly made. 2. Although they were clearly subject to the continuing discovery order, these purported notes were not provided to petitioner or his counsel during discovery atthe first trial, and were not available at petitioner's motion to suppress evidenceat the secondtrial. The notes were first made available to petitioner and his counsel attheretrial. 3. The purported interrogation notes are in a narrative form and contain complete sentences. The detail and physical appearance of the notes are inconsistent with contemporaneousinterrogation notes. It is reasonably evident that the notes were prepared at sometimeafter the arrest and interrogation of petitioner. (Exhibit S-B-, Alleged Interrogation notes of Sgt. Lloyd Carter, Exhibit S-B). 4, Sgt. Carter used the purported notes at the secondtrial allegedly to refresh his recollection and assist him in his testimony. The notes falsely enhanced the appearance of credibility of Sgt. Carter's testimony regarding his recollection of alleged admissions by petitioner. 5. Absent the purported interrogation notes, Sgt. Carter's testimony regarding his recollection of admissions by petitioner would have beenless thorough, less credible, 288 u and less convincing. Theresult of the proceedings would have been more favorable to petitioner on both the questions of guilt and penalty. 6. Trial counsel had no reasonabletactical reason to fail to obtain expert testimony as to the date on whichthe notes werelikely to have been written. Had he obtained such testimony, he would have learned that they were not written contemporaneously with the statements made to Carter by petitioner. 7. The government's reliance on and exploitation of the falsified notes deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. CLAIM 86: Trial Counsel Rendered Ineffective Assistance by Failing to Investigate and Present Evidence Regarding Alternate Suspects. 1. Throughoutthe police investigation, a multitude of alternate suspects emerged. Trial counsel rendered ineffective assistance of counsel in failing to conduct an independent investigation and present evidence regarding the alternate suspects. 2. Suspect One, ofwhom a composite sketch was created andcirculated, had been seen at the park on the night of the killings by witnesses Jose Feliciano, Scott Bushea and Mary Bushea. Theyall saw Suspect Oneat the park prior to the night of the murder. Jose Feliciano and Scott Bushea saw both suspects fishing at the park earlier that week. Exhibit S-A, Police Report by Det. Bowers, dated 9/13/76. Audie Cullison was fishing with Scott Fowler on the Wednesday before the murders. Suspect One approached them and asked “how many fish you caught?” He then stood andstared at Scott Fowler for aboutfive minutes before finally walking away. Exhibit S-A, Interview of Jose Feliciano by Det. Gossett, dated 7/26/76. Suspect One was described as having sandy blond, shoulder length hair, with a conspicuousscaracross his right cheek and was wearing an armyjacket on the nightofthe killing. 3. The scar was noticeable and played a majorrole in investigating alternate suspects. Five potential suspects were released because they did not have the requisite scar 289 a on their cheek: Joseph Daniel Arozena (Exhibit S-A, BGPD Police Report by Detective Bower, dated 8/6/76); Donald Johnson (Exhibit S-A, BGPD Police Report by Detective Bower, dated 8/9/76); William Ernest Burley (Exhibit S-A, BGPD Police Report by Detective Rogers, dated 6/6/77); Ralph Wilbur Baker (Exhibit S-A, BGPD Police Report signed by Detective Bower, dated 8/13/76); and RaymondMinick (Exhibit S-A, BGPD Police Report by Detective Bower, dated 9/3/76). 4. Mr. Renohasdark hair and no scars on either cheek. His Booking Slip, dated 10/27/78, stated that no scars were visible. “Marks, scars and deformities: n/v”. A 1972 arrest report only lists “Fu Man Chu mustache” under ‘marksandscars.’ 5. Suspect Two wasnot seen or described as clearly as Suspect One. No composite was ever madeofthis suspect and the investigation focused primarily on Suspect One. When Jose Feliciano and his friend Scott Bushea wereat the park earlier that week they saw both suspects. Suspect Two spoke with Scott Bushea. Exhibit S-A, Police Report by Det. Bowers, dated 9/13/76. Suspect Two wasdescribed as having brown, wavy hair, slightly chubby and possibly Hispanic. Suspect Twoarrived at the park wearing a brownjacket and riding a motorcycle. 6. Suspect Charles Michael Lohman aka Charles Paul Trout aka Crazy Charlie: Shortly after the killing, photographs of potential suspects were shown to the witnesses. Jose Feliciano, the boy who helped create the composite sketch of Suspect One, picked two photographs out of the 14 he was shown. Heidentified Charles Michael Lohmanas the man “he had the picture drawn for the police,” and John Helder Arnett Jr. as the other suspect present that night. Exhibit S-A, BGPD Police Report by Detective Rogers, dated 7/21/76. Later into the investigation, Feliciano was hypnotized and asked again to describe the suspects. Feliciano gave a similar description of the suspects, but when asked if he could rememberthe namesof the two men, he responded without hesitation that the man in the composite sketch was named “Chuck”, and the man on the 290 ts & & motorcycle was named “Tom.” Exhibit S-A, BGPD Police Report by Lt. Curd, dated 8/19/76. 7. Feliciano was re-interviewedlater, and again askedif he could recall the namesof the two suspects. This time he thought the name of Suspect Two was ‘Bob’or ‘Bill’, but again he told the officers that the name of Suspect One was ‘Chuck’. The name ‘Chuck’ matched Charles Michael Lohman. See also Exhibit S-A, BGPD Police Report by Sgt. Bower, dated 9/9/76. 8. Accordingto the police report, Audie Cullison had seen Suspect Oneat the park while Cullison was fishing with Scott Fowler early in the week prior to the murder. Whenofficers asked Cullison if he recognized any of the men in the pictures, he immediately identified the picture of Charles Michael Lohman. Whenaskedif he wassure, he responded,“yes, you could not forget that scar once you haveseenit.” Exhibit S-A, BGPDPolice Report by Det. Rogers, dated 9/21/76. 9. On October 3, 1976, Bell Gardens police officers were notified that Charles Lohman wasbeing held in the San Diego County Jail on separate charges. While arresting Lohman, San Diego Sheriff's deputies removed a large, folding buck knife from Lohman’s possession. The deputy advised the tow truck driver who was impounding Lohman’s vehicle that the vehicle was to be held for a homicide in Los Angeles County. While in the back of the patrol unit, Lohmansaid, without being prompted by any conversation or comments relating to the homicides in Bell Gardens,that “that murder has probably been reducedto a child molest by now.” Detective Rogers responded to the San Diego County Jail to interview Lohman about the murders. Lohman admitted to having been in Bell Gardensat the time of the murders. He denied any involvement. Exhibit S-A, BGPD Continuation Report by Det. Rogers, dated 10/4/76. 10. Suspect Craig Crowder: On July 28, 1976, Bell Gardens police officers contacted Jose Feliciano with six additional photographs of suspects who had been detained 291 due to their likeness to the composite sketch. After about ten minutes, Feliciano said that the photograph of Craig Crowder resembled oneof the suspects he saw the night of the murder. Exhibit S-A, BGPD Police Report by Det. Pratt, dated 7/28/76. 11. On August 1, 1976, a Bell Gardenspolice officer was contacted by an anonymous female who had seen the published composite sketch. She stated that the sketch was of Craig Crowder. She said that Crowder always wore an armyjacket, practiced knife throwing and had a brother who owneda yellow dirt bike. The officer felt that the caller was not divulging all she knew. She refused to give her name or address. The police did not investigate further. Exhibit S-A, BGPD Police Report, dated 8/1/76. 12. On July 28, 1976, Craig Crowder wasdetained after a witness, who was not named but was someoneother than Jose Feliciano, identified Crowderas the suspect matching the composite sketch. Crowder denied involvementin the crime. Crowder consented to a search of his residence but nothing relevant was obtained. Despite the fact that the officers agreed that Crowder matched the composite sketch, they released him. No further investigation of Crowder was conducted by law enforcement. 13. Suspects Donald and Eddie Avon Ledlow: The Ledlow brothers were neighborhood acquaintances of Scott Fowler. Officers discovered that one oftheir brothers, Windel, had been stabbed on Scott Fowler’s porch only a short time before the murders. Officers focused on the Ledlowsin their investigation. Donald Ledlow matched the composite, carried a 12” knife and ownedseven different motorcycles, one of which was yellow and generally matched the description of the motorcycle seen at the park the night of the murders. 14. Approximately one month before the Chavez and Fowler killings, Windel Ledlow, who wasabout 30 years old, was hanging out with some teenagers on Scott Fowler’s porch drinking beer and smoking marijuana. Sixteen year old Bobby Davis, who lived across the street from the Fowler house, got into an argument with Windel Ledlow. 292 As Bobbystarted to return home, his mother came outof the house to see what was happening. Windel Ledlow called Mrs. Davis a ‘Bitch’ and struck her. Bobby Davis then emerged from his house with a butcher knife, with which he stabbed Windel in the stomach. Windel climbedinto his car with the help of his brothers and wasdriven to the hospital. In the period after the stabbing, the Ledlow brothers swore vengeance on Bobby Davis, and occasionally came by looking for him. Exhibit S-A, BGPDinterview of Vicki Shidale and Christine McNeal by Officers Figueroa and Byal, dated 7/30/76. 15. During a re-interview of Jose Feliciano, Jose tentatively identified Eddie Avon Ledlow as the second suspect whoarrivedat the park the night of the murder on a motorcycle. He also mentioned that he thoughtthat the two suspects could have been brothers. Exhibit S-A, BGPD Police Report by Dep. Figueroa - LAPD,dated 8/3/76. 16. Suspects Cynthia and Larry Shamp: Bell Gardens police receiveda call froma sheriffs deputy in West Virginia, who had detained Cynthia Shamp for drunk and disorderly conduct stemming from traffic collision. While searching Shamp’s car, the deputies found newspaperclippings from the Bell Gardens Daily Review about the double homicide in Ford Park, which comprised all newspaperarticles written about the murderin the first week of investigation. 17. Along with the articles, several letters were found, one of which had been sent by Shamp’s mother, wholived in Bell Gardens. Theletter told Shamp notto return to the state “because you are hot.” Another letter sent from Bell Gardens wassigned “‘your partner in crime.” 18. One of the newspaperclippings had a copy of the composite sketch. Across the sketch was written “this is the man that the police are looking for”, and wasinitialed by Shamp’s mother. Cynthia’s brother, Larry Shamp was knownto the Bell Gardenspolice as he had been arrested before for armed robbery and narcotics violations. He had recently been committed to the Patton State Mental Hospital in San Bernadino. Exhibit S-A, BGPD 293 Police Report by Det. Apodaca, dated 9/27/76. 19. Detectives Rogers and Apodacatraveled to West Virginia to interview Cynthia Shamp while she wasstill in custody. Exhibit S-A, Memorandum to Chief Childers, dated 9/21/76. She explained that she could not return to the state because of a narcotics violation, and that her mother sent her the newspaper clippings because she likes to keep apprised of news from Bell Gardens while she is away. 20. Suspect Edward Fimbres Alvarez: | Shortly after the 1976 killings, Sgt. Carter called the Bell Gardens Police Department with a potential suspect. A man Carter released from jail had called the station saying that while in custody, a fellow inmate named Edward Fimbres Alvarez had told himthat one of the victims in Ford park had been cut from armpit to ear. 21. Officers from the Bell Gardens department met Alvarez in an interview room at the South Gate police department, where they interviewed him. The officers told Alvarez that he was a suspect, since information about the second laceration on Scott Fowler had not been released to the public. Alvarez responded that he knew Scott’s brother Kenneth Fowler, who had seen photographs. Officers told Alvarez that the second laceration was not depicted in any photographs shownto the family. Exhibit S-A, BGPD Police Report by Det. Gardner, dated 8/7/76. No further investigation into Alvarez was conducted. 22. Suspect Ralph Chavez Sr.: Lieutenant Curd of the Bell Gardens Police Departmentreceived a call from Allstate Life Insurance Company and was informedthat Ralph Chavez Sr., father of deceased victim Ralph Chavez Jr., had taken out a $20,000life insurance policy on his son. There was an additional clause of Accidental Death or Dismembermentfor $20,000 on April 16, 1975. Allstate wanted to know if Mr. Chavez wasthe perpetrator of the crime. Exhibit S-A, BGPD Police Report by Lt. Curd, dated 8/5/76. 23. Later in the day, Mr. Chavez Sr. reported to the Bell Gardensstation in 294 response to a messageleft by officers requesting to speak with him. The officers asked Mr. Chavez if he was having financial difficulties. Chavez admitted that he was in financial trouble. 24. Detectives told Mr. Chavez that they had been provided information that he had offered to pay his ex-wife’s boyfriend, Paul Anderson,a.k.a. “Blackie,” to kill his son. Mr. Chavez denied that he had. Detectives asked Mr. Chavez if he would agree to take a lie detector test, to which he agreed. The test was administered, and included questions such as “are you the onethat slit your sons throat?”, and “did you make arrangements with ‘Blackie’ to kill your son?” The polygraph results indicated that Mr. Chavez was being truthful. No further investigation into Mr. Chavez was recorded. Exhibit S-A, BGPD Supplemental Report by Det. Gardner, dated 8/5/76. 25. Suspect Gary (Last Name Unknown): On October 22, 1976, just after midnight, Detective Apodacareceived a call from a woman from Oildale, California. She was hiding from a man named “Gary” whohad threatened her with a knife. The woman had met Gary at a bar. The two rented a hotel room together, smoked some marijuana and had sex. After they were finished, Gary asked to have anal intercourse. When the woman refused, Gary pulled a knife out of his pants and pointedit at her throat. Gary asked herif she heard about the decapitated woman foundin the riverbed. Whenshesaid that she had, he said that he killed the woman becauseshe didn’t give him what he wanted. 26. Gary then askedherif she heard aboutthe two kidsthat got their throats cut and said “well . . . I killed them two because they didn’t give me what I wanted.” Hereferred to one of the boys as a “cock sucker.” The woman wasable to escape andcalled Detective Apodaca. Exhibit S-A, BGPD Police Report by Det. Apodaca, dated 10/25/76. Gary was never found or interviewed by the Bell Gardenspolice. 27. Suspect David Jenkins: Venda Wells reported to Bell Gardensofficers that her son’s friend, David Jenkins, who had been staying with her and her son in July of 1976, 295 wasa potential suspect. 28. On the night of the murder, Mrs. Wells saw David Jenkins crawling into the trailer late at night. Later the next day, Mrs. Wells found Jenkins’s clothes in the hamper, covered with blood. She commented to Jenkins about the murders in Ford Park and said that she hoped the killer would be caught. He respondedbysaying, “no way”that it was “only a one time thing.” He also admitted to being in the park shortly before the murders. Exhibit S-A, BGPD Continuation Report by Det. Gardner, dated 8/7/76. 29. When Jenkins reported to the police station and was interviewed,he said that he thought that he wasat the park at about the time of the murders but that he was not wearing a watch so was not sure. Hesaid that after he and his friendleft the park, they drove around until late. When asked about the bloody clothes, he said that he did not know anything about that and did not remember having any bloodonhis clothes. Exhibit S-A, BGPDPolice Report by Det. Gardner, dated 8/12/76. 30. BGPDofficers administered a polygraph examination to Jenkins. Jenkins failed the question asking whether he was in the park at about the time of the murder. Jenkins was released without further investigation. Exhibit S-A, BGPD Continuation Report by Det. Bower, dated 8/16/76. 31. Suspect Richard Hayden: Richard Hayden wasa close family friend of the Fowler family. The Fowler children all called him “Uncle Dick”, although he wasnot a blood relative. Hayden regularly engaged in sexual acts with the Fowler children. Exhibit S-A, BGPD Police Report, dated 7/29/76. 32. He had molested them from the time they were very young. Scott’s brother Marvin Fowler had told Nick Allikas, a family friend that Hayden “used to change our diapers when wewerelittle and sucked our dicks then.” Exhibit S-A, BGPD Police Report, Interview with Richard Hayden by Det. Gardner, dated 8/3/76. The Fowler children frequently spent time at Hayden’s residence where they would engage in sex acts with 296 Hayden,other children, or both. Hayden denied teaching the boys about sex acts and suggested that some other adult male may have taught them some time earlier. Exhibit S-A, BGPD Police Report, Interview with Nick Allikas by Det. Gardner, dated 8/3/76. 33. Suspect Nick Allikas: Nick Allikas was an adult friend of the Fowler children who would occasionally engage in sexual acts with them. 34. At the timeofthe first interview, he was on probation for child molestation. Exhibit S-A, BGPD Police Report, Interview with Nick Allikas by Det. Gardner, dated 8/3/76. Allikas had previously been arrested out of state. His three children had all been placed in foster homes. Exhibit S-A, BGPD Police Report by Det. Gardner, dated 8/2/76. 35. At9:25 P.M.on the night of the murder, only two and a half hours before the murders, employees at a Taco Bell told officers that Nick Allikas and Ralph Chavez came in together and ordered food. One employee, Mary Marie Merk, and anotherobserver, said that Ralph wasacting quiet and nervous. Allikas was so nervous that Merk wasafraid she was going to be robbed. Whenhe handedher moneyfor the food, his hand wasvisibly shaking. Exhibit S-A, BGPD Continuation Report by Det. Edwards, dated 7/29/76. 36. Allikas’s statement regarding his whereabouts on the night of the murders attempted to accountfor his time that evening. He claimed that he was with Marvin Fowler for most of the day and evening and then went bowling. Exhibit S-A, BGPD Police Report by Det. Gardner, dated 8/2/76. 37. In the interview with Marvin Fowler, Marvin wasasked if he thought Nick was involved in the murder. Marvin said that he did not know,but if he was, Marvin wouldtestify against him. Exhibit S-A, BGPD Police Report by Dep. Figueroa, dated 8/2/76. 38. Suspect Jim Luna: Jim Luna wasthe director of the youth organization, the Sugar Ray Foundation. Jim Lunahadalso been having sexualrelations with the Fowler boys. He had a verbal altercation with Mary Fowler, Scott’s mother, in the past. 39. Jim occasionally took the boys fishing. Scott Fowler’s friend, Frank McCoy, 297 told officers that occasionally when Luna would drive up in his car, Scott would say he had to go and would leave with Mr. Luna. 40. McCoysaid that he knew that Scott had spent the night with Mr. Luna on several occasions. Exhibit S-A, BGPD Police Report by Det. Gardner, dated 7/28/76. 41. Suspect Charles Vanoy: On August 25, 1977, Bell Gardens officers interviewed an informant named Carl Hamilton. Hamilton told the officers about his friend Charles Vanoy, known as “Chuck.” Hamilton described several crimes to which Chuck confessed. Chuck, wholived near Ford Park, had set several fires on Clara street in Bell Gardens and committed armed robberies. He was involved in a shooting of two children and also the stabbing of an elderly man. 42. Vanoy had been in Ford Park and saw the suspect in the 1976 double homicide. He added that the suspect worked in a motorcycle shop on Eastern. Vanoy had even pointed out the shop to Hamilton while the two were driving around town. Vanoy’s whereabouts were knownto the police officers at the time, yet no interview or follow up investigation occurred. Exhibit S-A, BGPD Police Report, dated 8/25/77. 43. There was nostrategic reason for counsel not to investigate and bring up these alternate suspects. Counsel’s failure to do so violated petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 87: Trial Counsel Rendered Ineffective Assistance by Failing at the Guilt Phase as a Result of the Failure to Adequately Investigate the Identity of the Actual Killer or Killers in the 1976 Offenses. 1. Defense counselfailed to investigate and present evidence which could have been obtained as a result of leads contained in the discovery materials including, but not limited to, evidence that two other individuals were involvedin the actual killings, neither of whom waspetitioner. See Exhibits S-A and G and H. 2. Hadtrial counsel investigated and presented this evidence,it is reasonably probable that the outcome would have been different at the guilt and penalty phases hadthis 298 failure not occurred. 2. PRE-TRIAL. CLAIM 88: Trial Counsel Rendered Ineffective Assistance by Failing to Attack the Credibility of the Police Officers. 1. On December 19, 1978, trial counsel, Peter Williams,filed a Pitchess motion for pretrial discovery. The motion requested the names and addressesofall persons whofiled complaints with the South Gate Police Department, but was limited “to unnecessary acts of aggressive behavior, acts of violence, and/or attempted violence, and acts of excessive force and/or attempted excessive force.” Notice of Motion for Pretrial Discovery 2, filed 12/19/78. This motion was denied. 2. Petitioner appealed his conviction. During the pendencyof that appeal the South Gate Police Department purged the personnel files. Because of the destruction of the records, the prosecution never turned over the requested Pitchess materials. (RT 304). This Court reversed petitioner’s earlier conviction becauseofthe trial court’s denial of the Pitchess motion. It must now be reversed because the governmentdestroyed the very evidenceat issue 3. To remedy the destruction, the trial court had each officer give a statement whether, to the best of their knowledge, complaints had been filed against them for excessive force. See Statements attached to April 30, 1986 Letter from Richard Huntrods, Custodian of Records at the South Gate Police Department. They also testified in court to this effect. (RT 306-354). 4. Trial counsel neverfiled a Pitchess motion regardingthe officers’ lack of credibility or untruthfulness. The officers were never asked, and thus did not disclose, whether they had any complaints pertaining to thoseattributes in their files. The officers’ reputation for truthfulness wascritical in petitioner’s trial for several reasons. 5. The credibility of the officers was in question regarding excessive force. 299 Officer Greenetestified that he never had any complaints of excessive force filed against him. (RT 347). Petitioner’s counsel, Michael Carney, had prosecuted a case when he worked for the District Attorney’s Office in which a complaint of excessive force wasfiled against Officer Greene. (RT 363). Carneytestified that while laying the foundation for the complaint, he showed Officer Greene the complaint and “confronted him with the fact that there was a written complaint filed against him, and [Greene] indicated that he was aware of that complaint.” (RT 364). After Carney related the incident to the court, Officer Greene admitted to the incident of excessive force, but nevertheless denied awarenessof the complaint. (RT 590). None of this testimony was presented to the jury. 6. Petitioner contended that the officers’ coerced his statement, which was involuntary. The confession was not tape recorded or video taped. Petitioner never signed an advisementof rights form. The notes that were taken were not written contemporaneously but were preparedafter the alleged confession was givenin its entirety. (RT 2465). The only evidence of the voluntariness of the alleged confession was the word of the officers who were present. Their credibility was a primary factor in determining whetherthe prosecution carried its burden of showing that the statement was voluntary. 7. The officers’ credibility was at issue regarding other aspects of petitioner’s arrest. For example, probable cause for the arrest was based on several factors which were dependent on the credibility of the officers. 8. The police used a sketch drawnof the suspect as “envisioned”by a psychic whosehelp the police enlisted, as an investigatory technique. The officers claimed that probable cause wasnot based on this sketch. The believability of this claim depended on the credibility of the officers. 9. Similarly, Officers Sims and Gluhak who madethearrest claimed that petitioner let them enter his apartment willingly and voluntarily. (RT 682). In contrast, petitioner contends that when the officers asked to enter the apartment, petitioner askedif 300 he could decline and they said it would do him no good. (RT 2143). Probable cause was a critical element of the arrest; without it, all evidence gathered as a result of the arrest would be rendered inadmissable. 10. Prejudicial evidence wasalso at issue. Accordingto officers, photographs of nude boys were strewnall aboutpetitioner’s apartment. Petitioner denied this assertionand testified that any such photographs were concealedin various locations aroundhis apartment. (RT 2144-2145). The investigating officers said that the photographs werein plain view and were lawfully seized. As the pictures were actually hidden away in a closed container, their warrantless seizure was unlawful. 11. These photographs were prejudicial by themselves. The photosalso served as the prosecution’s evidence ofpetitioner’s alleged motive. Had these photographs been suppressed, the prosecution would have been deprived of this highly prejudicial evidence. 12. The prosecution case depended almost completely on the credibility of the officers. Without information regarding their credibility, counsel was unableto effectively impeachtheir testimony. Thus,trial counsels’ failure to file a Pitchess motion andattack their credibility was ineffective and prejudicial to petitioner. 13. Similarly, trial counsel never questioned Officer Greene before thejury abouthis false testimony regarding the complaints filed against him. Because ofthe purge, trial counsel had only the officers’ word that there were no complaints filed against them for excessive force or brutality. Officer Greene failed to testify about these two incidents about which trial counsel Carneytestified. Either way, his credibility would have been damaged which wascritical to petitioner’s defense. 14. Trial counsel should have usedthefalse statementto impeach Officer Greene. Since the Pitchess material was not available and Greene madea false statement regarding his personnelfile, the jury should have been permitted to draw their own conclusion about the existence of complaints against the officer for excessive force and 301 for his credibility and honesty. 15. It was incumbenton trial counsel to raise the incidents of excessive force to the jury through transcripts or Greene’s testimony, while disputing the voluntariness of the confession. 16. Trial counsel introduced the testimony of two witnesses, Angelina Nasca and Louis Moreno,at the 402 hearing to demonstrate that South Gate Police Officers in general, and Officer Greene specifically, routinely engaged in abusive and coercivetactics while arresting and interrogating suspects. There wasnotactical reason not to introduce Officer Greene’s previous testimony where further examples ofhis use of excessive force were described. The Pitchess motion wasfiled to unearth just this type of misconduct. Trial counsel should have used the misconductto petitioner’s advantage, once the information cameto light. 17. The methodthe trial judge employed to remedy the destruction of the Pitchess information was inadequate. Officer Greenetestified that there were no complaints in his personnel file on the two occasions he saw the contents ofthefile. Yet Michael Carney knew that there was a complaint against Officer Greene when he had workedas a prosecutorfor the District Attorney’s Office. Greene subsequently admitted to this incident and one other. 18. Trial counsel should have usedthis concessionto alert the court that the method for discerning whether complaints existed against the officers was inadequate. Had the remarkable circumstances of Carney leaving the District Attorney’s Office, serving as petitioner’s attorney and recalling the case in which Greene was confronted with a complaint, Greene’s false testimony would not have cometo light. 19. There is no way to knowofthe false testimony other officers may have provided which went undiscovered. What is apparent, however, is that the trial court’s efforts to remedy the purged Pitchess records wasinsufficient. 302 20. There were four police officers whotestified about critical events in this case and whose Pitchess information was requested but not divulged (Officers Simms, Gluhak, Greene and Carter). Trial counsel was unable to cross-examine the witnesses about their credibility because of the purge of Pitchess files. Under these circumstances, counsel lackedcritical information and was unable to render effective assistance of counsel which prejudiced petitioner. CLAIM 89: Trial Counsel wasIneffective for Failing to Raise Issues Concerning the Missing-Juvenile Report. 1. The legality of petitioner's arrest was raised at pretrial proceedingsat the first trial. The 1538.5 motion waslitigated at that time, denied and raised on appeal in Memro I andthe related habeas petition. This Court did not reach the suppression issue in either the appeal or the habeas proceedings. 2. Counsel at the second trial was prevented from re-litigating the suppression issue, despite allegations of ineffective assistance of counsel at the 1538.5 motion, a declaration of prior counsel Williams admitting such, and the existence of new relevant facts. 3. The South Gate Police Department missing-juvenile report on Carl Carter, Jr., was prepared on October 22, 1978. The report indicates that Carl, Jr., was last seen by his brother near the rear of his residence at 7:00 p.m. (1900 hours) on that date. Missing- juvenile report, Exhibit S-H. 4. Officer Simsarrested petitioner on October 27, 1978. In determining probable cause for the arrest, Officer Sims purportedly relied heavily on his alleged belief that petitioner was the last person to have seen the boy prior to his disappearance. This alleged belief was based on two purportedfacts: first, that Carl, Jr., was claimed to be noticed as missing at 6:00 p.m. and, second,that petitioner admitted his presence at the Carter residence at that ttme. However, Simslater admitted having been awareofthe 303 contents of the missing person report at the time. Moreover, the court, in finding probable causefor the arrest, considered it significant that according to police testimony,petitioner was the last person with Carl, Jr., prior to his disappearance. 5. The missing-juvenile report directly contradicts a significant factor upon whichthe arresting officer and the court based the probable cause determination. Furthermore, the report corroborates the statementpolice attributed to petitioner that Carl, Jr., was safely walking toward his home from a nearby donut shop shortly after 6:00 pm. A reasonably diligent advocate would have used the report to challenge the truthfulness ofthe arresting officer and the legality of the arrest. This documentis critical becauseit refutes the statement by Officer Sims that he believed petitioner was the last person to see the boy prior to his disappearance. This purported "belief" by the officer wasa critical, if not the only basis, for his immediate arrest of petitioner. 6. Mr. Williams did not use the missing-juvenile report to cross-examine Officer Sims or otherwise make reference to the Report. There was no possibletactical reason for not making reference to that report. Mr. Williams candidly states that if he were engaged in the same suppression hearing today, there is no doubt he would "attempt to use the report to impeach the testimonyofarresting officers Sims and Gluhak andalso argue to the court that the report served to substantiate the lack of probable cause for defendant's arrest." Declaration of Peter M. Williams and Exhibit S-I. 7. Defense counsel's failure to use the missing-juvenile report deprived petitioner of a legitimate opportunity to prevail. Proper use of the report would have caused the court to find the arrest illegal. Because the confessionis a fruit of the arrest, proper use of the report would have caused the “confession”to be suppressed. If Mr. Williams had used the missing-juvenile report, there would have been a result more favorable to petitioner at the guilt and penalty phases. 8. Tnal counsel at the secondtrial, Peter Larkin,filed a written motion for 304 relitigation of the suppression motion in the secondtrial proceedings; however, the motion failed to allege that the prior counsel had providedineffective assistance of counsel by failing to use the missing-juvenile report to refute the testimony ofthe officers regarding the time Carter was last seen alive by his family. Mr. Larkin was aware or reasonably should have been aware ofthis basis for the relitigation of the motion becausethis issue had beenraised in petitioner's habeaspetition filed in conjunction with the first appeal. The record contained in the first appeal and habeaspetition was reasonably available to petitioner's counsel. 9. Atthe oral argument on the motionto relitigate the suppression issue, Mr. Larkin argued primarily thatthe relitigation was properin light of the new discovery materials and the destruction ofthe citizen complaints. Mr. Larkin did mention the missing-juvenile report and theerrorofpriortrial counsel, but he failed to presentto the court the affidavit of Peter Williams or his testimony, which were available to him. 10. Complete reference to the issue of the ineffective assistance of first trial counseland presentation ofthe affidavit would have led to a more favorable result in the suppression hearing andat the guilt phase. The evidence not introduced becauseoftrial counsel's ineffectiveness wascritical impeachmenttestimony regarding the lack of probable causefor the arrest of petitioner. Suppression of the confession as the fruit of the unlawful arrest would haveled to the dismissal of the case against petitioner. There was no possible tactical reason for trial counsel not to pursue the relitigation of the suppression motion on these grounds. CLAIM 90: Petitioner's Sixth, Eighth and Fourteenth Amendment Rights were Violated as a Result of Counsel's Failure to Investigate and Present Scientific Evidence or to Cross-Examine the Coroner Regarding the Alleged Penal Code § 288 Violation. 1. A central issue in thefirst trial was the timing or existence ofthe alleged Penal Code § 288 or attempted Penal Code § 288 on Carl Carter, Jr. Counsel at thefirst 305 trial extensively cross-examined the medical officer about the timing of any Penal Code § 288. This issueis critical to the felony-murder theory of conviction, as the victim must be alive at the time of an actual or attempted Penal Code § 288 for a violation of this offense, under California law. 2. At the secondtrial, defense counsel did not investigate or adequately challenge evidence of the timing or existence of a sodomy or attempted sodomy. Trial counsel did not contact or receive a report from a criminalist or serologist on this issue. There should also have been a report of biological analysis, which counsel never received or attempted to obtain. 3. A more favorable result in the guilt and penalty phase of the tial would have resulted from the investigation of this factor. After the extensive cross-examination into this area at thefirsttrial, the trial judge, sitting as the trier of fact, found that the felony- murder special circumstance allegation was nottrue. If this evidence had been more thoroughly challenged at the secondtrial, there would have been nobasis for the finding of a felony murder. Since the evidence of a premeditated murder was weak and not sufficient to support a first-degree murdercharge,the result of this investigation and cross- examination would have been a finding of no more than second-degree murder, thereby preventing any possibility of a death sentence. 4. If trial counsel had engaged in an adequate investigation of this issue, the following facts would have been disclosed: | a. Based uponthe state of decomposition of the body at the time ofthe autopsy, it would have been completely impossible to determine whether any Penal Code § 288 or injury to or penetration of the anus, occurredatall, and ifit did, whether it occurred before or after death. In fact, it would have been impossible to determinethe relative times within a 48 hour period. b. The acid phosphatase test described in Dr. Choi's testimonyis sensitive to 306 the presence of a componentof seminalfluid also to be found in other body fluids and in bacteria and a variety of food substances. As a result, a positive finding on the acid phosphatase test, even a '"4," does not necessarily imply the presence of seminalfluid. A positive finding on the acid phosphatasetest in this case was likely a result of laboratory error, since the test was performedat least six or seven days after death, but ordinarily is not reliable after 24 hours. The acid phosphatasetest is a "Yes or No"test; that is, it determines only that acid phosphataseis or is not present, but does not determine amounts. The 0- 4 scale referred to by Dr. Choi is very subjective and the meaning of a given value of the number depends upon the subjective view of the individual who ran the test. Because ofthese limitations, the test is used rarely, if at all. In fact, it had comeinto disfavor as of 1987, when petitioner wastried the second time. A positive acid phosphatase test where neither sperm nor seminalfluid is found is not alone indicative of semen. As aresult of decomposition, semen ordinarily no longergives a positive acid phosphatasetest after 24 hours. Asa result, a positive acid phosphatase test on a swab sample taken from a decomposing body six or more days after death must have come from someothersource. In the opinion of forensic pathologist Dr. Thomas W. Rogers, the abovefacts were sufficiently well known in 1987 that an attorney who had consulted with a reasonably informed pathologist, as a conscientious and diligent advocate would have done, would have possessed the information and could have presented it through either cross-examination or separate expert testimony. Exhibit K. “(C]Jounsel’s function, as elaborated in prevailing professional norms,is to 307 make the adversarial testing process work in the particular case.” Strickland v. Washington, 466 U.S. 668, 690 (1984).“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makesparticular investigations unnecessary” (/d., at p. 691). Where a decision is based on counsel’s neglect orfailure to discover relevant evidence, rather than an informedstrategic decision based on a reasonable investigation, counsel has failed to meet the constitutional standard for effective assistance. Williams v. Turpin, 87 F.3d 1204, 1211 (11" Cir. 1996). 6. Ineffective assistance is demonstrated where a petitioner showsthat trial counsel’s decisions resulted from a lack of diligence in preparation and investigation. Sanders v. Rawtelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (“counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client”). 7. Trial counsel committed numerousacts and omissionsresulting in a fundamentally unfair trial in violation of petitioner’s Sixth Amendment guarantee to effective assistance of counsel. : Petitioner suffered prejudice as a result of trial counsel’s ee 6inadequate assistance because ‘there is a reasonable probability that, but for counsel's unprofessionalerrors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694. 8. Asa result of the above, there is a reasonable probability that the outcomein this case would have been different with adequate investigation. The absence of adequate investigation and cross-examination regarding the timing and existenceofthe alleged Penal Code § 288, and specifically the interpretation of the acid phosphatase test and the examination of a decomposed body, deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 308 CLAIM 91: Trial Counsel Rendered Ineffective Assistance When He Failed to Impeach Cornejo Based on Favors Regularly Conferred upon Him in Exchange for His Testimony. lL. Competent counsel would have investigated the cases in which Cormejo claimed he hadtestified. Had counsel done so, he could have impeached Cormejo with his lies. Moreover, the prosecutor actively suborned perjury through Cornejo’s testimony. This failure to investigate and impeach Cornejo violated Strickland. To the extent that the | District Attorney knew or should have knownthis testimony wasfalse or misleading, the District Attorney was required under Brady to inform counsel. 2. To the extent the prosecutor disclosed Cornejo’s checkeredpastto trial counsel, thentrial counsel rendered ineffective assistance of counselin failing to impeach Cormejo. If the documents were not disclosed, the prosecutor committed prosecutorial misconductin failing to disclose evidence which demonstrated a complete lack of credibility on the part of the jailhouse informant who wasusedas a witness for the prosecutionat a critical stage of petitioner’s trial. 3, It is clear that Cornejo cameto expect benefits for his testimony. Occasionally, the quid pro quo was actually documented. In 1984, a case against Cornejo was reduced to a misdemeanor. A supplemental report in the prosecutor’scasefile noted | that the “judge made misdemeanorby sentencesince plaintiff wouldn’t agree to misdemeanor. Defendant is a snitch andtestified in Bittaker case.” “Significant developments” dated 5/25/84, initialed by SMC. 4. The disposition report alsoreflects this deal and adds that Cornejoinitiated the agreement. It says that “Since he’s on federal parole he wants [a misdemeanor].” (Disposition report, dated 5/25/84, signed by Deputy District Attorney Canter). In 1975, Comejo was charged with four counts: burglary, receiving stolen property and grandtheft. A District Attorney’s Recommendation dated 9/25/75, by Deputy District Attorney Howard, recommendsthe more serious counts be dismissed and Cornejo be allowed to 309 plead to receiving stolen property. Under ‘reasons’ is written, defendant has “turned a major narcotics deal in the nearpast.” 5. In thepreliminary hearing in Bittaker, Cornejo was asked in cross- examination if he was ever promised any benefits for informing: Q: Did you expect to get something in return for giving this information? A: Well, it was usually money. Q: They usually paid you money? A: It depends. Q: Howlong a period of time have you been receiving money from the police for giving them information? A: [just told you. Q: Two years? A: Two years. People v. Bittaker Preliminary Hearing transcript [7/14/80] at 1446. 6. Even whenthe deal was not written out explicitly, offers and expectations can still be found. In letter to Van De Kamp from Cornejo dated 5/15/82, Cornejo voicedhis frustration with the lack of favors conferred in exchange for the help he had offered: “all four of your DAs promised I would get a time cut or an early parole . . . lam sick of DA’s lying to me also having mesay things that they know are notright.” 7. Cornejo wrote Deputy District Attorney Millett about a conversation they had, which gave Cornejo the impression that he was being made an offer in exchangefor testimony against Mr. Reno. Theletter reads, “Sir | want you to know if mysentenceis reduced I will not let you and Mr. Sinesay down,” and indicated that they had spoken the previous day. Cornejo then asked Deputy District Attorney Millett to grant him “a chance to start a new life.” The last paragraph reads, “I hope to hear from you soon. Ever since your call my mind hasbeen filled with hope. God bless you Mr. Millett.” Exhibit D, Letter 310 from Cornejo to Millett, dated 7/19/90. 8. A Memorandum from Deputy District Attorney Ramsay Rudolph to Stephen Kay, dated 9/15/80, warned that Cornejo “has in the past, on several occasionssaid he would not testify unless we get him outofjail by a certain date.” Exhibit F. A Memorandum written by Stephen Kay noted that Cornejo was “fond of makingthreats as to howheis going to get even with us for the DAsoffice not getting him out of federal prison. Prison is undoubtedly the best place for Mr. Cornejo, and as far as he is concerned, | only wish they could throw away the key.” Exhibit F, Memorandum from Stephen Kayto Billy D. Webb,dated 6/1/82. 9. Mr. Reno alleged that Cornejo stole his transcript from thefirst trial. Comejo used that informationto testify at the hearing to determine the voluntariness and admissibility of petitioner’s purported confession. Mr. Reno told Deputy District Attorney Millett this fact in lock-up when Millett came to interview a witness on a different matter. Millett used Cornejo at the hearing anyway. Exhibit F, Memorandum from Millett to Larry Trapp, 10/31/88. 10. This claim was corroboratedin letters by other jailhouse informants. A letter written from Sydney Storch and Leslie White, dated 11/27/86 madethis claim, as well as a letter signed by Leslie White and Howard Stewart, also dated 11/27/86 in which they claimed that Cornejo got his information on the case from transcript he stole from Mr. Reno’s cell. Leslie White testified in court that Cornejo committed perjury in his testimony againstpetitioner. | 11. On March 10, 1989, the District Attorney’s Office sent a letter to trial counsel Larkin, and to Thomas Nolan, the attorney representing Mr. Renoin his direct | appeal, with an accompanying excerpt of Leslie White’s testimony in an unnamed case in San Bernadino. White was being questioned abouttactics he used to fabricate confessions and the methodsthat he had divulged to the Los Angeles Sheriffs department whenthe 311 jailhouse snitch scandal broke. During cross-examination, counsel asked White to name the defendant who wasput on death row by perjured testimony, who he hadreferred to on direct. White named Mr. Renoas the defendant and “Randy Hill Conejo [Sic]”as the informant who fabricated the testimony. 12. When askedfor details, White explained that Mr. Reno had claimedthat the confession was involuntary andthat it had been beaten out of him. White also told the District Attorney’s Office that “Mr. Memro’s death sentence was due ‘in considerable part’ to the testimony of Anthony Cornejo.” Letter from Deputy District Attorney Sundstedt to Thomas Nolan, dated 3/10/89, page 9727 of the attached transcript. 13. In 1988, an ZA Timesarticle recounted a telephone conversation the journalist held with Leslie White. During the interview, White listed three men he said were on death row becauseoffalse testimony given by other jailhouse informants. One of the men he listed was Mr. Reno. (ZA Times, “Jail inmate says he lied in role as informant”, 12/1/88, by Ted Rohrlich.) In 1999, he made the same claim yet again in the LA Timesin an article that he wrote. In his article, White wrote that I read a statement by Richard Hecht, director of the district attorney’s branch operations, who said 107 cases, involving 121 informants, have been assessed and he has found nonethat resulted in a wrongful conviction (Nov. 18, Metro) With that in mind,I said to myself, he must not have yet reviewed the cases of People vs. Stephen Vulpis, Harold Memro. . . because,if he has, he better take another look. There are big problems with those cases. Perjury has been or will be committed in every one of them and manyothers. LA Times, “Jailhouse Informants”, 12/1/88, Metro. . 14. On December 10, 1986, inmate Howard Stewart wrote a letter to the Los Angeles Superior Court and to the District Attorney’s Office. Stewart explained that he was housed in the neighboring cell to Mr. Reno andthat all of the information that the jailhouse informants had about Mr. Reno’s case was gleaned from a transcript taken from Mr. Reno’s cell by Leslie White and another unnamed inmate. Stewart explained that the 312 inmates discussed petitioner’s case while he was in court and that at least one of the inmates who hadinformation on petitioner had never spoken with him. Stewart added that two inmates asked him to help them “book”petitioner and back up their stories and suggested that he would get released if he complied. 15. Trial counsel’s failure to use the documentary evidence available to him prejudiced defendant and affected the outcome of the 402 hearing andtrialstrategy, resulting in the admission of an involuntary and inaccurate confession. The prosecutor’s failure to disclose all evidence constituted prosecutorial misconduct, which prejudiced defendant in the same manner. Theresulting conviction and sentence were obtained in violation of plaintiffs Fifth, Sixth, Eighth and Fourteenth Amendmentrights and are not worthy of confidence. . CLAIM 92: Trial Counsel Rendered Ineffective Assistance by Failing to Bring the Order from the First Trial to the Court’s Attention. 1. To the extent that trial counselfailed to bring the order requiring special transportation from the 1979trial to the trial court’s attention during the secondtrial,trial counsel rendered ineffective assistance of counsel. The order was never rescinded. Trial counsel requested a similar order from the court, but failed to note that an order was already in place. 2. The trial court doubted its own authority. Considering the issuanceofthe prior court order in this regard, it was incumbentontrial counsel to bring that prior order to the court’s attention. There was notactical reason not to do so. 3. This failure was ineffective on the part of trial counsel, and prejudiced the defendantin that it allowed four snitches to manufacture information which they claimed was based on conversations held on the bus. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights were violated. 313 CLAIM 93: Trial Counsel’s Ineffectiveness Denied Petitioner His Right to a SpeedyTrial. 1. After reversal ofhis first conviction, petitioner was returned to Superior Court for retrial on August 12, 1985. At that time, he was advised ofhis right to a speedy trial; he waived that right and attorneys were appointed for him at that court session. (RT 2). For the next eight months, petitioner continued to waive time in orderto allow his attorneys to prepare for the retrial. 2. During thefirst three months of representation ofpetitioner,trial attorney Larkin spent a total of 42 hours in preparation for the case. (CT 126-128). No motions werefiled until March 1986. Understandably upset with the lack of preparation, petitioner sought to have trial counsel removed from the case on April 18, 1986. When his motion was denied, petitioner withdrew his time waiver and the 60-daystatutory period began to run. 3. Throughout the next two months, petitioner continually objected to the lack of work by trial counsel. During hearings in court, trial counsel stated that he would seek further continuances to do more investigation and preparation overhis client's objection. On June 9, 1986, over petitioner's objection, trial counsel moved for lengthy continuances to prepare motions. Dates were set in July, September and October, with a trial date in November 1986. (CT 190). Between June and December 1986, attorney Larkin met with petitioner only five times and spent a total of 98 hours in preparation of the case. (CT 288- 289). 4. On June 18, 1986, petitioner, in a handwritten motion to the court, moved for dismissal of the charges becausehis case was not broughtto trial within the specified statutory period. That motion was effectively denied when the court continued to grant continuances to counsel, always over the renewed objections of petitioner. (CT 195-196). 5. Bythe time the case wascalled fortrial in November 1986, the prosecutor 314 had broughtforth new evidence, claiming that several jailhouse informants had spoken with petitioner regarding his testimony about the voluntariness of his confession. Oneof these new witnesses (Cormejo) did eventually testify at the hearing on the admissibility of the confession. Additionally, the prosecutor "found" old evidence from the 1976 homicide case that had never been turnedoverto the defenseat eithertrial. 6. In November,trial counsel again requested more time to prepare and sought yet another continuance overpetitioner's objection. Trial was continued to February 18, 1987. After further continuancesat the requestoftrial counsel over petitioner's objection, the case finally proceededto trial on April 1, 1987, almost one year after petitioner had withdrawnhis time waiver and demanded a speedytrial. 7. Under California law,trial counsel does not have absolute authority to waive his client's right to a speedy trial. Penal Code § 1382 provides: | The powerof appointed counsel to control judicial strategy and to waive non- fundamentalrights despite his client's objection [citation] presumes effective counselacting for the best interest of the client.... ‘[E]ffectiveness ...is nota matter of professional competence alone. It also includes the requirementthat the services of the attorney be devoted solely to the interest of his client undiminished by conflicting considerations." People v. Johnson, 26 Cal.3d 557, 566 (1980). A defendant's right to a speedytrial cannot be abrogated by a defense attorney whois ineffective, inadequate, or lazy and indifferent. Id. at 567. Nor can defense counsel use the excuse of a heavy caseloadto justify the requested continuance whenhis client objects. 8. Petitioner initially cooperated with counsel's requests for continuances. Mr. Larkin had not represented petitionerat thefirst trial and needed time to become familiar with the record and reports generatedin the first proceeding. Accordingly,petitioner waived speedy-trial time constraints for eight months to allow counselsufficient time to prepare for the case. 9. In those eight months, however, counsel spent only 108.5 hours(i.e., less 315 than 4 hours per week) on the matter and hadbarely filed some of the standard pretrial motions whenpetitioner finally withdrew his time waiver. 10. On November 14, 1985, an additional attorney was appointed as back-up for Mr. Larkin. (CT 431). That attorney spent one half-hour on petitioner's case during the first two monthsof his appointment, approximately 20 hours the next month and eventually met with petitioner for the first time on February 7, 1986, three months after being appointed. (CT 434). 11. | Based on this record, the only reasonable conclusion1s that petitioner's attorneys were indifferent to his case and were clearly devoting inadequate timeto their representation of him prior to the time he withdrew his time waiver. Between the two attorneys, they appear to have spent, on average, less than two hours per week on petitioner's case from the time of their appointmentuntil he sought to exercise his right to a speedytrial. 12. Petitioner was prejudiced by the denial of a speedytrial because if he had been broughtto trial within the statutory period, the testimonyofthe jailhouse informants would not have becomeavailable and been used against him during the motion to suppress _his confession. This false and perjurious testimony was extremely damaging,as it undercut petitioner's version of the events surrounding the confession and supported the version of the police and effectively mandatedpetitioner's strategy attrial in regard to not challenging his coerced confession in front of the jury. As the prosecutor conceded throughoutthe proceedings, there was no case against petitioner without the admission of his confession. In addition, after the running of the 60-day period, the prosecutor (a) "found" additional discovery relating to the 1976 murders, which required further delays in the proceedings, and (b) "lost" evidence favorable to thedefense. 13. The failure to apply the state statutory speedytrial rules to petitioner,which requires mandatory dismissal and denial of petitioner's right to have the charges against him 316 i dismissed for not having been broughtto trial within the statutory 60-day time limit operated to deny him full and fair 1538.5 hearing and violated his right to due process under the Fourteenth Amendment. Hicks vy. Oklahoma, 447 U.S. 343 (1980). Additionally, counsel's ineffectiveness in protecting his state speedy trial rights prejudiced petitioner's case. Accordingly, his rightto effective assistance of counsel was denied. CLAIM 94: Trial Counsel Rendered Ineffective Assistance by Failing to Use the Police Missing-Juvenile Report to Impeach Key Prosecution Testimony and Otherwise Undermine the Legality of Petitioner's Arrest. 1, The legality of petitioner's arrest was raised at pretrial proceedingsrelated to the first trial. The 1538.5 motion waslitigated at that time, denied and raised on appeal in MemroI and the related habeaspetition. This Court did not reach the suppression issue in either the appeal or companion habeas proceedings (which was completely ignored). Counsel at the second trial was prevented from re-litigating the suppression issue, despite ineffective assistance of counselat the 1538.5 motion and the existence of new relevant facts obtained from previously improperly withheld discovery and Brady materials. 2. The South Gate Police Department's missing-juvenile report on Carl Carter, Jr., was prepared on October 22, 1978. The report indicates that Carter was last seen byhis brother nearthe rear of his residence at 7:00 p.m. (1900. hours) on that date—the date of Carter’s disappearance. (Missing-juvenile report, Exhibit S-H). 3. Officer Sims arrested petitioner on October 27, 1978. In determining probable causefor the arrest, Officer Sims relied heavily on his purported belief that petitioner was the last person to have seen the boy prior to his disappearance. This alleged belief was based on twopurportedfacts:first, that Carter was claimed to be observed missing at 6:00 p.m. and, second, that petitioner admitted his presence at the Carter residenceat that time. Moreover, the court, in finding probable causeforthe arrest, consideredit significant that according to police testimony, petitioner wasthe last person knownto have seen Carter prior to his disappearance. 