Commonwealth v. Kevin Brian Dowling
No. 5365 CA 1997 / York County
Filed 7-31-2007
Capital Homicide P.C.R.A. / Innocence Claim

Claim I. As a Result of Court Error, Prosecutorial Misconduct, and Ineffective Assistance of Counsel, Compelling Evidence of Petitioner’s Innocence Was Not Presented and Petitioner’s Right to a Fair Trial Was Not Protected in Violation of Petitioner’s Sixth, Eighth And Fourteenth Amendment Rights and His Rights Under Article I, Sections 1, 6, 9, 13, 14, and 25 of the Pennsylvania Constitution.

42. [16] The matters set forth in all other sections of this Petition are repeated and realleged as if set forth entirely herein.

43. The duty to investigate is fundamental to counsel’s role as an advocate. Counsel has “a duty to bring to bear such skill and knowledge as will render the [proceeding] a reliable adversarial testing process.” Strickland v. Washington, 466 U.S. 668, 688 (1984); Commonwealth v. Bailey, 390 A.2d 166, 169-70 (Pa. 1978); Commonwealth v. Mabie, 359 A.2d 369, 374 (1976). This can be done only if counsel actually investigates, Strickland 466 at 691; Mabie 359 A.2d at 474-75. ABA STANDARDS FOR CRIMINAL JUSTICE, 4-4.1 (2d ed. 1982 Supp.) (“[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case”).³ The duty to [17] investigate is especially exacting in a capital case, where “counsel’s duty to investigate all reasonable lines of defense is strictly observed.” Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997).

44. Moreover, a criminal defendant may not be denied the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.”); Davis v. Alaska, 415 U.S. 308 (1974); United States v. Cronic, 466 U.S. 648, 656 (1984); Strickland, 466 U.S. at 684-685 (1984); California v. Trombetta, 467 U.S. 479, 485 (1984); Rock v. Arkansas, 483 U.S. 44, 51 (1987). Likewise, the Pennsylvania Constitution requires that an accused by giving a fair opportunity to defend against criminal charges. Commonwealth v. Deans, 620 A.2d 32, 34 (Pa. 1992) (“Due Process requires a full opportunity to defend against the charges”); see also Commonwealth v. Martin, 727 A.2d at 1141-42 (noting that the due process component of Article I, Section 1 is more expansive than federal due process). Whether [18] by court error, trial counsel’s ineffectiveness, or prosecutorial misconduct, the denial of these fundamental rights requires relief.

45. Furthermore, the Eighth Amendment and Article I, Section 13, require that the defendant’s rights to be heard and present a defense be given even greater protection in a capital case. See, e.g., Beck v. Alabama, 447 U.S. 625 (1980); Ake v. Oklahoma, 470 U.S. 68 (1985); Lockett v. Ohio, 438 U.S. 586, 604 (1978); Hitchcock v. Dugger, 481 U.S. 393, 394 (1987); Woodson v. North Carolina, 428 U.S. 280, 304-05 (1976); Commonwealth v. McKenna, 383 A.2d 174, 181 (1978) (“Because the imposition of the death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is fixed be constitutionally beyond reproach”).

46. As described below, as a result of counsel’s ineffectiveness, police and prosecutorial misconduct, and court error, compelling evidence of Petitioner’s innocence was never presented to the jury in violation of Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13, 14 and 25 of the Pennsylvania Constitution.

A. Evidence Supporting Petitioner’s Alibi.

47. Petitioner testified at trial that, although he did not remain at the Muddy Run lake for the entire day, he did not travel to Spring Grove to commit the murder and, instead, was at the Adult World adult entertainment establishment in Harrisburg, Pennsylvania. NT 11/5/98 at 36-37. Petitioner’s testimony was the sole evidence of his whereabouts at the time of the murder, although there was a plethora of evidence supporting Petitioner’s testimony. Similarly, the prosecution contended that Petitioner’s testimony was nothing more than a “recent fabrication,” [19] to overcome the prosecution’s evidence that the videotape of the fishing trip had been altered. See NT 11/5/98 at 335. Once again, although there existed evidence disputing the prosecution’s “recent fabrication” theory, counsel failed to investigate, develop and present that evidence at trial.

48. Petitioner testified that when he arrived at Adult World at around 12:20 pm on that date, he first looked at the merchandise. NT 11/4/98 at 37-38. Afterwards, he went to the separate room where there are dancers, paid the $6.00 to go inside, was given a ticket and then went into that separate room. Once inside, he spoke with one of the dancers. Id. When asked on cross-examination if he knew that dancer’s name, he testified that she told him her name was “Sassy.” Id. at 142. After some time, he left the Adult World, stopped at a Friendly’s Restaurant and then returned to the lake at or around 3:00 pm.

49. A number of witnesses were available at the time of trial that could have corroborated a number of aspects of Petitioner’s testimony, yet counsel inexplicably failed to present those witnesses. First, consistent with Petitioner’s testimony, there was a dancer called “Sassy” who worked at Adult World on occasion from the Adult World in Syracuse, New York. That dancer, Sarah Stevens, had actually spoken with a defense investigator and verified that she worked in Harrisburg in October, 1997, but had to check her “book” to determine which week. See Exhibit 1 (Investigator Interview Notes 5/8/98).⁴ When shown a photograph of Petitioner, Ms. Stevens told a defense investigator that Petitioner looked familiar and could have been in the Adult World in Harrisburg when she was there. Id. See also NT 8/1-2/98 at 18 (testimony of [20] Investigator Harmon).

50. Other employees of Adult World also verified that Ms. Stevens worked at the Harrisburg Adult World on the date of the murder. Indeed, Dee Deardorff, an employee of Adult World at that time, told a defense investigator that Ms. Stevens worked at the Harrisburg Adult World on the date of the murder during the 11:00 am until 3:00 pm shift along with other dancers, including “Billie,” “Amy,” “Darlene,” “Phoenix” and “Venus.” Exhibit 2 (Investigator Interview Notes, 11/5/97). Ms. Deardorff also stated, after viewing Petitioner’s photograph, that Petitioner looked familiar and could have been a customer of Adult World, but could not recall the specific date. Id.

51. Ms. Deardorff has also told undersigned counsel that, when dancers from New York were due to appear in Harrisburg, they included that in their weekly advertisement in the Harrisburg Patriot News. See Certification of Witnesses (Dee Deardorff. The advertisement for the week of the murder in 1997 indicates that “Sassy” and “Billie,” “NY Girls,” would be appearing at the Harrisburg Adult World all that week. See Exhibit 3 (Patriot-News, 10/16/97, Adult World Promotional Ad). In addition, Ms. Deardorff verified that the dancers are in a separate room, and that there is a store for customers to make purchases. Certification of Witnesses (Dee Deardorff). She also verified that the fee for attending the dancing room was $6.00 and that customers were given a ticket for that room so that they could leave and come back during the same day. Id.

52. Ed West, the manager of Adult World, also confirmed that patrons were given a ticket before going into the “theater” where the dancers were so that they could leave and return within the same day. Mr. West also told the police that, while there were video surveillance [21] cameras, the tapes were recycled weekly. Certification of Witnesses (Ed West); id. (Tpr. Mowrey); Exhibit 4, Police Report at 237-38 (Tpr. Mowrey, 9/1/98 (Interview of Ed West)). Mr. West has further confirmed with undersigned counsel that the fee was, indeed, $6.00 a ticket. Certification of Witnesses (Ed West).

53. Even other law enforcement officers confirmed portions of Petitioner’s testimony. For example, Trooper Daniel Wertz told the investigating officers that he had been in the Adult World as part of an investigation. Certification of Witnesses (Tpr. Wertz); id. (Tpr. Mowrey); Exhibit 4 (Police Report at 237, Tpr. Mowrey, 9/1/98 (Interview of Trooper Wertz)). His statement to those officers verifies that there is, indeed a store area and separate room where the dancers are located and that he was given a ticket before entering that room. Id.

54. Accordingly, there existed witness and documentary evidence, including a law enforcement officer, who could corroborate Petitioner’s description of the establishment; that a dancer named “Sassy,” was indeed working at Adult World on the date of the murder—and at the time Petitioner was at the establishment; that employees of Adult World, including “Sassy,” identified Petitioner as resembling someone who patronized the establishment; and, that the procedure Petitioner described for entering the separate theater for the dancers was correct.

55. Trooper Wertz also told the investigating officers that when he was in Adult World in an undercover status, he observed that there were a number of surveillance cameras, one in the store area (where Petitioner testified he went prior to going into the “theater”); one in the parking lot (also a location Petitioner likely passed through on his way into the establishment); and one in the back area near the bathrooms. Certification of Witnesses (Tpr. Wertz); id. (Tpr. Mowrey); Exhibit 4 (Police Report at 237, Tpr. Mowrey, 9/1/98 (Interview of Trooper Wertz)). [22] Consistent with Trooper Wertz’s statement to the investigating officers, Ed West told the police on September 1, 1998, that the cameras were visible to the public. He further told the police that the cameras were equipped to tape, but the tapes were changed once a week. Certification of Witnesses (Tpr. Wertz); id. (Tpr. Mowrey); Exhibit 4 (Police Report at 237-38, Tpr. Mowrey, 9/1/98 (Interview of Ed West)).

56. Petitioner informed counsel of his whereabouts at the time of the murder on October 30, 1997, less than a week after the murder. Certification of Witnesses (Karen Keubler, Esquire); Exhibit 5 (Notes of Karen Keubler, Esquire, 10/30/97). Counsel’s investigator went to Adult World on November 5, 1997, twelve days after the murder. Exhibit 2 (Investigator Interview Notes, 11/5/97). Although these cameras were obvious to the public, neither the investigator nor counsel made any efforts to obtain the videotape from the date of the murder or, at a minimum, preserve that evidence.⁵

57. Despite the existence of these witnesses and evidence, counsel failed to investigate, develop and present this evidence in support of Petitioner’s testimony. As a result, the prosecution had a proverbial “heyday” attacking Petitioner’s credibility while defense counsel remained silent. For example, during cross-examination, the prosecution asked Petitioner if he knew where “Sassy” could be located. NT 11/4/98 at 142. When Petitioner testified that he had no idea, defense counsel remained silent, despite counsel’s knowledge that a defense investigator, employees of Adult World, and the police had identified her as a real person and both the defense [23] investigator and the police had actually spoken with her. Id. Yet, counsel failed to present these witnesses, even after the prosecution’s obvious inference that “Sassy” did not exist.

58. Similarly, throughout his closing argument, the prosecution contended that Petitioner’s testimony was false and that the jury should disregard that testimony. See NT 11/5/98 at 335.⁶ That argument would have carried little weight had defense counsel presented any of the witnesses described above.