317 : 4. The missing-juvenile report directly contradicts the crucial factor upon whichthe arresting officer and the court based the probable cause determination. Furthermore, the report actually corroborates the statementpolice attribute to petitioner that he didn't do anything to Carter and that the boy was safely walking toward his home from a nearby donut shop shortly after 6:00 p.m. whenpetitioner last saw him. 5. A reasonably diligent advocate would have used the missing-juvenile report to challenge the truthfulness ofthe arresting officer and the legality of the arrest. This documentis critical becauseit refutes the statement by Officer Simsthat he allegedly believed petitioner was the last person to see the boy prior to his disappearance, and yet Simstestified to being aware of the contents of the missing-juvenile report. This purported "belief" by the officer wasa critical, if not the only basis, for his immediate warrantless arrest of petitioner and the crucial factor in the finding of probable cause by the court. 6. Trial counsel Williams did not use the missing-juvenile report to cross- examine Officer Sims or otherwise make reference to the report. There was no possible tactical reason for not making referenceto that report. Mr. Williams candidly states that if he were engaged in the same suppression hearing today, there is no doubt he would "attempt to use the report to impeachthe testimony of arresting officers Sims and Gluhak andalso argue to the court that the report served to substantiate the lack of probable cause for defendant's arrest." Declaration of Peter M. Williams and Exhibit S-I. 7. Defense counsel's failure to use the missing-juvenile report deprived petitioner of a legitimate opportunity to prevail. Proper use of the report would have caused the court to find the arrest illegal. Because the confession is a fruit of the arrest, proper use of the report would have caused the confession to be suppressed. If Mr. Williams had used the missing-juvenile report, there would have been a result more favorable to petitioner at the guilt and penalty phases. 8. As aresult of the above, petitioner was denied effective assistance of counsel 318 a at the first trial and was denied effective assistance of counsel at the secondtrial in that Mr. Larkin failed to challenge the effectiveness of Mr. Williams. 3. JURY ISSUES. CLAIM 95: Trial Counsel Rendered Ineffective Assistance During Voir Dire. 1. Trial counsel rendered ineffective assistance of counsel by allowing deficient questionnaires to be distributed to prospective jurors. Counsel failed to cure the deficiencies in the questionnaires with adequate questioning during voirdire. 2. The jury questionnairesfailed to list the potential witnesses, which was necessary to determine if the potential jurors knew any witnesses. One juror did know one of the witnesses personally, although this did not come out until muchlater in tnal. Juror Zinn knew and worked with Officer Barclift, a critical prosecution witness. Hadtrial counsel ensured an adequate questionnaire, he would have knownofthis relationship before allowing Juror Zinn to serve on the jury. 3. The questionnaire gave an inadequate description of the crime charged. The questionnaire stated: “The defendantis charged with the killing of three boys, ages, 12, 10, and 7. The prosecutionis alleging that one of the killings occurred during the course of a special circumstance.” This was followed with these questions: “1. Have you ever heard of this case. 2. Does the natureof the crime charged prevent you from being fair and impartial to either side based on the nature of the charges alone.” (CT 384). 4. With only petitioner’s name and the fact that he was accusedofkilling three boys, there were not enoughfacts given for a jurorto be able to effectively gauge whether or not they had heard about the cases, which occurred nine and eleven years priorto jury selection. Facts such as two ofthe killings occurredin a park several years before, or the fact that the killing in Count 3 began as a well publicized case of a missing seven year old child might have helped jar the memories of the potential jurors. The information was misleading becauseit implied that the three victims were killed at the same time. The 319 & summary provided insufficient detail for the jurors to determine whether they had previously heard of petitioner’s case. 5. The limited information provided wasnot sufficient to determine whether the prospective jurors could be fair and impartial to both sides based on the charges alone. The charges were never explained. Termslike “special circumstance” were never defined, so the jurors could notprovide any information abouttheir feelings. The inflammatory facts of alleged child molestation were kept from the jurors. Without this information, counsel could not question effectively during voir dire. Competent capital counsel would have ensured that the questionnaires provided adequate information. 6. Throughoutvoirdire,trial counsel failed to ask questions abouta series of answers on the jury questionnaires that should have raised suspicion about the impartiality of the potential jurors. He also failed to follow up on questioning which arose during voir dire. Since questionnaires were not preserved from prospective jurors who were not chosenas jurors, it is problematic to investigate whether those voir dire examinations were performed competently or not. All of the following jurors were onthe final jury. 7. Sandra Torfason had a relative who was a police officer in San Dimas. Trial counsel asked no questions concerning herrelative or whether havinga relative who was a police officer might sway her objectivity. (RT 1985; Juror questionnaire Pg. 4). Effective counsel would have fully questioned Ms. Torfason in this area. 8. Elizabeth Burns had heard of the case before. She was taking paralegal classes and thoughtthat her instructor may have discussed the case with the class. The few questions he asked about Ms. Burns familiarity with the case were cursory at best. Trial counsel asked “Have you thought any more of where you may have heard Mr. Memro’s name?” (RT 923). She said she may have heard the name at school. (RT 923). He then asked if “something came up and triggered your memory,” would she be able to objectively judgethe case only on the evidence presented in court and she stated that she would. This 320 question wasspeculative at best. Atno time did counsel or the court follow up onthis issue as the case progressed. 9. Trial counsel inexplicably sought to rehabilitate her by asking, “youcertainly wouldn’t judge this on what you’d read in the newspapers?” (RT 927). Ms. Burns said she would not and that she could put that information out of her mind. Realistically, she could give no other answer. She explained that her paralegal class assigns her “case briefs on newspapers.” (RT 927). Trial counsel did not ask which newspapers she wasassigned, which cases she wrote on or any other questions concerning these class assignments. 10. Petitioner’s case was widely publicized. Both the 1976 Bell Gardenskillings and the Carl Carter killing in 1978 were heavily covered in the area newspapers. Ms. Burns lived in Bellflower, a nearby community to Bell Gardens and South Gate. Shelikely encounteredstories about the cases. Dueto the insufficiency of the questionnaires she may not have recognized the case. Counsel should have provided more specifics in both the questionnaires and his questions in order to make an informed determination. 11. Ms.Burns wasalsotrained as a paralegal and had studied the criminaltrial process. (RT 923). At least two areas of the trial required a certain amount of ignorance of the trial process by the jurors. 12. |The jurors were told that the trial was being tried many years after the commission of the crime and were asked not to speculate about the reasons why. The prosecutor repeatedly informed prospective jurors of this fact during voir dire. (See,e.g. RT 569, 609, 636, 652, 673, 734, 762, 797, 829, 890, 901, 910, 946, 958, 963, 987, 1027, 1055, 1079, 1092, 1152, 1171, 1194, 1211, 1231, 1255, 1356, 1370, 1380, 1404, 1432, 1445, 1454, 1465, 1491, 1514, 1536, 1546, 1577). A person trained in law would knowthata priortrial meantthat there had been a prior conviction, the knowledge of which would severely prejudice petitioner. 13. The jury wasalso told that the murder in Count 1 was second degree as a 321 matter of law. They weretold not to speculate as to why. A person trained in law could deduce why Count One |, at most, was second degree as a matter of law. These two instructions taken together, that the trial was being held years after the crimes were committed and that the maximum charge on Count | was second degreeas a matter of law, would lead someonetrained in the law to concludethat the trial was a retrial, and hence, that there was a prior conviction. 14. Trial counsel should have challenged for cause on Ms. Burns dueto her knowledge of the criminaltrial process. At a bare minimum,trial counsel should have asked sufficient questionsto clarify her base of legal knowledge. Such questioning would have allowed the intelligent exercise of a challenge for cause and/or peremptory challenges. 15. Trial counsel had six peremptories at the conclusion of the voir dire. Effective capital case counsel would havefirst engaged in adequate questioning to determineif a challenge for cause was proper. Failing that, competent counsel would have exercised a peremptory challenge to strike Ms. Burns and the other jurors discussed herein. 16. - Two jurors, Angela Shiromani and Mary Jane Miler said that they were . following the McMartin child molestation case which allegedly occurred at a Manhattan Beach preschool. The prosecution’s case against petitioner rested on a theory ofchild molestation as the motivein all three counts. It was incumbentontrial counsel to explore the prospective jurors’ attitudes about child molestation to determineif they werelikely to be prejudiced against petitioner based solely on the prosecutor’s theory of the case. Trial counsel asked no questions about their interest. in the McMartin case or their reaction to the child molestation issue. The jury questionnaire was inadequate. Trial counsel had no basis to exercise either peremptory challenges or challenges for cause. 17. Marjorie Horton wrote on the questionnaire that she had a cousin who was a police officer. Trial counsel asked no questions concerning this response. Shealso said 322 that she had grandchildren ages 9 and 7. Trial counsel asked if that would bias her. She respondedthat “it might.” Whentrial counsel asked if she was a strong supporter of the death penalty, she said yes. (RT 1356). Trial counsel passed for cause. Effective counsel would have challenged for cause, and if the challenge was overruled, would have used one of his extra peremptories to stnke Ms. Horton. 18. By failing 1) to ensure that the jury questionnaires were adequate, 2) to question the jurors about answers written on the jury questionnaires, 3) to intelligently exercise challenges for cause and peremptory challenges, trial counsel rendered ineffective assistance of counsel. CLAIM 96: Failure to Conduct an Effective Voir Dire to Ascertain Juror’s Attitudes and Biases Regarding the Death Penalty Constituted Ineffective Assistance of Counsel. l. During voir dire, the court excused several potential jurors who indicated a general opposition to the death penalty. Trial counsel routinely failed to ask any questions of these people to explore whether they would automatically return a sentence oflife without possibility of parole in every case. He never asked whether they could imagine a situation in which they would be willing to consider rendering a sentence of death. 2. Trial counsel asked no questionsatall of prospective jurors Charles Bomar (RT 801), Josefina Docuyanan (RT 1135), and Charles Boxx (RT 804). Counsel engaged in virtually no questioning of several jurors whoinitially appearedto be biased against the death penalty, including Mitsue Estrella (RT 1173), Maria Gutierrez (RT 1288) and Oliver Neal (RT 1654). 3. Trial counsel failed to make any attempt to rehabilitate jurors regarding death-qualification. Pamela Elofson was asked “Would you automatically vote for a verdict other than first degree in order to avoid having to worry about the death penalty.” She responded that she would. The court repeated “You would? Mr. Larkin?” Larkin responded “No questions.” The court excused Elofson on his own motion. (RT 1141). 323 4. The court asked prospective juror Julietta Lopez, “would you refuse to vote for [the death penalty] because you know by voting for something other than first degree murder there wouldn’t be a death penalty?” Ms. Lopez responded that she would. The court said: “You would. Myreaction is to excuse her, gentlemen, unless either side objects.” Millett volunteered, “No objection.” Larkin remained silent. The court explained, “Then, Mrs. Lopez,I'll excuse you at this time.” (RT 1542). 5. The court asked Elva Cazares, “Would you vote for something other thanfirst degree murderso that you wouldn’t even haveto get to the death penalty?” Cazares responded “Yes, I think I would.” The court rephrased the question and asked again. Cazares responded “just to sum it all up, I don’t believe in the death penalty.” The court asked “you don’t believe in the death penalty?” Cazares responded that she did not. The court said “very well then. Mr. Larkin?” Larkin responded, “No questions, your honor.” (RT 1031). 6. Petitioner wasentitled to the effective assistance of counselattrial, including during voir dire. The inaction oftrial counsel deprived petitioner of a meaningful voir dire examination. The result was the seating of a jury biased in favor of the death penalty, violating petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments. The omissionsoftrial counsel deprived petitioner of his right to effective assistance of counsel under the Sixth Amendment. See e.g., Stricklandv. Washington, 466 US 668 (1986). 7. “(Part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan v. Illinois, 505 U.S. 719, 729 (1992). The Supreme Court has explained: Werevoir dire not available to lay bare the foundation ofpetitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaninglessas the State’s right, in the absence of questioning, to strike those who would never do so. 324 Id. at 733-34 (emphasis in original). Trial counsel completely abandonedhis responsibility to assure the adequacyofthe voir dire. “Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State’s case in chief, had predetermined the terminating issue ofhistrial, that being whether to impose the death penalty.” /d. at 736. Trial counsel’s actions effectively eviscerated petitioner’s rights to a meaningful voirdire. 8. At times, trial counsel was not paying attention to the proceedings. When prospective juror William Boxxsaid that he would not vote for the death penalty for any person, the court invited trial counsel to question the juror. Trial counsel did not respond to the court. The prosecution made a challenge without argument, which the court sustained without comment. (RT 804). 9. Effective capital case counsel would have done something. Notactical purpose existed to simply ignore the court. The record reflects that trial counsel was not always paying attention to the proceedings. Respondingto a question from the trial court, prospective juror Shirley Cerda explained,“I’m notreally not sure of the situation, but I was a molested child myself. But I feel if it has anything to do with that I do not feel I would be appropriate for this case,” The court took the initiative and excused Ms. Cerda: “Based upon the facts of this case I will excuse you on my own motion.” The court then thanked and admonished Ms. Cerda, before excusing her. After she departed, trial counsel asked “Did she say she has been molested?” (RT 1039). Petitioner was entitled to counsel who could at least pay attention to the proceedings. 10. Effective capital case counsel would have attempted to rehabilitate those jurors who might have been willing to consider voting for death under some circumstance. Counsel’s failures violated petitioner’s Sixth Amendmentright to effective assistance of counsel. The jury which was seated wasbiased in favorof death as a directresult of trial counel’s inadequacy, in violation of petitioner’s rights to a fair trial by an impartial jury in 325 ~ violation of the Fifth, Sixth and Fourteenth Amendments. Petitioner’s rights to heightened capital case reliability under the Eighth Amendmentwerealso violated. 11. During voir dire, trial counsel passed for cause on several prospective jurors whowere ultimately seated as jurors. Several should have been challenged for cause and excused. 12. Arthur Beckner admitted that he was close to his nephew who workedfor the Los Angeles County Sheriff's Department. He also had granddaughters ages 12 and 14, about the ageof the victims. (RT 724). Trial counsel asked a single, rhetorical question: “You understand that we have some young people that are involved as victims in the case?” This question did notelicit sufficient information to make a reasoned determination as to Mr. Beckner’s possible biases. The issue of whetherthe jurors grandchildren might make him react to the murders morestrongly than if the victims were adults, or even children of different ages, was left unbroached. Trial counsel could not intelligently exercise challenges for cause or peremptory challenges without necessary information. 13. The court asked Robin Kritz, “would you beinclined to believe a witness who was a police officer more than a civilian witness simply because the first witness was a police officer and for no other reason?” After having the question repeated, she responded “yeah.” The court rephrased the question: “Okay. You think if a police officer said the car was going 40 miles an hour and the doctor was standing on a street corner and said it was going 35 miles an hour you would believe the police officer simply because he or she was a police officer?” Ms. Kritz, “Well, no, not because of he was a police officer.” (RT 1497). 14. The court’s question was imprecise. It asked whether she would believe a police officer over a doctor or teacher. The witnessesin petitioner’s case were notall respected professionals. The questions and her answers were at best ambiguous. Her answers implied that she would tendto believe police officers over other witnesses. It was clear that numerouspolice officers would testify against petitioner. Their credibility was 326 critically important. Her inability to be impartial mandated a challenge for cause. 15. Trial counsel asked only cursory questions, prompted by Ms.Kritz’s responses on the jury questionnaire, “You have somefriends of the family or friends of yours that are sheriff’s officers or police officers. Do you think that you’d be able to put that out of your mind?” Ms. Kritz responded, “Yeah.” Trial counsel then asked: “And you wouldn’t vote a certain way or not want to vote a certain way just because of that would you?” “No.” Not only did this question lead the witness to respondin the negative, it was ambiguous and was not probative. Trial counsel failed to explore whether or not the prospective juror might find a witness who was a memberof law enforcement more credible or not. Trial counsel failed to render effective assistance of counsel by: 1) performing inadequate voir dire; 2) passing for cause when he should have challenged; and 3) not exercising a peremptory challenge. 16. Prospective juror Patricia Kieran was close to her niece who was a dispatcher with the police department and whose husband wasa police officer. Trial counsel failed to pursue whetherher relationship with members of law enforcement might color her assessmentofthe credibility of witnesses. (RT 1447). If counsel was not going to question the juror, at a minimum he should have exercised a challenge. He neither challenged for cause or struck the juror with a peremptory. 17. Later, it cameto light that prospective juror Deberah Zinn knewoneofthe prosecution’s witnesses, Officer Barclift of the Bell Garden’s Police Department. This fact did not come out during voir direas trial counsel failed to ask if Ms Zinn knew anyof the witnesses, or probed into whether she knew any law enforcementofficers. Ms Zinn had also been a victim of a robbery while she worked at her mother’s jewelry store. 18. Petitioner wasentitled to a fair trial before impartial jurors. Trial counsel failed to advocate on petitioner’s behalf by conducting a searching inquiry of the juror’s attitudes and biases. Selecting an impartial jury was thus impossible, as demonstrated by 327 counsel’s inadequate use of challenges. Counsel’s failings fell below the standard ofcare required of competent capital case counsel under the Sixth Amendment, as interpreted by Strickland and its progeny. CLAIM 97: Trial Counsel Rendered Ineffective Assistance for Failing to Excuse a Juror Who Knew Oneof the Witnesses. l. Duringtrial, it came to light that one of the jurors knew one ofthe prosecution’s key witnesses, Officer Barclift of the Bell Gardens Police Department. Barclift was an investigator during the 1976 double homicide. He interrogated petitioner about the 1976 killings after petitioner’s arrest in 1978. (RT 2339). 2. Juror Zinn was employed at a casino. Officer Barclift served as a police _ liaison for the casino. He worked closely with the personnel department in which she worked. (RT 2340). He saw her on a daily basis. (RT 2340). He was responsible for performing identity checks on all applicants for employment. (RT 2350). 3. Thetrial judge suggested, “If you want, gentlemen, I will ask her some individual questions, if you want. Based on that I’d excuseher, too, but I'd leave it up to you.” (RT 2340). Trial counsel did not excuse the juror, even after she admitted to knowing Officer Barclift during questioning. 4, The Sixth Amendment and Due Processclause of the Fourteenth Amendment protect petitioner’s right to an impartial jury. The right to jury trial guarantees to the criminally accuseda fair trial by a panel of impartial, “indifferent” jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. /n re Oliver, 333 U.S. 257; Tumey v. Ohio, 273 U.S. 510 “A fair trial in a fair tribunalis a basic requirement of due process” Jn re Murchison, 349 U.S. 133, 136). In the ultimate analysis, only the jury can strip a manofhis liberty or his life. In the language of Lord Coke, a juror mustbe as ‘indifferent as he stands unsworne.’ His verdict must be based upon the evidence developedat the trial. Turner v. Louisiana, 379 U.S. 466 (1965). 5, Jury trial rights are subverted when jurors know key prosecution witnesses. 328 People v. Tidwell, 3 Cal. 3d 62 (1970). “Determining whether any of the prospective jurors know the witnesses is clearly important to the question of the jurors' impartiality. See United States v. Anderson, 626 F.2d 1358 (8th Cir. 1980), cert. denied, 450 U.S. 912, 101 S. Ct. 1351, 67 L. Ed. 2d 336 (1981); United States v. Jackson, 508 F.2d 1001 (7th Cir. 1975); see also Cook v. United States, 379 F.2d 966 (Sth Cir. 1967); United States v. Brown, 799 F.2d 134. (1986). The dangeris that the juror will give more weight to the testimony of that witness than to the witnesses of the opposing party. 6. Wherethe witnessis a police officer or deputy Sheriff the danger is even _ more pronounced: | It would have underminedthe basic guaranteesoftrial by jury to permit this kind of an association betweenthe jurors and two key prosecution witnesses whowere not deputy sheriffs. But the role... as deputies made the association even more prejudicial. Turner v. Louisiana, 379 U.S. 466 (1965). 7. It was incumbentontrial counsel to excuse the juror after she verified that she knew Officer Barclift. The tnal judge himself suggested that he would remove the juror if he weretrial counsel. Both the judge andtrial counsel questioned the juror. She told the court that she saw Officer Barclift every day at her job. The two sometimes engaged in conversations and knew one another casually. Juror Zinn knew Officer Barclift enough for her to form a bias. The failure to excuse the juror constituted deficient performance. 8. The failure to excuse Juror Zinn prejudiced petitioner. After she was examined andallowedto return to the jury box, Officer Barclift testified for the prosecution. He primarily described the scene of the crime as he foundit, and identified pieces of physical evidence in crime scene photographs. (RT 2355). Later in thetrial, he wascalled back to the stand by the prosecution. He then described the confession he elicited from petitioner in detail. (RT 2496). He described both the circumstancesof the 329 confession, including the alleged Miranda waiver, and the contents of the purported confession. Officer Barclift recited almost a verbatim account of the confession, recounting the way in which petitioner purportedly killed the boys in graphic detail. Barclift repeated gratuitous, prejudicial comments, such as stating that petitioner said “I have a thing for blondes” several times, despite the fact that the Carter’s notes of the alleged confession only say it once. (RT 2498). 9. Both the accuracy and voluntariness of the confession was contested by the defense. The defense asserted wasthat petitioner was coerced, received false promises in exchangefor incriminating statements and that the resulting confession itself was false. Trial counsel conceded that petitioner killed Carter but denied petitioner’s guilt in the 1976 killings about which Barclift testified. Barclift’s testimony wascritical to one of the disputed facts at the guilt phase. 10. Barclift also explained that he did not divulge to the media that the top had been cut off from the plastic container foundat the scene. He kept the fact confidential so that the police would know if a confession was false or not. (RT 2504). This testimony was perhaps the most damagingofthe entire trial, since the jury was being told that only the killer knew this fact and that petitioner knew that fact. The defense was nevertold that the details about the bottle were withheld from the public, even though a discovery order _ ordered the disclosure of that information. Thetrial court refused to allow counsel to bring out the discovery order on cross-examination. (RT 2521). Barclift was thus not as significantly impeached as he otherwise might have been. 11. A juror who wasproneto believe that Officer Barclift was credible based on knowledge outside of the courtroom would be led to believe that the confession was accurate and voluntary, that the Miranda warnings werevalidly given and voluntarily waived and that petitioner killed the two boys in Ford Park in 1976. Barclift’s testimony amounted to an assertion of petitioner’s guilt. The failure to excuse Juror Zinn was thus prejudicial. 330 Trial counsel’s inadequate representation violated petitioner’s Sixth Amendmentnghts. CLAIM 98: Petitioner's Right to Effective Assistance was Violated as a Result of Counsel's Failure to Conduct an Adequate Voir Dire. 1. Trial counsel conducted the voir dire of the jurors in a mannerthat was constitutionally inadequate. Thetrial record was analyzed by Professor Edward J. Bronson, whose declaration is incorporated by reference as if set forth in full. Hestates: Based on myreview of [the] materials and on mytraining and experience,it is my professional opinionthatpetitioner wasnot afforded effective assistance of counsel in the voir dire. ... The errors were serious, are at variance with commonly accepted professional practice, and cannot be explainedorjustified as tactical choices. The errors, taken together and individually, severely undermined the defendant's right to have an unbiasedjury as expected of a reasonably competent attorney. Specifically, it is my opinion thatpetitioner's trial counsel’s performance fell below objective standards of reasonableness underprevailing professional norms. It is also my opinionthat this inadequate performance wasprejudicial to petitioner in that there would have been, absent counsel's errors and omissions, a more favorable outcome. Exhibit BB, Declaration of Edward J. Bronson at 4. 2. Trial counsel demonstrated, through the voir dire, a lack of understanding of the purpose of voir dire and an inability to use basic questioning techniques to accomplish those purposes. Exhibit BB at5. 3. Counsel consistently used leading questions that failed to elicit useful answers, on which he could base an intelligent decision to accept or challenge the prospective juror. 4. Counsel failed to follow up on matters that needed further elucidation. 5. Counsel was unwilling to even attempt to rehabilitate jurors, and whenhedid, he often ended up rehabilitating jurors as if he were prosecuting the case. 6. Tnial counsel's voir dire was inadequate in several areas of inquiry, including pretrial publicity (Exhibit BB at 7-21), death qualification (Exhibit BB at 12-35), pedophilia and homosexuality (Exhibit BB at 35-39), and otherareas, including joinder and petitioner's failure to testify (see Exhibit BB at 39-51). 331 7. Petitioner requested that counsel hire a jury expert to help in conducting the voir dire and selecting the jury. Althoughit is not ineffective assistance perse to fail to hire an expert,in this case, given trial counsel's complete inadequacy to conduct a competent voir dire, failure to hire a qualified person to assist at voir dire constituted ineffective assistance of counsel. 8. Petitioner was prejudiced byhistrial counsel's inadequate performance. Absent counsel's numerouserrors and omissions,it is likely that there would have been a more favorable outcomeat both the guilt and penalty phases. Accordingly, petitioner was denied his rights to counsel, to a fundamentally fair trial, to a jury trial, and to a reliable and accurate determination of sentence underthe Sixth, Eighth and Fourteenth Amendments. 4, CONFLICT OF INTERESTISSUES. CLAIM 99: Petitioner was Denied his Right to the Assistance of Counsel Underthe Sixth Amendmentby the Trial Court's Denial of his Request to be Represented by Counselto Litigate the Critical Proceedings Challenging the Inadequate Representation byhis . Appointed Trial Counsel, Prior to and After the Guilt Phase of the Trial. l. Atthe first trial in 1979, a conflict arose between petitioner and his counsel, Peter Williams, which intensified at the conclusion ofthe guilt phase. Petitioner explained to the trial court that he and Mr. Williams “have had a complete and total breakdown of communications.” (1979 RT 894). Petitioner asked that the Court appoint another attorney to represent him. 2. The Court was hesitant to discharge Mr. Williams but, ultimately, agreed to relieve Mr. Williams. Thetrial court trailed the matter until the next day for the appointment of new counsel. (1979 RT 900). Prior to doing so, the Court noted that “I cannot permit him [Mr. Memro] to proceed in pro per” and “There is no circumstances under which he can. This is a death penalty case.” (1979 RT 898). 3. The following day, the Court appointed Robert Villa to represent petitioner. 332 (RT 902). Petitioner objected to Mr. Villa serving as counsel based on their conversations and stated that he saw noalternative other than to submit for sentencing on the previous proceedings, dueto his lack of qualifications to serve as his own attorney. (1979 RT 903- 904). The Court stated: The request to proceed in propria persona is denied. The Court cannot permit a person whofeels that he is not qualified to do so to represent himself in a case wherehislife is at stake. (1979 RT 904). The court declined to relieve Mr. Villa and gave Mr. Villa his requested time to prepare. (1979 RT 905-913). 4. Uponreturning to court, Mr. Villa explained that a conflict had “arisen between Mr. Memroand myself which go[es] to my ability to continue to represent Mr. Memro.” Mr. Villa stated that he could not go into these matters with the trial court, which wassitting as thetrier of fact. (1979 RT 914). Thetrial court transferred the matter to Judge Allen. (1979 RT 916). Upon Mr. Villa’s request, he was removed as counsel. (1979 RT 916). The court ordered Mr. Villa to return the transcripts, reports and correspondence to petitioner. (1979 RT 918-919). 5. The court then asked if petitioner was ready to proceed andpetitioner said he was not. Petitioner believed that the court would appoint new counsel. The court said that unless he could retain his own attorney, he would have to proceed on his own. (1979 RT 920). The court gave petitioner nine days to prepare himself for the penalty phase. (1979 RT 925). . 6. At the next appearance, petitioner again requested a continuance and appointment of counsel. The court refused this request. (1979 RT 927). Petitioner reminded the court that Mr. Villa was relieved on his own motion. Petitioner also reminded the court that he was not competent to represent himself. (1979 RT 928). Despite the court’s prior pronouncements that under no circumstances could a defendant 333 represent himself in a capital case, the court denied petitioner’s request that counsel be appointed. (1979 RT 928). Petitioner explained that he lacked adequate resourcesat the county jail and that even if he had adequate resources, he was not qualified to represent himself. (1979 RT 929). The court refused to appoint an attorney. (1979 RT 929). The court offered an additional continuance andpetitionerreiterated that regardless of the amountoftime, he was unqualified. (1979 RT 930). Thetrial court continued the matter 21 days and appointed an investigator for petitioner. (1979 RT 932). 7. Petitioner was unable to proceed at the next appearance,dueto his inability to confer with the appointed investigator. (1979 RT 935). Thetrial court denied petitioner’s request for a continuance. (1979 RT 937). Petitioner again renewedhis request for appointed counsel, which the court denied. (1979 RT 939-41). 8. Petitioner again reminded the court that he was not competentto represent himself as the court had previously found. (1979 RT 941). The court reversedits prior statements, see above, and said that the court only found that petitioner did not feel he was competent to represent himself. (1979 RT 941). 9. The penalty phase began with petitioner representing himself. The prosecution rested on the evidence presented during the guilt phase. Petitioner stated that because he was unqualified to represent himself and the court refused to ensure his access to a licensed investigator, he had nothing to add. (1979 RT 942-43). 10. The prosecutor arguedthatif petitioner did not deserve the death penalty, there was no case in which it would ever be justified. He urged the court to impose the death penalty. (1979 RT 944-45). Petitioner stated he was not qualified to proceed. (1979 RT 945). The court construed petitioner’s statements as his refusal “to make any summation whatsoever in his own defense.” (1979 RT 945). The court then entered a death verdict against petitioner. (1979 RT 949). 11. The complete denial of counsel violated petitioner’s Sixth Amendment 334 rights. “The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” United States v. Cronic, 466 U.S. 648, 668 (1984). The Supreme Court has uniformly found constitutional error without any showing of prejudice when counsel waseithertotally absent or prevented from assisting the accused during critical stage of the proceeding. See, e. g., Geders v. United States, 425 U.S. 80 (1976); Herring v. New York, 422 US. 853 (1975); Brooks v. Tennessee, 406 U.S. 605, 612-613 (1972); Hamilton v. Alabama, 368 U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam), Ferguson v. Georgia, 365 U.S. 570 (1961); Williams v. Kaiser, 323 U.S. 471, 475-476 (1945). 12. Thetrial court refused to appoint counselto representpetitioner in the penalty phase. There can be no doubtbut that the penalty phaseis a critical phase of the trial. See, e.g., Estelle v. Smith, 451 U.S. 454 (1981); Hoffman v. Arave, 236 F.3d 523 (9" Cir. 2001); Gerlaugh v. Stewart, 129 F.3d 1027 (9" Cir. 1997) (applying Strickland and Cronic to penalty phase representation). 13. Thetrial court’s sole ground for not appointing counsel wasthat two prior attorneys had been dismissed. Peter Williams had beenrelieved after an irreconcilable conflict of interest arose. (1979 RT 900). This removal was necessary and proper under the Sixth Amendment. See People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (1970). The essence of a Marsden motionis that appointed counsel’s representation has in somesignificant measure fallen below the level required by the Sixth Amendment. See Schell v. Witek, 218 F.3d 1017, 1021 (9" Cir. 2000). 14. Robert Villa was relieved upon his own request. (1979 RT 916). The court attributed, without factual basis, Villa’s motion to be relieved to petitioner and repeatedly refused to appoint counsel despite petitioner’s numerous requests. 15. As aresult of the above, petitioner was denied his right to counsel underthe 335 Sixth and Fourteenth Amendments. CLAIM 100: Petitioner's Rights Were Violated as a Result of Counsels’ Conflict of Interest in Being Essential Witnesses in the Case. 1. Attorneys Carney and Larkin were both essential witnesses in the case. Under California ethical rules, they were not allowed both to serve as counsel andto testify as witnesses. They decided notto be witnesses. Consequently, petitioner was denied the testimonyofcritical witnesses. Neither attorney consulted with petitioner aboutthis decision. 2. Carney was a corroborating witnessas to the testimony of defense witnesses at the motion to suppresspetitioner's confession. 3. Jose Feliciano was a witness who had been hypnotized by the police in violation of state law requirements. Larkin interviewed Feliciano out of the presence of any investigator, at which time Feliciano denied having identified a photograph of petitioner. A few minutes later, Larkin put Feliciano on the stand and Felicianosaid the opposite. Had Larkin interviewed him in the presence of an investigator, the investigator could have provided "prior inconsistent statement" testimony. Absent the presence of an investigator, Larkin turned himself into an essential witness in the case. 4. In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court explained that a defendantis entitled to a presumption of prejudice if he can demonstrate that his attorney labored under an actual conflict of interest and that the “actual conflict of interest adversely affected his lawyer’s performance.” Jd. at 348-49; see also Strickland, 466 U.S. at 692. As demonstrated here, trial counsel’s performance wasconstitutionally inadequate. 5. Petitioner was not informedthat he had a right to conflict-free representation. He never waivedhis right to such representation. Similarly, he was never provided with independent counsel to discuss whether conflicted counsel should remain on the case or even told that he could do so. Had the court provided independentcounsel, they 336 would have explainedpetitioner’s rights and petitioner would have exercised his right to conflict-free representation. 6. The lawyers' inability to testify caused by their choice betweentestifying and continuing as counsel for petitioner prejudiced the presentation of his case and denied him his rights under the Sixth and Fourteenth Amendments. CLAIM 101: The Trial Court Failed To Conduct The Constitutionally Required Inquiry Into the Conflict of Interest. 1. Thetrial court was constitutionally required to inquire into the circumstances of the conflict in order to determine whether new counsel was needed. This duty was independentof any asserted waiverof the conflict by petitioner, who was in any case incapable of meaningful waiver by virtue of his mental condition. 2. Thetrial court did not make the requisite inquiry. On numerousoccasions, petitioner sought to have counsel relieved andstill the court did nothing. The court recognized that there was impropriety to having counsel serve as a witness but did nothing to look into the constitutional nature of those difficulties. (RT 378-384). Nor did the court inform petitioner of his right to conflict-free representation. 3. Thefailure ofthe trial and reviewing courts to accord petitioner a meaningful hearing regarding this conflict deprived him of his Sixth Amendmentright to counsel and associated Eighth and Fourteenth Amendmentrights to a fair andreliable capital trial. 5. GUILT PHASEISSUES. CLAIM 102: Trial Counsel Rendered Ineffective Assistance by Failing to Impeach Dr. Choi with his Preliminary Hearing Testimony. 1. At the 1987 trial, Dr. Choi testified regarding the autopsy performed on Carter. Dr. Choi testified that the result of an anal swab test was negative for sperm, spermatozoa and twoplus for acid phosphatase. (RT 2430). He explained that four plus was the maximum strength and that two plus was mildly positive. 2. Dr. Choitestified that the enzyme acid phosphatase comes from the prostate. 337 He explained that the victim would not naturally have his own prostate fluid enzymein the anus. The enzyme had to have come from somewhere else— probably another person. (RT 2430-31). 3. Dr. Choitestified that acid phosphatase is a part of semen. (RT 2431). 4. Asdiscussed herein, the prosecutor argued that the Carter killing wasfirst degree murderbased on twotheories— (1) that it was an intentional, premeditated. and deliberated murder, and (2) that 1t was a murder committed in the course of a felony, namely lewd and lascivious conduct. The prosecutorstated: " Now,as to Count 3, the murder of Carl Carter, Jr., there are two theories. Oneis it could be a willful, deliberate, premeditated murder, or it could be a murderthat occurred during the course of a felony. The felony~ during the course of attempted felony or a completed felony— that of child molest. (RT 2786). ~ 5. The prosecutor, after summarizing the evidence from petitioner’s purported confession, stated: Well, I think if you think aboutit, and considering that he taped his hands behind his back— anybody here believe he did that after he was dead? These things didn’t happen exactly the way Mr. Memrohasstated it. These happened morethan likely while he was attempting somesort of a child molest, some sort of a sexual advanceorattack on this boy. (RT 2789). These comments demonstrate that the prosecutor actively soughtto try petitioner based on both theories offirst-degree murder, despite petitioner’s acquittal of the felony-murder special circumstance. 6. He continued: He had had some sexualrelations with this young boy. He couldn’t possibly let him go back andtell his father or anyone else. And there was only one thing left to do then, and he took that clothesline and, as he described,tied it in a square knot, something that presumably he remembers, and choked him to death. (RT 2789). 7. In rebuttal, the prosecutor argued: 338 Does anybody have any doubt that Carl Carter, Jr. was in the process of being molested? I don’t think so. (RT 2845). The prosecutor strongly argued the felony murdertheory later as well. 8. The prosecutor stressed the felony-murder theory: It was said that we don’t have to be concerned with anything that Dr. Choi had to say. He’s neutral. I don’t think that’s quite true. I think what Dr. Choi had to say regarding especially the phosphatasetest, I think, goes a long way toward refuting Mr. Memro’s statement that he was, as he putsit, unable to get a hard on. (RT 2851). 9. Considering the emphasis the prosecutor placed on the felony-murdertheory, there was notactical reason not to attack evidence supporting that theory. 10. At the preliminary hearing conducted on November 13, 1978, Dr. Choi testified about Carter’s autopsy. The following colloquy took place: Q: And the autopsy that you did involving a subject Carl Carter, did you make any particular examination of his anus? A: Yes. Q: Did you find anything unusual or extraordinary about his anus? A: It was decomposed andit was difficult to assess, but there was circular end and a longitudinal operation in the anus. Q: Were there any unusualor — did you take any tests of any substances found - in the anus — were there any other— withdraw the question. Werethere any foreign substances found in the anus? A: Of a remarkable nature? Not visibly. I didn’t see anything. Q: Notvisible? A: No. But it was decomposed andit was difficult to tell. Q: So there is nothing— there was nothing unusual about the anus consideration, the decomposition; is that a fair statement? A: Well, there was some degree of abrasion, circular abrasion, and longitudinal operation, but it is difficult to tell how extensive it was before the decomposition. . Q: You could not make any judgments as to the cause or how long— the cause or those abrasions or how long they had been there or anything like that? A: That’s right. It is difficult to tell. (Preliminary Hearing Transcript at 9-10). 11. The lack of any mention of acid phosphatase during the preliminary hearing testimony severely undercut the credibility of Dr. Choi’s testimony at the 1987 trial. Trial 339 s e counsel inexplicably failed to impeach Dr. Choi with his preliminary hearing testimony. 12. Reasonable counsel would have done so. The failure to do so was prejudicial, as it would have contradicted the prosecutor’s theory that the Carter killing was a felony murder. This failure violated petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights. See Exhibit P. CLAIM 103: Trial Counsel Rendered Ineffective Assistance By Failing to Challenge the Statements Based on Contradictory Witness Testimony and Inconsistencies Between the Two Confessions. I. Throughout the investigation following the Fowler and Chavez killings, two suspects were described as having been seen with the boysat the park on the night of the murders. Suspect One was describedas a white male, approximately age 30, with sandy blond, shoulder length hair and a twoinchscar across his cheek. He wasseen the night of the murder wearing an army jacket. Suspect Two was described as a younger man with wavy brownhair, wearing a brown jacket. Suspect Twoarrivedat the park that night on a motorcycle. 2. Scott Feliciano, who saw the men in the park shortly before the murders, was brought to the LA Sheriff's Department and helped the Sheriffs’ sketch artist draft a composite sketch of Suspect One. The composite was then shown to witnesses and published in the local media. 3. There are two confessions purportedly given by petitioner. One confession waspurportedly handwritten by Detective Lloyd Carter contemporancously with the confession the defendant allegedly gave on October 27, 1978 at midnight, in the South Gate police department. A typewritten police report dated three days later on October 30, 1978, signed by Officers Barclift and Rogers of the Bell Gardens police department, includes a second confession of-the same events, allegedly given the dayafter the first confession. 4, There are marked discrepancies between the purported confessions and the witness statements. Trial counselfailed to bring out these discrepancies before the jury. 340 Having madethe decision to defend petitioner onthe theory that petitioner was not guilty of the crimes, it was critical that trial counsel introduce and explain evidencecalling into question the validity of the prosecution’s theory. There was no strategic reason notto bring out these contradictions and inconsistencies. 5. The typewritten statementattributes the following statementto petitioner: “I guessI got to the park about three in the afternoon. I had come there from my houseat 2446 4 Cudahy St., Huntington Park.” The handwritten version of the confession says that petitioner lived in “Walnut Park” instead of Huntington Park. Witness Audie Cullison, a friend of Scott Fowler, told detectives that he had seen Suspect Oneat the park before, earlier in the week. Suspect One had met Cullison and Fowler at the park while they were fishing and had said that he was from Paramount. (Bell Gardens Police Report dated 9/13/76, signed by Bowers; marked as discovery page 313). 6. The typewritten statementattributes the following statementto petitioner: “I rode my red Yamaha 125 cc and I was alone.” Witness Jose Feliciano described the suspect’s motorcycle as yellow with a green gas tank and black motocross handlebars. He saw the two suspects frequently talking and whispering together, as if they “were planning something.” (Det. Gossett Interview ofJose Feliciano, dated 7/26/76). Attrial, Feliciano was questioned on re-direct: “Q: did they know each other? A: yeah, when they met they werelike all buddies.” (RT 2329). Witnesses Scott and Mary Bushea also saw the two suspects together that evening as well. (Bell Gardens Police Report dated 7/26/76, signed by Det. Gossett; marked as discovery page 22). The handwritten confession neither specifies that he was alone nor makes any mention of a second suspect. 7. The typewritten statementattributes the following statementto petitioner: “I brought my camera, a 35mm Minolta, and was shooting pictures of a soccer game going on at the park. I’m pretty good photographer. I have all ofmy own equipment and do some ofmy own developing. While I was shooting some color slides I saw these two boys 341 fishing at the pond. . .” No one was seen walking through the park from a soccer game taking pictures as the confession indicates. Jose Feliciano saw Suspect Onearrive on foot from the river bed that runs alongside the park, enter through a hole in the fence and walk directly to the pond where the boys were fishing. He then approached the boys and asked “Catch anything yet?” to which Scott Fowler responded, “yeah, stick around and watch us catch some more.” The other suspect was seen a short time later arriving at the park on a motorcycle. (Bell Gardens Police Report, dated 7/29/76, signed by Detective Eckert). Both suspects were seen entering the park from locations other than the soccer field and they were the only two men seen with the boys until at least 10:00 p.m. that night, when Jose Feliciano, Scott Bushea and Mary Busheaall departed. 8. The typewritten statementattributes the following statementto petitioner: “I had neverseen either of them before. [ started shooting pictures of them while they were fishing.” Witness Audie Cullison said that he encountered Suspect One at the pond earlier in the week while he was fishing with Scott Fowler. Cullison and Fowler had been fishing together at the pond for three consecutive days. On the second day, Suspect One approached them and asked“how many fish you caught?” He then stood andstared at Scott Fowler for about five minutes before finally walking away. (Bell Gardens Police Report dated 9/13/76, signed by Det. Bowers; marked as discovery page 311). Even after police searched the defendants home andseized all photographs, negatives and exposed but undevelopedfilm, no pictures of the boys were recovered. (Bell Gardens Police Report dated 10/30/78, signed by officers Barclift and Rogers, page 4 of 5; Bell Gardens Police Report dated 10/30/78, signed by officers Barclift and Rogers page | of 2). No witnesses mentioned anyonetaking pictures or any presence of a cameraat the park that night. 9. The typewritten statementattributes the following statement to. petitioner: “The three of us talked for a long time, hours. Westayed at the pond until dark.” This statement implies that petitioner was with the boys continuously for hours before dark. 342 Jose Feliciano said that the boys did notarrive until after 7:00 that night and the two - suspects arrived sometimeafter that. (Det. Gossett Interview of Jose Feliciano, dated 7/26/76). An employee at a nearby fast food restaurant corroborated Feliciano’s statement, confirming that he saw the boys leave for the park at about 7:00. (Bell Gardens Police Report dated 7/26/76, signed by Detective Bya)l. The handwritten confession says that the boys arrived “shortly before dark” and that they talked “for a long time.” 10. Witness accounts contradict the assertion that the two suspects were withthe boys for several hours. Jose Feliciano saw Suspect Twoleaveto go get beer at about nine o’clock and return five minutes later with what appeared to be a six-pack of beer, which both suspects drank. (Interview with Jose Feliciano; Bell Gardens Police Report dated 7/29/76, signed by detective Eckert). An employee working at a liquor store that evening and a customer who wasin the store at the time both told officers that they had seen a man matching the description of Suspect Twoarrive at the store before ten o’clock on a yellow motorcycle with black motocross handlebars and purchasea six pack of beer. (Bell Gardens Police Report dated 8/2/76, signed by Officer Christy; Bell Gardens Police Report dated 8/2/76 signed by Detective Bower). Nowhere in the purported confession is there mention of petitioner separating from Fowler and Chavez for any reason. Instead, the confession states that petitioner drank beerbefore he wentto the park, but makes no mention of purchasing and consumingbeerat the park. If the men did not meet the boys until well after 7:00 pm, andleft to get beer at about 9:00, the men were nottalking for hours continuously, nor were they in the park together for hours before dark. 11. The confession also indicates that petitioner was alone with the two boys. Three witnesses, Scott Bushea, Mary Bushea andJose Feliciano,all saw two suspects together with the two boys. 12. The typewritten statement attributes the following statement to petitioner: “After dark, Scott said that he needed somethingto putthe fish in that he had caught. He 343 said that he remembered that when he walked to the park on Clara St., he had seen a plastic gallon milk bottle lying on thestreet, just the other side of Jaboneria street. I told him to get on the back of my motorcycle and we would go get it. He got on my bike and we rode downthestreet in front of the park until we got to Garfield Avenue. Then we wentnorth to Clara street and then west to about one block past Jaboneria street. That’s where we found the plastic bottle.” Jose Feliciano and Scott Bushea were near the boysat the park until 10:00 p.m. and never saw Scott Fowler leave on the motorcycle. At trial, Jose Feliciano was askedifhe saw “either one of those two boys, Scott or Ralph, go off with — go away with one of the men?” He responded, “no.” (RT 2314). 13. Mary Bushea, the mother of Scott Bushea clearly saw a white plastic container in the boys’ possession before she left the park with her son. (Bell Gardens Police Report dated 7/29/76, signed by Detective Eckert. Only one white plastic container was recovered at the crime scene. The purported confession states that the two did not | return with the milk bottle until about 11:00 p.m., well afterMary Bushea hadleft. Mary Bushea’s statement contradicts the purported confession, since she couldn’t have seen the milk bottle accordingto petitioner’s alleged confession to the police. 14. The typewritten statementattributes the following statementto petitioner: “On the way back, a bunchofguys in a car drove.along side of us and shouted, ‘Hi, Scott.’ Hesaid that they were someofhis friends. It must have been eleven when wegot backto the pond,its hardto remember.” Exhaustive interviews withall of Scott Fowler’s friends and acquaintances never turned up any evidence of a car driving by. The case was well publicized and no one came forward with information aboutthecar. 15. The typewritten statementattributes the following statementto petitioner: “TAJll of a sudden, [Scott] made this commentabout ‘All these fucking faggots’ andI got pissed off. The next thing I knew,I had him from behind, around the neck. I got my pocket knife out after I got htm downon his stomach, with my kneein his back. J pulled his head 344 back and cut his throat with one cut.” The confession in the police report said that a pocket knife was used. The handwritten version of the confession stated that it was a 2 2 inch pocket knife. The knife Jose Feliciano saw strappedto the leg of the man in the composite wasa large hunting knife. (Det. Gossett Interview of Jose Feliciano, dated 7/26/76). 16. The coroner concluded that the knife was a “heavy weapon.” (See autopsy reports of Scott Fowler and Ralph Chavez dated 7/27/76; Bell Gardens Supplemental Police Report dated 7/27/76, signed by Detective Gardner). The coroner’s conclusion was based in part on the existence ofa second laceration on Scott Fowler’s shoulder. The coronersaid that the second laceration, measuring 2 1/4 inches in length, was caused by the tip of the knife “as the suspect was cutting the victim’s throat.” The fact that there was only one cut inflicted, although two lacerations may have resulted, could be consistent with the confession. The 2 1/4 inch laceration caused bythe tip of the knife as the knife slid along the throat indicates that the tip was in contact with the victim’s shoulderfor abouthalf of the time the knife blade was in contact with the throat. The blade of the knife purportedly used was only 2 2 inches long. This blade could not haveinflicted the shoulder woundasit was drawn acrossthe throat. The coroner concluded that the knife was a heavy weapon, which corroborates the witness testimony that one of the suspects had such a weapon. 17. Trial counsel failed to highlight this critical information. (See Autopsy Reports of Scott Fowler and Ralph Chavez dated 7/27/76; Bell Gardens Supplemental Report dated 7/27/76, signed by Detective Gardner). A heavy hunting knife would match both the description given by Jose Feliciano of the knife possessed by Suspect Oneat the park the night of the murder and the coroner’s conclusion ofthe type of knife that was most likely used in the killing. 18. The typewritten statements attributes the following statementto petitioner: “I wentstraight home, but couldn’t sleep for most of the night. I’vestill got the jacket I had on that night. Its an old army fatigue jacket with lining. Its got an army patch on overthe 345 left breast. It’s still got the blood spots on it.” The ‘confession’ indicates that Reno was both the man on the motorcycle and the man in the green fatigue jacket, whereasall witnesses present clearly saw two distinct people. Suspect Twoarrived on a motorcycle and Suspect One, wearing the green army jacket, was seen arriving on foot. According to the witnesses, the man with the Armyjacket did not have a motorcycle and the man with the motorcycle did not have an Armyjacket. 19. The typewritten statementattributes the following statementto petitioner: “there was bloodall over everything, including me” and in the handwritten notes Reno purportedly said “I had blood all over me.” The police seized numerous jackets and pairs of pants from petitioner’s apartment. They never found a blood-soakedjacket, as would have been consistent with the purported confession. 20. Atthe end of the typed statement, petitioner allegedly said that he is quite sure there was no fishing box on the scene. Two witnesses, Jose Feliciano and Mary Busheasaid that they had seen a tackle box in the boys possession at the park that evening. (Exhibit S-A, Bell Gardens Police Report by Det. Eckert, dated 7/29/76). 21. There was no strategic reason notto bring out these contradictions and inconsistencies. Having chosen to contest guilt on these counts, trial counsel was obligated to point out such inconsistencies. Trial counselfailed to exercise the care required by the Sixth Amendmentand had counsel doneso it is reasonably likely that petitioner would have been found not guilty. CLAIM 104: Trial Counsel Rendered Ineffective Assistance for Failing to Impeach Witness Jose Feliciano After He Erroneously Identified Petitioner’s Photograph on Redirectat Trial. l. Jose Feliciano, one of the prosecution’s primary eyewitness, wasin the park shortly before the murders and wasable to see both suspects closely for a lengthy period of time. Feliciano claimed he hadalso seen the suspectearlier in the week at the pond. (Exhibit S-A, Bell Gardens Police Report by Det. Bowers, dated 9/13/76). 346 2. In the first photo line up on 7/21/76, Jose Feliciano identified two photos out of the fourteen he was shown: Charles Michael Lohman and John Helder Arnett Jr. (Exhibit S-A, Bell Gardens Police Report by Det. Rogers, dated 7/21/76). One weeklater, Feliciano was shown six more color photos and chose Craig Crowder. (Exhibit S-A, Bell GardensPolice Report by Det. Pratt, dated 7/28/76). Officers re-interviewed Jose after another week passed. This time Jose Feliciano identified Eddie Avon Ledlowas oneofthe suspects and suggested that the men could have been brothers, implying that the second suspect was another of the Ledlow brothers. (Exhibit S-A, Bell Gardens Police Report by Dep. Figueroa, dated 8/3/76). Within one month of the crime, Jose Feliciano had identified at least four different men as one of the two men whohesaw that night. None of the men identified were petitioner. 3. Attrial, Feliciano identified a photographofpetitioner during redirect as one of the suspects he remembered seeing eleven years earlier as a young child. Trial counsel rendered ineffective assistance of counsel by failing to impeach the identification, which was damaging andprejudicial to petitioner’s case. Feliciano claimed that he had identified the particular photograph in 1976. That particular photo, however, had not even been taken yet at the time he claimedto haveidentified it in 1976. (RT 2807). 4. During the redirect examinationattrial, Deputy District Attorney Millett asked Feliciano if he could identify a photograph ofpetitioner, marked as People’s Exhibit Six. Feliciano respondedthat he could. Millett asked which suspect he resembled. Feliciano said the man in the green jacket. Millett prompted, “and the motorcycle?” Feliciano answered “uh-huh.” (RT 2328). On recross,trial counsel asked if Feliciano had been taken to South Gate in 1978 and had selected a photographout of the eight he was shown. Trial counsel also asked if the name Craig Crowder meantanything to Feliciano. Hesaid thatit did not. This was the extent of trial counsel’s attempt to impeach the identification which was ineffective. (RT 2329). 347 5. In closing arguments, DDA Millett raised the in-court identification, and remindedthe jury that Felicianotestified that he recognized Memroas oneofthe two suspects. Millett also noted that Feliciano was the only witness who wasphysically near the suspects. There was no evidencethat petitioner’s photograph wasever includedin a photo line up in the investigation of the 1976 murders, nor evidence that it was not. The photographs that were selected by witnesses were preserved by the Bell Gardens Police Departmentbut not the other photos from the line-ups. Out of the five people Feliciano selected as the two suspects, petitioner was not among them. 6. Trial counsel had the photographs Feliciano had actually identified in 1976, yet did not use any of them to impeachFeliciano after he erroneously identified a photograph ofpetitioner as the one he had selected years before. In closing, trial counsel merely noted that the photograph identified as the photograph selected in 1976 was not taken until 1978. The fact that the photo was not taken until 1978, without further explanation, did not significantly impeach Feliciano. While it showed that the particular picture was not identified, it did not show that Feliciano did not identify a similar photo of petitioner taken earlier. The jury was left with the impression that Feliciano had identified a similar photo of petitioner in 1976. 7. Counsel also did nothing to cast doubt on the veracity of the identification of the man depicted in the photograph. Counsel should have notedto the jury that the crime had happened 11 years before and that Feliciano wasa child at the time. Counsel also should have noted the fact that Feliciano had selected photographs of five men who were supposedto be one of two suspects within one month of the crime and that petitioner was not among them. Feliciano wasnota reliable witness and indicia of his unreliability should have been presented to the jury. 8. Attrial, Feliciano contradicted manyofthe police report interviews he himself had given in 1978. Considering the prejudicial value of Feliciano’s questionable 348 identification, trial counsel was obligated to impeach Feliciano with these inconsistent statements. Despite the fact that Bell Gardenspolice officers repeatedly wentto Feliciano withphotos for him to identify in the month following the crime in 1976, Feliciano testified that he was never shownphotographsby the Bell Gardens police officers: Q: Do you recall Bell Gardens showing you pictures? A: No. Q: Did you everidentify the guy on the motorcycle? A: In Bell Gardens, No. Q: Do yourecall? A: Not until I identified someone in South Gate” (RT 2319). 9. In fact, shortly after the crime Feliciano identified a man named John Amett Jr., as the man on the motorcycle when shown photographsby Bell Gardenspolice officers. (Exhibit S-A, Bell Gardens Police Report by Det. Rogers, dated 7/21/76). Feliciano even contradicted himself in his brief testimony. Holding up the photo ofpetitionerthat Feliciano had thoughthe identified previously, trial counsel asked again if he recognized the photograph: Q: This picture that was shownto you, have you ever seen this before? A: I believe so. Q: When? A: I think this Bell Gardens. [Sic] (RT 2331). This statement was made only a short time after Feliciano denied identifying any photographsin Bell Gardens. 10. Feliciano could not remember which of the men wore the green jacket and which drove the motorcycle. Though Feliciano always said that he saw two suspects together, he sometimes claimedthat the one on foot was in the green jacket, he sometimes 349 claimed that the man on the motorcycle was the one wearing the green jacket. In 1976, Feliciano told Detective Gossett that the man on foot was wearing the green jacket, not the man on the motorcycle. (Exhibit S-A, Bell Gardens Police Report by Det. Gossett, dated 7/26/76). Then at trial, Feliciano testified that the man on the motorcycle was wearing the green jacket and the man on foot was not wearing any jacketat all. (RT 2320, 2321). Feliciano had told Bell Gardensofficers during the investigation immediately after the crime that the gas tank on the motorcycle that Suspect Two wasriding wasgreen. (Bell GardensPolice Report by Det. Gossett, dated 7/26/76). At trial Feliciano denied stating that the gas tank was green. (RT 2321). Even after trial counsel read back an excerpt from a police report where Feliciano described the motorcycle as yellow with a green gastank, Felicianostill maintained that he did not say the gas tank was green: “I don’t think nothing about no green gas tank though.” (RT 2324, 2325). | 11. None of this evidence was used to effectively impeach Feliciano on recross after he identified the petitioner on the standat trial. Not only did trial counsel not impeachFeliciano’s most recent identification, but he brought that identification to the jury’s attention six times. (RT 2329-2333). His failure to bring Feliciano’s prior identifications to light was grossly ineffective, since in California, prior inconsistent statements are admissible for their truth. 12. Therefore, trial counsel could have introduced the prior identifications not just to impeach but to demonstrate that the killer was one of the four other people Feliciano identified. Trial counsel rendered constitutionally ineffective assistance of counsel. CLAIM 105: Trial Counsel Rendered Ineffective Assistance by Failing to Argue Effectively to the Jury During the Guilt Phase the Applicability of the Second Degree Murder Maximum on Count One. 1. In a capital trial, a deficient closing argument can constitute ineffective assistance of counsel. Hall v. Washington, 106 F.3d 742 (1997). In evaluating an 350 ineffective assistance of counsel claim based on an attorney's summation, a court is required to assess the effectiveness of the summation as a whole. United Statesv. Salameh, 54 F. Supp. 2d 236, 255 (S.D.N.Y. 1999); aff'd, 16 Fed. Appx. 73 (2nd Cir. 2001). A closing argumentis deficient where the theory of the case and the method of implementing the theory of the case were unreasonable underthe circumstances. United States v. Ciancaglini, 945 F. Supp. 813, 825 (E.D. Pa. 1996). 2. Tnal counsel filed a motion asking that the jury be instructed that the maximum degree for Count 1 could only be murderin the second degree, based on the 1979 trial court’s verdict. The prosecutor opposed that motion. (RT 2224). Ultimately, the judge denied petitioner’s request and gave CALJIC 8.75, instructing: Count 1 charged murderin the second degree as a matter of law. This is for reasons which do not concern your deliberations and about which you must not speculate. (RT 2766). This instruction left the erroneous impression that Count 1 may have been limited to second-degree murder because of some legal technicality, and not because of a prior factual determination. Theinstruction not to consider this matter prevented the jury from recognizing the factual basis for the second degree finding. 3. Theinstruction given was notthe instruction requested bytrial counsel. At no point, however, did the trial court ordertrial counsel not to argue the theory before the jury. Moreover, during the hearing on the motion, Count 3 was not discussed. Therefore, there was no ruling, express or implied, that trial counsel could not argue the similarity between the facts of Count 1 and the facts of Count 3 m orderto avoida true finding ofthe _ Special circumstance. Trial counsel was never precluded from mentioning the fact that Count 1 was at most second- degree murder, or drawing an analogy between that count and the others. 4. Trial counsel failed to follow up on the instruction given and provide forceful argumentfor the jury as to how that instruction should be applied. Counsel wasineffective 351 by failing to argue for a more precise and advantageousinstruction specifying the reason the maximum charge was second degree. After fighting for the instruction that he wanted and receiving a partial instruction on the issue,trial counsel failed to use it in any way whatsoever. 5. Duringtrial counsel’s closing arguments, there were several points whereit would have been appropriate to mention the second degree murderinstruction andtie that in to the other two murders. a. Trial counsel began his argument by addressing Count 3. Trial counsel once again concededguilt over petitioner’s specific objection and arguedthat the murder was second-degree only. Speaking hypothetically about the guilt phase, trial counsel explained: “If that’s subject to two reasonable interpretations, andit is, that you have to accept the one that would point to him not being guilty of the charge. Now, that would apply to the degree,too, if you look at a first or a second degree murder.” (RT 2798). With no strategic purpose, trial counsel failed to explain why Count 1 was at most second-degree, and howthat finding affected the other counts. Trial counsel explained: “When the boy asked to go home,he snapped.” (RT 2799). Trial counsel should have noted that these facts were very similar to the facts alleged in Count 1. Since Count 1 was at most second-degree,it stood to reason that Count 3 wasalso at most second-degree. There was no tactical reason notto raise this argument. Trial counsel discussedthe first two counts and the evidence stemming from the purported confession. (RT 2824), According to the confession, Scott Fowler was killed first. The noise allegedly woke up Ralph Chavez who was killed shortly thereafter. Trial counsel should have mentioned the second- degree limitation in the Fowler killing and applied that finding to the Chavez 352 & © killing. 6. Trial counsel’s failure to make these arguments was constitutionally ineffective. Hefailed to presenta viable theory, a theory which he himself had discussed with the trial court and the prosecutor. This theory was clearly available and there was no strategic reason not to argue it. Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993); Eldridge v. Atkins, 665 F.2d 228, 232 (8th Cir. 1981), cert. denied, 456 U.S. 910 (1982) (“‘it is the duty of the lawyerto ... explore all avenues leadingto facts relevantto ... degree of guilt.’”); see also Hill v. Lockhart, 28 F.3d 832 (8" Cir. 1994). 7, Because the issue of whether a killing was impulsive or premeditated can be “an important factor when the jurors consider whether to recommend the death penalty,” an attorney can be ineffective for failing to raise a reasonable doubtas to the impulsiveness or premeditation of the act during opening andclosing arguments. (Magill v. Dugger, 824 F.2d 879, 889 (11th Cir. 1987)). Here, the lack of premeditation in regard to Count 3 would have renderedpetitioner ineligible for death. 8. If the jury returned a verdict of second degree murder on Count 3, which did not carry a potential death sentence, then petitioner’s sentence would necessarily be no greater than life in prison. Petitioner was prejudiced in the penalty phase as well as the guilt phase from this constitutional violation, since lingering doubts as to whether the murder was premeditated is an important factor that the jurors consider in determining whether to return a death penalty verdict. King v. Strickland, 748 F.2d 1462, 1464 (11th Cir. 1984) (lingering doubtas to guilt or innocence), cert. denied, 471 U.S. 1016 (1985). 9. For failing to request a more specific jury instruction and for failing to use the instruction that was givento his client’s advantage,trial counsel rendered ineffective assistance of counsel. By identifying a particular line of argument that might have changed the outcomeofthis case, petitioner has demonstrated that counsel's closing argument amounted to ineffective assistance of counsel. Proctor v. Butler, 831 F.2d 1251, 1256 . 353 uw (5th Cir. 1987). CLAIM 106: Trial Counsel Rendered Ineffective Assistance by Failing to Inform the Jury That the Word ‘Both’ in CALJIC 8.75 Should Be Understood as ‘Either Or’. 1. Trial counsel objected to the wording of CALJIC 8.75. The court instructed: “Tf you unanimously agree that the defendantis guilty of said offense charged in both counts 2 and3...” Trial counsel requested that the word “both” be replaced with “either or.” (RT 2768). The judge overruled the objection andtold trial counsel, “You can coverit in your argument, and I think that I would hope that both counsel are going to address the jury verdicts and how to go through them.” (RT 2722). 2. Trial counsel did not address the jury verdict formsat all. Counsel failed to explain to the jury that they were to make a determination on each count independently, regardless of how the instructions appeared. After arguing that the word ‘both’ should be replaced with ‘either or’ and then being advised by the court to raise the issue with the jury in arguments, it was incumbentontrial counsel to do so. Failure to do so was deficient advocacy and prejudiced defendant. 3. Count 3 was the only death-eligible count. Count 1 was at most second- degree murder. Counsel had asked the court to so instruct the jury. Counsel wasthus awareofthe distinction in degree and was presumably aware of the importanceofthat distinction. Since counsel concededthat petitioner had killed the victim in Count3, it was incumbent on counsel to undo any linkage between Count 3 and Count 2, which was more supportive of a first- degree verdict under the witness theory that the victtm wasallegedly killed to eliminate a witness. Counsel could thus seek to link Count 3 to Count 1, which was second-degree as a matter of law. This link would have avoideda first-degree murder verdict and a true finding of the special circumstance. 4. Having conceded guilt of the underlying offense in Count3, there was no tactical reason not to seek a guilty verdict of a lesser included offense. 354 5. Counsel has a duty to bring to bear such skill and knowledgeas will render the trial a reliable adversarial testing process. (See Powell v. Alabama, 287 U.S. at 68-69). The adversarial process protected by the Sixth Amendmentrequires that counselact in the role of advocate, subjecting the prosecution's case to meaningful adversarial testing. (See, e.g., United States v. Cronic, 466 U.S. 648, 656-57, 661-66 (1984); United States v. Swanson, 943 F.2d at 1072-75; Osborn v. Shillinger, 861 F.2d at 625-30)). If the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated and prejudice is presumed. (See Cronic, 466 U.S. at 658-60; Swanson, 943 F.2d at 1074; Osborn, 861 F.2d at 625). 6. In failing to effectively advocate on behalf of petitioner by alerting the jury to the misleading instruction,as the trial judge suggested,trial counsel rendered ineffective assistance of counsel. 6. PENALTY PHASE ISSUES. CLAIM 107: Petitioner was Denied his Right to the Assistance as a Result of Trial Counsel's Failure to Investigate and Present Mental Defenses. l. Prior to the first trial, counsel requested an evaluation of the mental status of petitioner, including neuropsychological testing. Petitioner had previously been an inmate at Atascadero State Hospital, having been sent there in 1972. Trial counsel obtainedhisfile from Atascadero. Thatfile reflected that petitioner was administered an electroencephalogram (EEG) in 1972. Theresults of that test indicated abnormalresults, particularly over the temporal-occipital areas of the brain. 2. Despite possession of these reports, including evidencethat petitioner had amnesia about an incident where he allegedly assaulted a nine-year-old boy with a coke bottle, trial counsel failed to obtain a full psychological evaluation, including neuropsychological testing. 3. Trial counsel did not provide the reports from Atascadero to the mental 355 health expert who consulted trial counsel. The absence of this information led the mental health expert erroneously and prejudicially to believe that the results of any brain examination were normal. 4, There was notactical reason not to have such a neuropsychological evaluation conducted as part of the preparation of this case in light of the mental backgroundofpetitioner. 5. Trial counsel did not obtain or present evidenceof the environmental factors that damaged petitioner's mental development and functioning throughouthis life. Readily available family and other witnesses would have provided detailed information of the physical and mental abusepetitioner suffered as a child, including the physical and mental attacks at the hands of his abusive alcoholic father. The family members would also have provided information regarding petitioner's exposure to lead and other heavy metals. 6. The conduct of a complete psychiatric evaluation would have led to a more favorable result in the guilt and penalty phasesof the trial. Evidence ofpetitioner's mental condition was admissible on the degree of murderin the guilt phase ofthe trial. The defenseatthe first trial had presented a diminished capacity defense which was supported by some medical reports. Trial counsel at the secondtrial did not investigate or present this or additional available evidence to support a diminished capacity defense, despite being in possessionofthe prior reports. 7. The evidence reasonably available to petitioner's trial counsel at both trials would have negated the mens rea elements of the murder charges and special circumstance allegations alleged against petitioner. Said evidence included, but was notlimitedto, evidence ofpetitioner's history of multiple head traumas, which wereintentionally inflicted by his physically abusive parents and suffered during childhood and adolescent accidents; organic brain damagelocalized in the area of the temporal and occipital lobes; petitioner's history of severe abuse and victimization as a child, in a dysfunctional family headed by 356 violent, abusive and emotionally unstable parents, that produced life-long psychic trauma; a documented clinical history dating from petitioner's early adolescence reflecting professional observation of psychiatric symptomsincluding auditory hallucinations, delusional thought processes, anxiety, paranoia, severe somatic physical sensations, decompensation, schizophrenia, psychosis and disassociation warranting intervention and treatment; and a history oflife-long conditioning and pronenessto false confessions. 8. Investigation of this evidence, its consideration by mental health professionals and presentation to the fact-finder would have supported mentalstate defenses based on petitioner's myriad of mental, neurological and emotional impairments that substantially affected petitioner's judgment, intellectual functioning,ability to understand or appreciate the nature and consequencesofhis actions and the ability to monitor, assess or control his behavior. 9. Said evidence reducedpetitioner's legal and moral culpability for the charged offenses and provided an independentbasis on which an impartial sentencer would have concludedthat life imprisonment without the possibility of parole was the appropriate sentence. 10. Trial counselfailed to submit the prosecution’s case to meaningful adversarial testing resulting in a denialofpetitioner’s constitutional right to effective assistance of counsel. See Strickland v. Washington. Specifically, counsel has a duty to make reasonable investigations or to make a reasonable decision that makesparticular imvestigations unnecessary. /d. at 691; Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 2536-2537 (2003). Pretrial preparation is especially crucial in a capital case m light of the seriousness of the charges and potential penalty. Magill v. Dugger, 824 F.2d 879, 886 (11" Cir. 1987). Counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how to best represent a client. Sanders v. Rawtelle, 21 F.3d 1446, 1456 (9" Cir. 1994). 357 11. Counsel had notactical reason for not investigating and presenting the foregoing evidenceat either of petitioner's trials. The failure to present such evidence deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. CLAIM 108: Petitioner's Rights to Due Process and Effective Assistance at Both Guilt and Penalty Phases, and to a Reliable Determination of Penalty, Were Violated as a Result of Failure to Investigate and Present Mitigating Penalty Phase Evidence. l. Substantial mitigating evidence as to the circumstances of the offense and as to petitioner's character and background existed at the time of the trial and wasreadily available to defense counsel. Much ofthis evidence concermspetitioner's abusive childhood; studies have found that juries consistently find evidence of childhood abuse to be the single most compelling kind of evidence put on at the penalty phase. Counsel, however, did virtually nothing to investigate such evidence or prepare for the penalty phase. In addition, counsel failed to educate petitioner adequately as to the need for and importance of a penalty phase presentation. 2. Exhibits M-X, illustrative of the evidence readily available with reasonable investigation at the time of the offense, are incorporated herein by referenceas if set forth in full. 3. Trial counsel failed to submit the prosecution’s case to meaningful adversarial testing resulting in a denial ofpetitioner’s constitutional right to effective assistance of counsel. See Strickland v. Washington. Specifically, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. /d. at 691. Pretrial preparation is especially crucial in a capital case in light of the seriousness of the charges and potential penalty. Magill v. Dugger, 824 F.2d 879, 886 (11" Cir. 1987). Counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about howto best represent client. Sanders v. Rawtelle, 21 F.3d 1446, 1456 (9" Cir. 1994); see also Wiggins, 123 S. Ct. at 358 2536-2537. 4. Thereis “a duty to seek out psychiatric evaluation of a client where the grounds of a mental defense are apparent.” Hendricks v. Calderon, 64 F.3d 1340, 1373 (9th Cir. 1995). The failure to adequately investigate a defendant’s mental condition when there is evidence of impairmentconstitutes deficient performance and1s prejudicial when it hamperslater presentation of evidence of mental impairment. Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988). Reasonable professional standards require that counsel use a psychiatrist to put a defendant’s mental condition in proper focus. Loyd v. Whitley, 977 F.2d 149, 158 (Sth Cir. 1992). | 5. Here, despitea hospitalization at Atascadero State Hospital for three years and a sad abundanceofother mitigating evidence,trial counsel only put on one lay witness to testify regarding petitioner’s life history in an effort to show the difficult circumstances petitioner endured. Ata rudimentary minimum, counsel neededto present a qualified mental health expert to explain to the jury how the psychological trauma affected petitioner and explained his conduct. The failure to present a mental health expert when the sole defense relates to mental state is not a reasonable decision. Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989). “[T]he Sixth Amendmentrequires an attorneyto look for evidence that corroborates the defense he pursues.” Hendricks v. Calderon, 64 F.3d at 1352. And, here, where significant evidence corroborating the sole defense and mitigation is available, it must be presented to the jury. United States v. Tucker, 716 F.2d 576, 594 (9th Cir. 1983). The failure to present this significant evidence constituted ineffective assistance of counsel. Sandersv. Ratelle, 21 F.3d 1446 (9th Cir. 1994) (depriving accused of mostcritical evidence supporting his defense to murder charge constitutes ineffective representation); Deutscher v. Whitley, 884 F.2d at 1161-1162. 6. Psychiatric mitigating eviderice is necessary becauseit can explain the causal relationship that can exist between mental illness and homicidal behavior. It also 359 significantly weakens the aggravating factors. See Elledge v. Dugger, 823 F.2d 1439, 1445-47 (11th Cir.), modified in part, 833 F.2d 250 (11th Cir. 1987) (withdrawing unrelated portion of the opinion). Psychiatric assistance at the penalty phase enhancesthe jury’s ability to determine with full information whether death is the appropriate penalty. Withoutthe benefit of such psychiatric opinion there is “a much greater likelihood of an erroneous decision.” Ford v. Wainwright, 477 U.S. 399, 414 (1986) (plurality opinion). 7. Petitioner’s jury lacked the necessary information to reach an informed decision. 8. As with the right to counsel, a Sixth Amendmentfederal right is relevantto the Court’s construction of “due process of law” in the Fourteenth Amendment. The Sixth Amendment guarantees an accusedthe right “to have compulsory process for obtaining witnesses in his favor.” 9. These constitutional guarantees are meant to assure a defendant“fundamental fairness” as Ake v. Oklahomaputs it and to prevent thetrial from being a charade. Further, these rights are meant to preserve the constitutional meaning ofa trial as a forum in which witnesses confront the accused and the accused confront the witnesses and, moreover, has witnesses in his favor. Thus, the obligation has been put upon eachstate to give effective psychiatric assistance to the accused. See Harris v. Vasquez, 949 F.2d 1497, 1530 (9" Cir.) (Noonan, J., concurring in part). 10. The failure to call other available social history witnessesto testify was additionally constitutionally ineffective assistance. By calling only a single witness, the jury wasleft with the impression that the penalty phase case was highly dubious and insubstantial. See Hendricks v. Calderon, 64 F.3d at 1352 (lack of corroborating evidence regarding petitioner’s past may haveleft the jury with the impression that his unfortunate history wasall a fabrication to provide a defense). Calling a single witness whosetestimony tended to minimize the harsh nature of petitioner’s upbringing was 360 improper and gavethe jury a false impression. Any presumption that trial counsel acted competently gives way whenthe act or omission provides “no advantage” to the defense as here. Proffitt v. Waldron, 831 F.2d at 1249. ll. Asaresult of the above, petitioner was denied effective assistance of counsel at the penalty phaseofhis case. CLAIM 109: Trial Counsel Rendered Ineffective Assistance for Failing to Present Mitigating Evidence in the Sentencing Phase of Trial. 1. Withouttactical reason, trial counsel failed to introduce available mitigating evidence at the penalty phase. The only witnesses presented in the penalty phase were petitioner’s sister and petitioner himself. Petitioner’s sister offered some basic testimony abouthis social history. (RT 2942). Petitioner was permitted to take the stand only to read a statement clarifying that if they truly believed he committed these crimes, a conclusion with which he disagreed, then death was appropriate. (RT 2969). 2. This Court summarizedit as follows: Over defendant's objection, the defense summoned one witness: Kathy Klabunde,his sister. She testified that their father, an alcoholic, verbally abused the children. Defendant, the eldest, would care for the others. He had migraine headaches "on andoff for years." His headaches would cause him to "get very angry easily. I remember a period where he stayed downstairs for a couple of days where it was dark and cool to stay out of the light because his head hurt." Asstated, defendant soughtto barhis sister's testimony--he objected to a specific question at one point and called her a liar from his chair at another. After the jury retired, he asked to reopen the case so that he couldtestify, and the court accededto his request. He stated to the jury, "I just have a short statementI'd like to read to the jury. [P] While I do not concedethetruth, accuracyor correctness of the jury's verdicts, I do feel that since the jury has returned the verdicts of guilt in the maximum degreepossible on all counts and the special circumstance, that they should also now return with a verdict of death as the appropriate penalty. Thank you." At closing argument, counsel emphasized defendant's mental problems,his cooperation with the police, lingering doubt regarding the special circumstancein light ofhis alibi defenseto the killings of Fowler and Chavez, the grimness oflife imprisonment, his lack of a prior felony conviction, the likelihood that he would not be dangerous in prison, and positive aspects of his background andcharacter, including his remorse when he was discovered. 361 Memro II, 11 Cal.4th at 816-817. 3. The failure to investigate and present available mitigating evidence during the sentencing phase undermined the adversarial process and petitioner’s death sentenceis unreliable. Austin v. Bell, 126 F.3d 843 (1997). “(T]he Eighth Amendmentrequires a jury to consider the circumstances of the crime and the defendant’s backgroundand character during the sentencing phase of'a capitaltrial.” /d; see also Boyde v. California 494 US. 370 at 377-78; Lockett v. Ohio, 438 U.S. 586 (1978). 4. Claimsof ineffective assistance of counsel at the penalty phase are governed by the Strickland standard. Williams v. Taylor, 529 U.S. 362, 396 (2000); Mayfield v. Woodford, 270 F.3d 915 (9" Cir. 2001). 5. In Strickland v. Washington, 466 U.S. 668, 690 (1984) as recently affirmed by Williams and Wiggins, the Supreme Court established that the benchmark for determining whether counsel was ineffective was whether petitioner showed (1) that counsel’s performance was deficient and (2) that petitioner was prejudiced by the deficiency.. When the failure to present evidenceis not due to a tactical decision, reversal is warranted. 6. Effective counsel must not only present available mitigating evidence, but also explain its significance. Williams v. Taylor 529 U.S. 362 (2000); Mayfield v. Woodford 270 F.3d 915 (9" Cir. 2001); Caro v. Woodford, 280 F.3d 1247 (9" Cir. 2001). 7. Some eleven witnesses and much mitigating evidence wasavailable and not presented to the jury. Each witness was available to testify at trial but was not contacted by trial counsel: 8. Mary Memro,petitioner’s aunt, would havetestified to the cruelty Earl, petitioner’s father, inflicted on his family, as well as Alvina’s cold relationship with her children. ExhibitS. 362 9. Floyd Ziolkowski , petitioner’s maternal uncle, was prepared totestify to petitioner’s dysfunctional extended family and Earl’s extreme alcohol addiction. ExhibitT. 10. Pam (Memro)Davis, petitioner’s cousin, was preparedto testify to the savage beatings Earl used to give to his dogs, many of which hadto be put to sleep because they had becomevicious. Exhibit W. 11. Donald Memro,petitioner’s younger brother, was preparedto testify to the beatings Earl used to inflict on his children. Earl beat all of his children but he beat petitioner most severely. Exhibit X. Earl used to makepetitioner fight him in view ofthe rest of the family. The children were routinely pummeled into submission. Exhibit X at 13. Donald wasalso preparedto testify that he witnessed petitionerfall 15-18 feet from a tree, hit his head on a rock and lose consciousness, at the age of 12. Petitioner’s parents refused to seek medical treatment for the injury and petitioner’s frequent and severe migraine headaches beganafter that point. Exhibit X. 12. Dr. Gretchen White documentedthat after petitioner’s head injury, petitioner underwentbehavioral changes. Dr. White opined that Mr. Reno’sloss ofself control throughouthis life was reasonably attributable to the head injury resulting from thefall. In 1964, Mr. Reno received another head injury in a motorcycle accident. He developed extreme migraine headaches, which continued throughouthis life, sometimes confining him to the darkness of the basement for extended periods of time. Exhibit AA at 12, 23. 13. Jack Brunette, petitioner’s cousin was preparedto testify to the cruelty he witnessed Earl inflict on his wife in front of the young children. Ear] would berate, taunt and “prey on her fears.” Exhibit Y. Earl would psychologically terrorize petitioner’s motherin front of the children, who as toddlers, would be subjected to her screams of terror. Exhibit X at 8. 14. Nancy Brunette, Jack Brunette’s wife, was preparedtotestify that she could remember “wondering if Earl and Alvina loved their children.” Exhibit Z. 363 15. Marjorie Hoisington, a family friend, was prepared to testify about the severe abuse perpetrated by Earl Memro onhis family. 16. Other mitigating evidence could have been introduced as well. 17. At the age of nine,petitioner was molested by a teacher, and then a priest. In a desperate time, petitioner was forcedto sell sexual favors for food. Exhibit AA at 12. 18. The Memro children werenotallowed to bring friends over. 19. The family wassocially isolated. -20. Petitioner lacked any adequate parental or familial role models. Consequently, Mr. Reno his behaviorin his own dysfunctional surroundings. Exhibit X at 10. 21. As an escape mechanism, Mr. Reno began using drugsin his teens. Exhibit X at 14. 22. In 1972, at age 27, petitioner was confined to Atascadero State Hospital for an indefinite period oftime after assaulting a young acquaintance. At Atascadero, he was diagnosed as having a sexual deviation, homosexuality (See Diagnostic and Statistical Manual, Second Edition [DSM II], Sexual Deviations 302.0).'* Mr. Reno underwent treatment and rehabilitation for his sexual orientation, which was seen as abnormal. When he wasreleased three years later, the state determined that he did not pose a harm to others. 23. Helater sought readmission to Atascadero, which was denied. Hetried to control his sexual impulses, but without professional help he relapsed. Exhibit X at 23. 24. Additionally, the testimonyofpetitioner’s youngest sister, Kathy Klabunde, did not give the jury an adequate picture of petitioner’s life. She was the youngestofthe siblings. She was too young to rememberthe violent clashes petitioner and his brothers had with their father Earl. (RT 2956). Also troubling wasthat her testimony that her father '* When the DSM IIIwas published in 1980, this “disorder” was removed from thetext 364 was a “good man” who wasnot physically abusive was contrary to all the known evidence, which wasnot presented. (RT 2945). Effective counsel would have presented testimony demonstrating the true nature of Mr. Reno’s social history. See Exhibits R-Z. 25. In Wiggins, the Supreme Court held thattrial counsel had rendered ineffective assistance of counsel because counselfailed to investigate and present mitigating information to the jury though he was aware that such information existed. Wiggins, 123 S.Ct. 2527. In that capital case, trial counsel’s investigation consisted of, in part, the review of the Pre-Sentence Investigation report and Departmentof Social Services records and hiring a psychologist whotested petitioner. Wiggins, 123 S.Ct. at 2536. This investigation revealed that “petitioner had an IQ of 79, had difficulty coping with demanding situations, and exhibited features of a personality disorder;” that petitioner had “spent most of his life in foster care;” and that petitioner’s personal history included “misery as a youth” and a “disgusting” background. /d. 26. While noting that “‘strategic choices madeafter less than complete Investigation are reasonable’ only to the extent that ‘reasonable professional judgments support the limitations on investigation,” the Supreme Court noted that counsel’s “decision not to expand their investigation beyond the PSI and the DSS recordsfell short of the professional standards" and the “scope of their investigation was also unreasonable in light of what counsel actually discovered in the DSSrecords.” Wiggins, 123 S.Ct. at 2537. Because the recordsthattrial counsel possessed indicated that Wiggins’ “mother was a chronic alcoholic; Wiggins wasshuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him andhis siblings alone for days without food,” the Court held that “any reasonably competent attorney would haverealizedthat pursuing these leads was necessary to making an informed choice amongpossible defenses.” /d. 365 27. In analyzing the prejudice causedbytrial counsel’s ineffectiveness, the Supreme Court noted that “counsel were not in a position to make a reasonable strategic choice as to whether to focus on Wiggins’ direct responsibility, the sordid details ofhis life history, or both, because the investigation supporting their choice was unreasonable” and that there was a reasonable probability that the jury would have returned a different sentence had it been presented with the evidence. Wiggins, 127 S. Ct. at 2543. 28. In Mayfield v. Woodford 270 F.3d 915 (9" Cir. 2001), a capital conviction was overturned wheretrial counsel only introduced one witness at the penalty phase. The court heldthat: if the jury had considered the testimony of experts . . or of friends and family members relating additional humanizing stories, there is a ‘reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed’ [Strickland] 466 U.S. at 700. Accordingly, we conclude that Mayfield was prejudiced by Ames' deficient performanceat the penalty phase. Id. Petitioner’s jury lacked such humanizingstories, either portraying petitioner in a more humanlight, or explaining to the jury the horrendous childhoodpetitioner was forced to endure, whichgreatly affected his development. 29. In Ainsworth v. Woodford, 268 F.3d 868 (2001), the Ninth Circuit Court of Appeals reversed a death sentence wheretrial counsel introduced four witnesses in the penalty phase, because the jurors “saw only glimmers of [the defendant’s] history, and received no evidence aboutits significance vis-a-vis mitigating circumstances”citing Wallace v. Stewart 184 F.3d 1112, 1117 (9th Cir. 1999). Petitioner’s jury received less than a glimmerthrough a single witness who tended to minimize the damaging circumstances. 30. _Tnial counsel presented a single witness, despite the wealth of available witnesses who could provide powerful mitigating evidence. “Given the severity of the 366 potential sentence andthereality that the life of [petitioner] was at stake,” tnal counsel had a duty to collect as much information as possible about the defendantfor use at trial. Ai// v. Lockhart, 28 F.3d at 845 (quoting Pickens v. Lockhart, 714 F.2d at 1467). “[T]t is only after a full investigation ofall the mitigating circumstances that counsel can make an informed,tactical decision about which information would bemost helpful to the client’s case.” Pickens. [emphasis in original]. 31. The duty to present a complete and coherent defense at the penalty stageis especially pronounced. Jackson v. Herring, 42 F.3d at 1369 (“In cases where sentencing counsel did not conduct enoughinvestigation to formulate an accurate life profile of a defendant, we have held the representation beneath professionally competent standards”). “(T]he Sixth Amendmentrequires an attorney to look for evidence that corroborates the defense he pursues.” Hendricks v. Calderon, 64 F.3d at 1352. Where significant evidence corroborating a defenseis available, it must be presented to the Jury. United States v. Tucker, 716 F.2d at 594. 32. Tnal counsel presented bits and pieces of petitioner’s backgroundbutfell far short of presenting the “accuratelife profile” of petitioner which would have provided compelling mitigating evidence which would haveresulted in a life verdict. Jacksonv. Herring, 42 F.3d at 1369. A competent and coherent defense which fully developed the available and abundant mitigating factors would have affected the outcomeofthe penalty phase ofpetitioner’s trial, and the failure to present one was ineffective. See Hendricks v. Calderon, 64 F.3d at 1352. Counsel’s performance wasconstitutionally ineffective, as he had considerable mitigating evidence available which he failed to introduce. 33. In order to determine whetherthe deficient performance wasprejudicial, “the question is whether there is a reasonable probability that, absent the errors, the sentencer. . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Reasonable probability is defined as that which is “sufficient to undermine 367 confidence in the outcome.” Strickland. Another formulation of the prejudice test in capital cases is “whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams. 34. Thefailure to present mitigating factors in itself can constitute prejudice. In Lambright v. Stewart, 24] F.3d 1201 (2001) trial counsel introduced only one mitigating witness. The court held that this failure prejudiced defendant. “We have previously found that the prejudice requirement is met where ‘defense counsel effectively presented no mitigating evidence at sentencing, despite the presence of aggravating factors’”citing Smith v. Stewart 189 F.3d 1004, 1013 (9th Cir. 1999). 35. Trial counsel’s failure to present available mitigating evidence constituted ineffective assistance of counsel. The sentencing phaseofpetitioner’s sentence should be reversed. Had trial counsel introducedthe full body of available social history and psychiatric evidence,it 1s reasonably likely a more favorable verdict would have been obtained. CLAIM 110: Trial Counsel Rendered Ineffective Assistance in Failing to Argue Lingering Doubt. l. Trial counsel requested that a lingering doubt jury instruction be-given. (RT 2941). The requested struction informed the jury that they could consider any lingering doubts aboutpetitioner’s guilt in considering the appropriate penalty. The trial court denied the proposed instruction. (1d.). 2. In the penalty phase, trial counsel introduced only one lay witness to offer social history or psychiatric evidence. Petitioner was the second and final defense witness to testify. He testified that if the jury believed he was guilty of the offenses, the appropriate penalty was death. Nonetheless, he maintained his innocence. (RT 2969). The effect of his testimony wasto rely solely on the conceptoflingering doubt. 3, It was error notto instructthe jury on the concept of lingering doubt. The 368 refusal to give a lingering doubt instruction waserror and deprivedpetitionerofhis constitutional rights. 4. Under the Sixth Amendment, the Eighth Amendmentand the Due Process Clause, petitioner was entitled to present evidence at the penalty phase. Lockett v. Ohio, 438 US 586 (1978); Skipper v. South Carolina, 476 US 4 (1986). A defendant’s nghtto present penalty phase evidenceis critical in order to allow the jury to come to a reasoned decision as to the appropriate sentence, and avoid an arbitrary and capricious verdict. Gregg v. Georgia, 428 US 153,189-190 (1976). The penalty phase defense centered largely on the concept of lingering doubt and was supported bypetitioner’s testimony. 5. Tnal counsel rendered ineffective assistance of counselby failing to effectively argue lingering doubtin his closing argument. Trial counsel made but brief mention of the concept without providing any persuasive basis for applying it. In full, counsel argued: There’s also somethings- - another thing to consideras a factor in mitigation. There’s what’s called lingering doubt or a residual doubt. A lingering doubt would be as to the special circumstance, andit is a factor for you to consider in determining whetheror not you want to impose the death penalty. Lingering doubt would haveto do with it’s more than beyond a reasonable doubt. It might be somewhereless than a hundred percent certain. (RT 2985). According to this Court and the Supreme Court,trial counsel is always permitted to argue lingering doubt, even if the instruction is refused. However, here, counsel’s brief description of lingering doubt could do nothing but confuse the jury. | 6. In People v. Sanchez 12 Cal. 4" 1 (1995), this Court held that there was no requirementto instruct the jury on lingering doubt since through both jury instructions and defense counsel’s closing arguments, the jury was informedthat it may considerlingering doubts as mitigating evidence. In closing arguments, defense counsel for Sanchez “asked the jury whetherit had ‘some lingering doubts about what[it] would have seen’if it had 369 been” at the scene ofthe crime. Jd. at 78. This Court held that this statement coupled with the properly given general jury instruction on mitigating evidence was broad enough to includeall factors, even lingering doubt. 7. In People v. Lawley, 27 Cal.4th 102 (2002), this Court clarified Sanchez and stated that even if defense counsel does not inform the jury that they may consider lingering doubt as mitigating evidence,it is still not error for the court to refuse a lingering doubt instruction. Again this Court noted thatif trial counsel wished to introduce the concept of lingering doubtto the jury, trial counsel should include it in argument. The court wrote that “defendant, having sought the instruction, was well aware of the concept of lingering doubt and could have arguedit had he believed it beneficial to himself.” Lawley, at 127. 8. As mentioned above, under Skipper, Lockett and Eddings, plaintiff has a Constitutional right under the Sixth Amendment, Eighth Amendmentand the Due Process Clause to presentall mitigating evidence. Since petitioner has a right to presentit, a fortiori he has a right to argue it to the jury. There was no strategic reason notto give the jury a framework for considering the evidence andstress its importance. Thefailure to inform the jury about lingering doubtviolated plaintiff's constitutional rights, as discussed in Strickland andits progeny. 9. To the extent jury instructions were not required, it was incumbent on counsel to argue lingering doubt in his closing argument. Failure to do so sabotagedtrial counsel’s own penalty phase strategy. By failing to inform the jury that it is appropriate to include any residual doubt from the guilt phase in consideration of the penalty after being refused the jury instruction, trial counsel rendered ineffective assistance of counsel. CLAIM 111: Petitioner was Denied Effective Assistance with Respect to David Schroeder's Testimony. I. Trial counsel unreasonably failed to prepare for the possibility that David 370 Schroeder's testimony would be presented and unreasonably failed to investigate and present evidenceas to inconsistencies in his testimony. See also Claim 81. As a result, trial counsel was caughtflat-footed when the prosecutor presented, and effectively argued, the evidence regarding the assault on Schroeder. 2. Asa result of the above, petitioner's penalty phase trial and sentence to death were fundamentallyunfair and violated his Sixth, Eighth and Fourteenth Amendment nights. H. CLAIMS RELATING TO JURY ISSUES. CLAIM 112: Petitioner was Denied an Impartial Jury Drawn from a Fair Cross-Section of the Community. L. The offenses with which petitioner was chargedin this case occurred in South Gate and Bell Gardens, Los Angeles County, California. South Gate and Bell Gardensare within the Los Angeles County Southeast Judicial District and the courthouse for this district is in Norwalk, Califomia. Accordingly, the case was assignedto that courthouse. | . 2. Petitioner moved to quash the Norwalk Superior Court jury venire on the groundthat it did not represent a fair cross-section of the community and instead systematically excluded minority jurors. 3. Bystipulation, the record was adopted of a similar motion beinglitigated in the case ofPeople v. Mattson, 50 Cal.3d 826 (1990). That record establishes. that minorities were at the time ofpetitioner's trial systematically excluded from the jury venire through a selection system in which most minority jurors who would have otherwise served in Norwalk were sent to the downtown courthouse, outside the judicialdistrict, to serve. The county jury commissioner agreed that this was true. As a result, although over 50% of the population of the area from which jurors were drawn was African-American or Hispanic, under 20% of the people on the jury venire were African-American or Hispanic. Although there are judicial districts in Los Angeles County the boundaries ofwhich 371 determine whereoffenses will betried, jurors are not drawn specifically from within judicial districts and there are no fixed boundaries to the areas from which jurors are drawn to serve in particular courthouses. 4. Petitioner demonstrated to the Superior Court that there were enormous disparities between the percentages of Hispanics and African-Americans within a community consisting of the area from which the jurors were actually chosen (a 20-mile radius of the courthouse) and the percentages in the jury venire (34% and 8%,respectively, for Hispanics in 1979, for example). This Court rejected these figures as significant on the basis that the relevant "community" should have been the Southeast Judicial District. 5. Onthe basis of not previouslyavailable information,petitioner has determined that with respect to Hispanics, the disparities were substantially greater based upon the Southeast Judicial District than based upon the 20-mile radius. Specifically, the population of the judicial district was 40.24% Hispanic, yet only 8% Hispanics foundtheir wayonto the jury venire. The disparities, calculated in the mannerthis Court said they should be, are, to the knowledge of expert Dr. J. Dennis Willigan, "the highest set of disparities for any judicial district, at any time, in the State of California." This cannot be accounted for by any mechanism other than the county's admitted practice of deliberately removing potential jurors from the Hispanic sectionsofthe district and sending them to serve in the downtown courthouse. (See Exhibit Q, Declaration of Dennis Willigan). 6. An evidentiary hearing was held at which Mattson called two witnesses to establish his prima facie demonstration of unconstitutional jury selection procedures: Mr. Raymond Arce, Director of the Juror Services Division for Los Angeles Superior Court (RT 438), and Dr. Edgar W. Butler, Professor and Chair of the Department of Sociologyat the University of California at Riverside. See also People v. Harris, 63 Cal.3d 63, 64 (1984) ("Dr. Butler holds degrees in sociology and demography and has conducted studies 372 ofjury panels in all of the judicial districts in Los Angeles County. His qualifications are not challenged, and his work has been the basis for similar motions in other cases"). Through these witnesses, Mattson produced an extensive record to demonstrate that the jury selection procedures employed in the county were systematically skewed to exclude proportionate representation of minority jurors in Norwalk Superior Court. 7. The crux of the defense presentation consisted of Dr. Butler's findings, based on data obtained from Jury Commissioner Arce, that from 1979 to 1985 African- Americans were underrepresented on the Norwalk venires by 55% to 80%, and Hispanics by 49% to 77% overthat six-year period. 8. Both Dr. Butler and Mr. Arce acknowledged that minority jurors were unequally distributed amongthe county's several courts. Dr. Butler explained that the imbalance was dueto the county's failure to adequately compensate in its jury selection techniques for several crucial factors. First, the county has complied with the rule that no juror shall be required to serve at a distance greater than 20 miles from his or her residence (Code of Civil Procedure § 203) by creating a series of 20-mile regions for each district—but the boundaries of these regions are not fixed and thus each 20-mile region overlaps portions of the adjacent regions. Because the Central District has a heavy demand for jurors, it draws first and removes a high percentage of minorities from those portions of its 20-mile region that overlap with the 20-mile regions of other judicial districts, including Norwalk. The result is that Norwalk's jurors are drawn solely from those portions of its 20-mile region that do not overlap with the Central District's 20-mile region. Thus, Norwalk's actual juror draw comes from only a small fraction of its 20-mile region andthis sub-region of actual draw is predominantly white and suburban. 9. Dr. Butler proposed a simple and economical solution: the 20-mile regions for each judicial district must be definitively drawn. The selection ofjurors for each judicial district would then come from the entirety of its 20-mile region in a two-step 373 process: (1) a random selection of census tracts within the 20-mile region, and (2) a random selection ofjurors from within each tract. Under this procedure, the minority population of each 20-mile region would necessarily be represented in every venire because the selection would include a representative sample of census tracts from throughoutthe district's 20-mile region, not just those areas clear of any overlap within the Central District. 10. The prosecution called no witnesses and confined its case to argument based on the cross-examination of appellant's witnesses. 11. Insum,appellant established an unrebutted prima facie showing of systematic underrepresentation in the Norwalk venires and further demonstrated how this impermissible underrepresentation could be cured by the Jury Commissioner in a simple and economical fashion. Under these circumstances, the trial court erred in denying appellant's motion to quash the venire and appellant's convictions should have been reversed because of the unconstitutional composition of the venire from which his jury was selected. 12. As ameans of maintaining efficient judicial administration over the large geographical area and huge population of Los Angeles County, the Superior Court of Los Angeles has been divided into 11 separate districts, the Central District and 10 branch courts. (Superior Court Rules, Rule 300,§ 1).'' These 11 judicial districts are not separate courts with exclusive jurisdiction over offenses committed within their boundaries, 'S Superior Court Rule 300, § 1 provides as follows: Sessions of the court shall be held in districts designated as follows: Central District, sitting in the Civic Center, Los Angeles; East District, sitting in Pomona; North Central District, sitting in Burbank and Glendale; NortheastDistrict, sitting in Pasadena; North Valley District, sitting in San Fernando and Lancaster; Northwest District, sitting in Van Nuys; South District, sitting in Long Beach; South Central District, sitting in Compton; Southeast District, sitting in Norwalk; Southwest District, sitting in Torrance, and West District, sitting in Santa Monica. 374 however. (Superior Court Rule 300, §§ 2 and 3, indictments must befiled in the Central District but all other criminal cases maybefiled either in the Central District or where the offense was committed, or the preliminary hearing held); (Superior Court Rule 301, all departments in any district designated to hear criminal cases shall be designated as the criminal division of the Los Angeles Superior Court). Furthermore, cases may be transferred from onedistrict to anotherin the interests ofjudicial economy. (Superior Court rule 300, §§ 5-6). Although Codeof Civil Procedure §§ 193 and 197 provide that jurors are to be drawn from fair and representative cross-section of the population of the area served by the court, these provisions are qualified in the County of Los Angeles by the 20-mile rule: no juror is required to serve at a distance greater than 20 miles from his or her residence. Code of Civil Procedure § 193: "A trial jury is a body of persons returned from the citizens of the area served by the court..." Section 197: "It is the policy of the State of California that all persons selected for jury service shall be selected at random from a fair cross section of the population of the area served by the court... ." Section 302: ".. .[I]n the County of Los Angeles no juror shall be required to serve at a distance greater than 20 miles from his or her residence.” 13. Thus, three distinct regions mustbe kept in mind. First is Los Angeles County itself. Los Angeles County is made up of 4300 censustracts. (RT 519).'° The initial list used by the Juror Services Division to contact potential jurors forall the courts in the county comes from voterregistration lists and Department of Motor Vehicles ("DMV") lists for the entire county. (RT 438-439). 14. Next are the 11 judicial districts, which are administrative divisions of the Los Angeles Superior Court. The Superior Court located in Norwalk, wherethe trial in this matter took place, is designated the Southeast Judicial District. (RT 513). This district is '© For this onesection ofthe petition, the Reporter's Transcript cites are to the record in People v. Mattson. 375 comprised of 173 censustracts. (RT 555). Its geographical area is specifically mapped out in the Los Angeles County Superior Court Rules. 