59. Counsel could have no reasonable basis for failing to investigate and present the witnesses and documentary evidence described above. Where, as here, it would have been obvious to the most inexperienced attorney that the prosecution would likely challenged Petitioner’s Adult World alibi as incredible on the basis of the altered videotape (provided by Petitioner’s wife, not Petitioner), the failure to marshal any evidence corroborating Petitioner’s testimony and essentially leaving Petitioner out on an island to fend for himself is objectively unreasonable and constitutes deficient performance. Indeed, counsel’s performance is patently deficient when he or she fails to investigate and develop evidence supporting the very defense chosen. See Jacobs v. Horn, 395 F.3d 92, 104 (3d Cir. 2005) (finding counsel’s failure to investigate “and discover evidence to support the defense he pursued” unreasonable). See also Commonwealth v. Bronson, 321 A.2d 645, 648 (Pa. 1974) (counsel ineffective for failing to investigate alibi witnesses where “[a]n alibi defense would have been consistent with the course of [24] action actually chosen by defense counsel during the trial”).

60. Similarly, prejudice is demonstrated. Counsel’s failure to develop evidence supporting the very defense pursued and, instead, relying on Petitioner’s testimony—tainted by the altered videotape—left Petitioner’s testimony, and the entire defense, open to the prosecution’s devastating argument that since Petitioner is a “liar” his alibi, unsupported by any independent evidence, should be rejected by the jury. Had counsel presented any of the evidence described above, it is at least reasonably likely that the jury would have credited Petitioner’s testimony and acquitted him of the murder.

61. Likewise, subsequent counsel failed to marshal the above-described evidence during post-trial proceedings, including the hearing on which counsel alleged that trial counsel was ineffective in failing to present defense evidence, thus demonstrating prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13, 14 and 25. Although trial counsel claimed during the post-conviction hearing that he had spoken with these witnesses and attempted to diminish the impact those witnesses would have had on a jury, counsel could not be specific about any concerns in that regard. NT 8/1-2/02 at 247. Indeed, counsel acknowledged that he had not read the prior investigator’s report and had little information about his own independent investigation into Petitioner’s alibi. Id. at 249-50 (indicating that he was not familiar with Investigator Harmon’s notes). Had counsel reviewed those notes, he would have learned of the evidence described above and, he would have known that these witnesses verified critical portions of Petitioner’s alibi testimony. Thus, counsel’s purported “tactical” choice was based on limited or no investigation and was, therefore, objectively unreasonable. [25]

62. Moreover, had post-trial counsel investigated the witnesses and evidence described above, he would have been able to rebut trial counsel’s claims that the witnesses would not have supported Petitioner’s alibi.⁷ As described above, the investigator notes and the police statements demonstrate that the witnesses and evidence described above directly contradicts trial counsel’s view that the evidence would not have corroborated Petitioner’s testimony. Moreover, as the above demonstrates, these would have also directly contradicted trial counsel’s claims. Thus, counsel’s purported “tactical” choice was not supported by competent evidence, was based on limited or no investigation and was, therefore, objectively unreasonable. Nor does counsel’s purported ‘concern’ for the impact such evidence (that Petitioner patronized Adult World), might have on the jury constitute a reasonable basis for failing to marshal the evidence that would have supported Petitioner’s alibi. Indeed, that ship had sailed once Petitioner took the stand. Where, as here, counsel’s “choice” left the prosecution with the devastating argument that Petitioner presented no evidence corroborating his alibi testimony, that choice is objectively unreasonable and constitutes prejudicially deficient performance.

63. Finally, while Mr. West told the police that the videotape from Adult World may still have been available on September 1, 1998, there is no indication in the discovery provided to counsel whether or not the police actually obtained that tape or verified that the tape no longer [26] existed. If the prosecution located the tape, it was constitutionally obliged to turn over that tape to defense counsel. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001). Indeed, a prosecutor’s duty to disclose is especially important in a capital case. Kyles, 514 U.S. at 422 (in assessing a Brady claim the court acknowledged that its “duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case”).⁸ For this reason as well, relief is required.⁹

B. Evidence Disputing the Prosecution’s Claims of “Recent Fabrication.”

64. Throughout the trial, the prosecution contended that Petitioner’s testimony about Adult World was nothing more than a “recent fabrication” in light of the prosecution’s evidence regarding the altered videotape. E.g. NT 11/5/98 at 333-34. Of course, the prosecution did not obtain any evidence disputing the accuracy of the video until long after Petitioner was arrested. The final report of the prosecution’s expert, Dr. Boyle, was not turned over to the police until September, 1998. See Exhibit 6 (Police Report at 242, Tpr Mowrey, 9/28/98). [27]

65. Yet, on October 30, 1997, one day after Petitioner was arrested on the murder, Petitioner met with his prior counsel, Karen Kuebler, Esquire, and informed her that he was at Adult World. See Certification of Witnesses (Karen Kuebler, Esquire); Exhibit 5 (Interview Notes, 10/30/97). Nevertheless, counsel failed to call Ms. Kuebler at trial, even after it became obvious during trial that the prosecution would argue that Petitioner lied about the videotape, was completely incredible, and that Petitioner only “came up” with the Adult World alibi once the videotape did not work.

66. There is no question that the prosecution’s ability to argue that Petitioner’s alibi was a “recent fabrication” was devastating to the defense and, in and of itself, constitutes prejudicially deficient performance. When combined with counsel’s further failures to present the above described witnesses and documentary evidence corroborating Petitioner’s alibi, the prejudice is manifest and relief is required.

67. Counsel clearly had no tactical or strategic reason for failing to investigate, develop, and present evidence directly related to the chosen defense. These failures constituted deficient performance. Jacobs, 395 F.3d at 104; Bronson, 321 A.2d at 648. As there is more than a reasonable likelihood that, had counsel performed effectively, Petitioner would have been acquitted, prejudice is demonstrated and relief is required.

C. Evidence Disputing the Veracity of the Prosecution’s “Jailhouse Snitches.”

68. The prosecution presented two “jailhouse snitches” in support of their theory that Petitioner committed this murder: Joseph Leuw and Timothy Rowbottom. NT 10/29/98 at 70-71 (Leuw); NT 10/28/98 at 241 (Rowbottom). Each claimed that Petitioner spoke with them about his case and made certain purported admissions. Not surprising, each filled critical gaps in the [28] prosecution’s case, providing testimony that the prosecution was unable to obtain or prove from other, unbiased evidence.

69. For example, it was the prosecution’s theory that Petitioner wore a wig at the time of the murder. See e.g., NT 10/26/98 at 25-26 (opening); NT 10/28/98 at 103 (testimony of Cindy Freet); id. at 148 (Tammy Stremmel). That was the only way the prosecution could make the testimony of witnesses who observed a man near the scene of the murder (describing a man with long, dark hair) consistent with its theory that Petitioner (a man with short reddish hair) was the perpetrator.

70. The prosecution was aware that Petitioner’s wife, Joanne Dowling, had told the police that there was no black wig in Petitioner’s home or possession at the time of the murder because she had told the police this pretrial. See Exhibit 7 (Police report at 139-40, Cpl. Mendez, 2/2/98); Certification of Witnesses (Corporal Mendez). As the prosecution expected, she also testified at trial that there were no such wigs in Petitioner’s possession. See NT 10/28/98 at 188-89. Nor did the police ever find a wig, or wig fibers, in Petitioner’s possession, despite repeated attempts. Absent any evidence that Petitioner had a wig, and, in light of all the evidence directly disputing Petitioner’s possession of a wig, a giant hole was left in the prosecution’s theory.

71. The prosecution was able to fill that hole with the testimony of Joseph Leuw: an inmate at York County Prison at the time Petitioner was incarcerated pretrial. Leuw claimed that Petitioner told him that he possessed his daughter’s wig, and that the wig was in his (Petitioner’s) car. NT 10/29/98 at 75.

72. Similarly, the prosecution never found the murder weapon, nor were the police [29] ever able to find any witness who would put a weapon of the same caliber in Petitioner’s possession at any time prior to, at the time of, or after the murder. That significant hole was filled by Timothy Rowbottom: an inmate in York County Prison at the time Petitioner was held on the robbery charges. Rowbottom claimed that, once again, Petitioner spoke with him about his case and told him (Rowbottom) that he (Petitioner) had a .357 caliber handgun. NT 10/28/98 at 243.

73. Despite the availability of substantial evidence directly disputing each of these “jailhouse snitches” reliability and credibility, counsel failed to investigate, develop and present that evidence. In light of the importance of these witnesses’ claims to the prosecution’s case, counsel’s failure to develop and present this evidence constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments.

1. Evidence of the witnesses’ pending charges and probation and parole status.

74. On April 27, 1997, Leuw was charged with assault, terroristic threats, unlawful restraint, and firearms charges arising out of an incident where Leuw took his former girlfriend hostage at her work-place. After a stand-off with the police, Leuw was arrested. See Exhibit 8 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Affidavit of Probable Cause)). Three months after his release on bail for those charges, on September 17, 1997, Leuw was arrested for charges of harassment and stalking, the victim in that case a second girlfriend that tried to break off relations with him. Exhibit 8 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Notification to Court of Bail Conditions Pursuant to Rule 4008(a)(iii), Pennsylvania Rules of Criminal Procedure and Petition to Revoke Bail, 9/19/97)). He was re-committed to the York County Prison.

75. On December 29, 1997, Leuw entered a guilty plea to charges with an aggregate [30] maximum penalty of nineteen years. Exhibit 8 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Guilty Plea Colloquy, 12/29/97)). He remained committed to the county prison pending his sentencing hearing in February, 1998. Id. A week after his guilty plea, on January 5, 1998, Leuw contacted the police claiming to have information on Petitioner’s case. Exhibit 9 (Police Report at 204, Tpr. Mowrey, 1/5/98).

76. At sentencing, the probation department recommended that Leuw receive a one to four year state sentence. Exhibit 8 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Sentencing Hearing, 2/9/98 at 7). Victim impact statements included requests that Leuw be incarcerated for as long as possible in light of the terror they suffered. Exhibit 8 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Victim Impact Statement, Heika Hobbs, 6/10/97)); id. (Report of Probation Officer Donna Becker, 1/28/98 at 2).

77. During the sentencing hearing on February 9, 1998, defense counsel requested a county sentence of eleven and a half to twenty-three months (Leuw had already served a number of months while incarcerated pretrial). Exhibit 9 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Sentencing Hearing 2/9/98 at 3). Despite the probation recommendation and the victim impact statements, the prosecution agreed with the defense recommendation, so long as it was followed by probation. Id. at 5. The court sentenced Leuw according to the prosecution’s recommendation. Id. Thus, at the time of Petitioner’s trial, Leuw remained under parole/probation supervision.

78. At least three critical areas of impeachment arise from the record of Leuw’s criminal charges. First, the timing of Leuw’s sudden desire to provide information to the police—[31] after entry of a guilty plea to charges that could have resulted in a substantial state sentence and prior to his sentencing—provides strong evidence that Leuw’s cooperation was driven by his desire to secure prosecution assistance in obtaining leniency. Indeed, it is well-settled in Pennsylvania that, even if pending charges do not meet the requirements for crimen falsi, it is nevertheless perfectly permissible for counsel to cross-examine a witness regarding the existence of open charges and the witness’ desire to secure favorable treatment—whether or not there is a formal agreement with the prosecution because, even absent a formal agreement, the witness may hope to obtain favorable treatment. Commonwealth v. Evans, 512 A.2d 626, 631 (Pa. 1986).

79. Moreover, the state and federal constitutions require that the prosecution disclose agreements for lenient treatment in exchange for testimony, whether those agreements are “formal” or “informal.” See Giglio v. U.S., 405 U.S. 150, 155 (1972) (“evidence of any understanding or agreement as to a future prosecution would be relevant to [a witness’] credibility and the jury was entitled to know of it”); Commonwealth v. Strong, 761 A.2d 1167, 1172 (Pa. 2000) (“Any implication, promise or understanding that the government would extend leniency in exchange for a witness’ testimony is relevant to the witness’ credibility”). As described above, the circumstances surrounding the timing of Leuw’s “cooperation” with the police and the representations made by the prosecution during Leuw’s sentencing hearing provide strong circumstantial evidence that, even if there was no “formal” agreement, there was at the least an implicit understanding that Leuw would receive assistance from the prosecution in exchange for his cooperation.

80. Other evidence available to counsel at the time of Petitioner’s trial, post-trial proceedings and appeal demonstrate the likelihood that there were “informal” agreements [32] between the inmate witnesses and the prosecution. For example, Steven Curren, an inmate who the prosecution relied on to present evidence against Petitioner during pretrial proceedings, including a pretrial suppression hearing. See NT 6/8-9/98 at 111. Six days after he testified in that suppression hearing, Mr. Curren was before his own sentencing court on a motion for reconsideration of his sentence. See Exhibit 10 (Commonwealth v. Curren, 770 C.A. 1997 (Court of Common Pleas, York County) (NT 6/15/98). During that hearing, the prosecution acknowledged that there had been an agreement in exchange for Curren’s testimony against Petitioner. Id. at 2. Indeed, during that hearing, Curren’s counsel informed the court that he filed the motion for reconsideration at the Commonwealth’s request. Id. at 3. That the prosecution was making informal arrangements with one inmate witness provides strong evidence that the same was occurring with the other inmate witnesses, including those actually presented against Petitioner at trial.

81. Moreover, as Petitioner expects to prove at an evidentiary hearing, this District Attorney’s office has a history of failing to disclose evidence required under the Rules of Criminal Procedure and the state and federal constitutions, including ‘informal’ agreements between inmate/co-defendant witnesses and the prosecution. Indeed, Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992), the prosecution failed to disclose a purported statement by the defendant to another inmate prior to trial. Id. 602 A.2d at 1271. Instead, the prosecution withheld the identity of the witness or the contents of his expected testimony until the day of trial. Id. Moreover, the prosecution failed to disclose the existence of an “understanding” between that witness and the prosecution until after the defendant was convicted. Id. 602 A.2d at 1272. Finally, that witness was permitted to remain in the county prison, despite incurring a state sentence, in order for him [33] to obtain “confessions” from other inmates. Id. 602 A.2d at 1270; id. (noting that the prosecution testified that the witness “was called the ‘monsignor’ because so many inmates allegedly confessed to him”). The circumstances of that case were so troubling to the Supreme Court that it referred the prosecutor to the disciplinary board. Id. 602 A.2d at 1276, n.12. As described more fully below, similar troubling circumstances occurred in Petitioner’s case arising out of the prosecution and prison officials’ attempts to obtain inmate witnesses against Petitioner.

82. Likewise, Leuw’s probationary status was permissible impeachment, in and of itself regardless of the existence of an arrangement with the prosecution because his probationary status created a bias in favor of the prosecution. Indeed, had the trial court precluded counsel from cross-examining Leuw on his probationary status, that ruling would have violated Petitioner’s state and federal confrontation rights. See Davis v. Alaska, 415 U.S. 308, 309 (1991) (“the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status”); Commonwealth v. Evans, 512 A.2d 626, 631 (Pa. 1986).

83. Nevertheless, counsel ineffectively failed to cross-examine Leuw about the pending charges, the ‘convenient’ timing of his sudden desire to cooperate with the police, or the witness’ probationary status at the time of trial.

84. Similarly, Rowbottom entered a guilty plea to drug possession and delivery charges on June 17, 1997 and was sentenced to eight to twenty-three months incarceration. See  Exhibit 11 (Commonwealth v. Rowbottom, 1028 C.A. 1997 (York County Court of Common Pleas) (Order, June 17, 1997)); Exhibit 12, Commonwealth v. Rowbottom, 1029 C.A. (York County Court of Common Pleas) (Order June 19, 1997)). Thus, at the time he offered [34] information to the police and testimony for the prosecution, Rowbottom was under parole supervision. Nevertheless, counsel ineffectively failed to bring out this obvious and patent bias and motive to curry favor with the prosecution.

85. In light of the critical nature of these witnesses’ testimony—filling gaps in the prosecution’s case not addressed by any other witness—counsel’s deficient performance in failing to bring out these obvious areas of bias and motive to curry favor with the prosecution resulted in prejudice.

2. Evidence of Leuw’s mental impairments impacting his ability to perceive, recall or narrate perceptions.

86. The court record of Leuw’s hostage-taking incident contains significant indications of Leuw’s on-going mental illness at the time he purported to have conversations with Petitioner while in custody. For example, after Leuw’s second arrest for stalking and harassment of his former girlfriend, Pretrial Services sought to revoke his bail in the first case. During that hearing, the court noted Petitioner’s mental health impairments, including an attempted suicide following the second charges. Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas) (Hearing 9/26/97)). Indeed, the court noted that it was “greatly alarmed with the mental health issues” represented during the revocation hearing. Id.

87. The court record further indicates that Leuw initially filed notice of intent to pursue a mental health defense, resulting in the court scheduling a mental health hearing for November 26, 1997. Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas) (Pretrial conference 10/15/97)). That matter was continued until December 29, 1997 for purposes of taking testimony from Patrick Gallagher, a mental health counselor at [35] the prison.¹⁰ On that date, Leuw entered a guilty plea, apparently withdrawing his guilty but mentally ill defense. Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas)(Guilty Plea Hearing 12/29/97)). Nevertheless, the court ordered that a psychological evaluation was to be conducted prior to the sentencing hearing which was set for February 6, 1998. Id.

88. Following his entry of a guilty plea, Leuw sent multiple letters to the court, initially requesting to withdraw his plea, and then rescinding that request. The letter requesting withdrawal of his plea was post-marked January 2, 1998. Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas) (Letter, 1/2/97). In that letter, Leuw alluded to mental health difficulties and noted that he “needs help.” Id. On January 5, 1998, Leuw gave his statement to the police regarding his purported conversations with Petitioner. On February 5, 1998, Leuw’s judge received another letter from Leuw rescinding his request to withdraw his guilty plea, once again noting his mental impairments and his confusion. Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas) (Letter, 2/5/98).

89. The presentence investigation provides further evidence of Leuw’s on-going mental impairments, including depression, suicidal ideations and medications, all of which occurred at the time Leuw purportedly obtained information from Petitioner. The probation department, after conducting an investigation, recommended that the judge sentence Leuw to the aggravated range with an aggregate term of one to four years. Exhibit 9 (Commonwealth v. Joseph Leuw, No. 2035 CA 1997 (York County Court of Common Pleas) (Report of Probation [36] Officer Donna Becker, 1/28/98).

90. Moreover, the court records indicate that Leuw was mentally ill—and on medication—at times relevant to his purported conversations with—and observations of—Petitioner at the time Petitioner purportedly made the inculpatory statements. Id. See also  Exhibit 9 (Commonwealth v. Leuw, 2035 C.A. 1997 (York County Court of Common Pleas) (Sentencing Hearing 2/9/98)).

91. Despite this record evidence documenting Leuw’s ongoing mental illness during the time in which Leuw purportedly held conversations with Petitioner regarding Petitioner’s case, counsel once again failed to cross-examine Leuw about his mental illness or the impact of his mental illness on his ability to perceive, recall or narrate perceptions. In Pennsylvania, such evidence is “invariably admissible to impeach credibility.” Cohen v. Albert Einstein Medical Center, 592 A.2d 720, 726 (Pa. Super. 1991). Even if it were not, however, preclusion of cross-examination centering on a witness’ ability to perceive, observe and relate events would have violated Petitioner’s state and federal confrontation and cross-examination rights.¹¹

92. In light of the critical nature of Leuw’s testimony—filling a gap in the prosecution’s case not addressed by any other witness—counsel’s deficient performance in failing to bring out Leuw’s impairments resulted in prejudice. [37]

3. Evidence directly disputing Leuw’s claim that Petitioner possessed a wig belonging to his daughter at the time of the murder.

93. As described above, it was vital to the prosecution’s theory that it place a wig in Petitioner’s possession at or around the time of the murder. As described above, Leuw claimed that Petitioner told him that he used his daughter’s Halloween wig during the murder. He further testified that the wig was in Petitioner’s car. While Joanne Dowling had testified that there was no wig in the family home, that testimony does not dispute Leuw’s claim that the wig was in Petitioner’s car. However, one witness, Malissa Johnson, could have supported and corroborated Ms. Dowling’s testimony and verified that the wig belonging to Petitioner’s daughter was not in Petitioner’s possession—car, home or otherwise—at the time of the murder.

94. Indeed, Ms. Johnson told both the police and the defense investigator that she had borrowed the child’s wig from Ms. Dowling four years before the murder and that she never returned the wig to the Dowlings.¹²

95. Counsel’s failure to present this evidence constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 9, 13 and 25 of the Pennsylvania Constitution. While trial counsel testified that he did not call Ms. Johnson, in part, because he believed that Ms. Dowling had resolved the question, as described above, the record evidence demonstrates that that is simply not the case. Even with [38] Ms. Dowling’s testimony, there was still the possibility that the jury might have concluded that Petitioner retained the wig in the trunk of his car. As her testimony would have directly disputed that possibility—and demonstrated that Leuw was lying about his conversation with Petitioner—counsel cannot rely on any perceived benefit from Ms. Dowling’s testimony as a strategic basis for not calling Ms. Johnson. Counsel’s failure to present this witness constitutes prejudicially deficient performance in violation of the Sixth, Eighth, and Fourteenth Amendments.

4. Other evidence disputing the credibility and reliability of the “jailhouse snitches.”

96. In addition to the above, there existed a number of witnesses who could have disputed the credibility of the prosecution’s “jailhouse snitches” on a number of fronts. First, William Orr, a cellmate of Petitioner for a number of months, could have testified that during the entire time they were cellmates, Petitioner never once discussed the circumstances of his case, except to say that he was innocent. Certification of Witnesses (William Orr). As Mr. Orr notes, he and Petitioner were close in age and had children. Id. They discussed their children and other matters but never once discussed Petitioner’s case. Moreover, at no time did Mr. Orr observe Petitioner speak with any other inmates about his case. Id.