15. Finally, the operation of the 20-mile rule’’ has created anotherlevel of overlapping and unfixed areas within Los Angeles County that are not coextensive with the judicial districts. For example, the jurors summonedto serve at the Norwalk court in the Southeast Judicial District come from an area that includes the judicial district but.also encompasses a muchlarger area beyond it. (RT 555-559). Thus, although there are only 173 censustracts inthe Southeast Judicial District (RT 555) ("Norwalk"), there are 700 census tracts’® in the 20-mile region from which jurors may be assigned to Norwalk. (RT 513, 524-525). 16. Because defining a 20-mile arc around each courthouseresults in overlapping 20-mile regions, these areas are inherently flexible. (RT 494). As Mr. Arce explained, "These boundaries, if you will, are going to be fluid, and it depends on the numberof courts that are requiring jurors at a future date and the numberofjurors and where they come from in the County, whose namesare being selected." (RT 494). For example, the outer rim of any 20-mile region may also be includedin the 20-mile region of adjacentjudicial districts. The first of those districts needing jurors drawstheeligible jurors from the common area, which would at any specific time redefine the 20-mile region for at least one of the other districts. See Mr. Arce's example at RT 494, and Dr. Butler's example at RT 574. The unfixed characteristic of the 20-mile regionsis exacerbated by thefact that the Juror Services Division apparently periodically redefines '’ Ifplotted on a map,the designated 20-mile arc extending out from each courthousesite is actually a 15-mile area (RT 525), in order to provide a cushion of 5 miles for the actual driving distance (RT 165). It will be referred to here, as in the hearing, as the 20-mile region. '8 In September of 1985, the Juror Services Division expanded the 20-mile region to include 247 census tracts (RT 315, 525, 335). Because the change was not made until September 30, 1985, the relevantstatistics will refer to the 700-census-tract 20-mile-region. (RT 315). 376 the areas. In September of 1985, for example, the 20-mile area for Norwalk was expanded by 42 census tracts. (RT 513, 525, 533). 17. In sum,there are three different and progressively smaller geographical areas that are relevant to the jury selection process in Los Angeles County: first, the county itself, from which namesofprospective jurors are randomly selected; second, the overlapping and unfixed 20-mile regions, from which jurors are assignedto specific courthouses; third, the administrative divisions of the County Superior Court system,e.g., the Norwalk Southeast Judicial District. These districts are significantly smaller than the 20-muile areas from whichjurors are assigned to their courts. 18. As Director of Juror Services, Mr. Arce was responsible for developing procedures for administration of the jury system. (RT 438). The procedures utilized to provide qualified jurors to the courts of Los Angeles County can be summarized by identifying three stages of activities. First, the names of potential jurors are randomly selected from DMVandvoterlists for the entire county and an initial questionnaireis mailed to them. Second,eligibility for jury service is determined by Juror Services Division staff members on the basis of the answers provided by the returned questionnaires. These two steps result in the selection of qualified prospective jurors. The last step in this processis the assigning ofjurors from the qualified list to a specific courthouse, according to court need and the 20-milerule. | 19. Los Angeles County uses two sources in drawing upits initial jurorlist: the list of registered voters in Los Angeles County, and the DMV list, comprised of licensed California drivers, including non-drivers with California identification cards, who reside in | the county. (RT 438-439). The voter list is currently designated the "primary list." A computer randomly selects a certain percentage ofnames from the primary list, depending on the projected need for jurors, e.g., 20%. An identical percentage samplingis then taken from the secondary list, the DMV list. This sampling is subjected to a checking process to 377 eliminate the possibility of duplicate names before it is used to supplement the primary list. The checking process consists of comparing the DMV samplingto the entire voterlist and deleting any names from the DMV sample that also appear on the registered voterslist. Then only the "unique" names, i.e., people on the DMV sampling whoare notregistered voters, are used to supplement the primary list. (RT 439-441).” 20. Prospective juror affidavit questionnaires or initial questionnaires(to distinguish them from the questionnairesfilled out by jurors actually appearingat the courthouseat the last stage of the Jury selection process) are then mailed to people on the supplemented primary list. (RT 441-443), Approximately 800,000 formsare sent out each year. (RT 441). These forms request information that will enable the Juror Services Division to determine whether a person is qualified as a juror: for example, citizenship, ability to understand English, residence, age and felony convictions. (RT 479). Finally, information is requested as to claims of inability to serve as a juror based on undue hardship. This categoryincludes medical or financial hardship, care of others, or prior jury service during the past 12 months. (RT 480). No mention is madeofrace or ethnic origin. (RT 481). 21. ‘In fiscal year 1984-85, 71.3% ofthe initial forms mailed out were returned. (RT 444). Of the 29% that were not returned, half were returned to the Juror Services Division by the Post Office as undeliverable. (RT 454-455). Mr. Arce's office makes no attempt to follow up on the unreturned questionnaires by sending out second notices. (RT 444). This is not due to a lack of funds, but rather reflects a cost-benefit determination '9 In previous years, the DMVlist was designated as the primary list, which was then supplemented with "unique" names from the voter registration list. In the fiscal year 1984-85, the procedure was reversed (RT 144), with the result that initial response by prospective jurors has increased from 65 to 71%. The increased responserate is apparently due to the fact that voter registration lists are more current and accurate with respect to name and address changethan is the DMVlist. (RT 654-854). 378 made byhis office that a follow-up procedure would only add a net 3% of people to the available jury pool, so that money would be better spent in making initial contacts. (RT 445). 22. A staff ofjury interviewers inspects the returned forms and,onthebasis of the answers provided, determines whether a person isqualified, or whether the person should be exemptedor excused from service. (RT 443). In 1984-85, for example, almost half of those answering were excused on the grounds of hardship. (RT 452). Altogether, 67% of the people who answered were exempted or excused. (RT 452, 455).”° Only claims of hardship:made in writing are considered in the excusal process and the excusal determination is not made on the basis of race or ethnic origin. (RT 483). The remaining 33% were qualified as jurors. 23. Once jurors are qualified, they are assigned to the courts that need jurors for a certain date. A computer makes the assignment by factoring in twocriteria:first, the courts that require jurors, and secondly, the distance in miles from a juror's residence to the court. First, the juror's name is randomly selected and then the computer compares the distance from that juror's residence to all the courts requiring jurors for a certain date. The juror is assigned to the court closest to his or her residence. (RT 465). Although jurors must be assigned within a 20-mile radius from their homes (RT 475), on the average, a juror only travels 8-10 miles (RT 466). 24. Although the Juror Services Division has undertaken investigations,on its owninitiative and at the direction of the courts, to study ethnic and racial breakdownsin 70 In fiscal year 1984-85, 804,835 people returned the initial questionnaires. Ofthis number, a total of 362,720 were excused as ineligible, exempt or for hardship. Individual hardship (medical, financial, care of others, students and transportation hardship) accounted for 491,959 excusals; another 36,381 were ineligible as non-citizens, nonresidents or insufficient knowledge of English, felony convictions, prior jury service or military; and 4,996 were exempt for community hardship,i.e., peace officers, judges, etc. 379 jury venires (RT 467-470), the office does not attempt to compensate for racial or ethnic imbalances or geographical disparities within the 20-mile regions. The only actions taken with respect to the jury selection procedures have been on a countywide basis. (RT 470). 25. All the information studied by Dr. Butler wasinitially collected by Mr. Arce, whoprovided Dr. Butler with the data for the purposes of this hearing. (RT 510-511, 538). Dr. Butler madehis findings on the basis ofstatistical evaluations of two types of documents. Thefirst type was 10 "impanelmentlists," or lists of eligible jurors computer- assigned to the Norwalk courthouse and summonedthere for service during the period from July 15, 1985 to September 30, 1985. Dr. Butler also utilized Norwalk impanelment lists for the period from November13, 1984 to March 4, 1985. (RT 510-512). ' 26. The impanelment or summonslist includes the prospective juror's name, address and census tract number. From these pieces of information, the percentage of Spanish-surnamed”' peopleonthelist can be ascertained, using the Department ofJustice Spanish surnamelist. (RT 510-511). 27. Of the people summoned by the impanelmentlist, only 50-60% actually appearat the courthouse. (RT 511). Those that do appearfill out a juror questionnaire. (RT 511).” These questionnaires were the second type of document used by Dr. Butler in his analysis. They provide the following information: age, sex, marital status, race, nearest imtersection to residence, last grade of school completed, occupation, payroll title, annual family income, and, if the person is of Hispanic origin, whether he or she is Mexican, *! The terms Spanish-surnamed and Hispanic will be used interchangeably. See People v. Trevino, 39 Cal.3d 667, 684 (1985) (the term Spanish-surnamedis sufficiently descriptive of Hispanics as to constitute a cognizable group for cross section analysis); see also Castanedav. Partida, 430 U.S. 482, 486 fn.5 (1977). % *? This questionnaire is to be differentiated from theinitial juror questionnaire mailed to a certain percentage of the people from the supplemented primary list, which is used to determinejuroreligibility before the second level of selection and assignmentis carried out. 380 Puerto Rican, Cuban or other. (RT 538). Dr. Butler's study included Norwalk jury questionnaires from 1979 to 1985. (RT 529-533). 28. Dr. Butler wasalso in receipt of a list of the census tracts that the Juror Services Division has designated as the 20-mile region for the Southeast Judicial District ofNorwalk. (RT 511). Based on his analysis of this information, Dr. Butler made the following findings. © 29. Because the impanelment or summonslist provides last names, but does not mention race, Dr. Butler was able to make comparisons for Hispanicsat the level of summoning. Similar comparisons for African-Americans could of course not be made at this stage of the jury selection process. (RT 514). 30. According to U.S. Census Bureau 1980 censusstudies, the 700 censustracts constituting the 20-mile region for Norwalk has a population that is 34.8% Hispanic. (RT 512-513). The 10 summonslists from September and October of 1985 show that during that time only 15.1% of the persons summoned from that region were Hispanic or Spanish- surnamed. (RT 513-514). A comparison between the 1984 summonslists and the population yielded similar results: from a population that was 34.8% Hispanic, only 17.8% of the people summoned in 1984 were Hispanic. (RT 514, 529-530). Thus, Dr. Butler . found thatin the relevant period of 1985, Hispanics were underrepresented on the summonslists by -58%, and in 1984 by -49%. (RT 514, 529-530).” 31. From his analysis of the jury questionnaire formsfilled out by those prospective jurors who were summoned and then actually appeared at the Norwalk courthouse for jury duty during the relevant time periods, Dr. Butler made these findings. *? These percentages represent the comparative disparity standard which "measures representativeness by the percentage by which the probability of serving is reduced for people in a particular category or cognizable class." People v. Harris, 63 Cal.3d at 65, quoting Kairys,et.al., Jury Representativeness: A Mandate for Multiple Source Lists (1977) 56 Cal.L.Rev. 776 at 790. 381 32. Compared to a countywide African-American population of 11.1% and an African-American population in the Norwalk 20-mile region of 16.3%, only 3.2% of the jurors who appearedfor jury duty in the 1985 period were African-American. (RT 517). This translates into a comparative disparity of -80%,i.e., African-Americans were 80% less likely to appear for jury duty at Norwalk than their numbers in the community would suggest (RT 532), and an absolute disparity of 16.3% minus 3.2% or 13.1%. 33. Although the 20-mile region around Norwalk from whichjurors are assigned is composed of 34.8% Hispanics,” only 16%of the jurors appearing for jury duty at the courthouse during the 1985 time period were Hispanic. This represents a comparative disparity of -58%. (RT 518, 527-529). 34. From an evaluation of questionnaires administered by Mr. Arce to jurors appearing at the Norwalk courthouse from 1979 through 1984, Dr. Butler determined that the underrepresentation of both African-Americans and Hispanics on the Norwalk venires is a long-term problem. The findings are succinctly presented in these charts. The absolute disparity is by definition the numberin column 2 minus the numberin column 1. An absolute disparity in excess of 10% is generally accepted as creating a primafacie showing of violation of constitutional requirements for representativeness of a Jury venire. ** At RT 815.the transcript indicates that the Hispanic population ofthe 20-mile region is 30.8%. This is apparently a typographical error. (See RT 514, 527-528, clearly indicating the Hispanic population is 43.8%). 382 Year Hispanic Percentage of Comparative Absolute Population of Hispanics in Disparity Disparity* the 20-muile the Norwalk Region from Venires Which Jurors are Drawn 1979 34.8% 8% 77% 26.8% 1980 34.8% 13.6% 61% 21.2% 1982 34.8% 10.6% 70% 24.2% 1984 34.8% 17.1% 58% 17.7% (part) Year African- Percentage of Comparative Absolute American African- Disparity Disparity Population of Americansin the 20-mile Norwalk Region Venires 1979 16.3% 5.1% 69% 11.2% 1980 16.3% 7.4% 55% 8.9% 1982 16.3% 6.2% 62% 10.1% 1984 16.3% 1985 16.3% 3.2% 80% 13.1% (RT 925-335; CTS I at 41-44; hearing exhibits). 35. From the impanelment or summonslists, which include the censustract numberof the summonedjuror's residence, Dr. Butler plotted the area on a map from whichthe jurors actually appeared. He discovered a gross geographical disparity in the supposed random juror assignment: while one censustract sent 57 jurors to Norwalk during the 1985 period studied, 504 of the censustracts did not contain a single summonedjuror during the same period. Sixty-eight percent of the census tracts within the 20-mile region from which jurors were supposedly being drawn did not have a single juror summoned. (RT 535). 383 36. The map showedthat jurors were not assigned to Norwalk courthouse from the entire 20-mile region: they consistently came from a much morerestricted area, a very narrow section of that region. (RT 536-537). Thus, 67-68% of the 700 censustracts had absolutely no representation in the Norwalk venires. Consistent with the statistics demonstrating an underrepresentation of African-Americans and Hispanics among the jurors who are summoned andappear, the censustracts providing the great bulk ofthe jury panels are white, Anglo areas. (RT 539). 37. The problem, as both Mr. Arce (RT 472) and Dr. Butler recognized, was one of maldistribution of minority jurors among the several courts (RT 571, 574, 576). Mr. Arce: "The problem is one ofdistribution" (RT 472); Dr. Butler: "What you find is that the problem is not whether there are qualified jurors in these census tracts or not, but they are not being summonedto this courthouse. And so what you wind up with then is a maldistribution ofjurors" (RT 571); "[IJt's a _ distributional problem" (RT 574). 38. The skewed distribution pattern cannot be explained by positing an abundance of qualified jurors in those censustracts sending the majority ofjurors to the Norwalk courthouse, because every censustract in Los Angeles County has qualified jurors in it. (RT 571). Rather, as Dr. Butler explained, the imbalance results from the county'sfailure to compensate for two factors: the relatively heavy need for jurors in the Central District of the Los Angeles Superior Court system andthe fluid and overlapping regions from which prospective jurors are drawn under the 20-mile rule. (RT 774-776). a 39. The Central District courthouse, because of its heavy trial calendar, draws the lion's share oftotal jurors countywide: 33-34% of the total. And becauseofits central location, it draws a high percentage of minority jurors from its 20-mile region. This draw then vacates the peripheries of the central District's 20-mile region of minorities. Those peripheral regions, because of the overlapping and unfixed boundaries. of the 20-mile arcs, also constitute peripheral areas or sections of other judicial district 20-mile regions. 384 Accordingly, when the Norwalk court's need for jurors comes up on the computer, the only remaining jurors whoare "closest" to Norwalk are from Anglo areas within the Norwalk 20- mile area. (RT 574-576). The plausibility of this explanation is borne outbythe fact that while juries in the Central District have an overrepresentation of minorities, juries in all the other branch courts suffer from underrepresentation of minorities. (RT 574). 40. Dr. Butler provided a solution to this under-representation—oneso simple and direct that he estimated it would take less than $10,000 to implement. (RT 577-579). First, the area from which jurors are to be assigned to Norwalk mustbe definitively drawn. The boundary cannot shift. Once the area is designated, jurors can be randomly selected and summoned by censustracts. If the Norwalk court needs 150 jurors, for example, the computer wouldfirst select 150 census tracts at random, and then randomly select qualifiedjurors within those tracts. The minority population of each boundedarea would necessarily be represented, because the assignment would include a representative sample of census tracts, and thus ofjurors. (RT 577, 579-581). 41. This process would ensure selection of a fair cross-section from the community, because it would no longer bepossible that 57 jurors would come from one censustract, while 67-68% of the census tracts went unrepresented. Instead, each tract would provide one juror. Once that tract is randomly selected, qualified jurors within it would have an equal opportunity to be selected, in a manner completely unrelated to race or ethnic origin. Because both the tract and the juror would be randomly selected, there would be no discrimination, and a fair cross-section would be assured (RT 579). Dr. Butler discussed this plan and its cost with Mr. Arce. (RT 578-579). 42. The prosecution choseto present no witnesses of its own to rebut appellant's showing ofa fair cross-section violation. In its closing argumentto the trial court, however, it did utilize portions of Mr. Arce's testimony. The testimony relevantto the prosecution's attempted rebuttal is scattered throughout Mr. Arce's and Dr. Butler's 385 testimony, and so is organized aroundthe three principal arguments put forward by the prosecution in its closing argument. 43. Mr. Arcetestified that from a countywide perspective, there was noracial disparity between the percentage of African-Americans in the over 18 years of age population of the county, and the percentage of African-Americans summoned and appearing to serve as jurors in the county. For example, the 1980 census figures show the percentage of presumably eligible African-American jurors in the county at 11.4%, and studies indicated that 13.33% ofthe jurors serving in Los Angeles County are African- American. (RT 472). Although Mr. Arce did conclude that countywide there was "an abundance of African-American jurors in the system," he admitted that the "problem is one of distribution." (RT 472). 44. Mr. Arcealso testified that at the judicial district level, "[t]he Southeast District has an adequate representation of African-Americans." He based this conclusion upon a comparison between the percentageof African-Americans appearingfor jury duty in Norwalk (3.6% in September and October of 1985) and the percentage of African- Americansin the population of the Southeast Judicial District (2.9%). (RT 472-474). He thus comparedthe percentage of African-Americansin the venires chosen from the 20- mile region to the percentage of African-Americansin the judicial district, even though he admitted that the venire was notin fact selected from the Norwalk Southeast Judicial District, but from an area "well beyond the boundaries of the Judicial District" (RT 493), i.e., the 20-mile region, an area whose population is 16.3% African-American (RT 517). 45. Mr. Arce claimed that 40.8% of the Hispanic population of the Southeast Judicial District, and indeed of Los Angeles County, was probably not U.S. citizens” (RT °° "W]e developed a range of between 43 percent to 84 percent that would have to be applied to figures for Los Angeles County in orderto try to come up with a numberofHispanics that would be jury eligible or citizens." (RT 486). 386 ~ a ) 486). In reliance on this figure, he concluded that the Hispanic population of the Southeast Judicial District that was presumably jury eligible was not 34.7% (the U.S. Censusfigure of Hispanics over the age of 18), but only 20.5%.”° (RT 488). 46. Mr. Arce basedthis claim of citizenship on a U.S. Census Bureaustatistic that 40.7%’’ of persons 18 years and over in Los Angeles speak English "not well or not at all." Mr. Arcealso testified that a Census Bureau chief had informed him that 14.9% ofthe 1980 Census voting-age citizens of Los Angeles County identified themselves as Hispanics. (RT 486). From these twostatistics, Mr. Arce concluded that between 37% and 48% of the Hispanic population in Los Angeles County did not have American citizenship. (RT 486-487). How hearrived at such a range, and of what relevance wasthe percentage of non-English speaking people to the percentage of Hispanic-American citizens in Los Angeles County, Mr. Arce did not explain. Nevertheless, he multiplied the Hispanic population of the Southeast Judicial District (34.7%) by 40.8% (presumably the percentage of people in Los Angeles County who do not speak English well) to conclude that the Southeast District's Hispanic American citizen population was only 20.5%. (RT 4884). 47. Dr. Butler testified that there is no information available, either at the census tract level or at the regional level, from which one could determineeithercitizenship or language capability of an ethnic group. (RT 541-544, 549). According to Dr. Butler, no one, not even the Census Bureau experts on undocumentedaliens, has information available as to the number of non-citizens in any given area. (RT 541-542). Without such information, Dr. Butler emphasizedthat it is only speculation that any particular portion of the Census-counted 34.8% Hispanics is non-citizen. (RT 515-516, 550). Dr. Butler 26 "T think perhapsif we. . . .very crudely apply a figure of 40.8... .would leave us with 20.5 [percent citizens in Los Angeles County]." (RT 488). 27 This figure is presumably somewhere between 40.7 and 40.8% as Mr. Arce at one time refers to it as 40.7% (RT 486) and later as 40.8% (RT 488). 387 wv mentioneda variety of factors that would have to be considered before making any conclusion as to what portion of the Hispanics counted by the 1980 census has American citizenship. 48. First, Census Bureau officials estimate that the 1980 Census undercounted the Hispanic population byat least 5.5%; Dr. Butler was of the opinion that the undercount in Los Angeles County would be even higher. (RT 542, 550-51). Thus, Mr. Arce reduced the numberof counted Hispanics in the Southeast Judicial District through useof a figure that includes a significant portion of uncounted Hispanics in Los Angeles County. 49. Secondly, Dr. Butler stated that the use of registered voters to supporta claim that 40.8% of Hispanics in Los Angelesare not citizens would not withstand scrutiny. First, a much lowerpercentage of eligible Hispanic register to vote than do Anglos; and secondly, there is no English-speaking prerequisite for voter registration and no established relationship between language andeligibility to vote. (RT 581-582). 50. According to Dr. Butler, even if one knew the proportion of non-citizen Hispanics in Los Angeles County, that percentage would not necessarily be valid for a specific region of the county, such as the 20-mile Norwalk area. In fact, there were good reasonsto believe that the Hispanic citizen percentage of the Norwalk areas was higher than the county average. "When youstart talking about middle class areas in Norwalk and suburban areas, then my belief is most of these people are not undocumented but, in fact, are citizens who are middle class and . . . upper middle class, and likely to be citizens." (RT 550). 51. Dr. Butler also pointed out that Mr. Arce failed to take into accountthe fact that estimates of non-citizen Hispanics in Los Angeles may include children under the age of 18 (RT 552) and the remigration phenomenon. (RT 551). 52. In conclusion, Dr. Butler testified that it was "completely erroneous" to assume, as did Mr. Arce, that 37-48% of the Spanish-surnamed people in Los Angeles 388 County were not citizens. There is absolutely no data to substantiate such a claim. (RT 552-553). 53. Although the prosecution argued that the racial and ethnic imbalancein the Norwalk venires was due to nonresponseto initial juror questionnaires, there was no evidence presented to substantiate such a claim. 54. Mr. Arcetestified that in 1985, almost 29% of the people initially contacted by his office either did not receive their forms or did not return them. (RT 444). However, there was no evidenceto indicate that the non-response of these people had any impact on the underrepresentation of minorities on the veniresfinally selected. 55. On the contrary, Mr. Arcetestified that his office had been unable to determine the racial or ethnic backgroundof the persons whose forms were undeliverable. (RT 483). Dr. Butlertestified that there was no information available as to the impactthat non-responsehason theracial and ethnic makeup of the venires. (RT 546-547). Similarly, of the more than one-half of the people contacted who were excused from service, there was no evidenceat all that excusals were more prevalent in the minority communities than in the Anglo communities. (RT 566). . | 56. The only available evidence refuted the prosecution's argument with respect to Hispanics, who were somewhat morelikely to appear at the courthouse after being summonedthan wasthe rest of the population. (RT 572-573). In any event, there is a further problem with the prosecutor's reliance on the high rate of non-responseas a potential explanation for a skewing on the composition of a venire. Where the county makes noeffort to follow up non-responses and permits in effect a voluntary jury service system, more due process questionsare raised than fair cross-section questionsare resolved. 57. In Duran v. Missouri, 439 U.S. 357, 364 (1979), the Supreme Court.setout a three-part test for analysis of cross-section claims: 389 ts - In orderto establish a primafacie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excludedis a ‘distinctive’ group in the community; (2) that the representation of this group in venires from whichjuries are selected is not fair and reasonable in relation to the numberof such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. 58. When primafacie violation is demonstrated, the burden then shifts to the prosecution to come forward with available evidence of explanation andjustification, so as | to enable the court to determine whether the county is doing all that can reasonably be expected to achieve the constitutional goal mandated in Wheeler. People v. Buford, 132 Cal.App.3d 288, 299 (1982). 59. Petitioner metall three prongs of the Durantest. 60. Petitioner met the first prong of the Duran test by demonstrating that both African-Americans and Hispanics were underrepresented in the jury venire in the Southeast Judicial District of Los Angeles County at Norwalk. Both African-Americans and Hispanics are indisputably cognizable and distinctive groups for purposesoffair cross- section analysis. People v. Harris, 36 Cal.3d at 51; Hovey v. Superior Court, 28 Cal.3d 1, 20 fn. 45 (1980). | 61. Petitioner met the second prong ofDuran by showing that African- Americans and Hispanics were substantially underrepresented in the Norwalk venires in comparison to their numbers in the community, as defined by the 20-mile radius of the courthouse. 62. To define the Southeast Judicial District as the "community" whenin fact the operation of the 20-mile rule meansthat jurors are being assigned to Norwalk from a much larger area, the 20-mile region, would be to condone the kind of misleading comparisons made by Mr. Arce. Although qualified jurors are assigned to Norwalk from the 20-mile region, which is 16.3% African-American, Mr. Arcetestified that venires comprised of 3.2% African-Americans constituted a fair representation because the administrative 390 boundaries of the southeast Judicial District were made up of 2.9% African-Americans. This is like asserting that an all-white school, in a district composed of over 50% minority students, is not excluding African-Americans and Hispanics, because none of them live in the area directly north of the school building. 63. Petitioner has clearly shown that the minority makeup of the Norwalk jury panels was not fair or reasonable when comparedto the total number of African-Americans and Hispanics in the 20-mile area from which the jurors are selected. According to 1980 Censusfigures, the population of the 20-mile region is 34.8% Hispanic and 16.3% African-American. Yet only 15.1% of the persons summoned from the 20-mile region were Hispanic. Of the jurors who answered the summons and appeared at Norwalk during the test period, only 16% were Hispanic (compared to 34.8% of the population) and only 3.2% were African-American (compared to 16.3% of the population), representing comparative disparities of -58% and -80%, respectively. Over a 5-year period, the comparative disparity of Hispanics ranged from -49% to -77%; for African-Americans from -55% to -80%"*. See chart. 64. The thirdprong of the Durantest is satisfied because Mr. Reno showedthat the underrepresentation is due to a systematic exclusion of the group in the jury selection process. It is settled that an exclusion is systematic if it is "inherent in the particular jury- *8 This Court found the comparative disparity standardto bethe preferable method of showing disparity in People v. Harris, 36 Cal.3d at 56. Comparative disparity is there explained: "[Ijn a fair, cross-sectional system, the probability of any eligible person being includedin the source (or in the final pool) would be the samefor every eligible person, regardless ofrace, ethnic background, sex, age, or socio-economic status. The comparative disparity standard measures representativeness by the percentage by which the probability of serving is reduced for people in a particular category or cognizable class." /d. at 576-577, quoting Kairys,etal., Jury Representativeness: A Mandate for Multiple Source Lists (1977) 56 Ca. L.Rev. 776at 790. 391 selection processutilized." 65. Based on analyses of the ethnic makeup of the jurors who were summonedto Norwalk (in the case of Hispanics) and on analyses of the racial and ethnic makeup of jurors whoactually appeared for jury duty (in the case of both Hispanics and African- Americans), appellant has shown a long-term and gross disparity in the percentage ofthese minorities compared to their numbersin the total population. Overa five-year period, Hispanics were underrepresented by 49% to 77%. African-Americans were underrepresented by 55% to 80% over the sameperiod. 66. The second and third prongs of the primafacie case can besatisfied by Statistics alone. See People v. Buford, 132 Cal.App.3d at 296. But Mr. Reno's case does not rest solely onstatistics. Mr. Reno has presented evidence suggesting a plausible explanation for the gross racial and ethnic imbalance of the Norwalk venires by identifying precisely when in the jury selection process the systematic exclusion took place, and by identifying the interaction of factors which cause the underrepresentation, i.e., the heavy draw of the Central District and the local assignment from overlapping 20-mile areas. In addition, appellant has demonstrated the validity of his explanation by showing the extreme geographical maldistribution ofjurors actually assigned to Norwalk. Finally, Mr. Reno has presented a plausible remedy, which is both simple and inexpensive, and which had been communicated earlier to Mr. Arce of the Juror Services Division. 67. Inshort, Dr. Butler's study of the jurors actually assigned to Norwalk during the test period revealed that of the 700 census tracts making up the 20-mile area, onetract sent atotal of 57 jurors to the courthouse, while 67-68% of the total, or 504 censustracts, did not have a single juror summoned over the same period. It is this extreme geographical imbalance that accounts for the underrepresentation of minorities on the venires, i.e., only predominantly white Anglo tracts within the 20-mile region have jurors summoned. Dr. Butler also explained why the maldistribution occurs: the Central District's heavy demand 392 for jurors, which accounts for 33-40% of the total jurors countywide, tends to "use up”all the minority jurors in the 20-mile region of the Central District. But because of the overlapping quality of the regions, the periphery of the central district 20-mile region is also the periphery of adjacent 20-mile regions for the other judicial districts. Those outer portions ofNorwalk's 20-mile region that coincide with the outer regions of the Central District are depleted of minority jurors by the Central District's heavy demand,andthus, whenthe needs of the Norwalk court come up on the computer, only jurors from white Anglo areas are available. Mr. Reno has shownthat the overlapping, fluid boundaries of the 20-mile regions together with the central District's heavy demandforjurors, result in the extreme underrepresentation of African-Americans and Hispanics on the Norwalk venires. 68. Mr. Reno has therefore shown that the exclusion of minorities is systematic becauseit is inherent in the jury selection process. Dr. Butler demonstrated that the imbalance could be cured with a minimumofeffort and expense by defining rigid 20-mile regions and then by randomly selecting first the appropriate numberof censustracts and then eligible jurors from within those tracts. Once the tracts are randomly selected, each qualified juror within it would have an equal opportunity to be selected, and a fair cross- section would be assured. 69. When a primafacie violation is established, the burden shifts to the prosecution to come forward with available evidence of explanation andjustification, so as to enable the court to determine whether the county is doing all that can reasonably be expected to achieve the constitutionally mandated goal of a fair cross-section. People v. Buford, 132 Cal.App.3d at 299. 70. In this case, the prosecution presented no witnesses. Instead, it relied on its cross-examination of Mr. Arce and Dr. Butler to explain andjustify the racial and ethnic disparities in the Norwalk venires. Petitioner's statistical showing was not rebutted in any way. Indeed, the methods of evaluation used have been previously approved by this Court in 393 People v. Harris. 36 Cal.3d 36. 71. The prosecution did not meet its burden of coming forward with available evidence of explanation andjustification. In fact it presented no evidenceatall to explain or justify the gross disparities of the Norwalk venires. Instead, the prosecutor attempted to cast doubt on Mr. Reno's prima facie case in this closing statement by presenting arguments and theories unsupported by the facts. Such unsubstantiated theories cannot serve as a substitute for a showingthat the county is doing everything it reasonably can do to achieve the constitutional fair cross-section requirements. 72. Arguing that "the County of Los Angeles is doing everything according to law" (RT 598), the prosecutor referred to evidence that the Juror Services Division did not use race or ethnicity in its initial random selection of potential jurors, nor in the eligibility, exemption and excusal procedures. This evidence, although edifying, completely misses the point in terms of rebutting Mr. Reno's prima facie case. Petitioner did not claim that the initial procedures caused the imbalance in the Norwalk venires. Petitioner presented a prima facie case of violation ofthe fair cross-section requirement which wasthe inherent result ofthe skewed local assignmentofjurors within the 20-mile Norwalk area. Petitioner showedthat the overlapping 20-mile regions combinedwith the Centraldistrict's heavy draw caused the underrepresentation. This showing wasnot rebutted. 73. Evidencethat eligibility and excusal decisions are not based on race or ethnicity is irrelevant when Mr. Reno's evidence showsthat those decisions are not causally connected to the disparities. Furthermore, it is settled that there is no requirement to show that the jury commissioner intended to discriminate against minorities. People v. Harris, 36 Cal-App.3d at 58. Discrimination can result from negligenceorinertia, by failing to take affirmative action to prevent discrimination. ibid. 74. The prosecutor next attempted to explain away the underrepresentation on the Norwalk venires with a theory of "individual fault." (RT 565-570, 595-596). This argument 394 not only misses the mark in terms of the cause of the imbalance on the jury panels,it is totally unsubstantiated. Nonetheless, the prosecutor repeatedly argued that nonresponse to the initial juror questionnaires was beyond the county's control and that therefore the county must be deemedto be doing everything it can reasonably be expected to do. He made a similar argument regarding the excusal process. 75. First, such arguments insinuate that juror nonresponseor excusal.is a cause of the venire imbalance. Quite to the contrary, Mr. Reno showedthat the unfixed boundaries and the heavy demandofthe Central District caused the underrepresentation. Second, the argument is based on completely unsubstantiated premises: (1) that minorities are morelikely than Anglos not to respondto the initial juror mailing and (2) that minorities are more likely than whites to be excused for hardship. There were nofacts at all presented at the evidentiary hearing to support the first claim. If anything, the evidence tended to show the opposite. Hispanics, for example, are somewhat morelikely than Anglos to appear at the courthouse after a summons. | 76. Neither was there evidence tosupport the prosecutor's assumption that excusals were moreprevalent in the minority community than in white Anglo communities. In fact, Dr. Butler expressly negated such an assumption, "so far ] have not seen any evidence one way or another inall the cases that I worked with andin listening to the testimony of Mr. Arce." (RT 1566). 77. Finally, the prosecution's argumentalso implies that the original contact pool contained a higher percentage of minorities than the group that was summonedor appeared. But this Court has already held that "[t]he representative character of those jurors [appearing at the courthouse], not of the ‘original contact pool,’ is the proper basis for comparison." People v. Harris, 36 Cal.3d at 53. 78. Thus, regardless of whose "fault" it may be that a significant portion of the peopleinitially contacted to serve as jurors do not respond andthat an even larger portion 395 of those who are summoned do not appear, arguments based on these facts do nothing to dispel Mr. Reno's proof that Hispanics and African-Americansare grossly underrepresented among the people who do appear on the Norwalk venires. 79. As this Court noted in People v. Harris, it would be "preferable"if full and accurate statistics were available that detailed the precise percentage of the Hispanic population that has U.S. citizenship and the percentage of undocumentedaliens. Harris held, however, that the makeup of a jury venire was properly comparedtostatistics of the total population, because jury-eligible statistics for Hispanics are almost impossible to ~ obtain. Where requiring suchstatistics would place an insuperable burden on the defendant, the "preference must accede to tolerance." People v. Harris, 36 Cal.3d at 53-54, quoting Foster v. Sparks, 506 F.2d 805, 833 (Sth Cir. 1979). When morerefined figures showing the precise proportion ofjury eligibles in the population are not available, "it is sufficient for the defendant to show significant disparity based on the use ofthe total population." People v. Harris. 36 Cal.3d at 54. 80. Here Mr. Mattson used as a comparison base census figures showing the percentage of Hispanics over the age of 18 in the relevant communities. It is conceded that these figures do not reveal citizenship and that the 34.8% Hispanic makeup of the 20-mile Norwalk region represents a maximum. But where appellant has established a primafacie ‘case on the basis of the best census figures available, his case cannot be explained away or justified by unsupported claims, unjustifiable manipulation of data andreliance on so-called "common sense" arguments engaged in by the prosecution. 81. Mr. Arce suggested that any censusfigure for the Hispanic population in Los Angeles, either in the 20-mile region or the Southeast Judicial District, should be reduced by 40.8% to arrive at a percentage ofHispanic-American citizens. He evidently based this conclusion on a finding of the 1980 Census Bureau that 40.8% of the people over 18 years of agedo not speak English wellor at all. He offered no support for his unstated premises: 396 that people who do not speak English well are not citizens and that everyone in Los Angeles County who doesn't speak English well is Hispanic. 82. Dr. Butler testified that no such information is availableat either the census tract level or the regional level. "[T]he data are not in any form that you can determine [citizenship and language] at the censustract level or {the 20-mile area]"” (RT 543-544); "(W]e do not know ordo not have information as to whether what percentage of them are citizens or noncitizens." (RT 549). Contrary to Mr. Arce's claim, the Federal Census ‘Bureau has reported to the U.S. Congress that "’[a] reliable estimate of the numberof undocumentedaliens residing in the U.S. is not available and is unlikely for the immediate future'." People v. Harris, 36 Cal.3d at 53-54, quoting Rep. to Cong. by Comptroller General, Number of Undocumented Aliens Residing in the United States Unknown, GGD- 81-56 (Apr. 6, 1891) at 3-4. 83. Withoutstatistics as to the numbers of undocumentedaliens, Mr. Arce's claim that 40% of all census-counted Hispanicsare not citizens is complete speculation. Dr. Butler pointed out that even if percentages of undocumentedaliens were available, other facts would have to be considered before making a blanket statement as to how many of the Hispanics in the Norwalk 20-mile area are citizens. For example, the 34.8% Hispanic figure for the Norwalk 20-mile region is based on the census, and manyofthe undocumented aliens were not counted by the census. The Census Bureauitself estimates that the Spanish-surnamed population was undercounted in 1980 byat least 5.5%. If noncitizens are not counted in the censusin thefirst place, it is obviously fallacious to reduce the numberof Hispanics that were counted by a number meantto portray noncitizens. 84. Secondly, in "middle class suburban areas" like Norwalk, the number of noncitizensis likely to be much lower than the number countywide. Also, according to recent migration studies, many undocumentedaliens re-migrate, which might accountfor a 397 higher figure of undocumentedaliens, if those numbers are based on estimates of people crossing the border. One person might cross the border several times in one year. 85. In short, Mr. Arce's claim was shockingly unsubstantiated andtotally undeserving of serious consideration. It can in no way serve to "explain" or "justify" appellant's showing of underrepresentation of Hispanics. 86. The prosecution also relied on Mr. Arce's spurious comparison between the percentage of African-Americansin the Southeast Judicial district and the percentage of African-Americans on the Norwalk venires to argue that the county was doing everything according to law. (RT 596). Whereit is conclusively established that jurors are assigned to the Norwalk venires from the 20-mile region, comparing the percentages ofAfrican- American on those venires to the African-American population of the southeast Judicial district is totally meaningless and borders on fraud. 87. The African-American population of the 20-mile region, from which the jurors are selected, is 61.3% of the total population. The percentage of African-Americans on the venires drawn from the 20-mile region in 1985 was only 3.2% ofthe total. The fact that African-Americans make up only 2.9% of the population of the Southeast Judicial District is irrelevant because the Southeast Judicial district is no the geographic district from which jury venire selection occurs. See O'Hara v. Superior Court, 43 Cal.3d 86 [the jury panel mustfairly reflect the minority population of the district from whichitis chosen]. 88. Both Mr. Arce and Dr. Butler were in complete accord that there was a "distribution problem" on the Norwalk venires. Nevertheless, because Mr. Arce perceives the base community for cross-section purposesto be either the county orthe judicial district (RT 475), the jury commissioner's office makes no attempts at all to compensate for racial or ethnic imbalancesat the 20-mile region level (RT 470). Only actions at the countywide level are undertaken. 398 89. Mr. Mattson demonstrated a plausible systematic explanation for the disparity subject to control by the court. Dr. Butler testified that there was a solution to the imbalanceat the regional levels that would insure representative jury pools simply and inexpensively. Dr. Butler had discussed this solution with Mr. Arce. 90. The solution consists of (1) definitively drawing rigid boundaries for the 20- mile regions to eliminate overlapping and (2) reprogramming the random computer | selection so that a preliminary random selection of census tracts within the 20-mile regions is made, and then jurors would be randomly selected from within thosetracts. 91. Because the present imbalanceis partially caused by the overlapping regions, which permits one district to have an overrepresentation of minorities, in effect "robbing" the other districts of minority jurors, it is imperative that any solution first fix the 20-mile regions from which jurors are drawn. The boundary cannot be allowed to "shift and slide" in the way that it presently does. 92. The next step ensures against the type of geographical maldistribution within the region which is manifested by the Norwalk venires, in which only a slice of the whole region is represented on the panel. Because of de facto housing segregation, uneven geographical selection ofjurors necessarily will result in unevenracial and ethnic representation. This problem is solved byfirst randomly selecting census tracts within the region, and then randomly selecting an eligible juror from within the chosen tract. The minority population of each bounded 20-mile area would then be fairly represented because the venire would include a representative sample of census tracts. Yet because both the tract and the juror would be randomly selected, without reference to race or ethnic origin, there would be no discrimination. 93. Dr. Butler estimated that this procedure could be implemented for under $10,000. Given the availability of such a solution, the county is obviously not doingall that can reasonably be expected. Where the county has an affirmative duty to develop and 399 pursue procedures aimedat achievinga fair cross-section, its failure to compensate for the imbalance demonstrated in this case cannot be deemed reasonable. Whena plausible solution is offered by an expert with Dr. Butler's qualifications, the county's inaction is even more unreasonable. 94. Petitioner has not only explained the cause of the underrepresentation of African-Americans and Hispanics. on the Norwalk venires but has also shouldered the burden of demonstrating a simple and inexpensive cure for the problem. Basedon this record, the trial court erred in denying Mr. Reno’s motion to quash the venire and petitioner's convictions must be reversed because of the unconstitutional composition of the venire from whichhis jury was selected. 95. This Court dismissed the claim by asserting that the appropriate "community” for purposes of the analysis was not the population within the 20-mile radius from which jurors are actually selected butthe judicial district where the courthouse sits. This was _ inconsistent with California law at the time of the evidentiary hearing. Moreover,it was inconsistent with the Sixth Amendment's requirementthat jurors actually be drawn from the community. 96. Finally, had the calculations in this case been performed onthe basis of the population of the judicial district rather than the population of the 20-mile radius, the | disparities for Hispanics which would have been revealed would have been much worse. This is because the Southeast Judicial District has a much higher percentage of Hispanics than does the 20-mile radius. There were absolute disparities for Hispanics between the actual population and the population on the jury venires of 32.24%, 26.64%, 29.64%, 22.32%, and 25.14%, respectively, for the years 1979, 1980, 1982, 1984 and 1985, witha prima facie showingofconstitutional violation is generally considered to be made with an absolute disparity of only 10%. These disparities are only explainable based upon the superior court's admitted and deliberate policy of removing potential jurors from the 400 Hispanic portions of the Southeast Judicial District and sending them for jury service to the downtowncourthouse. See Exhibit Q, Declaration of Professor Dennis Willigan. 97. This Court, without relying on this testimony, also mentioned testimony that approximately 40% of the Hispanic population were non-citizens. On the record, reliance on that testimony would have been unreasonable because it was based upon unexplained and/or unreasonable assumptions. Moreover, it would not have been sufficient to rebut the prima facie showing of a Sixth Amendmentviolation made bypetitioner, either as to African-Americansoras to Hispanics. With respect to African-Americans it was irrelevant, and with respect to Hispanics,there are still extraordinarily high disparities for the Southeast Judicial District, taking into account the percentage of noncitizens the superior court claimed to be present(see, e.g., Exhibit Q, Willigan Declaration). 98. Regardless of whether the 20-mile radius or the judicial district is the "community" for Sixth Amendment purposes, petitioner has shownthat, in violation of the Sixth Amendment, there was no fixed "community" from which the jurors were drawn, and mm addition andin the alternative, the jury venire was unrepresentative of minorities. 99. Based upon the above, petitioner was denied an impartial jury drawn from a fair cross-section of the community as guaranteed by both the state and federal | constitutions and wasalso denieda fair trial and a reliable penalty phase. CLAIM113: Petitioner's Rights Were Violated as a Result of Extreme Underrepresentation of Hispanics and African-Americansin the Jury 1. Asset forth in Claim | 12, petitioner's Sixth, Eighth and Fourteenth Amendment nights were violated because of extreme under-representation of Hispanics and African-Americansin the jury pool. CLAIM 114: The Denial of A Fair Cross-Section of Jurors in the Guilt Phase Violated Petitioner’s Constitutional Rights. 1. The Supreme Court has repeatedly stated that “death is different’; that is, the 401 death penalty is qualitatively different than any other criminal punishment. Asstated in Woodson v. North Carolina, 428 U.S. 280, 305 (1976), “there is a corresponding difference in the needfor reliability in the determination that death is the appropriate punishmentin a specific case.” 2. The Supreme Court has reversed death sentences because some aspectof the sentencing process has compromisedthereliability of the sentencing determination. See Johnson v. Mississippi 486 U.S. 578 (1988); Caldwell v. Mississippi, 472 U.S. 320 (1985) Gury misled to believe that the appellate court ultimately would decide the appropriateness of the death sentence); Eddings v. Oklahoma, 455 U.S. 104 (1982) (mitigation evidence regarding emotionaldisturbance and troubled family history erroneously excluded from consideration by the jury in making its determination asto the appropriateness of the death sentence). 3. “TA] defendant convicted by [a properly death-qualified] jury in some future case mightstill attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeedin that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment maybe vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence-- given the possibility of accommodating both interests by meansofa bifurcated trial, using one jury to decide guilt and anotherto fix punishment.” Witherspoonv. Illinois, 391 U.S. 510, 520, n. 18 (1968). 4. The data strongly suggests that death qualification excludesa significantly large subset -- from 11% to 17% -- of potential jurors who could be impartial during the guilt phaseof trial. Among the membersofthis excluded class are a disproportionate number of African-Americans and women. See Grigsby v. Mabry, 569 F.Supp. 1273, 1283, 1293-1294 (ED Ark. 1983) (Grigsby ID (citing studies). 5. Death-qualified jurors are more likely to believe that a defendant's failure to 402 & ) testify is indicative of his guilt, are more rejecting of the insanity defense, more mistrustful of defense attorneys and less concerned about the danger of erroneous convictions. /d., at 1283, 1293, 1304. This pro-prosecution bias is reflected in the greater readiness of death-qualified jurors to convict or to convict on moreserious charges. /d., at 1294-1302; Grigsby v. Mabry, 758 F.2d 226, 233-236 (8" Cir. 1985). The very process of death qualification -- which focuses attention on the death penalty before the trial has even begun -- has been foundto predispose the jurors that survive it to believe that the defendantis guilty. Grigsby, 569 F.Supp., at 1302-1305; 758 F.2d, at 234. 6. The full exchange of ideas among the jury members is crucial to thetrial process. “The desired interaction of a cross section of the community does not take place within the venire;it is only effectuated by the jury that is selected and sworn to try the issues.” McCray v. New York, 461 U.S. 961, 968 (1983) (Marshall, J., dissenting from denial of certiorari). 7. The task of ascertaining the level of a defendant’s culpability requires a jury to decide not only whether the accused committed the acts alleged in the indictmentbut also the extent to which he is morally blameworthy. Especially in capital cases, where a defendantinvariably should be charged with lesser included offenses having factual predicates similar to those of the capital murder charges, (see Beck v. Alabama, 447 U.S. 625 (1980)), it may be difficult to classify a particular verdict as “accurate” or “maccurate.” The Court in Ballew went beyond a concern for simple historical accuracy and questioned any jury procedure that systematically operated to the “detriment of... the defense.” (435 U.S., at 236). 8. The very process of determining whether any potential jurors are excludable for cause under Witherspoon predisposesjurors to convict. One study found that exposure to the voir dire needed for death qualification “increased subjects’ belief in the guilt of the defendant and their estimate that he would be convicted.” Haney, On the Selection of 403 Capital Juries: The Biasing Effects of the Death-Qualification Process, 8 Law & Hum. Behav. 121, 128 (1984); see Hovey, at 73, 616 P. 2d, at 1349. Even if this prejudice to the accused does not constitute an independent due processviolation,it surely should be taken into account in any inquiry into the effects of death qualification. “[The] process effect may function additively to worsen the perspective of an already conviction-prone jury whose composition has been distorted by the outcomeofthis selection process... .” (Haney, Examining Death Qualification: Further Analysis of the Process Effect, 8 Law & Hum. Behav. 133, 151 (1984)). 9. Anyprocedure that “[diminishes] the reliability of the guilt determination” must be struck down. Beck v. Alabama, 447 U.S. at 638. That result is required here. CLAIM 115: Juror Zinn Committed Juror Misconductin Violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment Rights. 1. Duringtrial, it came to light that one of the jurors knew oneofthe prosecution’s key witnessesin the case, Officer Barclift of the Bell Gardens Police Department. Barclift was an investigator during the 1976 double homicide. He interrogated petitioner about the 1976 killings after petitioner’s arrest in 1978. (RT 2339). 2. Juror Zinn was employed at a casino. Officer Barclift served as a police liaison for the casino. He worked closely with the personnel department in which Juror Zinn worked. (RT 2340). He saw her on a daily basis. (RT 2340). He wasresponsible for performing identity checks onall applicants for employment. (RT 2350). 3. Whenthe court was told about the juror’s potential bias, the trial judge suggested, “If you want, gentlemen, I will ask her some individual questions, if you want. Based onthat I’d excuseher, too, but I’d leave it up to you.” (RT 2340). Trial counsel did not excuse the juror, even after she admitted to knowing Officer Barclift during questioning. 4, Moreover, Juror Zinn wasless than candid during her questioning. She had 404 a s lied on her juror questionnaire. Oneofthe sections of the questionnaire wastitled “Legal Training and Relationships With Persons In the Legal System.” (CT 387).That section asked if she had any friendsorrelations in law enforcement. Presumably, since she was not asked about anyone in law enforcement whom she knew during hervoirdire, she did not - mention Officer Barclift on the questionnaire. The jurors had sworn under oath to answer all questions “well and truly.” (RT 217). The jurors were specifically informed that they were under oath when theyfilled out the questionnaires. (RT 217-8). 