97. Indeed, a number of witnesses who were inmates at the time Petitioner was in York County Prison, including David Fry, Shane Bennett, and Leonard Fortney, would have testified that Petitioner never admitted to the murder or any involvement and at all times stated he was innocent. Certification of Witnesses (David Fry); id. (Shane Bennett); id. (Leonard Fortney). Moreover, Fry and Fortney would have been able to tell the jury about the “culture of snitching” that went on at that time in the York County Prison. Certification of Witnesses (David Fry); id. [39] (Leonard Fortney). Inmates were moved into cells of persons accused of serious offenses or high profile cases for the purpose of obtaining information and inculpatory statements. Inmates were given benefits within the prison for cooperating, such as obtaining favored jobs in the prison or other special privileges. Id. The witnesses would have testified that the warden also worked closely with the District Attorney in this course. Id. These witnesses would also have testified that Petitioner’s case was one of those cases that was a target for obtaining “snitch” testimony. Certification of Witnesses (David Fry); id. (Shane Bennett); id. (Leonard Fortney).

98. This ‘culture of snitching’ was so set in place as to Petitioner’s case that inmates were observed essentially glued to the television or huddled around the newspapers in order to gain any information they could use in their “information” to the prosecution. Certification of Witnesses (Leonard Fortney). Various inmates, including the above-described witnesses, were approached by those who had contacted the police, including Leon Williams (an inmate who had provided purported information against Petitioner to the police) asking other inmates to tell the police that they had heard Petitioner say he committed the murder. Certification of Witnesses (David Fry); id. (Shane Bennett); id. (Leonard Fortney).¹³ Similarly, the prosecution used a well-known informant, John Mims, to recruit potential “snitches.” Mims had contact with virtually all of the informants who came forward who claimed to know something. Indeed, Mims, the recipient of numerous benefits in prison to reward his activities, functioned as a state agent, [40] soliciting informants and ensuring their reports conformed to what the prosecution wanted, all while insulating the prosecutors from direct involvement. That Mims was involved in the recruitment of the informants taints their testimony. The Commonwealth committed misconduct by masking its role and counsel was ineffective for failing to expose Mims’ involvement.

99. There is no question that, had it heard the above-described evidence of what can only be described as a frenzy to rush to the police with information against Petitioner (with the consent and assistance of prison officials and the District Attorney), the jury would have questioned the credibility and reliability of each of the “jailhouse snitches” presented. Nevertheless, with the exception of Fry, counsel made no efforts to investigate, develop or present these witnesses. Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 9, 13 and 25 of the Pennsylvania Constitution.

100. Moreover, at the time of trial, David Fry was in custody in Maryland. Although counsel attempted to secure Fry’s appearance at trial, those attempts fell far below the minimum standards of reasonableness. Indeed, counsel acknowledged that he did not even begin the process of attempting to secure his presence until “late in the game.” NT 11/5/98 at 233. He did not secure the writ from the trial judge until October 20, 1998, a week before trial began. Not surprising, the process took some time to obtain the necessary approvals from Maryland and by the time the defense case was due to begin, Fry had not been released from Maryland for transport. Id.

101. Of course one reason counsel was ‘late in the game’ in securing Fry’s appearance was his failure to make contact with Fry until a “couple of weeks” before November 5, 1998. Id. [41] at 234. Nor can counsel claim Mr. Fry’s potential as a favorable witness was a late-disclosure by Petitioner. Counsel had only to read the notes of testimony from the June, 1998 pretrial hearings where Petitioner requested Mr. Fry be located and brought to court to learn that he was obliged to contact Fry to determine whether or not he had helpful information. NT 6/8-10/98 at 217. Indeed, Petitioner requested each of the witnesses described above. Id. Even if counsel did not have the time or inclination to read those notes of testimony, he merely had to refer to the police report. Trooper Mowrey, present during the June hearing, filed a report on June 26, 1998, noting the list of inmate witnesses Petitioner requested. Exhibit 17 (Police Report at 229, Tpr. Mowrey, Report 6/25/96). Thus, counsel had no reasonable basis for waiting until the eve of trial.

102. Moreover, counsel’s woefully inadequate investigation regarding the nature of Fry’s information resulted in his inability to present an adequate offer of proof in support of his request that the court permit him the opportunity to secure Fry’s appearance. At trial, counsel proffered that Fry would testify that Petitioner had discussions with Fry and Petitioner at no time admitted to any involvement in the murder and that Fry “believe[d]” he (Fry) had information on Leuw, Steven Curren and Leon Williams. NT 11/5/98 at 234. When pressed, counsel could give no details. Id.

103. As described above, Fry’s testimony would have been much more extensive than supposition on Leuw, Curren or Williams. Instead, he would have been able to provide the jury with a graphic understanding of the “culture of snitching” at the prison, his observations that Petitioner’s case was a target for that “culture of snitching” that included manipulations by prison officials, and that inmates engaged in a ‘frenzy’ to rush to the police to curry favor in the prison and on their cases. Had counsel conducted an adequate investigation he would have known as [42] much and been able to provide a proffer that demonstrated Fry’s materiality for the defense. He did not and, as a result, the trial court refused to “delay the trial” in order to secure Fry’s appearance because it found the testimony of little relevance. Id. at 241. Counsel’s failures constitute prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

104. Finally, the court’s failure to grant counsel’s requested delay in order to secure Fry’s appearance violated Petitioner’s clearly established state and federal constitutional rights to compulsory process, confrontation, to present a defense, and to effective assistance of counsel as well as the heightened procedural safeguards required in capital cases. Where, as here, Fry’s testimony would have directly disputed the testimony of two critical prosecution witnesses, the court’s refusal to make every effort to secure Fry’s appearance as a defense witness deprived Petitioner of his Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution requiring relief.

D. Evidence of Other Possible Perpetrators.

105. As described above, clearly established state and federal constitutional law requires that a criminal defendant may not be denied the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi, 410 U.S. at 294; Commonwealth v. Martin, 727 A.2d at 1141-42. In Pennsylvania, “[i]t is well established that proof of facts showing the commission of the crime by someone else is admissible.” Commonwealth v. Boyle, 368 A.2d 661, 669 (Pa. 1977); see also Commonwealth v. Loomis, 113 A. 428 (Pa. 1921); Commonwealth v. Winegrad, 180 A. 160 (Pa. Super. 1935). As described below, there existed a number of others who had motive or opportunity to commit the murder or a history of committing similar crimes. [43] Yet, as a result of counsel’s ineffectiveness, court error and prosecutorial misconduct, the jury did not hear this compelling defense evidence in violation of Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

1. Howard Poteet.

106. During trial, counsel attempted to elicit evidence from Karen Wood that the individual she saw on the date of the murder resembled Howard Poteet. Poteet had committed a robbery spree in the York County area, then fled to Virginia and was arrested after a standoff with police. Moreover in the manner that the objection was made, it appeared to the jury, falsely, that Wood was about to identify Petitioner. At the time of Petitioner’s trial, Poteet faced state and federal charges, including charges for armed robbery. Photographs of Poteet published in the newspaper bore a striking resemblance to the composite that Tammy Stremmel did with the police regarding the individual she saw on the date of the murder.

107. Indeed, defense witness Karen Wood actually told the police that the individual she saw resembled the newspaper photographs of Poteet. Counsel called Ms. Wood and began to inquire about that statement. NT 11/5/98 at 260-61. The prosecution immediately objected, contending that there was “no evidence that Poteet was in the area” at the time of Myers’ murder and that the murder “pre-dates Poteet’s crime rampage by a good six months.” Id. at 261. The court sustained the prosecution’s objection. Id. at 262.

108. Contrary to the prosecution’s contentions, evidence existed at the time of trial demonstrating that (1) Poteet was in the Spring Grove area at the time of the murder; (2) Poteet was known to commit crimes similar to both the robbery/attempted rape of Jennifer Myers, [44] including armed robbery; (3) Poteet was known to wear a wig while committing crimes; and, (4) Poteet was known to return to the same place twice.

109. Indeed, the records of his York County offenses demonstrate that the prosecution knew very well that there existed evidence that Poteet was, in fact in the Spring Grove area during the relevant times. For example, the affidavit of probable cause for a burglary committed by Poteet described Poteet’s theft of items belonging to Joseph Smith. See Exhibit 18 (Commonwealth v. Poteet, 2499 C.A. 1998 (York County Court of Common Pleas) (affidavit of probable cause)).¹⁴ The affidavit further indicates that Joseph Smith told the police that he knew Poteet from his employment at Progressive Services in Dover, York, Pennsylvania during the summer of 1997. Id. The prosecution was also well-aware that Poteet had been involved in armed robberies, including robberies of businesses, and was described wearing clothing similar to that described by witnesses that the perpetrator wore in both the robbery/attempted rape and murder. For example, Poteet committed an armed robbery of a Holiday Hair salon on March 9, 1998 (the weapon was apparently never recovered),¹⁵ wherein the perpetrator was described as having a scruffy appearance, long brown hair wearing a black baseball cap, jeans and a blue button-down shirt. See Exhibit 19 (Commonwealth v. Poteet, 4519 C.A. 1998 (York County Court of Common Pleas)).

110. Had counsel conducted even a rudimentary investigation and simply reviewed the [45] files from Poteet’s York County charges, he would have been able to contradict the prosecution’s misrepresentations. Had counsel conducted a constitutionally adequate investigation, however, he would have been able to marshal a wealth of evidence supporting the theory Poteet was a viable suspect. Indeed, Jennifer Poteet, Howard’s former wife, informs counsel that (1) Poteet was living in the Spring Grove area at the time of the Myers’ robbery and the subsequent murder; (2) that Poteet did, indeed, wear wigs and other disguises during robberies; (3) that Poteet also was known to return to locations to commit crimes twice; and, (4) that Poteet’s physical appearance bore a striking resemblance to descriptions provided by witnesses in the Myers’ murder. Certification of Witnesses (Jennifer Poteet).

111. Had counsel conducted the required investigation, he would have had more than sufficient evidence to demonstrate the relevance of his questioning of Ms. Wood as well as the admission of other evidence supporting the defense theory that Poteet could have committed the robbery/attempted rape and the murder. Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

2. Steven Myers.

112. The murder weapon was identified as a .357 caliber. NT 10/29/98 at 9-10. During the course of the investigation, the police learned that the decedent’s husband, Steven Myers, possessed such a weapon. Exhibit 20 (Police Report at 37, Tpr. Mowrey, 10/21/97 (interview of Steven Myers). After some time, the police obtained that weapon from Mr. Myers’ brother. Exhibit 21 (Police Report at 172, Tpr. Mowrey, 11/6/97 (interview with Lonnie C. Myers). The police submitted that weapon for comparison with the bullets recovered from the [46] murder scene. The state police ballistician, Officer Rottmund, submitted a report concluding that his comparison was “inconclusive.” Exhibit 22 (Report Incident Number H7-959838, 11/20/97). Thus, the report indicated that he could not rule out the gun as the murder weapon.

113. At trial, Officer Rottmund’s opinion testimony transformed from “inconclusive,” which he conceded was the conclusion reflected in his report, to ruling out the Myers’ gun as the weapon to a “reasonable degree of certainty.” 10/29/98 at 26.¹⁶ As described elsewhere, the presentation of speculation under the guise of “expert opinion” testimony violated Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

114. Moreover, counsel was ineffective for failing to obtain an independent ballistician to determine whether or not the police expert’s testing was flawed or otherwise tainted by the police theory that Petitioner was the murderer. Indeed, there is a subjective component to ballistics testing. Had counsel sought independent testing and obtained an opinion that the similarities between the bullets found at the scene were much closer to Myers’ gun than the police expert contended, that would have provided compelling evidence that Myers, not Petitioner, was the murderer.