5. During voir dire, Juror Zinn was asked whether she would beinclined to believe the testimonyof a police officer more than that of other witnesses and she said she would not. (RT 2104). Once again, she did not mention knowing Officer Barclift. 6. During voir dire, Juror Zinn demonstrated a strong desire to serve. She stated that she thought she was a “good juror” and chose to serve despite her employer’s efforts to talk her out of serving. (RT 2107-08). 7. Juror Zinn’s responses under oath to questions were misleading. Shefailed to provide the attorneyscritical information; that she repeatedly had contact with one ofthe key witnesses in the case and that she regularly conversed with Officer Barclift over a period of months. Her less than candid answers, as well as her strong desire to serve, . demonstrate bias on herpart. 8. A juror wholies his way into the jury room is notreally a jurorat all: “The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.” Clark v. United States, 289 U.S. 1, 11 (1933). Clark *? The juror questionnairesas filled out by the prospective jurors who were not selected were not madepart of the record. They have not been located by federal counsel and were not containedin the materials transmitted to federal counsel. Therefore, counsel cannot provide details about any juror’s actual answers on the questionnaires. 405 held that a juror who obtainsthat position by committing fraud on the court is no more entitled to the privileges of that position than a stranger who sneaksinto the jury room: ‘His relation to the court andto the parties is tainted in its origin; it is a mere pretense and sham.” Id; see also Dyer v. Calderon, 151 F.3d 970, 983 (9" Cir. 1998). 9. The Sixth Amendmentguarantees criminal defendants a verdict by impartial, indifferent jurors. The bias or prejudice of even a single juror violated petitioner’s right to a fair trial. See, e.g., Dyer, 151 F.3d at 973; United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977). 10. The voir dire in this case was fundamentally tainted, since the juror’s answers did not disclose necessary information fortrial counsel to assess impartiality. For voir dire to function, jurors must answer questionstruthfully. Dyer, 151 F.3d at 973. 11. The presenceofa biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice. See United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). Like a judge whois biased, (see Tumey v. Ohio, 273 U.S. 510, 535, 71 L. Ed. 749, 47 S. Ct. 437 (1927)), the presence of a biased juror introducesa structural defect not subject to harmless error analysis. See generally Arizona v. Fulminante, 499 U.S. 279, 307-10, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); see also Dyer v. Calderon, 151 F.3d 970, 973 (9" Cir. 1998). 12. Here, the commissioner took inadequate efforts to remedy the misconduct: Thetrial court’s efforts in this regard also violated petitioner’s constitutional rights: Given the extremely delicate situation when a juror is suspected of prejudice or misconduct, the trial judge must assumethe “primary obligation . .. to fashion a responsible procedure for ascertaining whether misconduct actually occurred and if so, whether it was prejudicial.” United Statesv. Boylan, 898 F.2d 230, 258 (1st Cir. 1990). While a trial is ongoing, lawyers may not conduct the kind of aggressive investigation ofjurors they would of other witnesses. In such circumstancesthetrial judge fulfills his duty onlyif he “erects, and employs, a suitable framework for investigating the allegation [of bias] and gaugingits effects[.]” Jd. Where juror misconductor bias is credibly alleged, the tnal judge cannot wait for defense counsel to spoon feed him every bit of information which would makeout a case ofjuror bias; rather, the judge has an independentresponsibility to satisfy himself that the 406° allegation of bias is unfounded. Dyer, 151 F.3d at 978. The commissionershirked his responsibility to provide a fair trial to Mr. Reno. Although the court stated “Based on that I’d excuse her, too, but I’d leave it up to you,” ultimately the court allowed her to continue to serve after conducting a minor inquiry. The court had stated on the record that he felt she should be excused, but then did nothing about it. The court’s failure to remedy Juror Zinn’s misconductfurther exacerbated the error. 13. The juror misconduct andthetrial court’s failures to correct that misconduct, violated petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights. CLAIM 116: The Trial Court Was Partial in its Treatment of Potential Jurors During Jury Selection. The Jury Selected Was Biased in Favor of the Death Penalty and Violated Petitioner’s Sixth and Fourteenth Amendment Rights to a Fair and Unbiased Jury. l. During voir dire, prospective jurors who appeared biasedin favor ofthe death penalty were treated differently than those who appeared to opposeit generally. The former were rehabilitated by the court. They were coaxed into giving responses neutral enoughto survive defense challenges. Thelatter were summarily dismissed without any questioning by the court or counsel. (See, e.g., RT 575-578, 810-819). Often, when prospective jurors who appeared pro-death maintainedtheir positions, despite attempts by the court at rehabilitation, defense counsel’s challenges werestill overruled. 2. Prospective juror Jack Brownsaid that he did not think the fact that petitioner was a homosexual would prevent him from being fair and impartial. The court asked what he meant by “you don’t think so.” (RT 896). Mr. Brown explained, “Well, I have a few little feelings along that line, not a whole lot, but it just — there’s a little bit of a question there. It’s not real strong, but-.” (RT 896). The court asked, “Well, let’s put it this way. If you have any opinions whetherit’s for or against homosexuality, can you put those aside and decide this case on the evidence that the prosecution and the defense give you and the 407 rulings of law that the court gives you.” Mr. Brown responded,“I believe I could,sir.” (RT 896). 3. Trial counsel informed Brownofthe ages of the victims and asked “do you think because you have grandsonsthat are about that age that that might bias you against Mr. Memroin this case?” The juror responded that “It could have something, yes.” Trial counsel asked Brown to explain. Mr. Brownsaid that if anyone hurt his grandsons he would be tempted to “break the law little bit.” (RT 897). Mr. Larkin askedif his feelings might make him “prejudiced or biased against Mr. Memro.” Thejuror replied that “there could be - a possibility.” (RT 897). Trial counsel asked yet again, “If you wereto find out, well, Mr. Memro’s a homosexual, if you were to relate that to the age of the victims,also, in this case, because of those facts, just the age and Mr. Memro being a homosexual, do you think you might be biased against him?” The juror admitted that “I think that I possibly could be yes, sir.” (RT 900). 4. Thetrial court stepped in to rehabilitate Mr. Brown: Those are factors that may or may not be brought to your attention in the penalty phase. That, I don’t know. The pointthat’s important is can you be fair in deciding the guilt or innocence of Mr. Memro knowingthat he’s charged with killing three small boys and knowing that he’s a homosexual? Can youstill say, 1 am fair and impartial in deciding his guilt or innocence? (RT 900). Brown cautiously relented: “T think I could on that. I think I could befair on that. I believe I could, sir. And I wouldn’t guaranteeit, but I think I could.” The court said, “Well, there’s no guaranteesin life at any rate.” 5. There are some guarantees. Petitioneris entitled to constitutional guarantees including his Sixth Amendmentrightto a fair and impartial jury. Trying petitionerin front of either a biased judge or a biased jury violated petitioner’s Due Process guarantees under the Fifth and Fourteenth Amendments and his heightened capital case guarantees under the Eighth Amendment. It wasthe trial court’s responsibility to ensure these guarantees. 6. The rephrased question posed by the court was confusingat best. Hesaid that 408 the issues of homosexuality and the fact that the children were young, “may or may not” be raised in the penalty phase, and essentially reduced the question to whetheror not the prospective juror wasa fair person. Even so, Mr. Brown wasstill unsure. Trial counsel challenged for cause. The court overruled the challenge. (RT 903). 7. In contrast, jurors who voiced even a general opposition to the death penalty were not rehabilitated by the court. Rather, they were routinely dismissed. During voir dire, the court asked four standard questions regarding the opinion ofprospective jurors on their feelings about the death penalty. Juror Elva Cazares gave equivocal responsesto the questions. The court excusedthis juror on its own motion. (RT 1033). When asked whether she “would vote for something other than first degree murderso that [she] wouldn’t _even have to get the death penalty,” she answered “Yes, I think I would.” (RT 1032). 8. The court then tried to clarify the question: If the people prove beyond a reasonable doubtthat the defendant is guilty of murderin the first degree and prove beyond a reasonable doubtthat the truthfulness of the special circumstance alleged, would you refuse to vote for a verdict of the truthfulness of the special circumstance because of a conscientious opinion concerning the death penalty? In other words, regardless of the evidence that might be produced during the course of the trial and because of a conscientious opinion of the death penalty you would on every case automatically vote a verdict of false as to the special circumstance alleged because you know that such a verdict would end the death penalty question then andthere. . (RT 1032-1033). To this, Ms. Cazares answered, “Well, it’s kind of confusing in that term. But just to sum it all up, I don’t believe in the death penalty.” (RT 1033). The court never asked if she could set aside her beliefs and follow the law as instructed. Nor did the court ask if she could fairly determine a sentence, despite her feelings about the death penalty. 9. This unequal treatment ofjurors was seen again with prospective juror Don Abeyta. Abeyta said that he was a strong supporter of the death penalty. (RT 558). He was affected by the age of the victims. Hefelt that anyone who killed children that young would 409 deserve the death penalty. Trial counsel asked: “If you found the facts to be true that Mr. Memrokilled those individuals and you foundthe special circumstancestrue, then because of the age of the boys would you automatically vote for the death penalty?” Mr. Abeyta responded,“I’d have to say yes. They were young.” (RT 561). 10. After the prosecution concludedits questioning, trial counsel challenged for cause. The court rephrasedtrial counsel’s earlier question: “simply because of the ageof the victims and regardless of the evidence you heard in the penalty phase, would you automatically vote for the death penalty?” Abeyta responded, “The way you put it now — you told me after mitigation and aggravation, I would haveto listen to all the facts.” The court affirmed the juror’s response:“That’s correct.” (RT 576). The court permitted trial counsel to ask questions about that area only. Trial counsel asked, “Would youstill lean towards the death penalty because of the age of the victims?” Abeyta responded, “I would say I would listen to all the facts, but I would have to, you know, sympathize in that way, yeah. I would haveto go that way.” Trial counsel asked again, “so due to the nature of the charges you would lean towards the death penalty?” Mr. Abeytaresponded, “T’m more inclined to do so, yes.” Trial counsel asked yet again, “Because of the age of the individuals would it be hard to change your mind from the death penalty?” Abeyta’s answerdid not waiver: “Again,I would say it would be. I would lean that way.” (RT 577). 11. At one point during voirdire,trial counsel asked, “How long were youin the academy?” Since Mr. Abeyta saidthat he had graduated college from Cal State Long Beach, the implication was that he graduated from a police academy. Since the jury questionnaires from prospective jurors who were struck were not preserved, it is impossibleto refer to the questionnaires to see what Mr. Abeyta wasreferring to. Law enforcementtrainingwasyet another reason the court should have sustainedtrial counsel’s challenge. 12. Mr. Abeyta also admitted that he knew people close to him who had been victimized by crime. His father was mugged andhis close friend was molested. (RT 568). 410 Despite these factors, the court deniedtrial counsel’s challenge. (RT 578). 13. Prospective juror Julietta Lopez, like Ms. Cazares, responded that she did “not think” she would refuse to vote for guilt because of her conscientious objection to the death penalty. (RT 1540). She stated her concern that there had been no executions in California and that “the death penalty really doesn’t mean that much any more.” (RT 1540). She indicated that she would vote for life without parole; then, after asking the court to repeat its question concerning her voting for something other than first degree murder, she indicated that she would vote to avoid the death penalty. (RT 1542). The court immediately excused her on his own motion without asking further questions. (RT 1542). 14. A juror cannot be excluded simply because of a general objection to the death penalty. Witherspoonv.Illinois, 391 U.S. 510, 512 (1968). The proper standard is “whetherthe juror’s views on the death penalty would ‘prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath..” Wainwright v. Witt, 469 U.S. 412, 424 (1985). Exclusion of a single jurorin violation of this standard denies petitioner his right to an impartial jury as guaranteed by the Sixth and Fourteenth Amendments. 15. Ms. Cazares stated her general opposition to the death penalty. She was equivocalin her responseto the initial question of the court. Thetrial judge then presented a rambling and confusing “clarification” of his question. Cazares once again respondedthat the question was confusing and restated her general objection to the death penalty. The court then immediately excused her without any attemptto assist her in getting to the root of the confusion. This action amounted to an automatic exclusion ofthis juror basedsolely on her general objection to the death penalty. There was no showingthat her duties as a juror would be “substantially impaired”by herbeliefs on this issue. 16. Having gotten an equivocal response from Lopez, the court took no action to clarify the juror’s responses and to determine if there was a substantial impairmentofthis 411 juror. The court failed to determineif either juror would follow the law as instructed. It waserror to exclude her without further questioning. The failure to engage in adequate questioning wasprejudicial, as it resulted in the seating of a biased jury. Onat least two occasions during voirdire, the court did allow trial counsel to question the jurors even after they voiced an objection to the death penalty and the jurors rehabilitated themselves by clarifying their positions. 17. Juror Gerald Bradford said he would not vote for the death penalty. But then whenthe court followed up and askedif evenif all the facts supported a verdict of death would hestill refuse to vote for the death penalty. The juror said that he would vote for death in that situation and was ultimately passed for cause by both sides. (RT 820). 18. One juror who seemed emphatically opposed to the death penalty actually ended up being challenged by trial counsel as “auto-death” after additional questioning and was excused for cause. The court asked Juror Susan Aguirre if she would “vote for a verdict of false as to the special circumstances alleged because you knowthat such a verdict would. end the death penalty question then and there.” Ms. Aguirre answered “yes.” (RT 660). The court asked twice more to confirm her answer, and each time she respondedin the affirmative. The court next asked “would you in every case automatically vote for life imprisonment without possibility of parole and never vote for a verdict of death?” Ms. Aguirre responded that she would. The court asked again and again Ms. Aguirre responded that she would. 19. The court then allowedtrial counsel to ask some questions. Larkin began,“In other words, you don’t believe in the death penalty?” “No,” Ms. Aguirre responded,“I don’t.” Larkin probed deeper, “So there are no circumstances wherein you would ever give the death penalty?” Ms. Aguirre again responded, “No.” (RT 661). The court stepped in and explained the reasons for the questions. (RT 662). Ms. Aguirre, without any prompting from the court or from counsel, observed that “it isn’t just one life we’re talking about 412 here.” The court said “three separate.” To which Ms. Aguirre responded,“In all honesty, then I would ask for the death penalty.” The court asked “regardless of what the defense offered?” Ms. Aguirre responded “yes.” Larkin challenged for cause and the juror was excused. The court noted that either side could have been granted a challenge for cause, illustrating how perceptionsof a jurors beliefs can change over the course of the voir dire, (RT 663). 20. Jurors Bradford and Aguirre demonstrate that just because a jurorarticulates a general opposition to the death penalty, that does not warrant exclusion without further evidencethat the juror’s duties would be impaired. There was no reasonto believe that if given the chance, jurors Lopez and Cazares would not have rehabilitated themselves as well. 21. The court, through its own examination of the jurors, rehabilitated jurors who appearedto be auto-death. In contrast, when jurors appeared to oppose the death penalty, the court would summarily excuse them after makingno inquiry into their beliefs whatsoever. The court demonstrated bias and helped the prosecution assemble a jury panel biased in favor of the death penalty. Theactions of the trial court thus denied petitioner an impartial jury as guaranteed by the Sixth and Fourteenth Amendments. CLAIM 117: Informing The Jury That There Had Been a Previous Trial Violated Petitioner’s Right to a Fair Trial. 1. Atvarious times, the prosecution and thetrial court both indicated to the jury that there hadbeen a priortrial. Conveying this information to the jury unconstitutionally tainted the jury’s verdict by lessening the jury’s appreciation ofthe critical nature of their decision making process. 2. The prosecution called Officer Donald Barclift of the Bell Gardens Police Departmentto testify. Officer Barclift described the crime scene at Ford Park,thesite of the 1976 killings. He identified photographs which were circulated among the jurors. The court interrupted and-asked,“Mr. Millett, excuse me for a second. Ladies and Gentlemen, 413 at the time you lookedat any ofthe pictures, any of you look at the backs ofthe picture? . . . Did you notice anything back there?” Onejuror said she had looked at the back of the pictures but only noticed the exhibit number. (RT 2357). 3. After the witness and jury were excused, the court addressed the parties: “Gentlemen, I noted on the exhibits that the original trial date appears. It doesn’t seem to have caused a problem at the present point, but it could in the future. Therefore, I’m going to have the clerk tape overall the previous identification except for the ones in thistrial.” (RT 2365). 4. Subsequently, trial counsel cross-examinedDetective Lloyd Carter of the South Gate Police Department. During the examination, counsel referenced a particular page: Mr. Larkin: Page 863 of the transcript dated April 10. Mr. Millett: This is 1979? Mr. Larkin: No, ‘86 —‘87. (RT 2487). Since the secondtrial did not commence until 1987, the reference to 1979 was tantamountto telling the jury that there had been a prior trial eight years previously. 5. Petitioner contested guilt on Counts 1 and 2. (RT 2827). Petitioner also contested the first degree murder charge on Counts 2 and 3. The indication that there had been a priortrial, and thus, convictions on the charges, completely underminedpetitioner’s defense, just as it underminedtrial counsel’s credibility for presenting a defense of not guilty. 6. These errors were exacerbated by the court’s instruction to the jury that Count 1 was second degree murder as a matter of law, for reasons about which they were not to speculate, This instruction focused the jury on the issue without giving any explanation. It could only lead to speculation. The knowledge that there had been a prior conviction poisoned the objectivity of the jury as surely as if the jurors had knowledge of 414 the case and conviction from the media. 7. Oneof the jurors had heard aboutpetitioner’s case before the trial. (Juror Questionnaire of Elizabeth Ann Burns, Pg. 8). The prejudice of her knowledge was compoundedbythe disclosures of the previoustrial. Juror Burns not only knew ofthe case from extra-judicial sources but then also learned that there had been a prior conviction. Herlegal training ensured that the jurors knew that a retrial meant there had been a conviction. 8. The Sixth Amendment guarantees to all criminal defendants including, through the Fourteenth Amendment, defendants before state courts, (see Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968)), the right to “a speedy and publictrial, by an impartial jury... .” U.S. Const. Amend. VI. Where a juror has become aware through extrajudicial sources that the defendanthas a prior criminal record, the established practice is that that juror is presumedto be prejudiced and should be excused. See, e.g., Marshall v. United States, 360 U.S. 310 (1959). 9. The error here was even more pronounced. The jury was made awarethat petitioner had prior criminal convictions on those precise charges. This knowledge did not require inferences deduced from a prior criminal record ~— that if a defendantdid this before, he likely will do it again. No inference was required — instead, the jury could conclude he was guilty because he had already been found guilty. 10. A juror uncertain of his vote would likely be swayed by the knowledgethat anotherjury had previously resolved the identical issue adversely to defendant. Romanov. Oklahoma, 512 U.S. 1 (1994). The Supreme Court has held that the jury must not be misled regarding therole it plays in the sentencing decision. Caldwell v. Mississippi, 472 U.S. 336 (1985) (plurality opinion); Jd., at 341-342 (O'Connor, J., concurring in part and concurring in judgment). The jury could not help but be misled about the importanceofits role when it was told that petitioner had already been convicted. 415 11. Thetrial court never instructed the jury to disregard the prosecutor’s comments. The court was complicit in conveying this information to the jury. The court allowed the jury to view exhibits with information from the prior trial and gave no instruction regarding this error. 12. The jury was informedthat petitioner had previously been tried for the same crimes. It is reasonably likely that the jurors concluded that he had been previously convicted and sentenced to death for those crimes, since the prosecutor was now seeking convictions and a death sentence again. This knowledge hadthe natural tendencyto lessen the jury’s understanding of the import of its decision. Any doubtin the jurors’ minds was eased by the knowledgethat a prior trial had already ended in a conviction and a death sentence. 13. These errors were prejudicial in both the guilt and penalty phases. The defense contested petitioner’s guilt on Counts 1 and 2 (the 1976 killings). Trial counsel conceded petitioner’s guilt on Count 3 without petitioner’s consent and overpetitioner’s specific objection, but argued that petitioner was guilty of a lesser offense. If the jury found petitioner guilty of second degree murder on Count3, petitioner would have avoided a penalty phase. The knowledgethat petitioner had been previously convicted on these charges severely undercut the defense. | 14. The defense alsorelied in part on the concept of lingering doubt in the penalty phase. Knowledge ofthe prior conviction and sentence unfairly prejudiced the jurors against this defense. Lingering doubt is doubt less than a reasonable doubt. Itis, however, a valid defense in the penalty phase. People v. Cox 53 Cal. 3d 618 (1991). 15. The defense also arguedthat a life sentence was appropriate based on the limited social history evidence presented in the penalty phase. Knowledgeofthe prior death sentence eviscerated any impartiality the jury may have had. It also lessened the jury’s sense of responsibility for their penalty phase decision. See, e.g., Caldwell. 416 16. The discovery that there had been aprevioustrial violated petitioner’s right to a fair trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments. I. CLAIMS. RELATING TO MENTAL DEFENSES. CLAIM 118: Petitioner was Mentally Incompetent to Waive Anyof his Rights at the Timeof his Arrest and Confession. I. As a result of the mental condition described by Dr. George W. Woods (Exhibit CC), petitioner was not competent to waive any rights with respect to his arrest and confession and did not knowingly andintelligently waive such rights. See also Claim 118. 2. As a result of the above, petitioner was denied a fair trial anda reliable determination of guilt and penalty. CLAIM 119: Petitioner was Mentally Incompetent to Stand Trial. 1. Petitioner had extremely poorrelations with his attorneysat trial and virtually no communication with them. 2. As a result of the mental condition described by Dr. George W. Woods (Exhibit CC), petitioner was unable to participate in his defense in a rational manner. 3. Had a reasonable investigation and inquiry been madeeither bythetrial court or trial counsel, petitioner's incompetence would have become known. There were sufficient facts known toboth the court and counsel to require such inquiry.and investigation. 4. Trial of a mentally incompetent person such as petitioner violates the right to due process within the meaning of the Fourteenth Amendment. It also produces violations of the host of trial nghts protected by the Sixth and Fourteenth Amendments, including the nghts to a fair trial, to present a defense, to compulsory process, to confrontation and to the assistance of counsel. In a capital case such asthis, it further violates the protections of the Eighth and Fourteenth Amendments, including the nights to a reliable, accurate, non-arbitrary determination of capital murder and the appropriate 417 punishment. Drope v. Missouri, 420 U.S. at 172, 181; Pate v. Robinson, 383 U.S.at 387; Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001). 5. Petitioner was deprivedof his right to put on a defense because he wastried while incompetent. Crane v. Kentucky, 476 U.S.at 690. 6. Petitioner also was deprived of his foregoing constitutional rights through the violation of his constitutional right to be presentat trial, (Smyder v. Massachusetts, 291 U.S. 97, 107-108 (1934)), and the related state statutory rights, per Penal Code §1043, because his mental incapacity rendered him mentally "not present," and per §1368, defining the procedure for determination of competency when a doubtarises. 7. The state statutory violations also give rise to Fifth and Fourteenth Amendmentliberty and due processinterest violations. See Hicks v. Oklahoma, 447U.S. at 346-347. 8. During the penalty phase, petitioner demonstrated his inability to participate with his defense in a rational manner, when he demandedto make a statement. The statement he made was: While I do not concedethe truth, accuracy or correctness of the jury’s verdicts, I do feel that since the jury has determinedthe verdicts of guilt and the maximum degree possible on all countsand the special circumstances, that they should also now return with a verdict of death as the appropriate penalty. (RT 2961). 9. The Court noted that the statement did nothing to assist or further his case. Petitioner responded “Yes, it does.” (RT 2961). He explained: “There are a numberof reasons whyI prefer the death penalty at this point.” (RT 2961). Whenthetrial court initially stated it would not allow the statement, petitioner offered to request to go pro per so he could makethe statement. (RT 2961-62). 10. The trial court recognized that petitioner was mentally ill and seeking what amounted to judicial suicide: 418 I don’t know that there’s any authority that says that the defendant can thwart the judicial system by standing up andsaying, “I want death, ladies and gentlemen of the jury,” and in essenceturn this into a travesty. I for one will not be a party to it if the People ~ if that’s the People’s position. .. . Mr. Memro,| realize to you weare all your enemies. That’s fine. Your own paranoia is something you’ll have to deal with... (RT 2963). After a recess, the trial court explained ““What we have here, though,is the court participating so to speak in judicial suicide.” (RT 2964). After trial counsel expressed objection, the trial court commented “Maybethere’s a methodin his madness.” (RT2966). 11. Petitioner’s suicidal impulses were demonstrated bytrial counsel’s statement to the Court regarding petitioner’s thoughts about the penalty phase presentation: Mr. Memro has been trying to keep me from calling any witnesses that might help him in the penalty phase. He attempted on two different occasionsto dissuade the last witness that we had on the stand from testifying. Hetried to get herto leave,tried to get her notto testify. And no he’s coming— nowthat she testified he now says that he wants to make the statementto the jury. Until he did tell the court today, he had mentioned the statement but had never said he was going to doit. (RT 2966-67). The Court explained: It just seers to me that we’re participating in judicial suicide, and I find that very offensive. (RT 2967). 12. These events putthe trial court on notice that petitioner was suicidal, as the court itself acknowledged. Having recognizedhis suicidal nature, as well as his paranoia, the trial court was obligated to inquire into petitioner’s competence. Naturally, any evidence regarding suicide ideation or attempts is strong evidence of mentalillness, oftentimes reaching incompetency. United States v. Loyola-Dominguiez, 125 F.3d 1315, 1318-1319 (9th Cir. 1997). 13. Atamunimum,the Court was obligated to conduct a competency determination and initiate competency proceedings sua sponte: [When a “doubt”arises in the mindofthetrial judge regarding defendant's present 419 sanity or competenceto standtrial, it becomeshis duty to certify the defendantfor a sanity hearing; the matteris jurisdictional and cannot be waived by defendantor his counsel. In Re Davis, 8 Cal.3d 798, 808 (1973), citing, inter alia, Robinson v. Pate, 383 U.S.at 384. 14. As held by this Court, in People v. Hale, 44 Cal.3d 531, 538-539 (1988), the failure to hold a competency hearing following the court’s explicit expression of doubt as to defendant's competency and its subsequent order requiring a competency hearing,is error and cannotbe cured by a retrospective appellate determination of probable competenceto standtrial. In addition to petitioner’s federal constitutional right not to be tried while incompetent, he had the state-created rights as discussed herein. To the extent that these rights were denied him,petitioner’s right to a state-created liberty interest were arbitrarily violated, which constitutes a Due Process violation. See, e.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Vitek v. Jones, 445 U.S. 480 (1980); Hewitt v. Helms, 459 U.S. 460 (1983); Hicks v. Oklahoma, 447 U.S. 343 (1980). Any . sub silentio disposition of the section 1368 proceedings withouta full competency hearing rendered the subsequenttrial proceedings void becausethe court had been divested ofjurisdiction to proceed pending express determination of the competencyissue. Id., at 541. 15. There were no soundtactical reasons for the failures of counsel regarding competency issues. Counsels’ performance fell below any objective standard of reasonableness under prevailing professional norms. Moreover, each such failure subjected petitioner to prejudice,i.e., there is a reasonable probability that, but for each such failing by counsel, the trial’s result would have been more favorable to petitioner, at both the guilt and penalty phases. 16. Trial counsel’s failure to adequately investigate or timely express a doubt as to competency, failure to present supporting evidence and withdrawal or abandonmentof competency proceedings, violated petitioner’s Sixth Amendmentrightto effective 420 assistance of counsel andpetitioner's Fifth, Sixth and Fourteenth Amendment nights to liberty, fair trial, present a defense, be presentat trial, confront witnesses, due process, and the right to heightened capital case due process under the Eighth and Fourteenth Amendments, and also violated the subsidiary right to reliable capital case sentencing, and the related state statutory rights, per Penal Code §1043, because his mental incapacity rendered him mentally “not present,” and §1368, defining the procedure for determination of competency when a doubtarises. 17. The state statutory violations also give rise to Fifth and Fourteenth Amendmentliberty and due process interest violations. See Hicks v. Oklahoma, 447 U.S. at 346-347. Eachofthese state and federal constitutional rights were violated, and the conviction and sentence are void. See e.g., Hicks vy. Oklahoma, 447 US.at 346-347, - Drope v. Missouri, 420 U.S. at 172, 181; Pate v. Robinson, 383 U.S. at 384, 387; Crane v. Kentucky, 476 U.S. at 690; Duncan v. Louisiana, 391 U.S. at 147-158; Stricklandv. Washington, 466 U.S.at 694; Coy v. Iowa, 487 U.S. at 1015-1020; Ake v. Oklahoma, 470 U.S. at 83; Woodson v. North Carolina, 428 U.S. at 304; People v. Mayes, 202 Cal.App.3d at 915; In Re Davis, 8 Cal.3d at 808; People v. Hale, 44 Cal.3d at 538-539. 18. Aclient’s mental illness and mental incompetency place. an even greater obligation on trial counsel to ascertain the details of the mental illness, how it effects the client's mental functioning and competency to proceed, seek further expert evaluation, express a doubt as to competency and otherwise represent the defendant properly in view of such factors, particularly in a capital trial. Blanco v. Singletary, 943 F.2d 1477, 1502 (11th Cir. 1991); Thompson v. Wainwright, 787 F.2d 14447, 1451 (11thCir. 1986). 19. Asa result of the above, petitioner was denied his rights to notice, due process,liberty, fair trial, unbiased jury,jury trial, effective assistance of counsel, heightened capital case due process,reliable and reviewable guilt determination, individualized, reliable and reviewable penalty determination, fairness in capital case 42] se as sentencing, the prohibition against cruel and unusual punishments and the prohibition against death-biased proceedings,all constituting arbitrary and unreasonable decision makingin violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. CLAIM 120: Petitioner Was Deprived of His Right of Access to and Assistance of Competent Mental Health Experts, in Violation of Akev. Oklahoma. — 1. Petitioner was deprived ofhis right of access to, and assistance of, effective mental health experts, Ake v. Oklahoma, 470 U.S. 68, 83 (1985), in violation of his rights | to notice, due process,liberty, fair trial, unbiased jury, jury trial, effective assistance of counsel, heightened capital case due process, reliable and reviewable guilt determination, individualized, reliable and reviewable penalty determination, fairness in capital case sentencing, the prohibition against cruel and unusual punishments and the prohibition against death-biased proceedings,all constituting arbitrary and unreasonable decision makingin violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. See e.g., Ake v. Oklahoma, 470 U.S.at 83; Hicks v. Oklahoma, 447 U.S. at 346-347; Crane v. Kentucky, 476 U.S. at 690; Duncan v. Louisiana, 391 U.S. at 147-158; Strickland v. Washington, 466 U.S. at 694; Woodson v. North Carolina, 428 U.S. at 304; Pate v. Robinson, 383 U.S. at 387; Drope v. Missouri, 420 U.S. at 172, 181. 2. A defendantin a capital case has a federal constitutional due process nght to "... access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense..." Ake v. Oklahoma, 470 U.S. 68, 83 (1985). 3. Violation of the foregoing guarantees inevitably results in numerous other constitutional errors. Infringement of the Ake right also violates the Sixth Amendment right to effective assistance of counsel, because the former violation makesit impossible for trial counsel to perform consistent with the Sixth Amendmentstandard, per Strickland v. Washington, 466 U.S. at 694. Additionally, evidence of mentalillness is relevantto a 422 number of fundamental issues arising throughoutthe trial process. It is relevantto trial competency; evidence of mental illness, or mental conditions short of illness. It may also be relevant to guilt phase mental state issues, such as sanity at the time ofthe crimes,intent to kill, diminished capacity (at the time of petitioner's trial), imperfect self-defense, etc., and can also be relevantto three of California's penalty phase statutory factors in mitigation, per §190.3, subdivisions (d) extreme mental disturbance, (h) capacity impaired by mental disease or defect, and (k) any extenuating circumstance. Therefore, a constitutional violation under Ake can, and here did, give rise to additional constitutional violations ofall of the constitutional guaranteesset forth, ante. 4. Prior to and during petitioner's trial of this matter, his attorneys were aware, or should have been aware, of manyofpetitioner's past and current displays of symptoms of mentalillness, treatments for mentalillness, his related life history, related family history and risk factors for mental illness. These manifestations and factors were consistent with various serious mental diseases or disorders, including butnot limitedtoall those described elsewherein this petition. 5. Trial counsel's failure to adequately provide available informationto the mental health experts, to investigate matters relevantto petitioner's mental health,failure to recognize the inadequacies in the evaluations they received, failure to consult with other mental health experts, and failureto raise petitioner's incompetencyor assert other mental health related defenses, violated petitioner's Sixth Amendmentright to effective assistance of counsel and petitioner's Fifth, Eighth and Fourteenth Amendmentrights to due process and heightened capital case due process, per the authorities cited infra, ante. 6. The failures of counsel were without a soundtactical reason, counsels' performancethus fell below any objective standard of reasonableness underprevailing professional norms. | 7. Eachof the foregoing constitutional guarantees was violated by the matters 423 described here, prejudicing petitioner and mandating reversal. 8. Dr. K. Karols and Dr. John Stalberg were appointed by the court to examine petitioner in 1979. They failed to provide counsel with a responsible and accurate evaluation ofpetitioner, in that, inter alia, they conducted only two abbreviatedjail meetings with petitioner which were inadequate to allow any meaningful mental health evaluation and properly evaluate Mr. Reno. The only other information source the doctors considered wasthe preliminary hearing transcript ofNovember 13, 1978. 9. The doctors failed to meaningfully observe petitioner, obtain an adequate social history,*° order or perform full and appropriate testing.*' They did not conduct any 30 Because “[i]t is often only from the details in the history that organic disease may be accurately differentiated from functional disorders or from atypical lifelong patterns of behavior,” R. Strub & F. Blac, Organic Brain Syndromes (1981) at 42, an accurate and complete medical and social history has often been called the “single most valuable element to help the clinician reach an accurate diagnosis.” Kaplan & Sadock, Comprehensive Textbook OfPsychiatry/VI (Williams & Wilkins 1995) at 837. It is well recognized that the patient is often an unreliable and incomplete data source for his own medical and social history. “The past personal history is somewhatdistorted by the patient's memory of events and by knowledgethat the patient obtained from family members.” Kaplan & Sadock, at 884. Accordingly, “retrospective falsification, in which the patient changes the reporting of past eventsoris selective in whatis able to be remembered,is a constant hazard ofwhich the psychiatrist must be aware.” Jd. Because of this phenomenon, [I]t is impossible to base a reliable constructive or predictive opinion solely on an interview with the subject. The thorough forensic clinician seeks out additional information on the alleged offense and data on the subject’s previousantisocial behavior, together with general "historical" information on the defendant, relevant medical and psychiatric history, and pertinent information in the clinical and criminological literature. To verify what the defendanttells him about these subjects and to obtain information unknownto the defendant, the clinician must consult, and rely upon sources other than the defendant. Bonnie & Slobogin, The Role ofMental Health Professionals in the Criminal Process: The Case for Informed-Speculation, 66 Va. L. Rev. 4237 (1980); accord Report ofthe Task Force on the Role ofPsychiatry in the Sentencing Process, Issues in Forensic Psychiatry, 202 (1984); Pollack, 424 © interviews of other persons, let alone comprehensive interviewssufficient to discover petitioner’s full mental disease and defect. 10. Dr. Karols and Dr. Stalberg failed to meet the standard of care required by their own profession and failed to perform as competent psychiatrists, in rendering their ’ opinionsofpetitioner’s mental state. Had they met their profession’s minimally required standard of care, they would have reached the conclusionsthat: (1) petitioner was not competent to proceed to a capital trial and (2) petitioner lacked the capacity to premeditate, deliberate and form malice. 11. The doctors and/or their associates and agents, did not provide a proper mental evaluation of petitioner. They either did not know aboutor failed to determine that petitioner suffered from mental disorders. In fact, they diagnosed petitioner as having no psychosis or significant neuroses. Hadtrial counsel provided adequate information to the experts and had the experts met a reasonable standard of care, the experts would have reached the conclusions of Dr. George Woods- namely,that petitioner suffers from Borderline Personality Disorder and Post Traumatic Stress Disorder. See Exhibit CC. 12. Dr. Alfred Coodley was also appointed on petitioner’s behalf. Dr. Coodley failed to properly evaluate petitioner because he conducted a single briefjail meeting with petitioner and reviewedthe preliminary hearing transcript ofNovember 13, 1978. 13. Dr. Coodley relied on the inadequate social history provided bypetitioner. Asall patients do,petitioner painted a minimalist view ofhis family life, stating only that he never got along with his family. He never discussed the mental illnesses suffered by his Psychiatrie Consultationfor the Court, 1 Bull. Am. Acad. Psych. & L. 267, 274 (1974); H. Davison, Forensic Psychiatry 38-39 (2d ed. 1965). 31 For example, they did nottest for organic brain damage,or any other disorder, nor did he conduct a comprehensive neuropsychological examination. The limitations within which they operated as the evaluating mental health professional severely compromisedthe integrity of his findings. 425 & e s mother and her extreme lack of affection for her children and its attendant effects on them. 14. Dr. Coodley also was not told about petitioner’s father’s severe alcoholism and his violent behavior toward everyonein his family, especially petitioner. Dr. Coodley was nevertold of the harsh beatings petitioner received from his father. Withoutthis information, an adequate diagnosis and opinion wasnot possible. See Exhibit AA, Declaration of Gretchen White. 15. Dr. Coodley and/orhis associates and agents, did not provide counsel with a proper evaluation ofpetitioner. He either did not know about orfailed to determine that petitioner suffered from additional mental disorders, including Borderline Personality Disorder and Post Traumatic Stress Disorder. 16. Dr. Coodley made several other observations. Although it was requested, trial counselfailed to follow up with further investigation or provide additional available factual information. Dr. Coodley foundthat petitioner manifested paranoid trends. He observedthat petitioner’s ability to conform his conduct to the requirements of law was somewhat impaired. He foundthat petitioner’s ability to deliberate, premeditate and harbor malice were diminishedat the time of the offense. Trial counsel did not provide additional evidence regardingpetitioner’s history of emotional behavior which would have further supported these findings. 17. Dr. Edward Connelly,a licensed psychologist, administered psychological tests to petitioner. Dr. Conolley foundit likely that petitioner had decompensated into a borderline pattern of a schizoid personality disorder with accompanying social competence deficits and periodic psychotic episodes. Dr. Conolley stated that more extensive psychodiagnostic assessment was required to rendera firm diagnosis. Counsel never provided such evidence to Dr. Conolley, despite its existence. 18. Dr. Michael Coburn wasalso appointed on petitioner’s behalf. Hefailed to provide a proper evaluation of petitioner.. He conducted only three briefjail meetings with 426 petitioner, and reviewedthe preliminary hearing transcript of November 13, 1978 and Dr. Conolley’s testing. 19. Dr. Coburn alsorelied on the inadequatesocial history provided by petitioner. As mentioned above,andasall patients do, petitioner painted a minimalist view of his family life, stating only that he never got along with his family. He never discussed the mental illnesses suffered by his mother and her extreme lack of affection for her children andits attendant effects on them. 20. Dr. Coburn also wasnottold about petitioner’s father’s severe alcoholism and his violent behavior toward everyone in his family, especially petitioner. Dr. Coburn was nevertold of the harsh beatings petitioner received from his father. Withoutthis information, an adequate diagnosis and opinion wasnot possible. See Exhibit AA, Declaration of Gretchen White. 21. Dr. Coburn did not know aboutor failed to determine that petitioner suffered from additional mental disorders, including Borderline Personality Disorder and Post Traumatic Stress Disorder. Because Dr. Coburn did not have the required information, he misdiagnosed petitioner as having a severe personality disorder of homosexual pedophilia, as well as characteristics of an explosive personality. With this limited information, Dr. Coburn found that petitioner may have lackedthe ability to premeditate and deliberate or harbor malice. Yet, counsel failed to follow up on this critical opinion. 22. Trial counsel rendered ineffective assistance in failing to utilize psychological evaluations of petitioner, which were conducted while petitioner was at San Quentin followingthe first trial. These evaluations documented signs of both paranoid and schizophrenic thinking. He was diagnosed with schizophrenia, residual type. An additional diagnosis was Dissociative Reaction. Trial counsel should have providedthis information to all the defense experts. 23. Counsel also failed to ensure that mental health experts had necessary 427 information in order to adequately examine and diagnosepetitioner. Reports from petitioner’s hospitalization at Atascadero in the early 1970's were available. These would © have providedcritical information regarding petitioner’s mental condition. These reports would have been sought by reasonable mental health experts. The reports stated that petitioner had a sense of being attacked and had over-learned the responseto attacks of attacking back. The reports also noted his history of severe lifelong headaches. Theyalso documented physical abuseat his parents’ hands. 24. Counsel also failed to inform his experts of Dr. Harold Deering’s report to Judge McGinley regarding the David Schroederincident in 1972. In that report, Dr Deering notedpetitioner’s severe reactions to a blow to the face and that petitioner tended to respondby reflex action. The psychiatric diagnosis was paranoid personality. Competent medical experts would have required reports like this one in forming an adequate diagnosis ofpetitioner. 25. Trial counsel failed to obtain and thus the mental health experts failed to consider, petitioner’s records from his confinement in Atascadero State Mental Hospital. These records show brain abnormalities visible on an E.E.G., and cite as a potential cause a 1965 motorcycle accident. These are the type of records which reasonable experts would have considered and the resulting opinions rendered by experts were accordingly flawed. 26. These failures were obviously prejudicial to petitioner. At petitioner’sfirst trial, counsel presented a mental state defense. Because of the errors discussed herein, however, that mental state defense was unsuccessful. Had trial counsel rendered effective assistance and had the mental health experts used a reasonable standardof care,it is reasonably likely that petitioner would not have been convicted offirst-degree murderin Count 3, and thus petitioner would not have been death eligible. Pursuant to Double Jeopardy principles, petitioner thus would not have been death-eligible in the secondtrial. 27. At the secondtrial, trial counsel concededthat petitioner wasthe killer in 428 Count3, but contested guilt on Counts 1 and 2. Counsel did so despite the wealth of evidence of mental disease as detailed herein. This evidence would have powerfully undercut the assertion that any of the crimes werefirst-degree. 28. Trial counselalso failed to use this evidence during the penalty phase ofthe secondtrial. Fully-informed opinions rendered by thoroughly prepared mental health experts would have been powerful evidence in mitigation. Trial counsel presented no mental health experts at the penalty phaseat all. Instead, trial counsel presented a single witness, petitioner’s sister, who tended to minimize petitioner’s woeful social history, as well as his lengthy history of mental illness about which she was largely ignorant. 29. Because ofthe failures discussed herein, mental health experts failed to discoverthat petitioner was incompetentto standtrial. 30. Counsel failed to provide the mental health experts with that level of information which wasor should have been knownorreadily availableto them, that would have been provided by any reasonably competent defense attorney with or without a request for additional information. Any reasonably competent attorney would have known that these doctors could not render a proper opinion on the information given. 31. The failure to exercise reasonable diligence to produce exculpatory or mitigating evidence, the failure to presentit to the relevant fact-finder and the decision to employ faulty strategy resulting from lack of diligence in preparation and investigation are not protected by the presumption in favor of counsel. Failing to interview witnesses or discover exculpatory or mitigating evidencerelatesto trial preparation and nottrial strategy, thus failure to locate or present such evidenceis ineffective assistance, Kenley v. Armontrout, 937 F.2d at 1304, whether the evidence involves the defendant's mental health reports, id., or the defendant’s mental and socialhistory. . 32. The inadequacies in the mental health professionals’ evaluations were so patent that they would have been recognized by any reasonably effective capital case 429 defense counsel. Given the social history information available to them, counsels’ reliance on those evaluations, failure to perceive the inadequacies in those evaluations,failure to seek a separate evaluation from another mental health expert and resulting failure to assert petitioner's incompetency,or raise other mental health related defenses, such as claims bearing upon intent, and present penalty phase evidence in mitigation, amounted to ineffective assistance of counsel, in violation of the Sixth, Eighth and Fourteenth Amendments. Wiggins, 539 U.S. 510, 123 S. Ct. 2527, 2536-2537. 33. Trial counsel either had documentation ofall the matters alleged elsewhere in this petition concerningpetitioner and all information bearing upon his mentalillness, or that information wasreadily available to them. They presented inadequate information, failed to investigate such matters, failed to present such information to the mental health experts and failed to use the appropriate information in formulating their owntrial strategy at both guilt and penalty phases. I. OTHER CLAIMS. 1. GUILT PHASE. CLAIM 121: Petitioner was Deprived of a Fair and Accurate Guilt and Penalty Phase due to Lack of Available Material Evidence. l. Petitioner's conviction, special circumstance findings and sentence of death are illegal and were unconstitutionally obtained in violation of his Sixth, Eighth and Fourteenth Amendmentnghts to fair trial, to the effective assistance of counsel, to a reliable and accurate determination of guilt and sentence of death, and to due process of law, as a result of: (a) absence of a complete psychiatric evaluation of petitioner; (b) absence of evidenceofthe timing ofthe alleged lewd and lasciviousact; (c) lack of investigation regarding the testtrmony of Jose Feliciano; (d) absence ofreadily available evidencethat petitioner would not voluntarily consent to the search and provide a statement to the police; (e) absence of evidence that another person or personsother than defendant 430 » were responsible for the Bell Gardenskillings; (f) lack of evidence or instruction upon which the jury could have considered the voluntariness of the confessions; (g) denial of petitioner's statutory and constitutional right to a speedytrial; (h) lack of a timely request for a lingering doubtinstruction. 2. Petitioner’s rights were also violated by the absence of a complete psychiatric evaluation of petitioner and the absence of evidenceof the timing of the alleged lewd andlasciviousact. 3. Trial counsel failed to conduct an investigation regarding the testimony of Jose Feliciano. 4, Trial counsel knew that Jose Feliciano, an eyewitnessat the scene ofthe Bell Gardenskillings, had been hypnotizedandtherefore his testimony would be inadmissible underthe case of People v. Shirley, 31 Cal.3d 18 (1982). Despite the absolute ability to keep this testimony from the jury, trial counsel, as a result of a lack of discovery materials by the South Gate Police Department and intentional trickery by witness Feliciano, waived his objection without adequately investigating whether Feliciano would identify petitioner as bemg'in the park aroundthe timeofthe killings. 5. Tmial counsel did not have an investigator interview Feliciano prior to making the decision to waive his objection andtrial counsel did not have an investigator present whentrial counsel interviewed the witness prior to his testimony. As a consequence, when Feliciano changed his story on the stand, petitioner (whose attorney wasin the conflicted position of both attorney and essential witness) could not present "prior inconsistent statement" testimony. At the timeofpetitioner's trial, Feliciano was in custody. Trial counsel did not investigate whether Feliciano received any benefit from the prosecution for his testimony identifying petitioner. 6. Ontrial counsel's representation that Feliciano said he could not and would not identify petitioner as being at the park, petitioner waived his Shirley objection. 431 Feliciano then did identify petitioner as looking like the person he saw at the park with the victims shortly before their death. Trial counsel did not impeach Feliciano's testimony and did not advise petitioner of the conflict between counsel's role as a witness and his duty as petitioner's counsel. 7. Feliciano wasthe only witness to identify petitioner as being even near the crime scene. There wasnotactical reason for not investigating and interviewing the witness with an investigator present. Asa result, petitioner was prevented from making an informed choice regarding the waiverof the Shirley objection. Because no investigator was present whentrial counsel interviewedFeliciano, petitioner was denied effective conflict-free representation and the opportunity to call trial counsel as a witness or otherwise impeach Feliciano's testimony. 8. Reasonably adequate investigation of Feliciano's testimony and the proper use of an investigator would have produced a morefavorable result at the guilt and penalty phase. (See, e.g., Exhibit M, Declaration of Jose Feliciano). 9. The lack of adequate investigation, the failure to use an investigator to interview Feliciano andthe lack of a basis for an informed decision on the Shirley issue deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 10. Petitioner’s rights were also violated by the absence of evidence which would demonstrate that it was unlikely that petitioner would voluntarily confess to the police or consent to a search ofhis residence. 11. Trial counsel reasonably should have knownofthe reports that petitioner had a particularly low pain threshold and wasespecially fearful of physical attack andthreats. 12. In addition, evidence readily available through family members, friends and law enforcement agents in and near petitioner's home towns of Lansing and Holt, Michigan, would have shownthat petitioner had an antipathyto the police and a history of refusing to voluntarily comply with police requests. 452 13. Presentation of this information to the court during the hearing to suppress the confession would have supported petitioner's credibility through independent evidence that he was coercedinto talking with the police and/or allowing them to search his residence. 14. Since thetrial court found that he believed the officers’ version of the interrogation, this independent corroborative evidence ofpetitioner's testimony would have led to a more favorable result in the suppression of the confession and thefruits of the search, thereby leading to a more favorableresult in the guilt phase of thetrial. 15. Trial counsel's not obtaining and presenting reasonably available corroborative evidence deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 16. Petitioner’s rights were violated by the prosecution’ swithholding of evidence that a person or persons other than petitioner were responsible for the Bell Gardens killings. 