115. Similarly, the police found a pair of sunglasses at the scene, near the decedent’s body. Exhibit 23 (Police Report at 8, Tpr. Mowrey, 10/20/97 (Identifying Item # 6 from the scene as “Rusty Wallace” sunglasses)). Although he spoke with the police on the date of the murder, Myers did not admit that these glasses belonged to him until days later, after it was [47] obvious that the police were interested in the glasses as a method of identifying the murderer. Exhibit 24 (Police Report at 80, 10/23/97 (telephone interview with Steve Myers). Although these glasses were found within a close proximity of the decedent’s body, the police failed to subject those glasses to testing for blood or gunshot residue. Counsel ineffectively failed to bring out this obvious flaw in the investigation at trial.

116. Nor did counsel request the resources in order to conduct independent testing of these glasses, although they were submitted into evidence and readily available. Once again, evidence demonstrating that gunshot residue or blood was on the glasses would have provided strong evidence that Myers, not Petitioner, was the likely murderer.

117. Finally, while Myers told the police that he was at work at United Defense until 3:00 pm on the date of the murder, (see Exhibit 25 , Police Report at 35 (Tpr. Mowrey, 10/21/98 interview with Myers)), when the police sought to obtain the time-card from Myers’ supervisor, Robert Myers, Mr. Robert Myers refused. (see Exhibit 25 , Police Report at 156, Tpr. Mowrey, 11/4/97 (interview with Robert Myers)). There is no indication in the police paperwork that the police ever obtained a warrant or any other service in order to verify Steven Myers’ claimed alibi. If the police obtained that time-card and it contradicted Steven Myers’ claim that he was at work, such evidence was required to be disclosed under clearly established state and federal constitutional law. Brady v. Maryland, 373 U.S. 83, 87 (1963); Kyles v. Whitley, 514 U.S. 419, 437 (1995).

118. Moreover, counsel was on notice from the police paperwork that Myers’ employer had refused to cooperate with the police in verifying Steven Myers’ alibi. Yet, counsel failed to make any efforts to obtain those records via subpoena or court order. Counsel’s failure to pursue [48] this line of investigation, especially where Steven Myers possessed a weapon of the same caliber as the murder weapon that could not be ruled out as the murder weapon was objectively unreasonable. Counsel also failed to challenge Myers’ claim at trial that he turned the gun over to the police the following day. NT 10/26/98, 123. To the contrary, Myers failed to turn the gun over immediately, instead giving it to his brother, facts a jury could reasonably view as evidence of consciousness of guilt. After some time, the police obtained that weapon from Mr. Myers’ brother. Exhibit 21 (Police Report at 172, Tpr. Mowrey, 11/6/97 (interview with Lonnie C. Myers).

119. Counsel’s failures to conduct the above-described investigation and presentation of evidence constitutes deficient performance. As counsel’s failures deprived Petitioner of the opportunity to present compelling evidence that someone other than Petitioner was involved in the murder, prejudice is demonstrated and relief is required.

3. Randall Turner.

120. Randall Turner was a former business partner of Jennifer Myers. Exhibit 23 (Police Report at 5, Tpr. Mowrey 10/21/97 (interview of Jacqueline Rutledge). Witnesses, including Jacqueline Rutledge and Marie Ellis, told the police that Ms. Myers had expressed concerns that Mr. Turner did not take her leaving Turner’s business and going out on her own very well and indicating that Turner may have been involved in the robbery/attempted rape. Id.; see also Exhibit 26 , Police Report at 48, Tpr. Mowrey 10/22/97 (interview of Marie Ellis). Witness evidence also demonstrated that an employee of Randall Turner had been at Ms. Myers’ new business on the date of the murder. See NT 10/26/98 at 101. Finally, following the robbery/attempted rape, Ms. Myers told witnesses, including Gary Atland and others, that she [49] knew who the perpetrator was and that the attack was some type of “joke” and that, as a result, she did not want to contact the police.

121. At trial, counsel sought to bring out the above statements that were made to Ms. Rutledge during cross-examination. Remarkably, after eliciting a plethora of hearsay from Ms. Rutledge regarding statements that Ms. Myers made relevant to Petitioner, the prosecution objected to this line of examination on hearsay grounds and the trial court sustained that objection. NT 10/26/98 at 107-08. The court’s ruling permitting only hearsay tending to implicate Petitioner and excluding hearsay from the same or similar conversations indicating that another was involved deprived Petitioner of his clearly established state and federal constitutional rights to present a defense, confrontation and cross-examination and due process. The objection and ruling was particularly egregious because the prosecution was in possession of evidence—to this day undisclosed—implicating Turner, as evidence by prior counsel’s notes memorializing a conversation with District Attorney Stan Rebert. Post-sentence motion hearing, Exh. 4.

122. Indeed, it is hallmark federal constitutional law that evidentiary rules may not be “applied mechanistically” in a manner that denies an accused of fundamental constitutional rights. Chambers, 410 U.S. at 302. That is precisely what occurred here. Moreover, by applying the rule in one manner for the prosecution but another for the defense, the state court violated Petitioner’s federal constitutional equal protection and due process rights. See e.g. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); Evitts v. Lucey, 469 U.S. 387, 393 (1985); Griffin v. Illinois, 351 U.S. 12, 13-14 (1956). The inconsistent ruling also violated the heightened procedural safeguards required in capital cases under the Eighth and Fourteenth Amendments.

123. Moreover, counsel’s failure to marshal the above-described evidence, both [50] justifying the admissibility of the evidence he sought to elicit during cross-examination and to further demonstrate the possibility that Randall Turner was involved in both the robbery/attempted rape and murder constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution. For this reason as well, relief is required.

E. The Unreliable Forensic Evidence.

124. During its case-in-chief, the prosecution presented three experts purporting to eliminate another viable suspect, (the decedent’s husband), and connecting Petitioner to the murder. As described below, that evidence was tainted and unreliable. Nevertheless, counsel failed to effectively challenge these experts’ conclusions, nor did counsel develop or present the readily available expert testimony that would have directly contradicted the prosecution’s claims and contentions, in violation of Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

1. The purported gunshot residue evidence.

125. The police seized clothing from Petitioner’s home shortly after the murder, including a pair of blue jeans, a flannel shirt, a ballcap, and Converse sneakers. The police submitted these items to A.J. Schwoeble of the R.J. Lee group for forensic testing. NT 10/28/98 at 208. Schwoeble testified that following his testing, he found two particles consistent with gunshot residue on the left sleeve of the shirt (none on the right or anywhere else on the shirt); one particle unique to gunshot residue on the left leg of the jeans (none on the right or anywhere else on the jeans); six particles unique to gunshot residue on the cap; and, one particle unique to gunshot residue on the left sneaker. Id. at 209-212. Based on these findings, Schwoeble [51] concluded to a reasonable degree of scientific certainty that the particles on each of these items were the result of being in close proximity of a firearm being discharged or contact with a surface in the proximity of the discharged weapon. Id. at 212-13. Schwoeble also testified to a series of tests he conducted on other items of clothing purportedly consistent with Petitioner’s firing a weapon and washing the clothing in an apparent attempt to demonstrate that Petitioner’s clothing indicated recent exposure to gunshot residue. Id. These tests were conducted on other clothing, not those seized from Petitioner.

126. During cross-examination, Schwoeble acknowledged the possibility of contamination tainting results, he limited his discussion of contamination to situations where an individual holds a weapon that had not been cleaned and then rubbing his or her hand on clothing. Id. at 227. Counsel never inquired into the possibility of contamination from contact with individuals with regular contact with firearms, such as the police officers who seized the clothing from Petitioner’s home. Nor did counsel inquire into other potential areas of contamination. Id.

127. As a result of Schwoeble’s testimony, the prosecution was able to argue that the purported residue on Petitioner’s clothes was circumstantial evidence that Petitioner recently fired a weapon, thus supporting the prosecution view that Petitioner committed the murder. See e.g., NT 11/5/98 at 336.

128. Despite the obvious damning nature of this testimony, counsel failed to challenge Schwoeble’s credentials, nor did counsel obtain a defense expert to contradict Schwoeble’s conclusions. Undersigned counsel has retained a forensics expert, John W. Kilty, with years of experience conducting testing for gunshot residue. After reviewing the record, relevant police investigation reports and A.J. Schwoeble’s forensic report, Mr. Kilty has significant concerns [52] about the opinion offered by Schwoeble. Certification of Witnesses (John W. Kilty).

129. Indeed, Mr. Kilty concludes that no scientifically sound opinion can be rendered on the question of whether Petitioner fired a gun, or if he did, whether it was fired at a specific time or location. Id. He further concludes that it is not possible to associate the gunshot residue located on certain aspects of Petitioner’s clothing with a particular shooting event to the exclusion of a secondary source(s) of gunshot primer residue. Id.

130. As Mr. Kilty will explain at an evidentiary hearing, a single gunshot produces many hundreds of primer residue particles. Id. These particles are deposited on the firearm itself; exposed parts of the body, clothing and other surfaces around where the firearm was discharged including, but not limited to, the ground, vegetation, and objects such as vehicles. Id. These particles can be transferred from their original “landing spot” to other persons, other clothing or other surfaces by contact(s) with contaminated persons or items. Id. Mr. Kilty notes that it is particularly important to be aware of this when persons such as hunters and police officers are admittedly around firearms and areas where firearms are discharged and then have contact with evidence such as clothing. Id.

131. In Mr. Kilty’s opinion, locating one or two particles of gunshot residue on parts of clothing does not justify associating that clothing only with a shooting event. Id. Instead, such a finding is limited to demonstrating that the clothing at some point in time was in an environment where gunshot residue was present. Id.

132. As Mr. Kilty notes, a proper analysis should include seeking to eliminate and/or identify sources of gunshot residue alternative to the shooting event in question. Id. Locating only four unique gunshot residue particles on a shirt, jeans and shoes renders it unlikely that the [53] analyst can rule out a transfer mechanism. Id. Risk of contamination exists where, as in this case, a police officer, as opposed to an evidence technician, collected the clothing items. Id. Police officers are occupationally exposed to gunshot residue (their own firearm(s), uniforms, vehicles, shooting scenes, firearms training, arrest activities, etc.), thus increasing the likelihood that residue was transferred to the evidence. Id.

133. Moreover, Mr. Kilty notes that, while gloves may reduce the chance of gunshot residue transfer from the hands of the police officer, it does not eliminate transfer from clothing or other areas. Id. The testimony in this case, however, indicated that the officer did not even wear gloves for some of the collection, (see NT 10/28/98 at 180 (testimony of Trooper Mowrey noting that he did not wear gloves when he seized the flannel shirt and the hat)), thereby further increasing the potential for transfer contamination.

134. In short, Mr. Kilty concludes that no reasonable scientific conclusion can be reached that the particles found indicate exposure to a fired weapon any more than exposure from contamination or other sources. Certification of Witnesses (John W. Kilty).