17. Trial counsel knew that petitioner had apparently been ruled out as a suspect in the Bell Gardens killings which occurred in 1976, two years before petitioner's arrest for the Carter killing in 1978. Second,trial counsel were eventually provided long withheld discovery indicating that numerous suspects had been questioned and evenarrested by the Bell Gardenspolice for the two killings in the years before petitioner was arrested. At least one suspect had confessed to the crimes (Bell Gardens Police Reports re Counts I and II, discovery not providedto petitioner until 1986, even though ordered in 1979, Exhibit S- A). 18. Secondtrial counsel failed to adequately investigate or present the strong evidence indicating third-party culpability for the Bell Gardens killings. Because of the failure to investigate this evidence,trial counsel failed to present any evidenceto the jury that a third party was responsible for the Bell Gardens killings, even thoughtrial counsel 433 vw argued that petitioner was not responsible for these killings. 19. Just prior to the second guilt phasetrial, an assistant to trial counsel viewed a previously withheld photograph of a suspect, Charles Lohman, which wasidentical to the composite drawing and eyewitness descriptions of the man seen at the crime scene just prior to the killings. This same person having been identified by at least two separate witnesses as having been at the park with the victims. No copy was made ofthis photograph and it was "lost" by the prosecution or police before petitioner's trial and was unavailable to petitioner at the time of his secondtrial. 20. Hadtrial counsel investigated and presented evidenceof third-party culpability, there would have been a more favorable result in the guilt phase. The prejudice to petitioneris illustrated by Exhibits G and H. There was no physical evidence connecting petitioner to the Bell Gardensincident. Petitioner's confession, even if admissible, was affected by the promises and coercivetactics of the police interrogators and thereby could have been challenged before the jury. 21. The failure to investigate and present evidence ofthird party culpability for the Bell Gardens killings deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 22. Petitioner’s rights were violated by the failure to provide the jury with evidenceor instruction which would have allowed them to consider the voluntarinessof the confessions. 23. Prior to trial, defense counsel moved the court for an order suppressing petitioner's confession. That motion was denied bythe court. 24. Despite the strong evidence that the confession waselicited by threats and both physical and psychological coercion, defense counsel failed to present the evidence of this coercion before the jury. Defense counsel had evidence of the coercive tactics of the police interrogators from independent witnesses and did not need to havepetitionertestify 434 in order to elicit testtmony on the coercive police practices. These witnesses either testified at the hearing on the motion to suppress the confession or the transcript of their prior testimonyat the first trial was admitted at that hearing. In addition,as part of his offer of proof, defense counselat the first trial specifically identified and summarized the sum and substance of the testimony of more than 20 witnesses concerning incidents of coercive interrogation practices of South Gate Police Department. 25. This evidence was admissible at trial under Evidence Code § 406 for the purposesof challenging the weight and credibility of the confession itself and had been held admissible and relevant by this Court in Memro I. Defense counsel did not have a reasonabletactical basis for not challenging the circumstances of the confession in front of the jury other than the perjurious testimony of Anthony Cornejo andotherillegal informants. The absence of this evidence that was relevant to support the defense theory that petitioner's confession was nottrue effectively denied petitioner the rightto bring relevant evidence before the jury and to present a meritorious defense. . 26. Trial counselalso failed to introduce any testimony regarding the destruction of the citizen complaint reports before the jury. This testimony was also admissible as to the weight and credibility of the officers' testimony regarding the confession. 27. If this evidence had been introduced by trial counsel, there would have been a more favorable result in the guilt and penalty phase. There was no physical evidence connecting petitioner to the Bell Gardens incident. Other suspects had been arrested for these offenses and at least one had even confessed to the killings. The circumstances of petitioner's confession were thuscritical to the question of guilt, especially in light of the existence of another person's confession. 28. Trial counsel's failure to challenge the voluntariness of the confession before the jury deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 29. Petitioner was deprivedofhis statutory and constitutional right to a speedy 435 .t u trial. 30. Petitioner’s rights were also violated by trial counsel’s failure to make a timely request for a lingering doubtinstruction. 31. Trial counsel submitted proposed jury instructions for the penalty phase of petitioner's case. In the proposed instructions, trial counsel did not includea lingering doubtinstruction. 32. At the conclusion of the penalty phase,trial counsel orally requested a lingering doubtinstruction. The prosecutor objected to the lingering doubt instruction on the groundsthat trial counsel's request was not timely. Thetrial court denied the instruction as untimely. 33. The case law wasclear that petitioner was entitled to a lingering doubt instruction if such an instruction was requested. 34. There was no physical evidence connecting petitioner to the killings charged in Counts [ and Il. The jury deliberated for approximately three days at the guilt phase. Had a lingering doubt instruction been given, there would have been a more favorableresult at the penalty phase. 35. Assumingthat trial counsel's failure to request a lingering doubt instruction was untimely, his failing was unreasonable. It deprived petitioner of a fundamentally fair and reliable penalty trial. -CLAIM 122: Petitioner was Deprived of his Constitutional Rights as a Result of Falsification of Sgt. Carter's Alleged Interrogation Notes. l. At least 11 pages of notes were purportedly prepared on October 27 and 28, 1978 by Sgt. Lloyd Carter of the South Gate Police Department in connection with the arrest and interrogation of petitioner. However, the notes werefinally first certified as authentic on February 11, 1982, more than three years after they were purportedly made. 2. Although they were clearly subject to the continuing 1979 discovery order, 436 these notes were not provided to petitioner or his counsel during discovery atthefirst trial and were not madeavailable at petitioner's motion to suppress evidence at the secondtrial. Following this Court’s reversal which ruled that the notes were discoverable, the notes werefirst made available to petitioner and his counselat the retrial seven yearslater. 3. The purported interrogation notes are in a narrative form and contain complete sentences. The detail and physical appearance ofthe notes are inconsistent with contemporaneousinterrogation notes. It is reasonably evident that the notes were prepared at sometimeafter the arrest and interrogation ofpetitioner. Exhibit S-B, Purported interrogation notes of Sgt. Lloyd Carter. 4, Sgt. Carter used the purported notes at the secondtrial allegedly to refresh his recollection and assist him in his testimony. The notes falsely enhanced the appearance of credibility of Sgt. Carter's testimony regarding his recollection of alleged admissions by petitioner. 5. Absent the purported interrogation notes, Sgt. Carter's testimony regarding his recollection of alleged admissionsbypetitioner would have beenless thorough, credible and convincing. The result of the proceedings would have been more favorable to petitioner on both the questions of guilt and penalty. 6. The government's reliance on and exploitation of the falsified notes deprived petitioner of a fundamentally fair and reliable guilt and penalty trial. 2. PENALTY PHASE. CLAIM 123: The various flaws of the Sentencing Procedure Usedin this Case Render the Death Sentence Arbitrary, Capricious, and Unconstitutional. l. The facts in support of this claim, in addition to those to be provedafter further investigation and following full discovery and an evidentiary hearing to the extent appropriate, include the following. The 1977 California capital sentencing statute, under whichpetitioner (along with a very small handful of others) was sentencedsuffers from a 437 wide variety of statutory, procedural and substantive defects. These defects, which separately and together violate state and federal due process, cruel and unusual punishment prohibitions and Eighth Amendmentreliability requirements,fail to give the jury proper guidance andresult in vague, arbitrary and capricious selection of capitally sentenced individuals. See Furman v. Georgia, 408 U.S. 238; Gardnerv. Florida, 430 U.S. 349 (1977). 2. Specifically, the failure of the statute and the failure of the jury instructions given bythe trial court to designate which sentencing factors are mitigating and which are aggravating violated petitioner's nightto a reliable and fair sentencing determination under the United States and California Constitutions. See Walton .v. Arizona, 497 U.S. 639 (1990); McCleskey v. Kemp, 481 U.S. 279 (1987); Gardner v. Florida, 430 U.S. 349; but see People v. Marshall, 50 Cal.3d 907, 936-37 (1990); People v. Jackson, 28 Cal.3d 264, cert. denied 450 U.S. 1035 (1981). It is well established that jurors do not independently understand the meaning of aggravation and mitigation. See People v. Marshall, 50 Cal.3d at 936. 3. The failure of the trial court to instruct the jury that it mustfind that death is the appropriate sentence beyond a reasonable doubtviolated petitioner's federal andstate constitutional rights. See State v. Wood, 648 P.2d 71, 83 (Utah 1982), cert. denied 459 U.S. 988; but see Marshall, 50 Cal.3d at 935-36; People v. Rodriguez, 42 Cal.3d 730 (1986); People v. Allen, 42 Cal.3d 1222 (1986), cert. denied 484 U.S. 872 (1987). The cruel and unusual punishmentclause of the Eighth Amendmentand the due process clause of the Fourteenth Amendments, as well as Article I, §§ 7, 15, and 17 of the California Constitution, require the prosecution to bear this heavy burden when the imposition of the death penalty is at stake. 4. The failure of thetrial court to instruct the jury that it mustfind that aggravation outweighed mitigation beyond a reasonable doubtviolated petitioner's federal and state constitutional rights. See Wood; but see Marshall, Rodriguez, and Allen. In like fashion, the failure to instruct that aggravating circumstances were true beyond a reasonable doubt violated the same rights. See Wood; but see People v. Gordon, 50 Cal.3d 1223, 1273 (1990), cert. denied, 499 U.S. 913 (1991); Marshall, Rodriguez, and Allen. 5. The 1977 death penalty statute is unconstitutional because it does not require: (a) written findings as to the aggravating factors selected by the jury; (b) proof beyond a reasonable doubtor any of the aggravating factors; (c) jury unanimity on aggravating factors; (d) a finding that aggravating factors outweigh mitigating factors beyond a reasonable doubt; (e) a finding that death is the appropriate punishment beyond a reasonable doubt; and (f) a procedure to enable a reviewing court to evaluate meaningfully the sentencer's decision. See People v. Jackson, 28 Cal.3d 264, 315-17 (dissenting opinion by Bird, C. J.) (1981); but see People v. Frierson, 25 Cal.3d 142, 172-188 (1972). 6. Thetrial court's failure to instruct the jury that the sentence oflife without parole means that the defendant will never be considered for parole, or otherwise correct the commonplace misunderstanding that California jurors possess regarding the release of defendants who havereceived a sentence oflife without possibility of parole, in violation of the Sixth, Eighth and Fourteenth Amendments. See Caldwell v. Mississippi, 472 U.S. 320 (1985); but see Gordon; People v. Bonin, 46 Cal.3d 659, 698 (1989), cert. denied 494 U.S. 1039 (1990). 7. Thetrial court's failure to instruct the jury to consider affirmatively all sympathetic mitigating factors, mercy and non-statutory mitigation violated petitioner's right to an individualized andreliable sentencing determination. Penry v. Lynaugh, 492 U.S. 302 (1989); Hitchcock v. Dugger, 481 U.S. 393 (1987); Parks v. Brown, 860 F.2d 1545 (10th Cir. en bane 1988); but see People v. Caro, 46 Cal.3d 1035, 1067 (1988),cert. denied 490 U.S. 1040 (1989). 8. The use of a felony to (a) qualify petitioner for a first-degree murder 439 conviction under the felony-murder theory and (b) enhance aggravation in favor of death under Penal Code § 190.2(a) results in a violation, under the state and federal constitutions, of petitioner's rights to a reliable individualized sentencing determination and misleadsthe sentencing jury. Furman, Caldwell, Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985); but see Lowenfield v. Phelps, 484 U.S. 231, 241-46 (1988); Marshall. 9. Thetrial court's failure to specifically instruct the jury that the "no-sympathy” admonition of CALJIC 1.00, which was given at the guilt phase, did not apply at the penalty phase, denied petitioner the nght to a reliable sentencing process underthe Eighth Amendment. 10. Thetrial court's instruction on extreme mental disturbance violated petitioner's right to have the sentencer considerall mitigating factors. Penry; Mills v. Maryland, 486 U.S. 367 (1988); Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978); but see Marshall. 11. The 1977 death penalty law violated the Fourteenth Amendmentand Article I, § 7, of the California Constitution because it deprives defendants of the benefits of the Determinative Sentencing Act. But see Marshall, People v. Williams, 45 Cal.3d 1268, 1330 (1988). 12. The jury wasinstructed to consider "whether or not" the defendant committed the crime while "underthe influence of extreme mental or emotional disturbance" (RT 2973) and "whetheror not" the defendant's "capacity . . . to appreciate the criminality ofhis conduct or to conform his conduct to the requirements of the law was impairedas a result of mentalillness or defect or the effects of intoxication." (RT 2973). The jury could well have concludedthat the absence of these mitigating factors established aggravation. The trial court's failure to instruct the jury that lack of mitigation does notconstitute aggravation violated petitioner's state and federal rights to a reliable and fair-sentencing process. Mills; cf. People v. Davenport, 41 Cal.3d at 289. 440 13. Admission ofprior crimes evidence as an aggravating factor in the penalty phase denied petitioner his right to due process and equal protection of law underthe Fourteenth Amendment freedom from an impermissible risk of arbitrary and capricious decision-making under the Eighth and Fourteenth Amendments andreliable penalty determination under the Eighth and Fourteenth Amendments. 14. Failure to charge the underlying felony denied petitionera reliable guilt determination as required by the Fifth and Eighth Amendments. 15. Failure to. permit petitioner to make an allocution to the jury at the penalty phase without being subject to cross-examination denied petitioner his due processrights under the Fourteenth Amendment. Boardman v. Estelle, 957 F.2d 523 (9th Cir. 1990); but see People v. Gallego, 52 Cal.3d 115 (1990) and People v. Robbins, 45 Cal.3d 867, 888- 890 (1988). 16. Failure to have petitioner present during the jury instruction conference denied petitioner his rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments. 17. Petitioner was deprived ofhis federal and state constitutional rights to due process anda fairtrial by the trial court's instruction pursuant to the language of CALJIC 2.90 which, with its repeated use of the phrase "moral," first with respect to "moral evidence" and then with respect to "moral certainty," improperly diluted the prosecution's constitutionally imposed burden of proof beyond a reasonable doubt. Cage v. Louisiana, 498 U.S. 39 (1990); cf. People v. Wilson, 3 Cal.4th 926 (1992). 3. APPELLATE CLAIMS. CLAIM 124: By Failing to Preserve a Complete Record on Appeal, the Court Deprived Petitioner’s Due Process Rights and State Created Liberty Interests under the Fourteenth Amendment. l. A defendant has a due process right to an accurate record on appeal. People v. Gloria, 47 Cal. App. 3d 1 (1975). §190.9 of the Penal Code requiresthat in “any case in which a death sentence may be imposed . . all conferences and proceedings, whetherin 441 w y open court, in conference in the courtroom,or in chambers, shall be conducted on the record with a court reporter present.” 2. Petitioner has a right to a record on appeal including a complete transcript of the trial proceedings. United States v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994). “Counsel's duty cannot be discharged unless he hasa transcript of the testimony and evidence presented by the defendantandalso the court's charge to the jury, as well as the testimony and evidence presented by the prosecution.” Hardy v. United States, 375 US. 277 (1964); see also United States v. Nolan, 910 F.2d 1553 (7" Cir. 1990); United States v. Carrillo, 902 F.2d 1405 (9" Cir 1990) . | 3. The record is the basis for an appeal; a party cannotintelligently prepare a brief until the character of the record on appeal is known. Peebler v. Olds, 26 Cal.2d 656, 658 (1945). The existence of such state procedural rights gives appellant a “substantial and legitimate expectation that he will be deprived ofhis liberty only to the extent determined by...” such rights, i.e., any violation of these state-defined procedural rights also constitutes a federal constitutional due process violation under the Fourteenth Amendment. Hicks v. Oklahoma, 447 U.S. 343, 346-347 (1980). 4, The Supreme Court has noted that it has generally “emphasized before the importance of reviewing capital sentences on a complete record.” Dobbs v. Zant, 506 U.S. 357 (1993). This is so because a panoply of constitutional rights are specifically involved when the accuracyof a capital case recordis at issue. 5. The Fifth and Fourteenth Amendments guarantee the right to due process in the appeal's consideration, see Frank v. Mangum, 237 U.S. 309, 327-328 (1914); Cole v. Arkansas, 333 U.S. 196, 201 (1948), e.g., in the resolution of the record’s accuracy and completeness, particularly in any record reconstruction proceedings. This is so because: Under the Fourteenth Amendment, the record of the proceedings must be sufficient to permit adequate andeffective appellate review. Griffin v. Illinois (1956) 351 U.S. 12, 20 [100 L.Ed. 891, 76 S.Ct. 585]; Draperv. 442 vu Washington (1963) 372 U.S. 487, 496-499 [9 L.Ed.2d 899, 905-907, 83 S.Ct. 774]. People v. Howard, | Cal.4th 1132, 1166 (1992); see People v. Barton, 21 Cal.3d at 517- 518. 6. Additionally, appellant has the Fifth and Fourteenth Amendmentdueprocess “right not to be denied an appealfor arbitrary or capricious reasons” Griffin v. Illinois, 351 U.S. at p. 37 (Harlan, J., diss.), the right to an accurate record on appeal, People v. Gloria, 47 Cal.App.3d 1, 7 (1975), the right to a review ofall legally admissible evidence, People v. Johnson, 26 Cal.3d 557, 576-577 (1980), and the right to review on a record settled in accordance with procedural due process. Chessman v. Teets, 354 U.S. 156, 162-165 and n. 12 (1957); People v. Pinholster | Cal.4th 865, 923, n. (1992). 7. The Sixth Amendment, through the Fourteenth Amendment, guarantees effective counsel on appeal, which in turn imposeson that counsel both the obligation to brief all arguable issues, citing the appellate record and appropriate authority and the preliminary obligation to insure that there is an adequate record before the appellate court to resolve those issues. People v. Barton, 21 Cal.3d at 518-520. Whenthe recordis missing or incomplete, “counsel mustsee that the defect is remedied”or counsel will fail to provide a competent level of advocacy. /d., at 520. 8. Additionally, the Fourteenth Amendment guarantees the right to equal protection in the formulation of procedures used in deciding appeals (Evitts v. Lucy, 469 U.S. 387, 393 (1985); People v. Barton, 21 Cal.3d at p. 517, n. 1), which is applicable here in that other capital appellants are not subjected to incomplete appellate records. 9, Finally, the Eighth Amendment requires that the record be sufficient to ensure that there is no substantial risk the death sentence has been arbitrarily imposed. People v. Howard, | Cal.4th at 1166. Thisis particularly so as to errors involving the appellate record: “it 1s important that the record on appeal disclose to the reviewing court 7 ) the considerations which motivated the death sentence in every case in whichitis imposed.” Gardnerv. Florida, 430 U.S. 349, 361 (1977). Otherwise, the “capital- sentencing procedure would be subject to the defects which resulted in the holding of unconstitutionality in Furman v. Georgia.” Gardner v. Florida, 430 U.S. at 361. 10. Each of the above federal constitutional protections is also magnified by the Eighth Amendment's requirement of heightened reliability in capital cases. See Beck v. Alabama, 447 U.S. 625, 638 and n. 13 (1980); see also McElroy v. United States Ex Rel. Guagliardo, 361 U.S. 249, 255 (1960) (Harlan, J., diss.). All the same rights are also guaranteed under the California Constitution's parallel provisions. (Art. I, §§ 1, 7, 15, 16, 17 and 24). 11. The record ofpetitioner’s two trials is incomplete in significant ways. a. At several points during thetrial, the court reported parenthetically that “(A discussion was held off the record).” (RT 7, RT 27, RT 97, RT 100). The discussions should have been recorded or reconstructed. b. While discussing defense counsel’s motion for severance, trial counsel said “aside from what [ mentioned in chambers.” The discussion held in chambers wasnot recorded and wasnever reconstructed. (RT A41). c. Sixty nine pages of the Reporter’s Transcript are missing. (RT A207- A276). d. On at least two occasions, the transcripts of in camera proceedings were sealed. “(The notes of the proceedings held in camera, at this point were ordered sealed by this court, not to be opened, transcribed, or destroyed.)” (RT 101A, RT 298). e. On RT 110, the court observed that there had been a changein the law. He told both parties that no conferences were to be held off record any longer. The judgestated that the last one held was on 1/1/87, thoughthere 444 had actually been one on 1/9/87. f. The trial court noted that this Court has “ indicated that they will not certify the record as being complete, if Mr. Memro wasto receive the death penalty, until there has been a memorialization by the judge and two,three, four counsel, however many are involved, regardingall of these conversations. Before more time passes, I would suggest that the two counsel discuss this matter with any previous courts and determine what,if any, conferences have been held off the record.”” (RT 190). The parties failed to go back and reconstruct the gaps in the transcripts. g. The court telephoned both parties when the jurors asked a question. The question was: “Does Penal Code 288 regarding the definition of a lewd act with a child apply to both living and deceased bodies?” (RT 2872). The judge read trial counsel the question over the telephone and asked the prosecutor to “come up”and read the question. The conversations were off the record and nottranscribed or reconstructed. (RT 2872). h. The jury questionnaires were not preservedas part of the record. 1. The court allowed a jury view of the crime scene on May 11, 1987. No record was made of what wassaid or doneat the park before the jury. (RT 3027). The court stated on the record after the view that no testimony was taken but added that Officer Barclift showed the jury wherepieces of evidence were found. Petitioner was unable to hear whattranspiredat the view as he was confined to a squad car. The view should have been memorialized andit waserror to fail to do so. j. On May 18, 1987, the jury requested a read back ofpetitioner’s purported confession. The court told the jury that “the reporter and counsel have gone through the transcripts and picked out and selected the testimony 445 you’ve asked to be read back.” The discussion between counsel and the reporter was not recorded. (RT 2878). k. No municipal court proceedings were includedas part of the record of the first trial in 1978. lL. On December14, 1978, an in camera conference was held. No record of the conference was madeor preserved. (1978 RT 4). m. Discussions were held off the record in thefirst trial. (1978 RT 24, 1978 RT 29). n. No Clerk’s Transcriptof the first trial was preserved. O. Page 132 of the 1978 Reporter’s Transcript is missing. Page 131 only includesthe first four lines. Barely visible type towards the bottom indicates that testimony from the rest of that page and the absent page 132 is missing. 12. The errors regarding the record occurred in a capital case where due process standards ofreliability are higher than in other cases. Beck v. Alabama, 447 U:S. at 638 and n. 13; McElroy v. United States Ex Rel. Guagliardo, 361 U.S. at 255 (Harlan, J., diss.). Due process is an evolving concept (Frank v. Maryland, 359 U.S. 360, 371 (1959)), and reviewing courts often refer to the current practices of other states to evaluate their own application of due process standards. Schad v. Arizona, 501 U.S. 624 (1991). 13. Relying on the inherent “gravity of the offenses for which defendant wastried and the penalty of death which was imposed,” i.e., the Eighth Amendment requirement of heightened capital case due process which requires a heightenedreliability in the record, other state appellate courts facing analogous capital case record gaps have vacated death judgments without any showing of prejudice and ordered that the appellants be given new trials. State ofNorth Carolina v. Hamlet, 321 S.E.2d 836, 387 (N.C. 1984); see Dunnv. State of Texas, 733 S.W.2d 212, 216-217 (Tex. 1987 Tex. Cr. App.) (inadequate capital 446 record mandates reversal absent any showing ofprejudice, as a matter of policy for the preceding forty years).** 14. Finally, these constitutional violations cannot be resolved becausethe errors at issue affected the composition of the record. When a constitutional error affects the composition of the record, a reviewing court is precluded from applying a harmless error analysis. Rose v. Clark, 478 U.S. 570, 579, n. 7 (1986) (citing Holloway v. Arkansas, 435 U.S. 475, 490-491 (1978); Satterwite v. Texas, 486 U.S. 249, 256-257 (1988)). In sucha situation, reversal is automatic. /bid; see Coleman v. McCormack, 874 F.2d 1280, 1289 (9th Cir. 1989). 15. The Fourteenth Amendment requires that, once avenues of appellate review are established, they must “be kept free of unreasoneddistinctions that can only impede open and equal accessto the courts.” Rinaldi v. Yeager, 384 U.S 305, 310 (1966). 16. Due processalso includes the right not to be denied an appealfor arbitrary or capricious reasons, Griffin v. Illinois, 351 U.S. at 37; the nght to an accurate and complete appellate record, People v. Gloria, 47 Cal.App.3d at 7; Gardner v. Florida, 430 U.S.at 361; a review ofall legally admissible evidence, People v. Johnson, 26 Cal.3d at 576-577; review on a recordsettled in accordance with procedural due process, Chessmanv. Teets, 354 U.S. at 162-165 and n. 12; and due process in the appeal's consideration, Cole v. Arkansas, 333 U.S. at 201, including effective assistance of counsel in the appeal. Evitts v. Lucy, 469 US. at 392-393. >? Somestates apparently follow the samepolicy in non-capital appeals. Lucero v. State of Florida, 564 So.2d 158, 158 (Fla. 1990) [non-transcribed in-camera hearing]; People v. Briggs, 557 N.Y.S. 797, 798 (N.Y. 1990 N.Y.S.Ct., App. Div.) [lost trial transcript; "interests ofjustice"]. Some federal circuits also reverse even non-capital convictions automatically, i.e., without a showing of prejudice, when there are significant record gaps and the appellant's counselis, as here, new to the case, because such new counsel ". . . cannot reasonably be expected to show specific prejudice." United States v. Renton, 700 F.2d 154 (Sth Cir. 1983) (citing United States v. Selva, 559 F.2d 1303, 1305-1306 (Sth Cir. 1977)). 447 v u 17. This latter protection is also afforded by the Sixth Amendment's guarantee of competent counsel, as applicable through the Fourteenth Amendment. People v. Barton, 21 Cal.3d at 518-520. Such counsel is obliged to perfect the record and remedy imperfections, including those involving exhibits. Jd., at 19-20. 18. Petitioner also has a Fourteenth Amendment nghtto equal protection of law, along with due process, in the formulation of procedures used in deciding appeals. Evitts v. Lucy, 469 U.S. at 393. Petitioner must have the sameright to a reliable record as other criminal and capital petitioners, each ofwhom is convicted only on proof beyond a reasonable doubt and each of whom hasthe trial record - including exhibits - of that conviction's evidentiary basis preserved as the basis for appeal and the context for appellate courts to evaluate any error's harm. California goes to great lengths to ensure preservation of criminal appellants' trial records pending appeal, particularly in capital cases. (E.g., see §§ 1417 et seq., and especially §§ 1417.1, subd. (d) and 1417.7, regarding preservation; § 190.7, subd. (a) and California Rules of Court, rules 4.5, 5(a), 39.5(a) and 39.5(b), defining the clerk's record on appealto includeall exhibits admitted into evidence or refused). These protections go not only to appellant's equal protection nght to have a record reconstructed under standards the sameas usedattrial, 1.e., on proof beyond a reasonable doubt, which constitutes an independentconstitutional violation here butalso to the importance of the record's reliability. 19. The reliability of the record is integral to each of the above federal constitutional guarantees. “The failure of the trial court to provide an accurate record on appealis reversible error.” Jn re Jose S., 78 Cal. App. 3d 619 (1978). Therefore, as petitioner’s transcripts are incomplete, efforts for post-conviction relief are hampered. The trial court’s failure to preserve an accurate and complete record of the capital trial constitutes reversible error. 448 CLAIM 125: Petitioner's Rights were Violated by Erroneous Rulings and Factual Errors by this Court. 1. Petitioner's conviction, special circumstance findings and sentence of death are illegal and were unconstitutionally obtained in violation of his Sixth, Eighth and Fourteenth Amendment rightsto fair trial, to the effective assistance of counsel, to a reliable and accurate determination of guilt and sentence of death, to reasonable appellate review of his conviction and to due process of law, as a result of this Court's erroneous rulings and factual errors. 2. This Court failed to provide petitioner with an adequate and meaningful appeal. In particular, the commissioner: a. b. ignored petitioner's federal constitutional right against double jeopardy; misstated the facts relevant to the issue of the voluntariness of the confession; made factual errors regarding the evidence and arguments presented in support of the motion for severance of the counts; madeanerror in the statement of facts relevant to the sufficiency of the evidence claim; failed to analyze the destruction of the police complaint records as a Brady violation; failed to analyze the extremely late provision to petitioner of 400 pages of discovery material as a Brady violation; ignored the fact that the trial court had prevented petitioner from establishing a better record on the speedytrial issue; ignored the fact that the record demonstrates that trial counsel did not believe petitioner could be tried on a felony-murder theory; and made factual errors regarding the denial of the motion to suppress evidence. 449 3, Petitioner's petition for rehearing to this Court (Exhibit DD) is incorporated by reference as if set forth in full. CLAIM 126: Petitioner was Denied the Right to due Processin his Appealas of Right as a Result of this Court’s Chief Justice's Political Support for Opposing Counselin this Case. 1. After this case had been briefed before this Court and wasset fororal argument then-Chief Justice Malcolm Lucas spoke at a public gathering and formally endorsed the gubernatorial candidacy of Attorney General Daniel Lungren,the attorney for the state in this matter. 2. Mr. Lungren regularly made public statements as to opinions anddecisions of the courts and was oneofthe primary supporters of the Anti-terrorism and Effective Death Penalty Act (AEDPA), under which the decision of this Court in this case was to be reviewed. As Governor, Mr. Lungren would have the authority to appoint appellate judges, including judges on this Court and would also have fiscal powers overthe judiciary, including but not limited to the power to "blue pencil" portions of this Court's budget. 3. Prior to oral argument, petitioner moved for recusal of the Chief Justice from his case. This motion was denied in an order signed by Chief Justice Lucas himself. 4. As a result of the above, petitioner was not given a fair hearing onhis recusal motion or his appeal or state habeaspetition. CLAIM 127: This Court Failed to Conduct a Constitutionally Adequate Review of Petitioner’s Case and Institutionally Does Not Conduct Such Review in Capital Cases. 1. Specific and objective enumeration of aggravating and mitigating factors is not provided to guide the jury. The language of the special circumstances andofthe statutory sentencing factors is vague and overbroad andfail to comport with requirements of due process and heightened capital case reliability under the Fifth, Sixth, Eighth and Fourteenth Amendments. 2. Meaningful appellate review does not occur because ofthe failure to require 450 written findings regarding any aggravating factors found to be true. 3. There is no requirementthat the prosecution prove the existence of any aggravating factor (other than prior crimes under §190.3 (b)) beyond a reasonable doubt. 4, There is no requirementthat a jury finding regardingthe presence of an aggravating factor at the penalty phase be unanimous. 5. There'is no provision for comparative appellate review to prevent inconsistency, arbitrariness, disproportionality and discrimination. 6. This Court has not provided meaningful appellate review in death penalty cases since it has affirmed approximately 95% ofall capital cases that have comebeforeit during the last decade. These affirmances occur even though the Court has found substantial errors in these cases but denoted them as harmless. 7. Petitioner was prejudiced and his sentence adversely affected because he was tried, convicted and sentenced to death under a statutory scheme which contained the defects stated above. These defects violated petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 8. This Court failed to grant petitioner discovery, an evidentiary hearing or subpoena power, despite petitioner’s repeated requests for such. 9. By not providing for such procedures, the Court failed to ensure that habeas proceedings complied with even minimal guarantees of due process and heightened capital case reliability. 10. As the validity of the state habeas proceedings was fundamentally and constitutionally undermined, those proceedings should not be respected by this Court. By failing to conduct adequate proceedings,this Court denied petitioner his rights to Due Process and Equal Protection under the Fifth and Fourteenth Amendments, as well as his right to effective assistance of counsel anda fair trial before a jury underthe Sixth Amendment and heightened capital case reliability and freedom from cruel and unusual 451 punishment. 4. STATUTORY CLAIMS. CLAIM 128: The 1977 Death Penalty Statute, on its Face and as Applied, is Unconstitutionally Vague, Arbitrary and Capricious. 1. The 1977 death penalty statute is unconstitutional under the Eighth Amendmentbecause the aggravating and mitigating factors listed in Penal Code § 190.3 do not comply with theprohibition against vagueness and becausethe statute conferred upon the sentencer the same degree of unbridled and unguided discretion condemned in Furman v. Georgia, 408 U.S. 238 (1972). See also Maynardv. Cartwright, 486 U.S. 356 (1988). 2. Thefactors listed in Section 190.3, individually and in combination, fail to guide the sentencer's discretion and create an impermissible risk of vaguely defined, arbitrarily and capriciously selected individuals upon whom death is imposed. Thestatute requires the sentencer to considera unitary list of factors without any explanation asto which factors, if any, are aggravating or mitigating. 3. Asa whole,the statute thus allows the sentencer complete discretion to decide whether and for what reasons a defendant should die, including the power to impose death upon the unconstitutionally impermissible basis of mental impairment. This aspect of the statute alone violates the Eighth Amendment. Zant v. Stephens, 462 U.S. 862 (1983); Godfrey v. Georgia, 446 U.S. 420 (1980). 4. The individual listed sentencing factors are equally imprecise. a. Factor (a) instructs the sentencer to weigh the circumstances of the crime without any further limitation or guidance. Although this Court has defined this term in several inconsistent ways, it has never required that juries be given instruction as to its meaning. b. Because factor(a) also directs the sentencer to weigh the presence of any special circumstance findings—afactor that necessarily is present in every 452 case—the sentencer's discretion is both unbridled and weighted in favor of death solely due to the fact that a defendant has been convicted ofcapital murder. Thus, the discretion conferred by the California statute is at best as standardless as that invalidated in Furman v. Georgia. 5. Here, the prosecution presented only one piece of evidencein its case-in- chief at penalty phase. The principal thrust of the prosecutor's argumentto the jury wasthat the circumstances of the crimeitself warranted the death penalty. 6. Petitioner's death sentence was thus based on the unguided consideration of the circumstances of the offense, without regard to the definition or reliability of such factors, as well as the absenceofpotentially mitigating factors which createdillusory aggravation. CLAIM 129: ManyFeatures of the California Capital Sentencing Scheme as Interpreted by the State Courts and Applied at Petitioner’s Trial Violate the Federal Constitution. 1. Thetrial court instructed petitioner’s jury on the full array of statutory sentencing factors, without anyeffort to identify which were potentially aggravating or mitigating, without deleting factors which wereirrelevant on the facts of this case and without any effort to narrow or give definition to any of the vague statutory language. The result was to authorize imposition of death upon impermissibly vague and otherwise improper aggravating circumstancesin violation of the Eighth and Fourteenth Amendments. 2. Further, even apart from the violation of Eighth Amendment vagueness limitations, the instructions permitted the jury to aggravate petitioner’s sentence upon the basis of behavior and character traits that should only have mitigated the sentence, thus violating due process and the Eighth Amendment. See Zant v. Stephens, 462 U.S. 862, 885 (1983). 3, The unitary list of aggravating and mitigating factors allowed the jury complete discretion to decide whether and for what reasonspetitioner should die and 453 rendered the statute as applied unconstitutionally vague, arbitrary and capricious, because the jury was left without meaningful or principled guidance as to the meaning and application of the factors. Maynard v. Cartwright, 486 U.S. 356 (1988); Godfrey v. Georgia, 446 U.S. 420. It also allowed the jury to consider, in aggravation, factors such as age, mental or emotional disturbance,alcohol or drug impairment and positive background and character evidence, which mayconstitutionally be considered only in mitigation. Zant v. Stephens, 462 U.S. at 885. Further, the statutory factors intended solely as potential . mitigators (factors (d), (e), (f), (g), (h), Gj) and (k)), when viewed by an unguidedjury as aggravating circumstances are too impermissibly vague to satisfy Eighth Amendment standards. See Stringer v. Black, 503 U.S. 222 (1992). The use of such a unitary list rendered the sentencing process unreliable, in contravention of the Eighth and Fourteenth Amendments. 4. The jury was instructed to consider “whether or not” the defendant committed the crime while “underthe influence of extreme mental or emotional disturbance” and “whetheror not” the defendant’s “capacity. . . to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impairedas a result of mental illness or defect or the effects of intoxication.” Jbid. The jury could well have concludedthat the absence of these mitigating factors established aggravation. 5. Thefailure to delete factually irrelevant mitigating factors violated the Fifth, Eighth and Fourteenth Amendments in that it permitted the jury to aggravate petitioner’s sentence on the basis of factors that should have played no role in the sentencing process. The failure to delete irrelevant factors deprived petitioner of his right to an individualized sentencing determination based on permissible factors relating to him and the crime. This error, by artificially inflating the factors on death’s side of the scale, violated the Eighth and Fourteenth Amendments’ requirement of heightenedreliability in the death 454 determination. Ford v. Wainwright, 477 U.S. at 414; Beck v. Alabama, 447 U.S. 625. The likelihood that the jury imposed sentence uponthe basis of nonstatutory aggravation under a mistaken belief that lack of amitigating factor was proper aggravation deprived petitioner of an important state procedural protection and liberty interest— the right not to be sentenced to death except upon the basis of statutory aggravating circumstances, People v. Boyd, 38 Cal.3d 762, and thereby violated petitioner’s right to federal due process as well. Hicks v. Oklahoma, 447 U.S. 343. 6. The failure to require written findings by the jury on the aggravating factors selected by it deprived petitioner of his due process and Eighth Amendmentrights to meaningful appellate review of his case, California v. Brown, 479 U.S. at 543; Gregg v. Georgia, 428 U.S. at 195, especially in light of the fact that the jury could haverestedits decision to impose death on the improper considerations set forth above. 7. The failure to require that all aggravating factors be proved beyond a reasonable doubt, that aggravation must be weightier than mitigation beyond a reasonable doubt and that death must be foundto be the appropriate penalty beyond a reasonable doubt, violates federal principles of due process, (Santosky v. Kramer, 455 U.S. 745, 754-67 (1982); In re Winship, 397 U.S. 358), equal protection, and the Eighth and Fourteenth Amendment requirements of heightened reliability in the death determination. Ford v. Wainwright, 477 U.S. at 414; Beck v. Alabama, 447 U.S. 625. 8. Evenif it were not constitutionally necessary to place a heightened burden of persuasion on the prosecution, some burden ofproof mustbe articulated to ensure that juries faced with similar evidence will return similar verdicts and that the death penalty is evenhandedly applied and capital defendants treated equally from case to case. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or notat all.” Eddings v. Oklahoma, 455 U.S. at 112. Thetrial court’s failure to instruct on any penalty phase burden of proof deprived petitioner of his rights to due process, equal protection and 455 & freedom from cruel and unusual punishmentin violation of the Eighth and Fourteenth Amendments. It is unacceptable that one man should live and another die simply because one jury assigns the ultimate burden of persuasion to the state and anotherassignsit to the defendant. 9. The lack of any requirementof intercase or intracase proportionality review and of any meaningful such undertakingin this case at the time of trial or on appeal violates petitioner’s Fourteenth Amendmentright to equal protection— since such review is afforded non-capital inmates. Penal Code §1170(f). It also violates the Fifth, Sixth, Eighth and Fourteenth Amendment requirements that any death penalty not be arbitrary or capriciously imposed, (Gregg v. Georgia, 428 U.S. 153), that all potential mitigating factors be considered bythe sentencer, and that a death-sentenced defendantreceive meaningful appellate review. Parker v. Dugger, 498 U.S. 308 (1991). Lack of such review violates the Eighth and Fourteenth Amendments’ heightenedreliability requirements for the sentencing process in a capital case. 10.‘ The inclusionin thelist of potential mitigating factors such as “extreme” (see factors (d) and (g)); “substantial” (see factor (g)) and “reasonably believed” and “moral” (see factor (f)) acted as barriers to the consideration of mitigation in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Mills v. Maryland, 486 U.S. 367, Lockett v. Ohio, 438 U.S. 586. This wording rendered those factors unconstitutionally vague, arbitrary, capricious and/or incapable of principled application. Maynardv. Cartwright, 486 U.S. 356 (1988); Godfrey v. Georgia, 446 U.S. 420 (1980). The jury’s consideration of these vague factors introduced impermissible unreliability into the sentencing process, in violation of the Eighth and Fourteenth Amendments. 11. Under California law, the individual prosecutor has complete discretion to determine whether a penalty hearing will be held to determineif the death penalty will be imposed. This creates a substantial risk of county-to-county arbitrariness. Underthis 456 statutory scheme, some offenders will be chosen as candidates for the death penalty by one prosecutor, while similar offenders in different counties will not be singled out forthe ultimate penalty. The absence of any standards to guide the prosecutor’s discretion permits reliance on constitutionally irrelevant and impermissible considerations, including race and economic status. Further, under People v. Morales, 48 Cal.3d 527, the prosecutoris free to seek the death penalty in almost every murdercase. 12. The arbitrary and wanton prosecutorial discretion allowed by the California scheme- in charging, prosecuting and submitting a case to the jury as a capital crime, merely compoundsthe disastrous effects of vagueness and arbitrariness inherent on the face of the California statutory scheme. Just like the “arbitrary and wanton”jury discretion condemned in Woodson v. North Carolina, 428 U.S. at 303, such unprincipled, broad discretion is contrary to the principled decision-making mandated by Furman v. Georgia. 13. Thetrial court’s failure to instruct the jury that the sentence oflife without parole meansthat the defendant will never be considered for parole or otherwise correct the commonplace misunderstanding that California jurors possess regarding the release of life-sentencedprisoners, resulted in an unfair, capricious and inaccurate sentence _ determination in violation of the Sixth, Eighth and Fourteenth Amendments. See Caldwell v. Mississippi, 472 U.S. 320. 14. Thefailure ofthe trial court to instruct the jury that it must return a verdict of life without parole ifthe mitigating circumstances outweigh the aggravating circumstances renders the death judgmentvoid under the state and federal constitution. Here, the jury was instructed pursuant to a modified version of CALJIC 8.84.2 as follows: The weighing of aggravating and mitigating circumstance does not mean a mere mechanical accounting [sic] of factors on each side as if an imaginary scale or the arbitrary assignment of weights to any of them. Youare free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider.[{]] In weighing the various circumstances you simply determine underthe relevant evidence whichpenalty is justified and appropriate by considering the totality of the 457 a . aggravating circumstances with the totality of the mitigating circumstances. [§]] To return a judgment of death, each of you must be persuadedthat the aggravating evidenceor circumstancesare so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. (RT 2903-2904). 15. The instruction did not include the following language from Penal Code §190.3: If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances,the trier of fact shall impose a sentence of confinementin state prison for a term oflife without the possibility of parole. As a result of this omission, there is a reasonable likelihood that the jurors could have concludedthat, even if the mitigating factors outweighed those in aggravation, the “so substantial in comparison with” language of CALJIC 8.84.2 might demand imposition of death. 16. The failure to instruct by the languageof the statute deprived petitioner of his due process rights under the Fourteenth Amendment, which protects petitioner from arbitrary deprivation of statutory rights and protections. See Hicks v. Oklahoma, 447 U.S. 343. Further, the omission of the statutory language from the jury instructions violated petitioner’s constitutional rights under the Eighth Amendmentby permitting the arbitrary and capricious imposition of a death sentence. Zant v. Stephens, 462 U.S.at 874. CLAIM 130: Failure to Narrow the Class of Offenders Eligible for the Death Penalty and Imposition of Death in a Capricious and Arbitrary Manner. 1, Petitioner’s conviction, judgment of death and confinementare unlawful and unconstitutional under the Fifth, Sixth, Eighth and Fourteenth Amendments because the California death penalty statute fails to narrow the class of offenders eligible for the death penalty and permits the imposition of death in an arbitrary and capricious manner. 2. In particular, petitioner’s conviction of capital murder was violative of the Eighth and Fourteenth Amendments’ requirements that the provisions of a state’s death 458 penalty statute must genuinely narrow the class of personseligible for the death penalty and must reasonably justify the imposition of a more severe sentence compared to others found guilty of murder and thereby resulted in the imposition of a freakish, wanton, arbitrary and capricious judgment of death. The failure to narrow the class of personseligible for capital punishment deprivedpetitioner of his due process rights under the Fourteenth Amendment; it permitted arbitrary selection for prosecution without consistent guidelines to ensure reliability; and it violated the Eighth Amendmentprohibition against cruel and unusual punishment. In addition, counsel’s failure to object to these unconstitutional proceduresdeprivedpetitioner of his right to assistance of counsel. 3. Petitioner was convicted offirst degree murder (Penal Code §187(a)) and sentenced to death. Thesole special circumstance rendering petitioner eligible for imposition of a sentence of death was multiple murder. 4. Underthe Eighth and Fourteenth Amendments, a death penalty statute must, by rational andobjectivecriteria, genuinely narrow the group of murderers who may be subject to the death penalty. Sawyer v. Whitley, 505 U.S. 333 (1992); McCleskey v. Kemp, 481 U.S. 279, 305-306 (1987); Zant v. Stephens, 462 U.S. 862, 877-878 (1983). In 1972, in Furman v. Georgia, the Supreme Court struck downthe death penalty schemes of Georgia, Texas and someotherstates as unconstitutional, because they created too great a risk of arbitrary death sentences. This conclusion derived from the Court’s understanding that, as to the Georgia scheme,only 15-20% of convicted murderers, who were death eligible, were being sentenced to death. Furman, 408 U.S. at 386, n. 11 (Burger, C.J., dissenting]; /d., at 435, n. 19 [Powell, J., dissenting]; Gregg v. Georgia, 428 U.S. 153, 182, n. 26 [plurality opinion]; see also Shatz and Rivkind, The California Death Penalty Scheme: Requiem for Furman? (1997) 72 N.Y.U.L. Rev. 1283, 1288 [hereafter California Death Penalty Scheme: Requiemfor Furman]. 5, California's death penalty statute as written fails to perform this narrowing, 459 i s and this Court's interpretations of the statute have actually expanded the statute's reach. 6. As written and applied, the California death penalty statute potentially sweeps the great majority of murders into its grasp and allows any conceivable circumstance of a crime -- even circumstances diametrically opposite (e.g., the fact that a decedent was young as well as the fact that a decedent wasold, the fact that a decedent was killed at homeas well as the fact that a decedent was killed outside the home) -- to justify the imposition of the death penalty. 7. Interpretations of California's death penalty statute by this Court and the Supreme Court have placed the decision narrowing the class of murderers to those most deserving of death on Penal Code §190.2, the "special circumstances" section of the statute. 8. Empirical evidence showsthatvirtually all first-degree murders in California are death eligible. According to a study published by Professor Steven F. Shatz of the University of San Francisco of published and unpublished decisions from 1988 through 1992, on appeals from first degree murder convictions, 84% offirst degree murder cases were factually special circumstance cases under § 190.2, thus rendering all such murderers death-eligible. (California Death Penalty Scheme: Requiem for Furman, 1332-1335.) 9. California’s death penalty scheme defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. Empirical evidence showsthat, in contrast to Georgia’s pre-Furman scheme, where 15% of convicted murderers who were death eligible were being sentencedto death. (d. at 1288, n. 28). California’s death penalty schemeresults in a death sentenceratio of 11.4%. (Id. at 1332). California’s statutorily defined death-eligible class is so large and imposition of the death penalty on membersofthe class so infrequentas to violate Furman and its progeny. 10. Penal Code §190.2's failure to genuinely narrow the class of death eligible 460 v w e s murderers is neither corrected nor ameliorated by Penal Code §190.3, the statute which sets forth the circumstances in aggravation and mitigation whichthe jury is to consider in determining whether to impose a sentence of death upon a defendant convicted of special circumstance murder. In practice and as a result of interpretation by this Court, the $190.3 factors have been used in waysso arbitrary and contradictory as to violate due process of law. Furthermore, this Court’s interpretations of the §190.3 factors have created a process biased in favor of death that does not genuinely narrow the pool of murderers to those most deserving of death. 11. California’s statutory schemeis particularly death-biased in felony-murder cases because the California felony-murderrule itself is exceedingly broad; all first degree felony-murdercases are special circumstance cases and after rendering a first degree murder conviction and special circumstance finding based on felony-murder, the penalty jury is instructed to weigh the same felony-murder “crime circumstances” and the same felony-murderspecial circumstance(s) as factors in aggravation. (See, Penal Code §190.3(a)). 12. Safeguards employed by most other states to ensure a fair jury verdict are not a part of California law andthe review of death judgments by this Court yields an affirmance rate higher than any other court in the country -- much higher than the affirmance rate in states such as Florida, Georgia, Virginia or Texas. 13. Individual prosecutors in California are afforded complete unguided discretion to determine whether to charge special circumstances and to seek penalties of death, thereby creating a substantial risk of county-by-county arbitrariness. See People v. Adcox, 47 Cal.3d at 275-76 (Broussard, J. conc.). 14. The death penalty law in Californiais truly a “wanton andfreakish” system that randomly chooses among the thousands of murderers in California a few victims for the ultimate sanction. 461 15. In 1977, the California legislature enacted a new death penalty law,that statute that Mr. Reno wasprosecuted under. Underthe law, one of twelve special circumstances had to be proved beyonda reasonable doubt to make a murderer death- eligible. (Stats. 1977, ch. 316, at 1255-1266). Underthe statute, death eligibility was to be the exception rather than the rule. Asstated by this Court, first degree murder was “punishable by life imprisonment except for extraordinary cases in which special circumstances are present.” Owen v. Superior Court, 88 Cal.App.3d 757, 760 (1979), quoted with approval in People v. Green, 27 Cal.3d 1, 48 (1980). Also, according to this Court, the special circumstances were intended to define death eligibility in California and thus perform the narrowing function required by Furman. Id., at 61. 16. Asa result of the numberofspecial circumstances, the legislative definition of first degree murder and judicial rulings on the scopeoffirst degree murder, the special circumstances and common feloniesstatutes, a substantial majority of murders in California have been first degree murderand,in virtuallyall of them, at least one special circumstance could be proved. 17. The real breadth of the special circumstance categories is not in the number of categories alone or in the numberthat produce death sentences but in two factors which, in combination, makes California’s scheme exceptional. 18. First, California, along with only seven other states (Florida, Georgia, Maryland, Mississippi, Montana, Nevada and North Carolina) makes felony-murder simpliciter a narrowing circumstance. See People v. Anderson, at 1104. Although the felony-murder language of Penal Code §189 is not identical to the special circumstance language (referring to “perpetration” rather than “commission” and omitting any reference to “‘flight”), in application there is no difference. See People v. Hayes, 52 Cal.3d 577 (1990). 19. Second, California, along with only three other states, Colorado, Indiana and 462 Montana, makes “lying-in-wait” a narrowing circumstance. (Penal Code §190.2(a)(15)). Asinterpreted by this Court, this circumstance encompassesa substantial portion of premeditated murders. Only California and Montana have death penalty schemes with both felony-murder simpliciter and lying-in-wait narrowing circumstances and, unlike California’s numerousand broad felony-murder special circumstances, Montana’s felony- murder narrowing circumstances encompass only two felonies: aggravated kidnaping and sexual assault on a minor. (See Mont. Code Ann. §46-18-303(7), (9) (1995)). 20. At the time ofpetitioner’s trial, there was substantial overlap between the intentional murders committed by listed means in $189 and the special circumstancesset forth in §190.2. Fourof the five “means”listed in §189 (murders by destructive device or explosive, poison, torture and lying in wait) were also special circumstancesin intentional killings. (See Pen. Code §190.2(a)(4), (a)(6), (a)(15), (a)(18), and (a)(19)). 