135. There can be no question that, had it heard expert testimony directly disputing the broad, unreasonable and inherently unreliable conclusions reached by Schwoeble, there is more than a reasonable likelihood that the jury would have rejected Schwoeble’s “expert” conclusions and acquitted Petitioner. Thus, counsel’s failure to investigate and develop this evidence constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.¹⁷ [54]

3. The flawed ballistics testimony.

136. As described earlier, Officer Rottmund, a police ballistician, compared Steven Myers’ weapon to the bullets found at the murder scene. Although Rottmund’s report, indicated that the results were inconclusive, thus precluding a finding that the gun was not the murder weapon, at trial, Rottmund offered an opinion to a reasonable degree of scientific certainty that the gun was not the murder weapon. NT 10/29/98 at 35. Absent any evidence supporting that opinion—and in light of the scientific findings directly disputing that opinion—that testimony constituted nothing more than mere speculation and conjecture.

137. In Pennsylvania, expert evidence based on speculation is patently inadmissible. See Collins v. Hand, 246 A. 2d 398, 404 (Pa. 1968) (“No matter how skilled or experienced the [expert] witness may be, he will not be permitted to guess or state a judgment based on mere conjecture”). Moreover, a verdict based on speculation or conjecture violates due process. E.g. Jackson v. Virginia, 443 U.S. 307, 316 (1979).

138. Counsel’s failure to object to this patently inadmissible testimony constitutes deficient performance Where, as here, the inadmissible, speculative testimony essentially eliminated a viable other suspect, prejudice is demonstrated and Petitioner is entitled to relief.

139. Moreover, the prosecution, by essentially sand-bagging the defense by providing the defense with a pretrial report indicating inconclusive results and then eliciting “expert” testimony indicating that the gun was excluded as the murder weapon, deprived Petitioner of his federal constitutional rights to notice and a meaningful opportunity to answer the charges and present defense evidence. E.g., Crane v. Kentucky, 476 U.S. 683, 690 (1986) (due process entities defendant to a “‘meaningful opportunity to present a complete defense’”) (citations [55] omitted); Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”); California v. Trombetta, 467 U.S. 479, 485 (1984); Rock v. Arkansas, 483 U.S. 44, 51 (1987). The prosecution’s conduct also deprived Petitioner of his separate and independent state due process rights under Article I, Section 9. Commonwealth v. Deans, 620 A.2d 32, 34 (Pa. 1992) (“Due Process requires a full opportunity to defend against the charges”); see also Commonwealth v. Martin, 727 A.2d at 1141-42 (noting that the due process component of Article I, Section 1 is more expansive than federal due process).

140. Finally, to the extent counsel had notice that the prosecution’s expert would offer an opinion based on nothing more than speculation, counsel was ineffective in failing to develop and present competent expert testimony. Moreover, once he learned that the prosecution expert would offer an opinion based on nothing more than speculation and conjecture, counsel should have requested a recess in order to present such testimony. For these reasons as well, counsel’s failures violated Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

4. The altered tape testimony.

141. In support of its contention that the fishing videotape had been altered, the prosecution presented Dr. Boyle, a physicist. NT 10/28/98 at 76-77. Using measurements provided to him by the police, Dr. Boyle determined the location of the sun and shadows and concluded that various times on the videotape were falsified. Id. During the course of his testimony, however, Dr. Boyle acknowledged that the police failed to secure accurate measurements. Id. at 82, 87, 93-94. [56]

142. Despite the admitted flaws in the bases for which Dr. Boyle concluded that various portions of the tape were altered, counsel conducted no independent investigation or evaluation of Dr. Boyle’s conclusions, nor did counsel hire an independent expert. Counsel’s failures to do so constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Petitioner’s rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

F. Evidence Disputing the Prosecution’s Contention that the Myers’ Letter was Indicative of Consciousness of Guilt.

143. In support of its contention that Petitioner killed Ms. Myers in an effort to avoid prosecution for the robbery/attempted rape charges, the prosecution admitted a letter that Petitioner’s daughter claimed to have found that was addressed to Ms. Myers and discussed the robbery/attempted rape charges. See NT 10/26/98 at 73-74.¹⁸ Although Petitioner did not state in the letter that he committed the crimes, he did note that he could have suffered from a blackout.

144. During his testimony, Petitioner explained that he wrote the letter while he was in prison, suffering from the despair of his circumstances. NT 11/4/98 at 96-97. Indeed, during that time, he sought the assistance of the prison mental health services and was on medication. Id. Petitioner was the sole witness presented by the defense addressing this issue.

145. Despite a plethora of indicators that Petitioner’s mental stability degenerated following his arrest on the robbery/attempted rape charges, including prison mental health records, counsel failed to investigate and develop mental health evidence supporting Petitioner’s [57] testimony regarding his state of mind at the time he wrote the letter. Indeed, as described elsewhere in this Petition, Petitioner suffered from serious and debilitating emotional and mental impairments exacerbated by the stressors of his incarceration and pending charges. At an evidentiary hearing, Petitioner will present expert evidence describing the nature and extent of Petitioner’s impairments and the impact those impairments had on Petitioner’s functioning, including his functioning at the time the letter was written.

146. It is, at the least, reasonably likely that a jury, presented with this expert testimony, would have concluded that, contrary to the prosecution’s contention, the letter was nothing more than an expression of despair and not any indication of consciousness of guilt. Counsel’s failure to investigate, develop and present this evidence constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

G. Evidence Disputing the Veracity and Reliability of Identification and Other Lay Testimony.

1. Jennifer Myers.

147. The prosecution’s theory was that Petitioner had a motive to kill Myers because she identified him as her assailant in the robbery case. To prove this it presented the hearsay evidence of the preliminary hearing identification testimony made at that proceeding.¹⁹ Counsel failed to make any efforts to undermine this critical testimony. As described in Claim III, effective counsel would have shown: [58]

• Myers’ opportunity to observe her assailant’s face was limited because the perpetrator wore sunglasses and a hat which would have obscured portions of his face. Exhibit 27 (West Manchester Township Police Report, 8/5/1996 (interview of Jennifer Myers)).
  
  
• The initial description given to police immediately after the incident failed to match that of Petitioner. She described the male as being in his late forties; petitioner was thirty-eight. The perpetrator was 5'6"; Petitioner is at least 5'11". She estimated the perpetrator to weigh 185 lbs; petitioner weighed 205 lbs. Exhibit 28 (Special Report, August 5, 1996).
  
  
• Myers could only say the perpetrator’s hair was “possibly light” and was unable to describe his eye color. Petitioner has red hair and blue eyes. Id.
  
  
• Myers had only one opportunity to view Petitioner prior to the preliminary hearing when she claimed to have seen him working at a convenience store. She did not report this observation for two or three weeks and then explained this failure by confessing it was because she was “not certain” Petitioner was the perpetrator. Exhibit 29 (Police Report, Case Summary at 2, 11/27/1996).
  
  
• Myers’ statements to police indicate her belief Petitioner was the perpetrator was due principally to similarity of voice and skin tone rather than recognition of facial features. Exhibit 30 (Police Report, Det. Smith, 11/25/1997 (interview of Steven Myers)).
  
  
• The initial report to police casts doubt on Myers’ later claim that Petitioner, a complete stranger, was the perpetrator. Myers, who initially refused to call the police, told the UPS driver that she had been “set up,” and indicated that she knew her attacker. Exhibit 31, 911 summary. She also failed to promptly report her claim that she was a victim of an attempted sexual assault and claimed in the interim to have the discarded torn clothing.

148. Effective counsel would have also argued how a courtroom confrontation is inherently suggestive. It is obvious who the defendant is. The entire focus of the hearing is that person. Victims are not unbiased and tend to identify with the prosecution who they view as furthering their cause. There is pressure, conscious or unconscious, to “perform” in a way that pleases their legal benefactor. There are also psychological forces at play when there is a preconceived “expectation” that the person seated there is the one from the incident, blurring the [59] line between true and false memory. Counsel also failed to argue how stress can affect the reliability of an identification and that observations made in a disturbed psychological state are suspect.

149. Counsel failed to argue the significance of the perpetrator’s use of a gun. There was testimony the gun was pointed at “the center of her mouth” NT 10/26/98 at 38 (Testimony of Offrcer Steven Crider). Counsel failed to argue that when there is a weapon present the witness would more likely focus on the weapon, also reducing the amount of time that she spend looking at the face, as well as increasing stress, thereby reducing the reliability of any subsequent identification.

150. Counsel also failed to argue that the police work in this case was slovenly or incomplete. Once Myers expressed her lack of certainty to the police they should have performed a fairly presented photographic or corporeal lineup (the police arrested Petitioner without ever asking Myers to confirm he was the same man she saw in the store). Instead, their failure to utilize proper investigative tools ensured any later identification would be suggestive and unreliable.

2. Sandra Sue Eller.

151. At trial the Commonwealth produced circumstantial evidence, through Sandra Eller’s testimony, that Petitioner was present near the scene of the crime one and one-half to more than two hours before they theorize the murder was committed. Counsel failed to adequately impeach her testimony. As discussed more fully at Claim III, effective counsel would have shown and argued:

• In her original report to the police Eller could only say Petitioner was “possibly” [60] the man she saw. Exhibit 32 (Police report 101);
  
  
• Eller was startled by the oncoming car, a fact undermining her ability to observe. Exhibit 33 (Police Report 109);
  
  
• Eller’s account that she saw a person in a car on her way into Kennies was wildly inconsistent. At the pretrial hearing she identified that person as Petitioner, claiming she got a “good look” at him. NT 6/9/98 at 54-55. At trial she completely disclaimed this identification, testifying then she was not sure if it was the same man that was driving the car that almost struck her. NT 10/29/1998 at 59, 65 (“I really didn’t take notice to him”);
  
  
• Eller’s account was tainted by a constant barrage of media exposure, much of it containing slanted and prejudical comments by prosecutors;
  
  
• The confrontations at earlier hearings were highly suggestive and tainted her in-court identification.

152. Counsel failed to effectively challenge Eller’s identification testimony by exposing her many inconsistencies, developing her lack of opportunity to observe, and arguing the effects of taint through suggestive media exposure and in-court confrontations.

3. Joanne Dowling.

153. In support of its theory that Petitioner submitted the fishing video in support of an alibi, that Petitioner possessed a number of guns, and, that Petitioner wrote a letter to the complainant while in prison that the prosecution contended indicated consciousness of guilt, the prosecution presented Joanne Dowling, Petitioner’s wife. NT 10/28/98 at 170.²⁰ Counsel knew or should have known that Ms. Dowling and Petitioner were estranged by the time of trial, due, in part, to Ms. Dowling’s relationship with other men, including William Donovan.

154. Indeed, Petitioner avers and will demonstrate at an evidentiary hearing that the [61] circumstances of the ‘discovery’ of the letter and disclosure of that letter to the police is connected to the marital discord and Ms. Dowling’s involvement with other men, including William Donovan.²¹ See Certification of Witnesses (William Donovan).