21. There also was substantial overlap between the felony murderslisted in §189 and the special circumstanceslisted in Penal Code §190.2(a)(17). Five of the six felonies listed in §189 (arson, rape, robbery, burglary and violations of Pen. Code §288(a)) also were special circumstances). (See Pen. Code §190.2, subds. (a)(17)(D, (a)(17)G), (a)(17)(v), (a)(17)(vil) and (a)(17)(viii).) Only mayhem could have beenthe basis for a first degree felony-murder conviction without also making the murdererdeath eligible. 22. The only intentional first degree murders not expressly qualifying for the death penalty were those wherethe first degree murder was established by proof of premeditation and deliberation. Some such murders would have been capital murders because the defendant committed another murder, (Pen. Code $190.2, subds. (a)(2), (a)(3)), the defendant acted with a particular motive (Pen. Code §190.2, subds. (a)(1), (a)(5), (a)(16)), or the defendantkilled a particular victim (Pen. Code §190.2, subds. (a)(7) - (a)(13)). 23. Virtually all the remaining premeditated murders also would have been 463 capital murders because, by definition, most premeditated murders are done while the defendant was lying in wait. Pen. Code §190.2, subd. (a)(15); People v. Morales, 48 Cal.3d 527, 557, 575 (1989); People v. Ceja, 4 Cal.4th 1134, 1147 (1993) [conc. opn. of Kennard, J.]. 24. Although the term “lying in wait” carries with it the connotation of an ambush from hiding, this Court has given this special circumstance a far more expansive interpretation. According to this Court, lying in wait is established if the defendant:(1) concealed his purposeto kill the victim; (2) watched and waited for a substantial period for an opportunetimeto act; and (3) immediately thereafter launched a surprise attack on the victim from a position of advantage. People v. Morales, at 557. This Court has interpreted the second elementto require only that the duration of the watching and waiting be “such as to show state of mind equivalent to premeditation or deliberation.” People v. Edelbacher, 47 Cal.3d 983 (1989). Asa result, whether a premeditated murder is done while lying in wait turns on thefirst and third elements. 25. Most premeditated murders satisfy those two elements. It will be a rare premeditated murder, i.e., a murder done “as a result of careful thought and weighing of considerations. . . carried on coolly and steadily, [especially] according to a preconceived design,” (People v. Bender, 27 Cal.2d 164 (1945)), where the defendant reveals his purpose in advanceorfails to try to take the victim from a position of advantage. 26. Thus,the lying-in-wait special circumstance applies to a wide variety offirst degree murders, ranging from the true ambush to murders where the defendant follows the victim for a period before the killing, lures the victim into a trap, engages the victim in conversation and then attacks the victim from behindor kills the victim in his or hersleep. 27. Thesituation is similar with regard to unintentional first degree murders. Unintentional murdersare first degree murders by virtue of the felony-murder rule. (Penal Code §189). An unintentional killing during oneofthe listed felonies (except mayhem) 464 makesthe actual killer death eligible. 28. At the time ofpetitioner’s trial and in the years following, the broad reach of the felony-murderrule has resulted from three factors: a. The felony-murderrule applies to the most common felonies resulting in death, particularly robbery and burglary, crimes which themselves are defined very broadly by statute and court decision; b. The felony-murderrule applies to killings occurring even after completion of the felony, if the killing occurs during an escape,1.e., before the defendant reaches a place of “temporary safety,” or as a “natural and probable consequence”of the felony. People v. Cooper, 53 Cal.3d 1158 (1991); People v. Birden, 179 Cal.App.3d 1020 (1986). C, The felony-murderrule is not limited in its application by normal rules of causation and applies to altogether accidental and unforeseeable deaths: “(First degree felony murder encompassesa far wider range of individual culpability than deliberate and premeditated murder. It includes notonly the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mentalillness, drugs, or alcohol; and it condemnsalike consequencesthat are highly probable, conceivably possible, or wholly unforeseeable.” People v. Dillon, 34 Cal.3d 441, 447 (1983). 29. |The combination of the felony-murder special circumstances, which themselves perform no narrowing functionat least as to the actual killer and the lying-in- wait special circumstance, which by definition encompasses most premeditated murders, 465 means that Penal Code §190.2 does not effect any significant narrowing. 30. The breadth of Penal Code §190.2 is more than just theoretical. Empirical evidence compiled by Professor Steven F. Shatz confirms whatis evident from the face of the statute: his survey of 596 published and unpublished decisions on appeals from first and second degree murderconvictions in California, from 1988 through 1992, as well as 78 unappealed murder conviction cases filed during the same period in three counties, Alameda, Kern and San Francisco, demonstrates that Penal Code §190.2 fails to perform the narrowing function required under the Eighth and Fourteenth Amendments. (California Death Penalty Scheme: Requiem for Furman, 1327-1335.). 31. Accordingto this survey, this Court reversed a capital case, in whole or in part, only once because ofinsufficient evidence to support the finding of special circumstances. See People v. Morris, 46 Cal.3d 1 (1988). 32. The results of this study of published appeals from first degree murder convictions are set forth in California Death Penalty Scheme: Requiem for Furman, Table 1, “Narrowing Effect of §190.2 in Published Appeals from First Degree Murder Convictions (1988-1992)”. This report makes clear the following points: a. First, the overwhelming majority (92%) of non-death judgmentfirst degree cases are also factually special circumstance cases. b. Second, the felony-murder special circumstances play the predominantrole in defining death-eligibility in the California scheme. One or more of the felony-murder special circumstances was proved in almost three-quarters (74%) of the death judgment cases and in 60% of the other actual or potential special circumstance cases. (California Death Penalty Scheme. Requiem for Furman, 1328-1330.) 33. The results of this study of unpublished appeals from first degree murder convictions are set forth in California Death Penalty Scheme: Requiem for Furman, 466 Table 2, “Narrowing Effect of §190.2 in Unpublished Appeals from First Degree Murder Convictions (First Appellate District, 1988-1992)”. This report makes clear the following points: The data for the unpublished cases generally confirm the data for the published cases. Again, the overwhelming majority (85%) of first degree murder casesare factually special circumstance cases, with the majority of the special circumstance cases being felony-murder cases. Thedistribution of special circumstances closely tracks the distribution in the published non-death judgmentfirst degree murder cases. (/d., at 1330). 34. The published case sample indicates that 92% of non-death judgmentfirst degree murdercases are factually special circumstance cases, while the unpublished case sample puts the number at 85%. When the percentages forthe three categories offirst degree murdercases (death judgmentcases, published non-death judgment cases and unpublished cases) are combined according to their respective proportionsoftotal first degree murdercases, the result is that approximately 87% offirst degree murdercases are factually special circumstance cases. Thus, approximately seven outofeight first degree murdercasesare factually special circumstances cases, the majority of first degree murders are felony murders, and felony murdersare virtually all special circumstance murders. Accordingly, California’s felony-murder special circumstances, pursuantto which petitioner became death-eligible, alone defeat any possibility of genuine narrowing. (Id. at 1330-1332.) 35. The class of first degree murderers is narrowedto a death-eligible class not only by the special circumstances of §190.2, but also by Penal Code §190.5, which forbids application of the death penalty to anyone underthe age of eighteen at the time of the commission of the crime. When juvenile first degree murderers are excluded from the calculation,the result is that more than 84% offirst degree murderersare statutorily death- eligible under Penal Code §190.2. Ud. at 1332.) 36. Professor Shatz’ study thus demonstrates that Penal Code §190.2 fails to 467 genuinely narrow the group of murderers who may besubject to the death penalty and does not address the risk of arbitrariness prohibited by the Eighth and Fourteenth Amendments. Accordingto this study, only 9.6% of those statutorily death-eligible under California’s death penalty schemeare actually sentenced to death. If 84% offirst degree murderers are statutorily death-eligible and only 9.6% are sentenced to death, California has a death sentenceratio of 11.4%. Thisratio is significantly below the assumed percentage of death judgments at the time ofFurman (15-20%), a percentage impliedly found by the majority of the Supreme Court to create enough risk of arbitrariness to violate the Eighth Amendment. (/d. at 1283, 1332.) 37. Because almostall first degree murders in California fall within the special circumstances enumerated in Penal Code §190.2, the death penalty statute fails to genuinely narrow theclass of death eligible murderersin violation of the Eighth and Fourteenth Amendments. As a consequence,the death-eligible class is so large that fewer than one out of eight statutorily death-eligible convicted first degree murderersis actually sentenced to death. Under California’s death penalty scheme,there is no meaningfulbasis to distinguish the cases in which the death penalty is imposed. California’s scheme defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. 38. Penal Code §$190.2's failure to genuinely narrowthe class of death eligible murderers is neither corrected nor ameliorated by Penal Code $190.3, the statute which sets forth the circumstances in aggravation and mitigation whichthe jury is to consider in determining whether to impose a sentence of death upon a defendant convicted of special circumstance murder. The purposeofthis statute, according to its language and according to interpretations by both this Court and the Supreme Court, is to inform the jury of what factors it should consider in assessing the appropriate penalty. In actual practice, it has been used in waysso arbitrary and contradictory as to violate due process oflaw. 468 39. Factor(a), listed in §190.3, directs the jury to consider in aggravation the "circumstances of the crime." Havingat all times found that the broad term "circumstances of the crime" meets constitutional scrutiny, this Court has never applied any limiting construction to this factor, even to eliminate blatant capriciousness. Instead, the Court has allowed extraordinary expansionsofthis factor, approving reliance on the "circumstance of the crime" aggravating factor because the defendant had a “hatred ofreligion,” (People v. Nicolaus, 54 Cal.3d 551, 581-582 (1991)); or because three weeksafter the crime defendant sought to conceal evidence, (People v. Walker, 47 Cal.3d 605, 639, fn. 10 (1988)); or threatened witnesses after his arrest, (People v. Hardy, 2 Cal.4th 86, 204 (1992)); or disposed of the decedent's body in a manner that precluded its recovery (People v. Bit taker, 48 Cal.3d 1046, 1110, fn. 35 (1989)). 40. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from case to case, reflect starkly opposite circumstances. Thus, prosecutors have been permitted to argue that "circumstances of the crime"is an aggravating factor to be weighed on death's side of the scale: a. Because the defendant struck many blowsand inflicted multiple wounds,” or because the defendantkilled with a single execution-style wound.” b. Because the defendant killed the victim for some purportedly aggravating motive (money, revenge, witness-elimination, avoidingarrest, 3 See, e.g., People v. Morales, Cal. Sup. Ct. No. S004552, RT 3094-95 (defendant inflicted many blows); People v. Zapien, No. S004762, RT 36-38 (same); People v. Lucas, No. S004788, RT 2997-98 (same); People v. Carrera, No. 8004569, RT 160-61 (same). ** See, e.g., People v. Freeman, No. 004787, RT 3674, 3709 (defendant killed with single wound); People v. Frierson, No. S004761, RT 3026-27 (same). 469 » sexualgratification)*> or because the defendantkilled the victim without any motive atall.*° c. Because the defendant killed the victim in cold blood”’ or becausethe defendant killed the victim during a savage frenzy.” d. Because the defendant engaged in a cover-up to concealhis crime,” or because the defendant did not engage in a cover-up and so must have been proudofit. e. Because the defendant madethe victim endure the terror of anticipating a violent death”or because the defendant killed instantly without > See, e.g., People v. Howard, No. S004452, RT 6772 (money); People v. Allison, No. S004649, RT 968-69 (same); People v. Belmontes, No. S004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840, RT 6759-60 (sexual gratification); People v. Ghent, No. S004309, RT 2553-55 (same); People v. Brown, No. 8004451, RT 3543-44 (avoid arrest); People v. McLain, No. S004379, RT 31 (revenge). 6 See e.g., People v. Edwards, No. S004755, RT 10544 (defendant killed for no reason); People v. Osband, No. S005233, RT 3650 (same); People v. Hawkins, No. S014199, RT 6801 (same). 37 See, e.g., People v. Visciotti, No.004597, RT 3296-97 (defendantkilled in cold blood). 38 See, e.g., People v. Jennings, No. $004754, RT 6755 (defendant killed victim in savage frenzy [trial court finding]). ° See, e.g., People v. Stewart, No. S020803, RT 1741-42 (defendant attempted to influence witnesses); People v. Benson, No. S004763, RT 1141 (defendantlied to police); People v. Miranda, No. $004464, RT 4192 (defendant did not seek aid for victim). “0 See, e.g., People v. Adcox, No. 004558, RT 4607 (defendantfreely informs others about cnme); People v. Williams, No. S004365, RT 3030-31 (same); People v. Morales, No. 8004552, RT 3093 (defendant failed to engage in a cover-up). “| See, e.g., People v. Webb, No. S006938, RT 5302; People v. Davis, No. S014636, RT 11125; People v. Hamilton, No. S004363, RT 4623. 470 any warning.” f. Because the victim had children,” or because the victim had notyet had a chance to have children.“ g. Becausethevictim struggled prior to death,” or becausethe victim did notstruggle.” h. _~ Because the defendant had priorrelationship with the victim,” or because the victim was a complete stranger to the defendant.* 41. Of equal importance to the arbitrary and capricious use of contradictory _ circumstances of the crime to support a penalty of death is the use of the "circumstances of the crime" aggravating factor to embrace facts which coverthe entire spectrum offactors inevitably present in every homicide: a. The age of the victim. Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating circumstance becausethe victim 42 See, e.g., People v. Freeman, No. S004787, RT 3674 (defendantkilled victim instantly); People v. Livaditis, No. S004767, RT 2959 (same). * See, e.g., People v. Zapien, No. S004762, RT 37 (Jan 23, 1987) (victim had children). “ See, e.g., People v. Carpenter, No. 004654, RT 16752 (victim had not yet had children). © See, e.g., People v. Dunkle, No. $014200, RT 3812 (victim struggled); People v. Webb, No. S006938, RT 5302 (same); People v. Lucas, No. S004788, RT 2998 (same). “© See, e.g., People v. Fauber, No. S005868, RT 5546-47 (no evidenceofstruggle); People v. Carrera, No. $004569, RT 160 (same). ‘7 See, e.g., People v. Padilla, No. S014496, RT 4604 (priorrelationship); People v. Waidla, No. S020161, RT 3066-67 (same); People v. Kaurish, 52 Cal.3d 648, at 717 (1990). “8 See, e.g., People v. Anderson, No. 8004385, RT 3168-69 (noprior relationship); People v. McPeters, No. S004712, RT 4264 (same). 47] was a child, an adolescent, a young adult, in the primeoflife, or elderly.” b. The method of killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the victim wasstrangled, bludgeoned, shot, stabbed or consumedbyfire.*° c. The motive of the killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the defendantkilled for money, to eliminate a witness, for sexual gratification, to avoid arrest, for revenge or for no motive at all.*! d. The time of the killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the victim waskilled in the middle of the night, late at night, early in the morning or in ” See, e.g., People v. Deere, No. S004722, RT 155-56 (victims were young, ages 2 and 6); People v. Bonin, No. 8004565, RT 10075 (victims were adolescents, ages 14, 15, and 17); People v. Carpenter, No. S004654, RT 16752 (victim was 20); People v. Phillips, 41 Cal.3d 29, 63, 711 P.2d 423, 444 (1985) (26-year-old victim was "in the primeoflife"); People v. Samayoa, No. S006284, XL RT 49 (victim was an adult "in her prime"); People v. Kimble, No. 8004364, RT 3345 (61-year-old victim was "finally in a position to enjoy the fruits of his life's efforts"); People v. Melton, No. $004518, RT 4376 (victim was 77); People v. Bean, No. $004387, RT 4715-16 (victim was elderly"). ° See, e.g., People v. Clair, No. S004789, RT 2474-45 (strangulation); People v. Kipp, No. S004784, RT 2246 (same); People v. Fauber, No. S005868, RT 5546 (use of an ax); People v. Benson, No. 8004763, RT 1149 (use of a hammer); People v. Cain, No. S006544, RT 6786-87 (use of a club); People v. Jackson, No. S01723, RT 8075-76 (use of a gun); People v. Reilly, No. S004607, RT 14040 (stabbing); People v. Scott, No. S010334, RT 847 (fire). >! See, e.g., People v. Howard, No. 004452, RT 6772 (money); People v. Allison, No. S004649, RT 969-70 (same); People v. Belmontes, No. S004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840, RT 6759-61 (sexual gratification); People v. Ghent, No. 5004309, RT 2553-55 (same); People v. Brown, No. 8004451, RT 3544 (avoid arrest); People v. McLain, No. $004370, RT 31 (revenge); People v. Edwards, No. 8004755, RT 10544 (no motive at all). 472 the middle of the day.” e. The location ofthe killing. Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the victim was killed in her own home,in a public bar, in a city park or ina remote location.” 42. The foregoing examples of how the factor (a) aggravating circumstanceis actually being applied in practice makeclearthatit is being relied upon as an aggravating factor in every case, by every prosecutor, without any limitation whatsoever. 43. Juries consider, and prosecutors have been permitted to turn, entirely opposite facts or facts that are inevitable variations of every homicide, into aggravating factors which the jury is urged to weigh on death’s side ofthe scale. 44. As noted above, California’s schemeis particularly death-biased in felony- murder cases because the California felony-murderrule itself is exceedingly broad. 45. Additionally, pursuant to Penal Code §190.3(a), a California penalty phase jury is instructed to weigh in aggravation of sentence any special circumstance whichit foundtrue at the guilt phase. (Penal Code §190.3(a); CALJIC 8.84.1). After a first degree ’ murder conviction and special circumstance finding based on felony-murder, the penalty phase jury is instructed to weigh the same felony-murder“crime circumstances”(Penal Code §190.3(a)) and the same felony-murderspecial circumstance(s) as. factors in 2 See, e.g., People v. Fauber, No. S005868, RT 5777 (early morning); People v. Bean, No. S004387, RT 4715 (middle of the night); People v. Avena, No. S004422, RT 2603-04 (late at night); People v. Lucero, No. S012568, RT 4125-26 (middle of the day). > See, e.g., People v. Anderson, No. $004385, RT 3167-68 (victim's home); People v. Cain, No. S006544, RT 6787 (same); People v. Freeman, No. S004787, RT 3674, 3710-11 (public bar); People v. Ashmus, No. S004723, RT 7340-41 (city park); People v. Carpenter, No. S004654, RT 16749-50 (forested area); People v. Comtois, No S017116, RT 29760 (remote, isolated location). 473 aggravation. Thus, a defendant convictedof first degree murder under a felony-murder theory is therefore automatically eligible for a duplicating special circumstance (Penal Code §190.2(a)(17) et seq.) and a duplicating penalty phase aggravating factor (Penal Code §190.3(a)), by the nature of the charge. 46. By contrast, a defendant accused of a premeditated killing does not automatically have a built-in special circumstance. Something more must be found to make that defendanteligible for death, and to support a sentencer's decision to impose death. This disparity between premeditated and felony-murderis highly incongruous,and violates the due process guarantees of the Eighth and Fourteenth Amendments, as well as the Fourteenth Amendment's equal protection clause and the California Constitution. 47. California's effort to comply with the Eighth Amendment's narrowing requirement by meansoffindings of special circumstances does nothing meaningfully to narrow the class of murderers eligible for death because the special circumstance of a felony-murder duplicates exactly the elements of the crimeitself. The error is then emphasized by having the jury consider the special circumstance finding as a penalty phase aggravating factor. Because the substantive felony-murder offense (Penal Code §189), the felony-murder special circumstance and the penalty phase aggravating factor based on the special circumstanceused in the actual decision to impose death areall duplicative, a death judgment which,as here, is based on suchfactors also violates the Fifth Amendment's prohibition against double jeopardy. This triple use of facts in a capital case felony-murder also violates the Eighth Amendment's prohibition against cruel and unusual punishment, the Fourteenth Amendment's due process clause and the enhanced capital case due process protection of both. This is a process biased in favor of death that does not genuinely narrow the pool of murderers to those most deserving of death. 48. The California murder and death penalty statutory scheme, contained in Penal Code §§187-190.5, affords the individual prosecutor complete discretion to determine 474 whether special circumstances will be charged and whether a penalty hearing will be held, in violation of the Eighth and Fourteenth Amendments, thereby creating a substantial risk of county-by-county arbitrariness. There are no statewide standards to guide the prosecutor's discretion. | 49. Someoffenders, under the California statutory scheme, are chosen as candidates for the death penalty by one prosecutor, while others with similar factors in different counties are not. This arbitrary determination can be madeatthe charging stage, prior to trial, after the guilt phase, and during or even after the penalty phase. This range of opportunity, coupled with the absence of any standards to guide the prosecutor's discretion, permits reliance on constitutionally irrelevant and impermissible considerations, including race, ethnicity, sexual orientation or economic status. Additionally, the prosecutoris free to seek death in virtually every first degree murder case on either a lying-in-wait theory or a felony-murder theory and to argue that death should be imposed based on nothing more than the same facts that substantiated a conviction for first degree murder. 50. Petitioner would not have been charged with the death penalty had he been charged with the same crimes in manyother counties in California. The California statutory scheme, by design andin effect, improperly produced arbitrary and capricious prosecutorial discretion throughoutthe capital case process, in charging, prosecuting, submitting the case to the jury and opposing the automatic motion to modify the sentence. 51. In addition to its failure to genuinely narrow the class of death-eligible defendants and its provision of unfettered charging discretion to individual prosecutors, the California murder/death penalty statutory scheme, as written and applied, contains none of the safeguards commonto other death penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not have to believe beyond a reasonable doubt that aggravating circumstances outweigh the mitigating circumstances and 475 that death is the appropriate penalty. Not only is inter-case proportionality review not required,it is not permitted. 52. Other jurisdictions that allow the death penalty to be imposed haveatleast one of these safeguards, in order to avoid the imposition of random orvindictive death sentences. Noneis a part of California's death penalty law. 53. Twenty-five states require that factors relied on to impose death in a penalty phase must be proven beyonda reasonable doubt by the prosecution andthree additional states have related provisions.’ Only California and four other states (Florida, Missouri, Montana and New Hampshire)fail to address the matter by statute. 54. California does not require that a reasonable doubt standard be used to determine whethera death sentence should be imposed. However, this heightened standard is employed for matters of much less importance to an individual than life or death,i.e., being committed to a mental hospital or having a conservator appointed to managehis or her affairs. In fact, California’s failure to provide any standard of proof for aggravating or ** See Ala. Code §13A-5-45(e) (1975); Ark. Code Ann. §5-4-603 (Michie 1987); Colo. Rev. Stat. Ann. §16-11-103(d) (West 1992); Del. Code Ann.tit. 11, §4209(d) (1) (a) (1992); Ga. Code Ann. §17-10-3-(c) (Harrison 1990); Idaho Code §19-2515(g) (1993); Ill. Ann. Stat., ch. 38, para. 9- 1(f) (Smith-Hurd 1992); Ind. Code Ann. §35-50-2-9(a), (e) (West 1992); Ky. Rev. Stat. Ann. §532.025(3) (Michie 1992); La. Code Crm.Proc. Ann., art. 905.3 (West 1984); Md. Ann. Code, art. 27, §413(d), (f), (g) (1957); Miss. Code Ann. §99-19-103 (1993); State v. Stewart, 250 N.W.2d 849, 863 (Neb. 1977); State v. Simants, 250 N.W.2d 881, 888-890 (Neb. 1977); Nev. Rev. Stat. Ann. §175.554(3) (Michie 1992); N.M. Stat. Ann. §31-20A-3 (Michie 1993); Ohio Rev. Code §2929.04 (Page's 1993); Okla. Stat. Ann., tit. 21, $701.11 (West 1993); 42 Pa. Cons. Stat. Ann. §9711(c)(1)Gii) (1982); S.C. Code Ann. §16-3-20(A), (c) (Law Co-op 1992); S.D. Codified Laws Ann. §23A-27A-5 (1988); Tenn. Code Ann. §39-13-204(f) (1991); Tex. Crim. Proc. Code Ann. §37.071(c) (West 1993); State v. Pierre, 572 P.2d 1338, 1348 (Utah 1977); Va. Code Ann. §19.2-264.4(c) (Michie 1990); Wyo. Stat. §6-2-102(d)(@)(A), (e)() (1992). Washington hasa related requirement that, before making a death judgment, the jury must makea finding beyond a reasonable doubt that no mitigating circumstances exist sufficient to warrant leniency. (Wash. Rev. Code Ann. 10.95.060(4) (West 1990).) Arizona and Connecticut require that the prosecution prove the existence of penalty phase aggravating factors, but specify no burden. (Anz. Rev. Stat. Ann. §13-703(c) (West 1989); Conn. Gen. Stat. Ann. §53a-46a(c) (West 1985).) 476 mitigating circumstances or the weighing processandfailure to assign such a burden to either party, is an additional unconstitutional failure of the statute. 55. Three states require that the jury must base any death sentence on a finding beyond a reasonable doubt that death is the appropriate punishment.” A fourth state, Utah, has reversed a death judgment because that judgment was based on the samestandard of proof as applied in California, 1.e., less than proof beyond a reasonable doubt. 56. Of the thirty-four post-Furmanstate capital sentencing systems, twenty-five require some form of written findings, specifying the aggravating factors upon whichthe jury has relied in reaching a death judgment. Nineteen ofthese states require written findings regarding all penalty phase aggravating factors found true, while the remaining six require a written finding asto at least one aggravating factor relied on to impose death. 57. Of the twenty-twostates like California that vest the responsibility for death penalty sentencing on the jury, however, fourteen require that the jury unanimously agree on the aggravating factors proven and unanimously agree that death is the appropriate °° See Ark. Code. Ann. §5-4-603(a)(3) (Michie 1991); Wash. Rev. Code Ann. §10.95.060 (West 1990); and State v. Goodman, 257 §.E.2d 569, 577 (1979). 6 See Ala. Code §12A-5-46(f), 47(d) (1982); Ariz. Rev. Stat. Ann. §13-703 (D) (1989); Ark. Code Ann. §5-4-603 (a) (Michie 1987); Conn. Gen. Stat. Ann. §53a-46a(e) (West 1985); State v. White, 395 A.2d 1082, 1090 (Del. 1978); Fla. Stat. Ann. §921.141(3) (West 1985); Ga. Code Ann. §17-10-30(c) (Harrison 1990); Idaho Code §19-2515(e) (Michie 1987); Ky. Rev. Stat. Ann. §532.025(3) (Michie 1988); La. Code Crm. Proc. Ann., art. 905.7 (West 1993); Md. Ann. Code, art. 27, §413(1) (1992); Miss. Code Ann. §99-19-103 (1993); Mont. Code Ann. §46-18-306 (1993); Neb. Rev. Stat. §29-2522 (1989); Nev. Rev. Stat. Ann. §175-554(3) (Michie 1992); N.H. Rev. Stat. Ann. §630:5 (TV) (1992); N.M. Stat. Ann. §31-20A-3 (Michie 1990); Okla. Stat. Ann., tit. 21, $701.11 (West 1993); 42 Pa. Cons. Stat. Ann. §9711 (1982); S.C. Code §16-3-20(c) (Law. Co-op. 1992); S.D. Codified Laws Ann. §23A-27A-5 (1988); Tenn. Code Ann. §39-13-204(g) (1993); Tex. Crim. Proc. Code Ann. §37.071(c) (West 1993); Va. Code Ann. §19.2-264.4(D) (Michie 1990); Wyo. Stat. §6-2-102(e) (1988). 477 sentence’. California does not have such a requirement. 58. Petitioner's jurors were nevertold that they were required to agree on which factors in aggravation had been proven. They could have madetheir decision to impose death using any of the improper considerations described ante, orstill other similar, improper matters. Absent a requirement of unanimousjury agreementas to the existence of any aggravating factors, and written findings thereon, the propriety of the judgment cannot be reviewedin a constitutional manner. Each juror could haverelied on a factor which could potentially constitute proper aggravation but was different from such factors relied on by the other jurors; i.e., there was no actual agreement on whypetitioner should be condemned. 59. Thirty-one ofthe thirty-four states that sanction capital punishment require comparative, or "inter-case," appellate sentence review. By statute, Georgia requires that the state supreme court determine whether". . . the sentence is disproportionate compared to those sentences imposed in similar cases." (Ga. Stat. Ann. §27-2537(c).) The provision was approved by the Supreme Court, holding that it guards". . . further against a situation comparable to that presented in Furman v. Georgia. . ." Gregg v. Georgia, at 198. Toward the same end, Florida has judicially ". . . adopted the type of proportionality review mandated by the Georgia statute." Proffitt v. Florida, 428 U.S. 242, 259 (1976). Twenty states have statutes similar to that of Georgia and seven havejudicially °7 See Ark. Code Ann. §5-4-603(a) (Michie 1993); Colo. Rev. Stat. Ann. §16-11-103(2) (West 1992); Ill. Ann. Stat., ch. 38, para. 9-1(g) (Smith-Hurd 1992); La. Code Crim.Proc. Ann., art. 905.6 (West 1993); Md. Ann. Code,art. 27, §413(D (1993); Miss. Code Ann. §99-19-103 (1992); N.H. Rey. Stat. Ann. §630:5(IV) (1992); N.M. Stat. Ann. §31-20A-3 (Michie 1990); Okla. Stat. Ann., tit. 21, §701.11 (West 1993); 42 Pa. Cons. Stat. Ann. §9711(c)(1)(iv) (1982); S.C. Code Ann. §16-3- 20(c) (Law, Co-op. 1992); Tenn. Code Ann. §39-13-204(g) (1993); Tex. Crim. Proc. Code Ann. §37.071 (West 1993), 478 wu instituted similar review.** 60. Penal Code $190 does not require that either the trial court or this Court undertake a comparison between this and other factually similar cases to examine the proportionality of the sentence imposed, 1.e., inter-case proportionality review. The statute also does not forbid such review. This Court has madeit clear, however, that neither trial courts nor reviewing courts are permitted in California to do inter-case proportionality review. This blanket prohibition on the consideration of any evidence showingthat death sentences are not being charged by California prosecutors or imposed on similarly situated defendants by California juries, regardless of the circumstancesofa particularcase, violates the Constitution. 61. Because almostall first degree murders in California fall within the special circumstances enumerated in Penal Code §190.2, the individual prosecutors in California are afforded complete discretion to determine whether to charge special circumstances and seek penalties of death and the California statutory scheme contains noneof the safeguards common to other death penalty sentencing schemes to guard against the arbitrary imposition of death, California’s death penalty statute fails to genuinely narrow theclass of 8 See Ala. Code §13A-5-53(b)(3) (1982); Conn. Gen. Stat. Ann. §53a-46(b)(3) (West 1993); Del. Code Ann., tit. 11, §4209(g)(2) (1992); Ga. Code Ann. §17-10-35(c)(3) (Harrison 1990); Idaho Code §19-2827(c)(3) (1987); Ky. Rev. Stat. Ann. §532.075(3) (Michie 1985); La. Code Crim. Proc. Ann., art. 905.9.1(1)(c) (West 1984); Miss. Code Ann. §99-19-105(30(c) (1993); Mont. Code Ann. §46-18-310(3) (1993); Neb. Rev. Stat. §29-2521.01, 03, 29-2522(3) (1989); Nev. Rev.Stat. Ann. §177.055(d) (Michie 1992); N.H. Rev. Stat. Ann. §630:5(XT)(c) (1992); N.M. Stat. Ann. §31- 20A-4(c)(4) (Michie 1990); N.C. Gen. Stat. §15A-2000(d)(2) (1983); Ohio Rev. Code Ann. §2929.05(A) (Baldwin 1992); 42 Pa. Cons. Stat. Ann. §9711(h)(3)(iii) (1993); S.C. Code Ann. §16- 3-25(C)(3) (1988); Tenn. CodeAnn. §13-206(c)(1)(D) (1993); Va. Code Ann. §17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann. §10.95.130(2)(b) (West 1990); Wyo. Stat. §6-2-103(d)(iii) (1988). Also see State v. Dixon (Fla. 1973) 283 So. 2d 1, 10; Alford v. State (Fla. 1975) 307 So. 2d 433, 444; People v. Brownell (Ill. 1980) 404 N.E. 2d 181, 197; Brewer v. State (Ind. 1981) 417 N.E.2d 889, 899; State v. Pierre (Utah 1977) 572 P.2d 1338, 1345; State v. Simants (Neb. 1977) 250 N.W.2d 881, 890; State v. Richmond (Ariz. 1976) 560 P.2d 41, 51; Collins v. State (Ark. 1977) 548 S.W.2d 106, 121. 479 death eligible murderers in violation of the Eighth and Fourteenth Amendments and permits the imposition of death sentences in an arbitrary and capricious manner. 62. Because petitioner was prosecuted underthis overly-inclusive and unconstitutional statute, his death sentenceis invalid and a writ of habeas corpus should issue reversing his penalty. 63. The failure of petitioner’s counsel to object to prosecution ofpetitioner under the California capital sentencing law for the reasons set forth above was unreasonable, fell below the prevailing professional standard of competence, was not justified and could not have beenjustified, by any legitimate tactical objective, denied petitioner his right to a reliable penalty determination, precluded review ofthis issue on appeal and prejudiced petitioner’s chances of obtaining a more favorable sentence. 5. EIGHTH AMENDMENT CLAIMS. CLAIM 131: The Unconstitutional Use of Lethal Injection Renders Petitioner’s Death SentenceIllegal. 1. Petitioner’s sentence of death is illegal and unconstitutional under the Eighth and Fourteenth Amendments as well as the California Constitution, because execution by lethal injection, the method by which the State of California plans to execute him, violates the prohibition of cruel and unusual punishment. In 1992, California added as an alternative means of execution “intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established underthe direction of the Department of Corrections.” (Penal Code §3604.) As amended in 1992, Penal Code $3604 providesthat “[p]ersons sentenced to death priorto or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposedbylethal gas or lethal injection.” As amended, §3604 further providesthat “if either manner of execution . . . 1s held invalid, the punishment of death shall be imposed bythe alternate means... . 480 2. In 1996, the California Legislature amended Penal Code §3604 to provide that “if a person under sentence of death does not chooseeither lethal gas or lethal injection. . ., the penalty of death shall be imposedby lethalinjection.” 3. On October 4, 1994, the United States District Court for the Northern District of California ruled in Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994) that the use of lethal gas is cruel and unusual punishment and thusviolates the constitution. In 1996, the Ninth Circuit affirmedthe district court’s conclusions in Fierro, holding that “execution by lethal gas under the California protocol is unconstitutionally cruel and unusual and violates the Eighth and Fourteenth Amendments.” Fierro v. Gomez, 77 F.3d 301, 309 (9" Cir. 1996). The Ninth Circuit also permanently enjoined the state of California from administering lethal gas. /bid. Accordingly, lethal injection is the only method of execution currently authorized in California. 4. In 1996, the Ninth Circuit concluded, in Bonin v. Calderon, 77 F.3d 1155, - 1163 (9" Cir. 1996), that becausethe use oflethal gas has been held invalid by the Ninth Circuit, a California prisoner sentenced to death has no state-created constitutionally protected liberty interest to choose his method of execution under Penal Code §3604(d). Underoperation of California law, the Ninth Circuit’s invalidation of the use oflethal gas as a meansof executions leaveslethal injection as the sole means of execution to be implementedbythestate. (Ibid.; see Penal Code §3604(d)). Because Bonin did not argue that execution by lethal injection is unconstitutional, the Ninth Circuit concluded, with no discussion nor analysis, that the method of execution to be implemented in his case was applied constitutionally. (bid.) 5. The lethal injection method of execution is authorized to be usedin thirty- onestates in addition to California. Between 1976 and 1996, there were 179 executions by lethal injection. This figure includesall lethal injection executions in the United States through January 22, 1996. Of the 56 people executed in the United States in 1995, only 481 seven died by other means. Lethal injection executions have been carried outin atleast the following states: Arizona, Arkansas, Delaware, Idaho, [linois, Louisiana, Maryland, Missouri, Montana, Nevada, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Virginia and Wyoming. 6. Consequently, there is a growing body of evidence, both scientific and anecdotal, concerning these methodsof execution, the effects of lethal injection on the inmates who are executed by this procedure and the many instances in which the procedures fail, causing botched, painful, prolonged and torturous deaths for these condemnedpersons. 7. Both scientific evidence and eyewitness accounts support the proposition that death by lethal injection can be an extraordinarily painful death andthatit is therefore in violation of the prohibition against cruel and unusual punishmentset forth in the Eighth Amendment. The Eighth Amendmentis applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962). 8. The drugs authorized to be used in California’s lethal injection procedure are extremely volatile and can cause complications even when administered correctly. The procedure exposes the inmate to substantial and grave risks of prolonged and extreme infliction of pain if these drugs are not administered correctly. 9. Medical doctors are prohibited from participating in executions onethical grounds. The Code of Medical Ethics was set forth in the Hippocratic Oath inthe fifth century B.C. and requires the preservation oflife and the cessation of pain aboveall other values.” Medical doctors may nothelp the state kill an inmate. The American Nurses °° The Oath provides:“I will follow the method of treatment which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whateveris deleterious and mischievous. I will give no deadly medicine to anyoneif asked, nor suggest any such counsel.” °° During the American Medical Association’s annual meeting in July 1980, their House of Delegates adopted the following resolution: “A physician, as a memberofa profession dedicated to the preservation of life when there is hope of doing so, should not be a participant in a legally authorized 482 Association also forbids members from participating in executions. 10. Thefirst lethal injection execution in the United States took place in 1982 and was plagued by mishapsfrom the outset. Because of several botched executions, the New Jersey Department of Corrections contacted an expert in execution machinery and asked him to invent a machine to minimize the risk of human error. Fred Leuchter’s lethal injection machine, designed to eliminate “execution glitches,” wasfirst used on January 6, 1989 for an execution in Missouri. 11. The dosages to be administered are not specified by statute but rather “by standards established underthe direction of the Department of Corrections.” (Penal Code §3604(a).) The three drugs commonly usedin lethal injections are Sodium Pentothal, Pancuronium Bromide and Potassium Chloride. See SEPHC Ex. 30 at3. 12. The Sodium Pentothal renders the inmate unconscious. The Pancuronium Bromide then paralyzes the chest wall muscles and diaphragm so that the subject can no longer breathe. Finally, the Potassium Chloride causes a cardiac arrhythmia whichresults in ineffective pumping of blood by the heart and, ultimately; a cardiac arrest. 13. The procedures by which the State of California plans to inject chemicals into the body are so flawed that the inmate may not be executed humanely, so as to avoid cruel and unusual punishment. 14. Death bylethal injection involves the selection of chemical dosages and combinations of drugs by untrained or improperly skilled persons. Consequently, non- physicians are making medication dosing decisions and prescriptions that must otherwise be madeby physicians underthe law. 15. Since medical doctors may notparticipate or aid in the execution of a human being on ethical grounds, untrained or improperly skilled, non-medical personnel are execution. [However, a] physician may make a determination orcertification of death as currently provided by law in anysituation.” 483 making what would ordinarily be informed medical decisions concerning dosages and combinations of drugs to achieve the desired result. The effects of the lethal injection chemicals on the human bodyat various dosages are medical and scientific matters and properly the subject of medical decision-making. Moreover, the efficacy of the drugs will vary on different individuals depending on many factors and variables, which would ordinarily be monitored by medical personnel. 16. Thereis a risk that the dosages selected by untrained persons may be inadequate for the purposes for which they were selected, may result in unanticipated or inappropriate effects in a particular individual for medical or other reasons and mayinflict unnecessarily extreme pain and suffering. 17. There is a risk that the order and timing of the administration of the chemicals would greatly increase the risk of unnecessarily severe physical pain and mental suffering. 18. The desired effects of the chemical agents to be used for execution bylethal injection in California may be altered by inappropriate selection, storage and handling of the chemical agents. 19. Improperly selected, stored and/or handled chemicals may lose potency and thus fail to achieve the intendedresults or inflict unnecessary, extreme pain and suffering in the process. 20. Improperly selected, stored, and/or handled chemicals may be or become contaminated, altering the desired effects and resulting in the infliction of unnecessary, extreme pain and suffering. California provides inadequate controls to ensure that the chemical agents selected to achieve execution by lethal injection are properly selected, stored and handled. 21. Since medical doctors cannotparticipate in the execution process, non- medical personnel will necessarily be relied upon to carry out the physical procedures 484 required to execute petitioner. 22. These non-medical technicians may lack the training, skill and experience to effectively, efficiently and properly prepare the apparatus necessary to execute petitioner, - prepare petitioner physically for execution, ensure that he is restrained in a mannerthat will not impede the flow of chemicals and result in a prolonged and painful death, insert the intravenous catheter properly in a healthy vein so that chemicals enter the blood stream and not infiltrate surrounding tissues and administer the intravenous drip properly so that unconsciousness and death follow quickly and painlessly. 23. Inadequately skilled and trained personnel are unequipped to deal effectively with any problemsthat arise during the procedure. They may fail to recognize problems concerning the administration of the lethal injection. Once problemsare recognized, these untrained personnel may not know howto correct the problemsor mistakes. Their lack of adequate skill and training may unnecessarily prolong the pain and suffering inherent in an execution that goes awry. 24. The use of unskilled and improperly trained technicians to conduct execution by lethal injection and the lack of adequate procedures to ensure that such executions are humanely carried out have resulted in the unwarranted infliction of extreme pain, resulting in a cruel, unusual and inhumanedeath for the inmate in numerouscasesacross the United States in recent years. 25. In 1982, Charles Brooks of Texas wasthe first person executed bylethal injection in the United States. The Warden of the Texas prison reportedly mixedall three chemicals into a single syrmge. The chemicals had precipitated; thus, the Warden’s initial attempt to inject the deadly mixture into Brooksfailed. 26. On March 13, 1985, Steven Peter Morin laid on a gumey for forty-five minutes while his Texas executioners repeatedly pricked his arms andlegs with a needle in search of a vein suitable for the lethal injection. (Michael Graczyk, Convicted Killer in 485 Texas Waits 45 Minutes Before Injection is Given, Gainesville Sun, March 14, 1985; Murderer ofThree Women is Executed in Texas, NewYork Times, March 14, 1985). Problems with the execution prompted Texasofficials to review their lethal injection procedures for inmates with a history of drug abuse. (/bid.) 27. Over yearlater, on August 20, 1986, Texas officials experienced such difficulty with the procedure that Randy Wools hadto help his executioners find a good vein for the execution. (Texas Executes Murderer, Las Vegas Sun, August 20, 1986). 28. Similarly, on June 24, 1987, in Texas, Elliot Johnson laid awakeandfully conscious for thirty-five minutes while Texas executioners searched for a place to insert the needle. 29. On December13, 1988, in Texas, Raymond Landry was pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutesafter the drugsfirst started flowing into his arms. Two minutes into the execution, the syringe came out of Landry’s vein, spraying the deadly chemicals across the room towards witnesses. The execution team hadto reinsert the catheter into the vein. The curtain was pulled for 14 minutes so witnesses could not observe the intermission. (Michael Graczyk, Landry Executedfor ‘82 Robbery Slaying, Dallas Morning News, December13, 1988; and Michael Graczyk, Drawn-Out Execution Dismays Texas Inmates, Dallas Morning News, December 15, 1988). 30. On May 24, 1989, in Huntsville, Texas, Stephen McCoyhad such violent physical reaction to the drugs (heaving chest, gasping, choking,etc.) that one of the witnesses fainted, crashing into and knocking over another witness. Houston attorney ‘Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction among the witnesses. The Texas Attorney General admitted the inmate “seemed to have a somewhatstronger reaction,” adding, “The drugs might have been administered in a heavier dose or more rapidly.” (Man Put to Death for Texas 486 Murder, The New York Times, May 25, 1989; Witnesses to an Execution, Houston Chronicle, May 27, 1989). 31. On January 24, 1992, in Varner, Arkansas, it took the medical staff more than 50 minutes to find a suitable vein in Rickey Ray Rector’s arm. Witnesses were not permitted to view this scene but reported hearing Rector’s loud moansthroughoutthe process. During the ordeal Rector, who suffered serious brain damage from a lobotomy, tried to help the medical personnel find a patent vein. The administrator of the State’s Department of Corrections Medical Programssaid, paraphrased by a newspaperreporter, “the moans came as a team of two medical people, increasedto five, worked on both sides of Rector’s body to find a suitable vein.” The administrator said that may have contributed to his occasional outbursts. (Joe Farmer, Rector, 40, Executedfor Officer’s Slaying, Arkansas Democrat-Gazette, January 25, 1995; Sonja Clinesmith, Moans Pierced Silence During Wait, Arkansas Democrat-Gazette, January 26, 1992). 32. On March 10, 1992, in McAlester, Oklahoma, Robyn Lee Parks had a violent reaction to the drugs usedin the lethal injection. Two minutes after the drugs were administered, the muscles in his jaw, neck and abdomen beganto react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag. Death came eleven minutes after the drugs were administered. Tulsa World reporter, Wayne Greenesaid, “The death looked scary and ugly.” (Witnesses Comment on Parks’ Execution, Durant Democrat, March 10, 1992; Dying Parks Gaspedfor Life, The Daily Oklahoman, March 11, 1992; Another U.S. Execution Amid Criticism Abroad, New York Times, April 24, 1992), 33. On April 23, 1992, Billy Wayne White died 47 minutesafter his executioners strapped him to the gurney in Huntsville, Texas. White tried to help prison officials as they struggled to find a vein suitable to inject the killing drugs. (Man Executed in ‘76 Slaying After Last Appeals Rejected, Austin (Tex) American-Statesman, April 23, 487 1992; Killer Executed by Lethal Injection, Gainesville Sun, April 24, 1992; Michael Graczyk, Veins Delay Execution 40 Minutes, Austin American Statesman, April 24, 1992; Kathy Fair, White Was Helpful at Execution, Houston Chronicle, April 24, 1992). 34. On May 7, 1992, in Texas, Justin Lee May had a violent reaction to the lethal drugs. According to Robert Wernsman,a reporter for the /tem in Huntsville, Texas, May “gasped, coughed andreared against his heavy leather restraints, coughing once again before his body froze....” Associated Press reporter Michael Graczyk wrote, “He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have archedhis back,if he had not been belted down. After he stopped breathing,his eyes and mouth remained open.” (Michael Graczyk, Convicted Texas Killer Receives Lethal Injection, (Plainview, Texas) Herald, May 7, 1992; Convicted Killer May Dies, __ (Huntsville, Texas) Item, May 7, 1992; Convicted Killer Dies Gasping, San Antonio Light, May8, 1992; Michael Graczyk Convicted Killer Gets Lethal Injection, (Denison, Texas) Herald, May 8, 1992). 35. On May 10, 1994, in Illinois, after the execution had begun, one ofthe three lethal drugs used to execute John Wayne Gacy clogged the tube, preventing the flow of the drugs. Blinds were drawnto block the scene, thereby obstructing the witnesses’ view. The clogged tube was replaced with a new one,the blinds were reopenedandthe execution resumed. Anesthesiologists blamed the problem on the inexperienceofprison officials who conducted the execution. Doctors stated that the proper procedure taught in “IV 101” would have preventedthis error. (Rob Karwath and Susan Kuczka Gacy Execution Delay Blamed on Clogged T.B. Tube, Chicago Tribune, Page 1, May 11, 1994). 36. On May 3, 1995, Emmitt Foster was executed by the State of Missouri. Foster was not pronounced dead until 29 minutes after the executioners began the flow of lethal chemicals into his arm. Seven minutes after the chemicals began to flow, the blinds were closed to prohibit the witnesses’ view. Executioners finally reopenedthe blinds three 488 minutes after Foster was pronounced dead. According to the coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Fosterto the execution gurney. The coronerbelieved that the tightness stopped the flow of chemicals into the veins. Several minutes after the strap was loosened, death was pronounced. The coroner entered the death chamber 20 minutesafter the execution began, noticed the problem andtold the officials to loosen the strap so that the execution could proceed. 37. The Constitution prohibits deliberate indifference to the known nsks associated with a particular method of execution. Cf Estelle v. Gamble, 429 U.S. 97, 106 (1976). Asillustrated in the above accounts and aswill be demonstrated in detailat an evidentiary hearing, following discovery, investigation and other opportunities forfull developmentof the factual basis for this claim, there are a number of knownrisks associated with the lethal injection method of execution and the State of California has failed to take adequate measures to ensure against thoserisks. 38. The Eighth Amendment safeguards nothing less than the dignity of man and prohibits methods of execution that involve the unnecessary and wantoninfliction ofpain. Under Trop v. Dulles, 356 U.S. 86, 100 (1958), the Eighth Amendmentstands to safeguard "nothing less than the dignity of man." 39. To comply with constitutional requirements, the State must minimizetherisk of unnecessary pain and suffering by taking all feasible measures to reducetherisk of error associated with the administration of capital punishment. Glass v. Louisiana, 471 U.S. 1080, 1086 (1985); Campbell v. Wood, 18 F.3d 662, 709-711 (9" Cir. 1994) (Reinhart, J., dissenting); see also, Zant v. Stephens, 462 U.S. 862, 884-85 (1985) [state must minimize risks of mistakes in administering capital punishment]; Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring) [same]. 40. It is impossible to develop a method of execution bylethal injection that will workflawlessly in all persons given the various individual factors which haveto be assessed 489 in each case. Petitioner should not be subjected to experimentation by the State in its attempt to figure out how bestto kill a humanbeing. 41. California’s use of lethal injection to execute prisoners sentenced to death unnecessarily risks extreme pain and inhumanesuffering. Such use constitutes cruel and unusual punishment, offends contemporary standards of human decency and violates the Eighth Amendment. 42. The Eighth Amendmentprohibits methods of execution that involve the "unnecessary and wanton infliction of pain." Gregg v. Georgia, at 173. Petitioner’s sentence must be reversed. CLAIM 132: Execution of Petitioner after Prolonged Confinement Violates the Eighth AmendmentProhibition of Cruel and Unusual Punishment. 1. Execution ofpetitioner after his prolonged confinement undera sentence of death would constitute cruel and unusual punishmentin violation of the Eighth and Fourteenth Amendments. 2. Petitioner was sentenced to death in January, 1980. Petitioner was then 34 years old. He was confined undera sentence of death until 1985, when his sentence was reversed. Petitioner was again sentenced to death in 1987 and has been confined underthat sentence up to the present. 3. In 1987, at age 42, petitioner again arrived onCalifornia’s death row at San Quentin State Prison. There he lives among almost well over 600 other condemned mmates. 4, Today, petitioner is 58 years old. He has lived under a sentence of death for over twenty years (excepting the period of time for his retrial, when capital charges were pending but no sentence was in effect). Petitioner lives in a solitary cell, a4 /%2'by 10 4' concrete box, consisting of three concrete walls and a fourth wall of metal bars and mesh screen. Petitioner cannotsee other prisoners through the barred wall; he can, however, 490 hear the incessant din of prisoners yelling and guards using loudspeakers. Both in and out of his cell, he is under surveillance by one or more guards armed with loaded weapons. Petitioner eats his meals in his cell andis restricted in the amount and type of personal property that he is permitted to possess. His time outside his cell is restricted and, wheneverheis transported to another location, he is handcuffed. 5. San Quentin has failed to provide adequate mental health treatment for petitioner’s longstanding mentalillness. 6. Execution of petitioner following such confinement underhis sentence of death for this lengthy a period of time constitutes cruel and unusual punishmentin violation of the Eighth and Fourteenth Amendments. Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., jomed by Breyer, J., respecting the denial of certiorari); Ceja v. Stewart, 134 F.3d 1368 (9th Cir. 1998) (Fletcher, J., dissenting from order denying stay of execution). If petitioner is executed, his sentence will be more than seventeen yearsof solitary confinementin tiny cell in the most horrible portion of prison — death row — followed by execution. 7. Carrying out petitioner’s death sentence after this extraordinary delayis violative of the Eighth Amendment’s punishments clause in two respects: a. It constitutes cruel and unusual punishmentto confine an individual, such as petitioner, on death row for this extremely prolongedperiod of time. See, e.g., McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995); Ceja v. Stewart, (Fletcher, J., dissenting from order denying stay of execution). b. After the passing of such a period oftime since his conviction and judgment of death, the imposition of a sentence of death upon petitioner would violate the Eighth Amendment because the State’s ability to exact retribution and to deter other serious offenses by actually carrying out such a sentenceis drastically diminished. Ceja v. Stewart, (Fletcher, J., dissenting from order 491 denying stay of execution). 8. Asfor the first basis supporting this claim, confinement under a sentence of death subjects a condemned inmate to extraordinary psychological duress, as well as the extreme physical and social restrictions that inhere in life on death row; accordingly, such confinement, in and ofitself, constitutes cruel and unusual punishmentin violation of the Eighth Amendment. 9. Overa century ago, the Supreme Court recognized that “when prisoner sentenced by a court to death 1s confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.” In re Medley, 134 U.S. 160, 172 (1890). 10. In Medley, the period of uncertainty was just four weeks. As recognized by Justice Stevens, Medley’s description should apply with even greater force in a case such as this, involving a delay that has lasted sixteen years. Lackey v. Texas, 514 U.S. 1045 (Stevens, J., jomed by Breyer, J., regarding the denial of certiorari). 11. This Court reached a similar conclusion in People v. Anderson, 6 Cal.3d 628, 649 (1972): The cruelty of capital punishmentlies not only in the execution itself and the pain incidentthereto, but also in the dehumanizing effects of the lengthy imprisonmentprior to execution during which the judicial and administrative procedures essential to due process are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading andbrutalizing to the humanspirit as to constitute psychological torture. 