155. Petitioner further avers, and expects to prove at an evidentiary hearing, that Ms. Dowling’s relationship with Mr. Donovan became serious during the summer before Petitioner’s trial. Mr. Donovan moved in with Ms. Dowling during that time and they remained involved for years after Petitioner’s trial. Id. Similarly, it was during the summer before Petitioner’s trial that Ms. Dowling contacted the police to provide information against Petitioner, particularly the letter to Ms. Myers. Exhibit 34 (Police Report at 233-35, Tpr. Mowrey, 8/4/98 (interviews of Joanne and Kathleen Dowling)). She contacted the police during August, 1998, two months after she and Mr. Donovan had become seriously involved. Id. At her request, the police went to the Dowling home and took a statement from her (and Petitioner’s) daughter that included allegations against Petitioner, including inculpatory statements Petitioner purportedly made, and seized a letter. Id. Thus, there is no question that it was Ms. Dowling who orchestrated the circumstances of Kathleen’s statement to the police.

156. Moreover, counsel was aware of a number of letters that Joanne Dowling had written to Petitioner during his pretrial incarceration acknowledging her infidelities and indicating her impaired mental health, suicidal ideations and other emotional and mental impairments impacting her credibility and reliability as a witness. Similarly, these letters confirm that Kathleen Dowling was severely mentally-ill, the true extent of which was kept from the jury. Petitioner Exhibit 35 (Letters of Joanne Dowling). Yet, counsel ineffectively failed to confront Ms. [62] Dowling with these letters.

157. There can be no question that it is reasonably likely that the jury would have given the testimony of both Joanne and Kathleen Dowling little credence if it had heard evidence that Joanne—the custodial parent of Kathleen—had become involved with another man and would, therefore, likely have sought to take steps to end her relationship with Petitioner.

158. Nevertheless, counsel failed to cross-examine either Joanne or Kathleen Dowling regarding these obvious biases against Petitioner. Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

4. Kathleen Dowling.

159. Kathleen Dowling provided the following damaging testimony to the jury:

• Petitioner purportedly “flipped out” and started screaming at his daughter when she mentioned the robbery case, that it was too much for him to handle, and that “she,” meaning Jennifer Myers, “was going to die for it,” NT 10/26/98 at 70;
  
  
• After watching the fishing trip videotape, Petitioner allegedly told her that if anything were to happen “he’ll have an excuse for the police,” id. at 73;
  
  
• Petitioner purportedly “blew up” and started yelling at her when Kathleen asked him about the possibility that the police might think he changed the time on the video, id.; and
  
  
• Ms. Dowling also testified about the circumstances of her finding the “Dear Miss Myers” letter in Petitioner’s filing cabinet, and that the handwriting was her father’s, id. at 74.

160. On cross examination, Ms. Dowling voluntarily offered information about attending “a medical program at the time in the hospital.” NT 10/26/98 at 82. Counsel also had direct knowledge from Petitioner about Ms. Dowling’s mental illness and the numerous [63] medications she had been prescribed, and thus clearly had a good faith basis to query her about this. Despite this, counsel did not pose a single question to Ms. Dowling about why she was attending such a program or what her diagnoses were. In addition to the trial court’s error in failing to order either production of the records or conduct an in camera review, counsel was ineffective for failing to cross examine Ms. Dowling about her mental health history, which would have provided the jury the necessary information to determine whether her testimony was hampered by mental illness and should not be believed. This failure on counsel’s part was unreasonable and constituted prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution.

H. Evidence Proving Petitioner Could Not Have Been the Person Eller Saw and That Someone Else was the Killer.

161. As stated above, counsel failed to effectively challenge the reliability of Sandra Sue Eller’s account. However, if the jury were to have heard her entire account rather than the partial version the prosecutor presented, it would have conclusively shown that Petitioner could not have been the man Eller saw. Indeed, her full account shows someone who could not be Petitioner acting suspiciously outside the Grey Fox, clearly exculpatory evidence. Instead, counsel neither challenged Eller’s account, nor brought out the exculpatory aspects of her prior statements. Further, the Commonwealth intentionally misled the jury by knowingly distorting and misrepresenting the times Eller was to have made her observations.

162. Eller claimed to have seen a man acting suspiciously leave the Grey Fox gallery and then moments later almost run her over. Her account of her shopping excursion in Kennies [64] was very detailed, telling the police she used her Gold Card, and spent over $50. On her way out she saw the man in the vicinity of the Grey Fox and noted the man was apparently concealing something wrapped in a shirt. She was able to give a detailed description. She did not see where he walked to but moments later the same man almost ran her over. Indeed, the police accompanied her to the scene and she showed them her vantage of the Grey Fox as she left Kennies market. Exhibit 33 , Police report, page 109.

163. Eller was unsure about the time frame of her shopping trip to Kennies, where she saw the suspicious man at the Grey Fox. The police however were sure. Eller’s register receipts place the time at 10:50 am. Indeed this is the only relevant time conclusively shown by the evidence, and proves that Dowling could not have been the man she saw. The Commonwealth’s evidence places Petitioner at Muddy Run Lake at this time, over forty miles away. More importantly, if Eller’s testimony is to be credited, she saw someone acting suspicious in the vicinity of the Grey Fox. As this person could not have been Dowling, it is clearly exculpatory evidence that the jury never heard.

164. The police and prosecution intentionally misled the jury. Only after numerous police interviews did Eller’s account slowly change to conform to the police theories. Additionally, the police claimed, without support other than their testimony, the register times were off (after checking days later) by twenty minutes. They made this unsupported claim without verifying this through computerized records known to exist, all in a strained attempt to make the times correspond to their theories. Effective counsel could have shown even with the receipts in the police possession that Register #6’s time was accurate. The receipts of the other customers using credit cards that day show that the register times and the credit card company clocks agree. [65] The 10:50 time was demonstrably correct, proving Petitioner could not have been the man Eller saw.

165. The prosecution sought to mislead the jury as well. In presenting Eller, they insinuated that she could have been at Kennies as late as 12:00 pm, a time Petitioner could have conceivably been there. It did this not only by representing, falsely, that the Kennies clocks were wrong. At trial, the prosecutor asked Eller, who admitted she was unsure of the times, to estimate times she took to do various tasks after shopping and arrived at an estimate of 12:00 pm by counting backwards. NT 10/29/98, 64. Again, the Commonwealth knew this to be false, yet misled the jury into believing that Petitioner could have been the man Eller saw when they knew he could not be. Similarly, in trying to establish the person could have been Dowling, the prosecution tried to manipulate the time Petitioner is said to have left Muddy Run Lake. Clarence Hess, who ran the boat rental concession, told police Dowling arrived at the lake at 10:20 am and left forty-five minutes later. Exhibit 36, Police Report at 43. At trial, the time frame was shortened to as few as twenty-five minutes, NT 10/27/98, 135, exploited as “fact” by the prosecutor in his opening, notwithstanding Hess’ earlier statements. NT 10/26/98, 24.

I. Petitioner’s Right to a Fair Trial was Not Protected.

166. Prior counsel consistently failed to ensure Petitioner received a fair trial, either failing to raise the below meritorious claims, or if raised, failing to pursue the claim on appeal.

167. Stun Belt. The court improperly sanctioned the use of a stun belt. The use of the stun belt was not reasonably necessary, had a chilling effect on Petitioner’s communications with counsel, the threat affected his demeanor at trial, including when he testified, and telegraphed to the jury that he was dangerous. The belt was remotely operated and designed to disorient, [66] immobilize and stun Petitioner. It can be activated by the sheriffs unilaterally, without authorization from the judge. When activated, the belt can deliver up to 50,000-volts, a shock lasting up to eights seconds. It causes incapacitation in the first few seconds and severe pain during the entire period. Its use can cause involuntary defecation and urination, immobilization and may cause the victim to fall to the ground. Effects can last up to 45 minutes and can leave welts requiring months to heal. See Shelley Dahlberg, Comment, The React Security Belt: Stunning Prisoners and Human Rights Groups into Questioning Whether Its Use Is Permissible Under the U.S. and Texas Constitutions, 30 St. Mary’s L.J. 239, 251-52 (1998). Nor were there written rules on when the belt could be activated. In this case there was no showing that the use or threat of a stun belt was necessary under the facts. Petitioner had not been unruly, disruptive or threatening. Nor was he an escape risk. The threat of use of a stun belt is a psychological deterrent that impedes a defendant’s participation in his own defense and violated due process and the right to counsel. Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1240 (9th Cir. 2001) (no per se bar to use of stun belt but should be limited to legitimate security rationale); People v. Mar, 92 Cal.Rptr.2d 771 (2000) (stun belt “psychological restraint” that impeded defendant’s testimony); People v. Melanson, 937 P.2d 826, 836 (Colo.App.1997) (recognizing defendant’s fear of the belt could prevent him from “participat[ing] fully and meaningfully in his trial”).

168. Conspicuous Presence of Sheriffs. Petitioner was surrounded by up to seven sheriffs during jury selection. This telegraphed to the jury that Petitioner was dangerous and undermined his presumption of innocence. This is no different than if Petitioner was visibly shackled in the courtroom; it implied to the jury that he had to be restrained. Such displays of “restraint” in front of the jury is “inherently prejudicial.” Holbrook v. Flynn, 475 U.S. 560, 568 [67] (1986); Deck v. Missouri, 125 S.Ct. 2007, 2015 (2005); Laird v. Horn, 159 F.Supp.2d 58, 100 (E.D. Pa. 2001), subsequent history, 414 F.3d 419 (3d Cir. 2005). Restraint such as this may “have a significant effect on the jury’s feelings about the defendant” and is “an affront to the very dignity and decorum of judicial proceedings.” Illinois v. Allen, 397 U.S. 337, 344 (1970); accord Holbrook, 475 U.S. at 568; Deck, 125 S.Ct. at 2013; Laird, 159 F.Supp.2d at 100. While legitimate security concerns may sometimes justify shackling, it must be subjected to “close judicial scrutiny,” and it violates due process except in “extreme situations” where it is “justified by an essential state interest specific to each trial.” Holbrook, 475 U.S. at 568-69; accord Deck, 125 S.Ct. at 2009; Laird, 159 F.Supp.2d at 100-01. Even when the court frnds an “essential state interest specific to [the] trial,” due process forbids shackling except “as a last resort” when alternative measures actually have been considered and found inadequate, and shackling is the “fairest and most reasonable way” to proceed. Allen, 397 U.S. at 344; Holbrook, 475 U.S. at 568.²² Due process was violated.