12. As for the second basis supporting this claim, the penological justification for carrying out an execution disappears when an extraordinary period of time has elapsed between the conviction and the proposed execution date, and actually executing a defendant under such circumstances is an inherently excessive punishment that no longer serves any legitimate purpose. Cejav. Stewart, see also Furman v. Georgia, at 312 (White,J., concurring). 492 13. The imposition of a sentence of death must serve legitimate and substantial penological goals in order to survive Eighth Amendmentscrutiny. When the death penalty “ceasesrealistically to further these purposes, . . . its imposition would then be the pointless and needless extinction oflife with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returnsto the State would be patently excessive and cruel and unusual punishmentviolative of the Eighth Amendment.” /d., at 312 (White, J., concurring); see also Gregg v. Georgia, at 183 (’The sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering”). 14. ‘In order to survive Eighth Amendmentscrutiny, “the imposition of the death penalty must serve somelegitimate penological end that could not otherwise be © accomplished. If ‘the punishmentserves no penal purpose moreeffectively than less severe punishment,’ (Furman v. Georgia, at 280 (Brennan, J., concurring)), then it is unnecessarily excessive within the meaning of the Punishments Clause.” Ceja v. Stewart. 15. The penological justifications that can support a legitimate application of the death penalty are twofold: “retribution and deterrence of capital crimes by prospective offenders.” Gregg v. Georgia, at 183. Retribution, as defined by the Supreme Court, means the “expression of society’s moral outrage at particularly offensive behavior.” (bid.) 16. ‘The ability of the State of California to further the ends of retribution and deterrence has been drastically diminished hereas a result of the extraordinary period of time that has elapsed since the date of Petitioner’s conviction andjudgment of death. See Lackey v. Texas; Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J. respecting denial ofcert.). 17. Because it would serve no legitimate penological interest to execute petitioner after this passage of time and becausepetitioner’s confinement on death row for 493 over two decades, in andofitself, constitutes cruel and unusual punishment, execution of petitioner is prohibited by the Eighth Amendment’s Punishments Clause. 18. Petitioner’s conduct while in prison awaiting execution ofhis death sentence demonstrates that a sentence oflife without parole, rather than death, is the only appropriate punishmentfor petitioner under the Eighth and Fourteenth Amendments. See, e.g., People v. Warren, 179 Cal.App.3d 676 (1986). 6. INTERNATIONAL LAW CLAIMS. CLAIM 133: Application of the Death Penalty Violates International Law Underthe United States’s Treaty Obligations. 1. In the United States, treaties become law when they are ratified. A prerequisite to ratification is the advice and consent of two-thirds of the Senate. Once ratified, a treaty is binding law under the Supremacy Clause (U.S Const. Art. VI, §§ 2): [A]ll Treaties made. . .under the Authority of the United States, shall be the supreme Law of the Land; and the Judgesin every State shall be bound thereby, any Thing in the Constitution or Lawsof any State to the Contrary notwithstanding. 2. Since 1945, the international community has adopted severaltreaties that focus on the rights of individuals. There are three documents, in particular, that are collectively referred to as the “International Bill of Rights:” (1) the Universal Declaration of HumanRights; (2) the International Covenant on Economic, Social, and Cultural Rights; and (3) the International Covenant on Civil and Political Rights (with its two Optional Protocols). 3. The International Covenant on Civil and Political Rights (““ICCPR”) was adopted by the United Nations General Assembly on December 16, 1966 and entered into force on March 23, 1976. The ICCPR was adopted by the United States on September8, 1992 when the United States mstrumentofratification was deposited with the United Nations. The ICCPRis part of the “supreme Law of the Land” under the Constitution. 4. Article 6 of the ICCPR guarantees that “no one shall be arbitrarily deprived 494 of his life” and: In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the laws in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment on the Crime of Genocide. This penalty can only be carried out pursuantto a final judgment rendered by a competentcourt. 5. The death penalty as imposedin this case constitutes the arbitrary deprivation of life in violation of Article VI, Section | of the ICCPR.®' There is no discerniblecriteria for distinguishing petitioner’s case from others in which the accused was sentencedto life without parole. The sweep of the California death penalty is vast— any defendantguilty of first degree murderis death-eligible, due to the all-inclusive list of aggravating factors. Without some method of discerning which cases truly warrant death, the California death penalty is arbitrary in the same waythat being struck by lightningis arbitrary. 6. The imposition of the death penalty for felony murder violates Article VI, Section 2 of the ICCPR, which limits the death penalty to only “the most serious crimes.” The numberof felony murdersis large, and fails to narrow the class of death eligible offenses in any appreciable way. 7. The denial of the defendant’s right to counsel of his own choosing violates Article 14(3B) of the ICCPR. The relationship between petitioner andtrial counsel irrevocably broke down. Basedin part on that breakdown, as well as trial counsel’s ineffective representation, petitioner was convicted and sentenced to death. Forcing petitioner to endure representation by an attorney with whom petitioner had an irreconcilable conflict violated petitioner’s rights under the ICCPR.” *' The Senate has not reserved or otherwise derogated the obligation to refrain from “arbitrary” deprivations. ° The Senate issued an “understanding” that this provision does not apply to court-appointed counsel. Assuming arguendothat the Senate can properly make reservations under the separation of powers doctrine, this reservation itself would violate the requirementoffull equality of rights regardless 495 8. Articles 6 and 14 of the ICCPR guarantee the right to a fair trial, including competent counsel atall stages of the proceedings. As discussed above, trial counsel provided ineffective representation. Thetrial was fundamentally unfair, as discussed in all other claims contained herein. 9. The Senate added a general reservation regarding the death penalty but Article IV, Section 2 of theICCPR says there can be no derogation from Article VI. Any reservation by the Senate to these provisions is invalid under the separation of powers doctrine. See, e.g., Clinton v. City ofNew York, 524 U.S. 417 (1998) (holding the line- item veto unconstitutional under the separation of powers doctrine because the Constitution does not authorize the President “to enact, to amend orto repeal statutes”); Bowsher v. Synar, 478 U.S. 714 (1986); INS v. Chadha, 462 U.S. 919 (1983); see also Foster & Elam vy. Neilson, 27 U.S. (2 Pet. 253 (1829) (holding that the interpretation of treaty provisionsis the prerogative of the judicial branch). 10. Only the President has the constitutional authority to make Treaties. U.S. Const. art. I], sec. 2. The Senate may only grant or withhold its consent and is not authorized to limit the scope oftreaties. /d. Allowing the Senate to change the terms of the treaty would violate the separation of powers doctrine, as it would allow the Senate to make what would be, in effect, a new and different treaty. Nothing in the Constitutional structure suggests that the Senate can simply pick and choose amongthe provisions of a proffered treaty and give “consent” only to those portionsit likes. This would allow the Senate to exercise, in effect, a “line-item veto” over the treaty provisions and “ratify”a treaty that is materially different from the one negotiated with, and accepted by, multiple treaty partners. This is a legislative usurpation of the President’s powers andis particularly of economic status as guaranteed in Article 14, Section 3 of the ICCPR. 496 offensive where the treaty itself prohibits derogation.” 11. The Senate, by including the declaration that Articles 1 to 27 are “non-self- executing,” has implicitly asserted the power to determinethat the treaty provisions bestow no enforceable rights to individuals of the United States, absent enabling legislation. ‘Whethera treaty is self-executing is an issue for judicial interpretation.” Frolovav. Union ofSoviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985) citing, RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 154 (1) (1965) (“Whether an international agreement of the United States is or is not self-executing is finally determined as a matter of interpretation by courts in the United States if the issue arises in litigation”). Any attempt to require enablinglegislation, or labeling a treaty as non-self-executing, is invalid. By requiring such “enabling”legislation, the House of Representatives retains a defacto veto power overthe treaty and can keep the treaty from ever taking effect by never enacting the “enabling”legislation. Article II § 2 of the Constitution does not provide that the House of Representatives has a role in the formation oftreaties, in fact, they are specifically omitted. 12. By ratifying the treaty made by the President, the Senate gave its consent. Thus, any Senate “reservations,” including those stating that the prohibition against cruel, inhuman,or degrading treatment means nothing more than the cruel and unusual punishment °° Petitioner acknowledges,of course, that the President and the Senate may considerthis arrangement convenient and politically desirable. The President mayget credit from the international community and domestically for signing significant human rights measures while allowing the Senate to eviscerate its provisions. That allows the United States to strike piousattitudes on the international stage about violations of human mghtstreaties in other countries while reservingthe rightto violate international covenants at home. Thefactthat the legislative and executive branches may want such an arrangement does not mean the Constitution tolerates it. “[T]he hydraulic pressure inherent within each of the separate branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” Chadha, 462 U.S. at 951. 497 prohibited by the Fifth, Eighth and Fourteenth Amendmentsof the U.S. Constitution,” are null and void as unconstitutional violations of U.S. Const. art. II, sec. 2.° 13. Any Senate reservations to the ICCPRare invalid, since they are inconsistent with the object and purposeofthe treaty. Under the Vienna Convention on the Law of Treaties, a state may not submita reservation to a treaty obligation if it “is incompatible with the object and purpose of the Covenant.” U.N. Doc. A/CONF. 39/27 (1969), at Art. 19(c); Restatement(Third) ofthe Foreign Relations ofthe United States, §§313(1)(c) Rptr. N.S (1987). This rule of treaty law has been adopted by the International Court of Justice and the General Assembly. The United Nations Human Rights Committee, in commenting on the U.S. reservations to the ICCPR, has held that they are “incompatible with the object and purpose of the Covenant.” Concluding Observations of the Human Rights Committee: United States of America, U.N.Doc. CCPR/C/79/add.50 (1995); see also Human Rights Committee, General Comment No.24, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994). 14, | Human rightstreaties are different from othertreaties in that parties to humanrights treaties agree to protect individuals within their jurisdictions, while parties to * These reservations have been largely condemned asinvalid. See, e.g., William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brooklyn J. Int’’1 L. 277 (1995); M. Christian Green, “The Matrioshka Strategy: U.S. Evasion of the International Covenant on Civil and Political Rights,” 10 South African Journal of Human Rights 357 (1994); Lawyers Committee for Human Rights, “Statements On U.S. Ratification of the CCPR,” 14 Human Rights Law Journal 125 (1993). 6° Professors Louis Henkin and Richard Wilson have argued that since the Supremacy Clause already deemstreatiesto be the ““‘supreme Law of the Land,”it would be superfluous — and perhaps unconstitutional — to require passage of a federal statute before a treaty takes effect. Louis Henkin, Comment: U.S. Ratification ofHuman Rights Conventions: The Ghost ofSenator Bricker, 89 A.J.LL. 341, 346 (1995); Richard J. Wilson, Defending a Criminal Case with International Human Rights Law, Champion, May, 2000, at 28. Therefore, any arguments that executinglegislation is necessary is similarly flawed. 498 other treaties agree how to act with respect to each other. The “object and purpose”rule keepsstate parties from eliminating important aspects of human rights treaties by making reservations to them, leaving its own citizens as well as other state parties with no recourse. “(T]he true beneficiaries of the agreements are individual humanbeings, the inhabitants of the contracting states.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 313 (reporters notes at 184) (1987). The “object and purpose” of the International Covenantis to bestow andprotect inalienable human rightsto citizens. “Every human being hasthe inherentrightto life. This right shall be protected by law. No one shall be arbitrarily deprived oflife.” Art. 6 para.1. The rightto life is a fundamental human right which is expressed throughoutthe International Covenant. There is nothing more contravening to the “right to life” than the death penalty. 15. Drafters of international humanrights treaties have deemedcertain nghts so fundamental that they can never be suspended. The RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 313(1)(a) (1987) indicates: “A state may enter a reservation to a multilateral international agreement unless reservations are prohibited by the agreement.” Article 4 paragraph | allows for the derogation of certain provisions of the International Covenantin times of “public emergency whichthreatens the hife of the nation.” However, within the substantive provisionsofthe treaty, a relatively small numberof provisionsare classified as non-derogable provisions---rights so fundamental and so essential that they brook no exception, even in emergencysituations. Article 4 paragraph 2, which the United States did not make a “reservation” to, specifically provides that no derogation may be madeto Article 6 (the nghtto life) (“No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made underthis provision”). 16. The International Covenantestablished a Human Rights Committee to monitor and report matters relating to the treaty. By ratifying the International Covenant, 499 and participating in the election of officers to the committee, the United States agreed to the power of the Human Rights Committee to monitor the implementation of and determine non-compliancewith,the treaty. In its report issued April 6, 1995, the committee declared the reservations by the U.S. to Article 6, paragraph 5 and Article 7 to be invalid. See Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Comments of the Human Rights Committee, 53d Sess., 1413" mtg. para. 14, at 4, U.N. doc. CCPR/C/79/Add.50 (1995). Therefore, the “reservation” the Senate put on Article 6 paragraph 5 has no valid effect and petitioner’s death sentenceis in violation of the International Covenant. 17. The Senate purported to place a “declaration” on the ratification ofthe treaty providing that it is “non-self-executing.” Given that human rights treaties are by their nature designated to give citizens of a country rights to be free of human rights abuses perpetrated by their own governments, an attempt to makethe treaty non-self-executing--- and thus to deprive individuals of any means of enforcing it---amounts to a simple remediation of the treaty in the guise ofits ratification. The attemptto place this “declaration” on the treaty also violates the separation of powers, by invading the province of the courts. Determining whetherthe termsofa treaty are self-executing or require legislation to make them effective is clearly a question committed to the judicial branch. See, e.g., Frolova yv. Union ofSoviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985). The Senate’s attempt to prevent courts from giving effect to the International Covenant under the Supremacy Clause is inconsistent with the most basic separation of powersprinciples, that it is the function of the courts to determine the meaningofthe law. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803). Moreover, it is an open question whether the provisions of a non-self-executing treaty may be invokedas a defense by a private litigant, even if the treaty does not imply an affirmative private cause of action. See Kolovrat v. Oregon, 366 U.S. 187 (1961); Cook v. United States, 288 U.S. 102 (1933). 500 18. A treaty entered into by the United States is the law of the land. Edyev. Robertson, 112 U.S. 580, 598-99 (1884); United States v. Rauscher, 119 U.S. 407, 418 (1886). International agreements of the United States are laws of the United States and supreme overthe law ofthe several states. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 111 (1) (1987). The law is clear that if a treaty conflicts with state law, the treaty controls. Zschernig v. Miller, 389 U.S. 429, 440- 4] (1968); Clark v. Allen, 331 U.S. 503, 508 (1947). “[S]tate law must yield whenit is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement.[citation omitted]” United States v. Pink, 315 U.S. 203, 230-31 (1942). 19. Therefore, the state of California is bound by the International Covenant and cannot execute petitioner. The failure to guarantee rights underthe treaty is, unfortunately, consistent with a pattern of the "lack of awareness of United States International obligations." United Nations, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1998/681 (Add. 3) (1998); see also United Nations, Human Rights Committee, Comments on the United States of America, U.N. Doc. CCPR/79/Add.50 (1995) (the absence of formal mechanismsfor the implementation of treaty rights in United States "may lead to a somewhat unsatisfactory application of the Covenant throughoutthe country"). 20. International legal scholars and commentators and Justice O'Connor have also noted the necessity of enforcing international law obligations in the courtsofthis country: I think domestic courts should faithfully recognize the obligations imposed by international law. The Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and ourstatus as a free nation demands faithful compliance with the law offree nations. Sandra Day O'Connor, Federalism ofFree Nations, in International Law Decisionsin 501 National Courts 13, 18 (Thomas M. Franck & Gregory H. Fox eds., 1996). The president has even foundit necessary to issue an executive order, adopting a “policy and practice of the Government of the United States” to implement international human nghts treaties. Exec. Order No. 13107,- C.F.R.-(December 10, 1998). President Clinton specifically referred to the International Covenant when ordering that the United States fully “respect and implementits obligations under the international humanrights treaties[.|” CLAIM 134: Application of the Death Penalty Violates Customary International Law. l. Customary international law refers to a set of principles that are so widely accepted by the members ofthe international community that they have evolved into binding rules of law. Evidence of customary international law includestreaties and conventions, the general usage andpractice of nations, judicial decisions, resolutions of international organizations, learned treatises and public declarations by international officials. See United States v. Smith, 18 U.S. (5 Wheat) 153, 160-61 (1820); see also Statute of the International Court of Justice, art. 38, 59 Stat. 1055, 1060 (1945). 2. Customary international law is akin to international common law. The Supreme Court has recognizedthat: Internationa] law is part of our law, and must be ascertained and administered by the courts ofjustice of appropriate jurisdiction, as often as questions of right depending uponit are duly presented for their determination. The Paquete Habana, 175 U.S. 677, 700 (1900). 3. Customary international law has been a part of federal law since our country was established. When Justice Jay stated that “the United States by taking a place among the nations of the earth [became] amenableto the law of nations,” he was speaking of customary international law, not merely the treaties the U.S. would one day make. Chisholm v. Georgia, 2 U.S. (2 Dall. ) 419, 474 (1793); see Ware v. Hylton, U.S. (3 Dall.) 199, 281 (1796) (“Whenthe United States declared their independence they were bound to 502 receive the law ofnations....”); Filartiga v. Pena-Irala, 630 F.2d 876, 877 (2nd Cir. 1980) (“uponratification of the Constitution, the thirteen former colonies were fused into a single nation, one which, in its relations with foreign states, is bound both to observe and construe the accepted normsof international law’). Even the obligations to obey future treaties stemmed from the customary international law principle ofpacta sunt survaneda (“Promises are to be kept”). 4. “[I]t is now established that customary international law in the United States is a kind of federal law, and like treaties and other international agreements, it is accorded supremacy overstate law by Article VI of the Constitution.” Henkinetal., International Law, Cases and Materials, 164 (3d ed. 1993); see also Banco Nacional de Cubav. Sabbatino, 376 U.S. 398, 425 (1964) (finding international law to be federal law). “International agreements create law for the states parties thereto and mayleadto the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.”, RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 102 (3); see also § 102 comment(i). The RESTATEMENT(THIRD) OF THE FOREIGN RELATIONS OF LAW also provides that “an agreement among a large numberofparties maygive rise to a customary rule of international law binding on non-party states.” /d. at § 8 5. Federal courts of appeals have held that customary international law which has attained the stature ofjus cogens is legally binding on domestic courts. See United States v. Mata-Ballesteros, 71 F.3d 754 (9th Cir. 1995); In re Estate ofFerdinand E. Marcos Human Rights Litigation (“Marcos IT’), 25 F.3d 1467 (9th Cir. 1994); In re Estate ofFerdinand E. Marcos Human Rights Litigation (“Marcos I’), 978 F.2d 493 (9th Cir. 1992); In re Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, (D.C. Cir 1988); White v. Paulson, 997 F.Supp. 1380 (E.D. Wash. 1998). 6. Under the Supremacy Clause, customary international law trumpsstate law. 503 Kansasv. Colorado, 206 U.S. 46 (1906); see Zschernig v. Miller, 389 U.S. 429, 441 (1968); Clark v. Allen, 331 U.S. 503, 508 (1947); Missouri v. Holland, 252 U.S. 416, 433-35 (1920). 7. Individuals, including the citizens of the United States, are now understood to possess remediable rights based on international law. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); see generally Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal 1987); Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555 (1984). The obligations imposed by international commonlaw and the attendant rights granted thereby are owed separately and independently to petitioner. 8. International commonlaw requires that persons facing charges for which capital punishment may be imposedbe granted special protections above and beyond the protection afforded in non-capital cases, including competent legal counselatall stages of the proceedings. As discussed throughout the petition, petitioner’s counsel wasineffective throughout the proceedings. 9. The United Nations “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty” (“Safeguards’’) mandate that: Capital punishment may only be carried out pursuant to a formal judgment rendered by a competent court after legal process which givesall possible safeguards to ensurea fair trial, at least equal to those contained inarticle 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposedto adequate legal assistanceat all stages of the proceedings. United Nations, Economic and Social Council Resolution (1984/50 May 25, 1984). As discussed above,petitioner’s rights under the ICCP were routinely violated. | 10. The United Nations Economic and Social Council consider the following state action necessary for implementation of the safeguard: Affording special protection to persons facing charges for which the death penalty is provided by allowing timeandfacilities for the preparation of the defence, including the adequate assistance of counselat every stage of the proceedings, above and beyondthe protection afforded in non-capital cases. 504 United Nations, Economic and Social Council Resolution (1989/64 May 25, 1989). 11. The Second Circuit stated that customary international law derives from at least three sources: (1) the work ofjurists, “writing professedly on public law;”(2) the general usage and practice of nations; and (3) judicial decisions recognizing and enforcing international law. Filartiga v. Pena Irala, 630 F.2d 876, 880 (2d Cir. 1980). A norm of customary international law has binding effect when: (1) most countries adhere to the norm in practice, and (2) those countries follow the norm becausethey feel obligated to do so by a sense of legal duty. See Article 38, Statute of the International Court of Justice, 59 Stat. 1005, 1060 (1945); Siderman de Blake v. Argentina, 965 F.2d 699 (9"Cir. 1992). The right to competent counsel, the right to be sentenced to death only for the most serious of crimes (which necessitates some form of proportionality review) and theright to be free from cruel and unusual punishmenthaveall achieved this status. Each was violated during petitioner’s trial. 12. As discussed herein andin all other claims, incorporated by reference, rights guaranteedto petitioner by customary international law were violated. These rights were guaranteed over and above those guaranteedbythe treaty obligations of the United States. Petitioneris entitled to a reversal of his conviction and sentence. CLAIM 135: Petitioner’s Death Sentence is Arbitrary Under International Law. 1. The nghtto life is the most fundamental of the human nights contained in the International Bill of Rights. See, e.g., Universal Declaration on Human Rights, GA Res. 217A CID, U.N. GAOR, 3d Sess. art. 3, U.N. Doc. A/810 (1948) (“Everyonehasthe right to life, liberty, and security of the person”); International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 6, 999 U.N.T.S. 171, 174-75 (entered into force Mar. 23, 1976) (“Every humanbeinghas the inherent nightto life”). A number of humanrights instruments also provide that a state may not take a person’s life “arbitrarily.” See, e.g., 505 ICCPR,art. 6; American Convention on Human Rights, art. 4, 1144 U.N.T.S. 123; African Charter on Humanand Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 I.L.M.58, art. 4. In evaluating “arbitrary arrest and detention” (barred by Art. 9(1) of the ICCPR), the Human Rights Committee, relying on drafting history, concluded that “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. 2. The Inter-American Court on HumanRights has addressed the meaning of “arbitrary” executions in an advisory opinion regardingthe interpretation of the Vienna Convention on Consular Relations. (OC-16/99, Inter-Am. Ct. H.R. (October 1, 1999)). That Court observed that states may imposethe death penalty only if they rigorously adhere to the due process rights set forth in the ICCPR. The court concluded that the execution of a foreign nationalafter his consular notification rights have been violated would constitute GEEE 9999 an ““‘arbitrary deprivation oflife” in violation of international law. /d. at 76, para. 137. By analogy, the execution of an individual is prohibited as “arbitrary” if a state violates any of the principles contained in the ICCPR. Asdiscussed herein, petitioner’s conviction and sentence violate numerous provisions of the ICCPR. 3. Various delegates involvedin the drafting of the ICCPR proposed the Coes 9999following definitions of the term ““arbitrary:””’ (1) fixed or done capriciously orat pleasure; (2) without adequate determiningprinciple; (3) depending on the will alone; (4) tyrannical; (5) despotic; (6) without cause upon law; and (7) not governedby anyfixed rule or standard. Schabas at 76. In Van Alphen v. The Netherlands, the Human Rights 9999Committee held that ““‘arbitrariness’””’ encompassesnotions of inappropriateness, injustice and lack of predictability. (No. 305/1988), U.N. Doc. A/45/40, Vol.II, p. 108, §§5.8; see also Daniel Nsereko, Arbitrary Deprivation ofLife: Controls on Permissible Deprivations, in The Right to Life in International Law 248 (Bertrand Ramcharan,ed., 1985) (deprivation of life is arbitrary if it is done in conflict with international human 506 rights standards or international humanitarian law). 4. Petitioner’s death sentenceis arbitrary under any ofthese criteria. The California statute fails to truly narrow the scope of death eligible offenses. The result is that virtually any first-degree murdersatisfies one or more aggravating circumstances. Considering the small percentageoffirst degree murders whichresult in death sentences, there is little correlation between the severity of the offenses and the sentence imposed. Consequently, there is no predictability as to when a sentence of death will be rendered. The lack of any proportionality review exacerbates these infirmities. The result is that under whatever standard applied, petitioner’s death sentence isarbitrary. CLAIM 136: Petitioner Has A Right To Be Free From Cruel, Inhuman or Degrading Treatment. 1. Article 7 of the ICCPRprovidesthat “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” When the U.S. Senateratified the ICCPR,it declared that this phrase meant““the cruel and unusual treatment or punishmentprohibited by the Fifth, Eighth, and Fourteenth Amendmentsto the Constitution of the United States.”” Internationaltribunals, however, have interpreted this provision more broadly. As discussed above, the Senate’s reservation violated the separation of powersdoctrine. It also violates the purpose of the ICCPR andis, thus, invalid. The United States is thus bound bythis provision of the ICCPR. Article 7 prohibits prolonged incarceration on death row (also known as “death row phenomenon’), which constitutes cruel, inhuman, and degrading punishment. See, e.g., the British Privy Council’s decision in Pratt and Morgan v. The Attorney General ofJamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993)(en banc), and the decision of the European Court on Human Rights in Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989) (refusing to extradite a Germannational to face capital murder charges because ofanticipated time that he would have to spend on death row if sentenced to death). 507 2. In Pratt and Morgan,the Privy Council held that a delay of fourteen years between the time of conviction and the carrying out of a death sentencein the case of a Jamaican prisoner was “inhuman punishment.” 2 A.C. at 33. In Soering, the European Court found that prisoners in Virginia spend an average ofsix to eight years on death row prior to execution. The court determined that “[h]owever well-intentioned and even potentially beneficial is the provision of the complex post-sentence procedures in Virginia, the consequenceis that the condemnedprisoner has to endure for many years the conditions on death row and the anguish and mounting tension ofliving in the ever-present shadow of death.” 161 Eur. Ct. H.R. (ser. A) at 42 (1989); see also Vatheeswaranv. State ofTamil Nadu, 2 S.C.R. 348, 353 (India 1983)(criticizing the “dehumanizing character of the delay” in carrying out the death penalty); Catholic Comm’n for Justice & Peace in Zimbabwev. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993 (reported in 14 Hum. Rts. L. J. 323 (1993). 3. Most recently, the Supreme Court of Canada considered evidence that death- sentenced inmates in Washington took, on average, 11.2 years to complete state and federal post-conviction review, in weighing the legality of extraditing two men to the United States to face capital charges. That Court acknowledged a “widening acceptance”that “thefinality of the death penalty, combined with the determination of the criminaljustice system to satisfy itself fully that the conviction is not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma.” Minister ofJustice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001) (at para. 122). Relying in part on this evidence, the court held that the Canadian Charter of Rights and Freedomsprecluded the defendants’ extradition, absent assurances the United States would not seek the death penalty. 4, Although the lower federal courts have rejected the reasoning in Pratt and Morgan and Soering (see, e.g., McKenzie v. Day, 57 F.3d 1461 (9" Cir. 1995); White v. Johnson, 79 F.3d 432 (5" Cir. 1996)), the Supreme Court has not yet reviewed this 508 question. At least two Supreme Court justices have written on this precise topic. See Knight v. Florida, 528 U.S. 990 (1999) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer,J., dissenting from denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denialof certiorari). 5. The norm against cruel, inhuman or degrading treatment is now universally recognized as a violation of international law clearly distinguishable from torture. The Universal Declaration of HumanRights,article 5, provides: “No oneshall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Universal Declaration of Human Rights, adopted Dec.10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); see also Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,art. 16, adopted Dec.10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doe. A/39/51 (1984) (entered intoforce June 26, 1987); European Convention for the Protection of Human Rights and Fundamental Freedoms,art. 3, openedfor signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept.3, 1953); the American Convention on Human Rights, art. 5, openedfor signature Nov.22, 1969, O.A.S. T.S. No.36, at 1, O.A.S. Doc. OEA/Ser. L/V/IIL.50, doc. 6 at 27 (1980) (entered into force July 18, 1978); the International Covenant on Civil and Political Rights, art. 7, adopted Dec.16, 1966, G.A. Res. 2200, 21 U.N. GAOR Supp.(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 (entered into force Mar. 23, 1976); African Charter on Human and People's Rights, art. 5, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct.21, 1986). 6. The prohibition against cruel, inhuman or degrading treatmenthasattained binding force as customary international law. See Declaration of Tehran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights, including prohibition against cruel, inhumanor degrading treatment, as customary international law); 509 accord De Sanchez vy. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5" Cir. 1985) (noting that the right not to be subjected to cruel, inhuman and degrading treatment constitutes universally accepted international law). 7. Petitioner was originally sentenced to death in 1980. That sentence was reversed for trial errors in 1985. Petitioner was then unconstitutionally sentenced to death again in 1987 and remains on death row today. Petitioner has languished under twoerror- laden and unconstitutional death sentences for over twenty years. Underinternationallaw, this lengthy stay, only achieved through continuing violations of petitioner’s rights, violates prohibitions against cruel, inhuman and degrading punishment. CLAIM 137: Petitioner’s Conviction and Sentence Violate His Right to Due Process. l. Article 14 of the ICCPR enumerates the due processrightsrelating to criminal proceedings. Specifically, Article 14 provides for the following rights, which were violated during petitioner’s trial: a. Equality before the courts and tribunals— petitioner was nottreated equally before his trial courts, due to his indigence. He was denied counsel of choice and instead was forced to suffer with ineffective counsel with whom he had irreconcilable conflicts. These denials were the result of petitioner’s indigence, sincethe trial court would have allowed him to retain new counsel if he had sufficient funds to procure his own counsel. b. A fair and public hearing by a competent, independent and impartial tribunal— the trial court rendered a multitude of erroneousrulings andinstructional errors. The impartiality of the trial court was also put in question by the court’s derogatory remarks about homosexuality. (See, e.g., RT 2439, 2724- 2730). c. Presumption of innocence— the presumption of innocence wasviolated by 510 the jury’s view ofpetitioner shackled and separated from them in a marked police car. This view conveyed the messageto the jurors that petitioner was a dangerous animal who neededto be caged for their protection. To have adequate time andfacilities for the preparation of his defense and to communicate with counsel of his choice— as noted above, petitioner was denied counsel of his own choosing. Instead, the trial court forced him to accept representation provided by attorneys Larkin and Carney over petitioner’s specific objection. To betried without undue delay— petitioner’s right to a speedy trial was violated. He wasinitially tried and sentenced in 1980. That verdict and sentence was reversed dueto error in 1985. His retrial was held in 1987. This seven year period wasa result of error committed by the state and is not attributable to petitioner. Petitioner’s rights to a speedytrial were violated. Moreover, had petitioner been tried without undue delay, the difficulties posed by the use ofjailhouse informants would not havearisen. To be present during thetrial— petitioner’s right to be presentat trial was violated by his isolation during the jury’s view of the Ford Park crime scene. Petitioner was kept away from the jury, caged in a marked police car. He was kept at a distance during the jury’s visit to the crime scene and was thus unable to observe the proceedings of hear any conversation which tookplace. To defend himself in person or through legal assistance of his own choosing and to have legal assistance assigned to him without payment“in any case where the interests ofjustice so require’— as noted above,petitioner’s trial counsel wasineffective. The relationship between counsel and petitioner had broken downirrevocably andthetrial court required counsel to remain on the case. Assigning ineffective counsel to an indigent defendant, with whom the S11 2. defendanthas a severe conflict, fails to protect a defendant’s rights. To confront the witnesses against him and obtain the attendance of witnesses on his behalf- petitioner’s rights to confront witnesses against him were eviscerated bythetrial court’s erroneous denial of petitioner’s motion to exclude witnesses during testimony. The court’s denial of this motion resulted in the ability of the witnesses to orchestrate their testimony and provideartificially consistent testimony after viewing the testimony of other witnesses on related offenses. To review of the conviction and sentence by a highertribunal-— the review process of this Court was fundamentally flawed. As detailed above, petitioner’s appellate counsel rendered ineffective assistance of counsel. Moreover,this Court providesinstitutionally inadequate review of death cases. Its review of petitioner’s case in particular was similarly flawed. This Court’s review was fundamentally flawedasa result of bias on the part of this Court’s former ChiefJustice. Not to be prosecuted twice for the same crime-— petitioner’s rights to be free from multiple prosecutions were violated. Article 6 of the ICCPR provides that the death penalty may only be imposed where these standards are observed. Schabas at 108-09. The Human Rights Committee has held that whena state violates an individual’s due process rights under the ICCPR,it may not carry out his execution.. See, e.g., Johnson v. Jamaica, No. 588/1994, H.R. Comm. para. 8.9 (1996) (finding delay of 51 months between conviction and dismissal of appeal to be violation of ICCPRart. 14, para. 3(c) and 5, and reiterating that imposition of a death sentence is prohibited where the provisions of the ICCPR have not been observed); Reid v. Jamaica, No. 250/1987, H.R. Comm.para. 11.5 (“[T]he imposition of a sentence of death upon the conclusion ofa trial in which the provisions of the Covenant have not been 512 respected constitutes [. . .] a violation ofarticle 6 of the Covenant.”); McLawrencev. Jamaica, No. 702/1996, H.R. Comm.para. 5.13 (1997)(same); OC-16/99, para. 135, Inter- Am. Ct. H.R. (October 1, 1999) (“[s]tates that still have the death penalty must, without exception, exercise the most rigorous control for observance ofjudicial guarantees in these cases”); Report of the Human Rights Committee, GAOR, 45" Session, Supplement No. 40, Vol. II (1990), Annex IX,J, para. 12.2, reprinted in 11 Hum.Rts. L.J. 321 (1990); Reid v. Jamaica (No. 250/1987), Report of the Human Rights Committee, GAOR, 45" Session, Supplement No. 40, Vol. II (1990), Annex IX, J, reprinted in 11 Hum.Rts. L.J. 321 (1990); see Reid v. Jamaica (No. 250/1987), Report of the Human Rights Committee, GAOR,45th Session, Supplement No. 40, Vol. II (1990), Annex IX, J, para. 12.2, reprinted in 11 Hum. Rts. L.J. 321 (1990) (“in capital punishmentcases, the duty of States parties to observe rigorously all the guarantees for fair trial. . . is even more imperative”); G.A. Res. 35/172, Dec. 15, 1980, G.A. Res. 35/172, Dec. 15, 1980, G.A. Res. 35/172, Dec. 15, 1980 (memberstates must “review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases”). | 3. The Inter-American Court on Human Rights concurred with this conclusion in OC-16/99, para. 135, Inter-Am. Ct. H.R. (October 1, 1999) (“[s]tates that still have the death penalty must, without exception, exercise the most rigorous control for observance ofjudicial guarantees in these cases”). 4, These rights are guaranteed by international law, separate and apart from constitutional law. These rights, as guaranteed by the ICCPR,are the highest law ofthe land. They are also guaranteed by customary international law. CLAIM 138: Petitioner’s Right to be Tried Before an Impartial Tribunal was Violated by Death Qualification Procedures. 1, Article 14 of the ICCPR guarantees the right to a “fair and public hearing by a 513 competent, independent, and impartial tribunal,” and the nght to be presumed innocent. ICCPR,art. 14(1); (2). In its Implementing Comments, the drafters stressed that Article 14 must be read as broadly as neededto root out the threat to fairness that arises in a particular proceeding. ICCPR, General Comment on Implementation, Para. 5. Also, Article 26 specifically guarantees that “[a]ll persons are equal before the law andare entitled without any discrimination to the equal protection of the law.” ICCPR, art. 26. The Human Rights Committee has held that “[t]he right to be tried by an independent and impartial tribunalis an absolute right that may suffer no exception.” Gonzales del Rio v. Peru, No. 263/1987, H.R. Comm.para. 5.2 (1992). Moreover, in Richards v. Jamaica, No. 535/1993, H.R. Comm.para. 7.2 (1997), the Committee found a violation of article 14 in a capital case involving extensivepretrial publicity, and ruled that Jamaica could not lawfully carry out the execution.Jd. 2. The Committee’s decision in Richards is consistent with the notion that nations must rigorously observe a defendant’s fair trial rights in capital cases and mayonly © impose the death penalty where these standards are observed. William Schabas, The Abolition of the Death Penalty in International Law 108-09 (1997). | 3. As noted above,the trial judge made disparaging comments regarding the sexual orientation of petitioner and the nature of this case, evidencing considerablebias. Moreover, the “trial judge” was a commissioner who had been assigned to the case. He had not been scrutinized for appointment in the same manner which Superior Court Judges were scrutinized prior to their appointment. Petitioner’s guarantee to an independentand impartial tribunal were violated by the service of the commissionerasa trial judge. 4. The jury which convicted and sentenced petitioner wasnotfairly selected from a fair cross-section of the population and thus wasnottruly independent and impartial. 5, Petitioner’s jury wasselected after being “death qualified” pursuant to Hovey and Witherspoon. This selection process unfairly skewed the jury pool to conviction- 514 prone and death-prone jurors andresulted in a biased tribunal. 6. Petitioner’s jury was subjected to inflammatory and irrelevant evidence. This evidence served to arouse the passions of the jury and made them decide the case based on passion and not a careful weighing of the evidence. The misconductof the prosecutor further exacerbated this error. The jury which rendered a verdict and sentence was not independentand impartial. 7. The tribunal which heard petitioner’s appeal was not impartial. This bias further tainted the already tainted proceedings. CLAIM 139: Petitioner Has a Right to Litigate Violations of His Rights Before International Tribunals. 1. The United Nations has established committees to monitor the enforcement of the ICCPR and the Torture Convention but the United States does not accepttheir jurisdiction to hear individual complaints of treaty violations. As a result, individuals in the United States may notpetition these committees to hear their individual cases. The United States failure to obey its treaty commitments violates the Constitution, which makes treaties the “Supreme Law of the Land.” Customary international law also dictates that the United States accept jurisdiction from the body put in place to monitor and enforce the ICCPR. 2. There are two bodies that address human nghts violations in the Americas: the Inter-American Commission of Human Rights and the Inter-American Court on Human Rights. Individuals mayfile complaints with the Commission alleging violations of human rights set forth in the American Declaration of the Rights and Duties of Man and/or the American Convention on Human Rights. The Commission proceeds slowly and may take years to issue an opinion in any given case. Individuals mayalso petition the Commission for “precautionary measures,” or injunctive relief. In death penalty cases with imminent execution dates, petitioners may request that the Commission issue precautionary 515 measures that call for a stay of execution. The Commission follows diplomatic protocol and is not a court. When requesting a stay of execution, the Commission will send letter to the U.S. Secretary of State describing the basis for its request. The State Department must then relay the request to the appropriate state authorities. Petitioner has notyetfiled any such complaints, out of respect for the jurisdiction of this Court. 3. The Inter-American Commission also has the powerto conducton-site investigations and hearings. 4, The United States has not accepted the jurisdiction of the Inter-American Court on HumanRights to resolve “contentious cases,” or cases in which an individual or _ country seeks redress for wrongdoing by the United States. As discussed above,this refusal violates both treaty law and customary international law. 5. The Inter-American Court has jurisdiction to issue advisory opinions “regarding the interpretation of the [American] Convention or other treaties concerning the protection of human rights in the American States.” American Convention on Human Rights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May 3, 1996). On occasion, the United States will appear before the Court in such cases, thereby implicitly accepting the jurisdiction of the Court to issue “advisory opinions.” One such case was the opinion issued October 1, 1999, regarding the Vienna Convention on Consular Relations. “The mere fact that the Court has made a pronouncementin an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative characterof the legal principle enunciated byit.” Thomas Buergental, International Human Rights in a Nutshell 220 (2d ed. 1995). The United States should not be free to accept jurisdiction only whenit servesits interests. 6. International human rights have been a concern for the countries of the world for years. The United States likes to consideritself a leader in the human nghts movement, andis, in fact, one of the most active participants in protecting human dignity and human 516 rights. The International Covenant on Civil and Political Rights is an important human rights treaty which 138 nations, including the U.S., have ratified. This treaty bestowsvital humanrights to the citizens of the participating countries. 7. In orderto satisfy its obligations underits treaty obligations as well as customary international law, the United States must allow petitioner the opportunity to litigate his claims before the international tribunals charged with monitoring and enforcing his rights. Petitioner has thus far not sought suchrelief, out of respect for the jurisdiction of this Court. Therefore, petitioner requests that in the event that the Court denies all of petitioner’s claims, the stay of execution remain in effect for a sufficient time to allow petitioner to seek relief from the internationaltribunals discussed above. Alternatively, petitioner asks for a statement from the Court thatit will not do so, to be issued forthwith, so that petitioner can seek relief in those tribunals concurrently. 7. CUMULATIVE CLAIMS. CLAIM 140: Trial Counsel Rendered Ineffective Assistance. 1. Petitioner adopts and incorporates by referenceall facts and claimsset forth elsewherein this petition. 2. _. To the extentthat trial counsel failed to raise any of the objections cited herein, it was ineffective assistance of counsel for counselto fail to do so. It violated petitioner’s Sixth Amendment rights to do so. Any failure to object violated the standard of care elucidated in Strickland v. Washington, and petitioner was prejudiced by these failures. 3. As discussed above, this ineffective assistance of counsel merits relief. In addition, petitioner should not be penalized for court-appointed counsel’s ineffective assistance and each ofthe claims contained herein should be resolved on its merits. CLAIM 141: Appellate Counsel Rendered Ineffective Assistance. 1. Petitioner adopts and incorporates by referenceall facts and claimsset forth 517 elsewhere in this petition. 2. Douglas v. California, 372 U.S. 353 (1963), held that an indigent criminal defendant has a right to appointed counselin his first appeal as of right in state court. Evitts v. Lucey, 469 U.S. 387, 396 (1985) explained that this mght encompassesa right to effective assistance of counsel forall criminal defendants in their first appeal asof right. See also Coleman v. Thompson, 501 U.S. 722, 755 (1991). 3. To the extent that the claims were previously available, it was constitutionally ineffective assistance of counsel not to bring these claims during prior proceedings. See, e.g., Murray v. Carrier, 477 U.S. 478, 496 (1986) (“right to effective assistance of counsel .. . may in aparticular case be violated by: even an isolated errorif that error . . is sufficiently egregious and prejudicial.”) As discussed throughout, this ineffective assistance of counsel meritsrelief. 4, Appellate counsel’s failings fell below the generally recognized standard of care and prejudiced petitioner. Claims of ineffective assistance of appellate counsel are reviewed according to the standardset out in Strickland v. Washington, 466 U.S. 668 (1984). See Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). It is reasonably probable that, but for the foregoing deficient performance by appellate counsel, this Court’s previous holdings with regard to petitioner’s prior claims would have been different. 5. As a result, petitioner was denied his rights to due process, effective assistance of counsel and a fair and reliable sentencing determination in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. In addition, petitioner should not be penalized for court-appointed counsel’s ineffective assistance and each ofthe claims contained herein should be resolved onits merits. CLAIM 142: Habeas Counsel Rendered Ineffective Assistance. 1. Petitioner adopts and incorporates by referenceall facts and claimsset forth 518 elsewherein this petition. 2. To the extent any of petitioner’s claims were previously available, it was constitutionally ineffective assistance of counsel not to bring these claims during prior proceedings. See, e.g., Murray v. Carrier, 477 U.S. 478, 496 (1986) (“right to effective assistance of counsel . . . may in a particular case be violated by even anisolated errorif . that error . . . is sufficiently egregious and prejudicial”). As discussed herein,this ineffective assistance of counsel merits relief. 3, To the extent that certain claims could not be raised until habeas proceedings, there must be an exception to the rule of Pennsylvaniav. Finley, 481 U.S. 551, 555 (1987) and Murray v. Giarratano, 492 U.S. 1, 7 (1989) (plurality opinion) that there is no right to counselin state collateral proceedings. In those cases wherestate collateral review is the first place a petitioner can fairly present a challenge to his conviction, the Sixth Amendmentright to counsel should apply. Coleman v. Thompson, 501 U.S. 722, 755 (1991). This is so becauseofthe state’s “‘duty . . . to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate 6cprocess,’” and based on the Supreme Court’s insistence that “‘the merits of the one and only appeal an indigenthas as of right are [not] decided without benefit of [effective] counsel.’” Coleman v. Thompson, 501 U.S. at 756 (emphasisin original), see also, Liebman and Hertz, Federal Habeas Corpus Practice and Procedure, § 26.3b at fn. 36. 4. Petitioner was thus deprived ofhis right to effective assistance of counsel. This deprivation represents both a separate ground for relief as well as grounds for excusing any potential default. CLAIM 143: Cumulative Constitutional Error Requires a Reversal of the Convictions and Death Sentence. l, Petitioner adopts and incorporates by reference all facts and claims set forth elsewherein this petition. 519 2. The cumulative effect of the guilt phase errors discussed above requires the reversal of petitioner’s convictions. United States v. Ortega, 561 F.2d 803 (9th Cir. 1977); United States v. McLister, 608 F.2d 785 (9th Cir. 1979). The constitutional errors, taken together, violated petitioner’s guarantees of due process, an impartial jury and a reliable capital sentence underthe Fifth, Sixth, Eighth and Fourteenth Amendments. 3. Dueprocessentitles a criminal defendantto a trial that conforms with the rules of the jurisdiction in which heis tried. Evitts v. Lucey, 469 U.S. 387, 401 (1985); Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). The improprieties individually and collectively violated petitioner’s right to due process. Darden v. Wainwright, 477 US. 168 (1986); see also Furman v. Georgia, 408 U.S. 238 (1972). 4. The cumulative effect was to deprive petitioner of a fair penalty phase trial. The death verdict should be reversed. VIII. PRAYER FOR RELIEF. WHEREFORE,petitioner respectfully requests that this Court: 1. Issue a writ of habeas corpusto have petitioner brought before it to the end that he might be discharged from his unconstitutional confinementandrestraint or relieved of his unconstitutional sentence of death; 2. Stay the trial court’s judgment of death until final determination ofthis petition; 3. Permit petitioner, whois indigent, to proceed without further payment of costs and fees; 4. Grantpetitioner funds to secure expert testimony and conductfurther imvestigation as necessary to further prove the facts allegedin this petition; 5. Order respondent to answer whypetitioneris not entitled to the relief sought; 6. Order the Office of the Los Angeles County District Attorney to discoverall 520 files pertaining to petitioner’s case; 7. Grantpetitioner the authority to obtain subpoenas for witnesses and documents which are not obtainable by other means; 8. Grantpetitioner the right to conduct discovery including the rights to take depositions, request admissions, and propound interrogatories and the meansto preserve the testimony of witnesses; 9. Order an evidentiary hearing at which petitioner will offer this and further proof in support of the allegations herein; 10. Permit petitioner a reasonable opportunity to supplementthe petition to include claims that become knownasthe result of further investigation and information which mayhereafter cometo light; 11. After full consideration of the issues raised in this petition, vacate the judgment and sentence imposed uponpetitioner in Los Angeles County Superior Court Criminal Case No. A445665; and 12. Grant petitioner such further relief as is appropriate and just in the interest of justice. DATED:May5, 2004. Respectfully submitted, PETER GIANNINI MATTHEW CAMPBELL JAMES S. THOMSON SAOR E. STETLER 521 VERIFICATION I, SAOR E. STETLER, declare under penalty of perjury: l. I am an attorney admitted to practice law in the State of California. I am representing Mr. Reno, whois confined andrestrained ofhis liberty at San Quentin State Prison, San Quentin, California. 2. I am authorizedtofile this petition for writ of habeas corpus on Mr. Reno’s behalf. I am makingthis verification because Mr. Renois incarcerated in Marin County, and because these matters are more within my knowledgethanhis. 3. I have read the foregoing petition for writ of habeas corpus and know the contents of the petition to betrue. Signed May 5, 2004, at Berkeley, California. 522 In re Reno, CSC Case No. S004770 PROOF OF SERVICE BY MAIL I, Saor E. Stetler, declare: Iam employed in the County ofAlameda, State of California. I am over the age of eighteen years and am nota party to the within-entitled action. My business addressis 819 Delaware Street, Berkeley, California. On May6, 2004, I served the within PETITION FOR WRIT OF HABEAS CORPUSbydepositing a true copy thereof in a United States mailbox regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed as follows: Robert David Breton Deputy Attorney General 300 South Spring Street To be Personally Served Upon Los Angeles, California 90013 Reno within 30 days- - Notice Will Be Given to the Court Peter Giannini whenService Has Occurred Matthew Campbell Giannini & Campbell 12304 Santa Monica Blvd. #105 Los Angeles, CA 90025 I declare under penalty ofperjury that the foregoingis true and correct, and that this declaration was executed on May 6, 2004 at Berkeley, California.