169. Conflict of Counsel. Attorney Arcuri, who was sentencing counsel and initial appellate counsel suffered from a conflict of interest. Arcuri represented both Curren and Leuw at relevant times. Petitioner has a right to be represented by conflict free-counsel. The duty of loyalty is “the most basic of counsel’s duties.” Strickland v. Washington, 466 U.S. 668, 692 (1984); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369, 374 (1976); Government of Virgin Islands v. Zepp, [68] 748 F.2d 125, 132 (3d Cir. 1984). “Counsel’s function is to assist the defendant, and hence counsel owes the client . . . a duty to avoid conflicts of interest.” Strickland, 466 U.S. at 688 (citing Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)). As the United States Supreme Court has written, “[u]ndivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision.” Von Moltke v. Gillies, 332 U.S. 708, 725 (1948). A defendant’s Sixth Amendment right to the effective assistance of counsel under Strickland is violated whenever a conflict of interest “adversely affect[s]” counsel’s representation. Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 350). Moreover, the Pennsylvania Constitution’s Article I, Section 9 right to effective counsel guarantees criminal defendants an even broader right to counsel unencumbered by competing interests. Commonwealth ex rel Whitling v. Russell, 406 Pa 45, 176 A.2d 641 (1972). Under Article I, Section 9, a defendant need only demonstrate the mere potential of harm to be entitled to a new trial. Whitling, 176 A.2d at 643; Commonwealth v. Wheeler, 444 Pa. 164, 281 A.2d 846, 847 (1971); Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354, 356 (1974); Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160, 164 (1979).

J. Counsel was Ineffective.

170. For the reasons described above, the jury never heard substantial and compelling evidence supporting Petitioner’s innocence and disputing the prosecution’s contentions in violation of Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution. Counsel’s failure to object or raise these issues at trial constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments. Petitioner has likewise demonstrated counsel was [69] ineffective under Pennsylvania law. As the above discussion demonstrates,“there is arguable merit to the claim that counsel’s performance was substandard or deficient.” Commonwealth v. Perry, 644 A.2d 705, 708-09 (Pa. 1994). Similarly, in light of the above-cited controlling authority demonstrating clear error, counsel can hardly be said to have had “some reasonable basis designed to effectuate [Petitioner’s] interests.” Id. Accordingly, for these reasons as well, counsel was ineffective and relief is required.

171. Where, as here, Petitioner consistently and steadfastly protested his innocence to all of these charges and where, as described above, Petitioner has demonstrated that counsel failed to conduct even a minimally adequate investigation and presentation of evidence directly disputing the prosecution’s claims and corroborating and supporting Petitioner’s alibi defense, Petitioner has met his burden of demonstrating deficient performance under both the federal and state standards. Moreover, as the unpresented evidence described above would have provided compelling bases for the jury to find that Petitioner was not guilty, Petitioner has also demonstrated both arguable merit and prejudice. Where, as here, there is more than a reasonable likelihood that, had counsel acted competently Petitioner would have been acquitted, the prejudice is manifest, and Petitioner is entitled to relief under both the federal and state ineffectiveness standards.

172. Direct appeal counsel was precluded from raising the above-described claims of ineffective assistance of counsel on direct appeal. See Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). To the extent that counsel should have and could have raised the above-described claims on direct appeal under controlling precedent and procedure, counsel’s failure to do so constitutes ineffective assistance of counsel in violation of the Sixth, Eighth, and Fourteenth [70] Amendments and Article I, Sections 1, 9, 13, and 25 of the Pennsylvania Constitution.

173. The adequacy of counsel’s performance is “measured against an ‘objective standard of reasonableness,’ [Strickland v. Washington, 466 U.S. 668, 688 (1984)], ‘under prevailing professional norms.’ Ibid.; Wiggins v. Smith, [539 U.S. 510, 521 (2003)].” Rompilla v. Beard, 545 U.S. 374, 380 (2005). The courts “long have referred” to national standards such as the American Bar Association Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases “as ‘guides to determining what is reasonable.’” Wiggins v. Smith, 539 U.S. at 524 (quoting Strickland v. Washington, 466 U.S. at 688); Rompilla v. Beard, 545 U.S. at 387 & n.7; see also Commonwealth v. Hughes, 865 A.2d 761, 813-814 (Pa. 2004). These norms unquestionably apply to counsel’s performance on direct appeal in this case. E.g., Wiggins, 539 U.S. 510 (2003) (applying ABA Standards and Maryland local norms to counsel’s performance at trial in 1989); Rompilla, 545 U.S. 374 (2005) (applying ABA Standards to counsel’s performance in November 1988 trial); Williams, 529 U.S. 362 (2000) (applying ABA Standards to counsel’s performance in 1986 trial); Commonwealth v. Hughes, 865 A. 2d 761 (Pa. 2004) (ABA Standards applicable to counsel’s performance in 1981 trial).

174. The ABA Guidelines “in circulation at the time of [Petitioner’s direct appeal] describe[ ] the obligation in terms no one could misunderstand in the circumstances of a case like this one,” Rompilla, 545 U.S. at 387: “[a]ppellate counsel should seek, when perfecting an appeal, to present all arguably meritorious issues.” AMERICAN BAR ASSOCIATION GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN CAPITAL CASES, Guideline 11.9.2.(D), Duties of Appellate Counsel (1989 ed.). As the Commentary to this Guideline clearly [71] explained (emphasis in original):

Traditional theories of appellate practice notwithstanding, appellate counsel in a capital case should not raise only the best of several potential issues. . . . When a client will be killed if the case is lost, counsel (and the courts) should not let any possible ground for relief go unexplored or unexploited.

See also AMERICAN BAR ASSOCIATION GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN CAPITAL CASES, Guideline 10.15.1.(C), Duties of Post-Conviction Counsel²³ (2003 rev. ed.) (appellate “counsel should seek to litigate all issues, whether or not previously presented, that are arguably meritorious”); id. Comment, Direct Appeal (“[I]t is of critical importance that counsel on direct appeal proceed . . . in a manner that maximizes the client’s ultimate chances of success. . . . When a client will be killed if the case is lost, counsel should not let any possible ground for relief go unexplored or unexploited.”).

175. As a result, counsel in a capital case can have no reasonable basis for failing to present a meritorious issue on direct appeal. See also Commonwealth v. Townsell, 379 A.2d 98 (Pa. 1977); Commonwealth v. Yocham, 397 A.2d 766, 768 (Pa. 1979); Commonwealth v. Pfaff, 384 A.2d 1179 (Pa. 1978) (plurality) (“We are unwilling to conclude that appellate counsel effectively represents one convicted of a crime when appellate counsel, either through inadvertence or otherwise, fails to raise arguably meritorious issues on that appeal. One purpose of the appellate process is to guarantee as much as possible that the defendant’s right to a fair and impartial trial is scrupulously honored.”); Commonwealth v. Jones, 815 A.2d 598, 619 (Pa. 2002) (Newman, J., concurring) (“if the underlying claim of error is of such an important magnitude that [72] it would have entitled a defendant to relief had it been raised on appeal, there can be no justification for the failure of appellate counsel to pursue the claim that would ever qualify as a reasonable professional judgment”).

176. The failure to raise or litigate meritorious claims on appeal, like the one present here, constitutes prejudicially deficient performance under federal constitutional law. E.g., Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996) (appellate counsel was ineffective for failing to raise claim relating to the erroneous admission of hearsay evidence); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (appellate counsel ineffective for failing to raise issue relating to state discovery rule); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987) (appellate counsel ineffective for failing to raise claim relating to comment on defendant’s post arrest silence). A defendant establishes prejudice from appellate counsel’s ineffectiveness where he shows that, but for counsel’s error, there was a reasonable probability that the outcome of the appeal would have been different. Mason, 97 F.3d at 893; Mayo, 13 F.3d at 534; Matire, 811 F.2d at 1439. Since he would have won the appeal had he fully and properly raised this issue, see McNeil, he has proven prejudice.

177. Petitioner has likewise demonstrated counsel was ineffective under Pennsylvania law. As the above discussion demonstrates,“there is arguable merit to the claim that counsel’s performance was substandard or deficient.” Commonwealth v. Perry, 644 A.2d 705, 708-09 (Pa. 1994). Similarly, in light of the above-cited controlling authority demonstrating clear error, counsel can hardly be said to have had “some reasonable basis designed to effectuate [Petitioner’s] interests.” Id. Accordingly, for these reasons as well, counsel was ineffective and relief is required. [73]

K. Conclusion

178. The above-described errors, individually and cumulatively, provide compelling bases for doubting the reliability of the jury’s verdict. Indeed, as the above-described evidence demonstrates, there is more than a reasonable probability that Petitioner is innocent and, but for the abject failures of counsel and police and prosecutorial misconduct, his innocence would have been palpable to the jury. Where, as here, the prosecution had no physical evidence—or any other competent evidence—connecting Petitioner to these crimes, the denial of Petitioner’s federal constitutional rights is manifest and requires grant of relief, or at a minimum, an evidentiary hearing.

179. For each of these reasons, Petitioner is entitled to relief under 42 PA. C.S. §§ 9543(a)(2)(i), (ii), and (iv), and Article I, Sections 1, 6, 9, 13, 14, and 25 of the Pennsylvania Constitution. Because counsel’s conduct in failing to raise or litigate these issues ran completely afoul of Petitioner’s interests and fundamental constitutional rights, there is no question that there exists no strategic or tactical reason for counsel’s conduct. See 42 PA. C.S. § 9543(a)(4).

________________________

³ This precise national standard of conduct was referenced by the United States Supreme Court in Strickland, 466 U.S. at 688-89, Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) as national guides to determining what constitutes reasonable attorney conduct. Likewise, state controlling authority has also relied on the ABA standards as guidelines in determining whether or not counsel’s or the prosecution’s conduct was constitutionally reasonable. See, e.g., Commonwealth v. Bailey, 390 A.2d 166, 169-70 (Pa. 1978) (relying on ABA Standards Relating to the Defense Function, Section 4.1 regarding counsel’s obligation to promptly and adequately investigate avenues of defense); Commonwealth v. Boyd, 334 A.2d 610, 615 (Pa. 1975) (relying on ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 5.2(b)); Commonwealth v. McGrogan, 297 A.2d 456, 458 (Pa. 1972) (citing ABA Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function, The Prosecution Function s 5.2(b) (Approved Draft 1971) (commentary)); Commonwealth v. McCaskill, 468 A.2d 472 (Pa. Super. 1983) (citing ABA Standard § 4-4.1 regarding counsel’s duty to investigate); Commonwealth v. White, 450 A.2d 63, 64 (Pa. Super. 1982) (quoting ABA Standards Relating to the Defense Function, § 4.1 as support for the principle that “[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty”); Commonwealth v. McFarland, 450 A.2d 1008 (Pa. Super. 1982) (citing § 4-5.2(a) regarding counsel’s duty to advise defendant regarding right to testify); Commonwealth v. Ross, 432 A.2d 1073 (Pa. Super. 1981) (relying on § 4-8.2 regarding counsel’s duty to advise defendant regarding right to appeal).

⁴ Although counsel was aware of Petitioner’s alibi one day after he was arrested on October 29, 1997, no one spoke with Ms. Stevens until May, 1998.

⁵ While the manager may have been initially uncooperative with the defense investigator and refused to permit that investigator to speak with the dancers, (see NT 8/1-2/98 at 149-50), that does not excuse counsel from utilizing the available processes, such as a subpoena or court order, to preserve evidence that very likely would verify Petitioner’s defense.

⁶ That Ms. Stevens and others could not definitively state that Petitioner was in Adult World on the date of the murder does not diminish the importance of their testimony in support of Petitioner’s alibi. When combined with the other evidence, including the advertisement demonstrating that “Sassy” was at Adult World on the date of the murder, such testimony is circumstantial evidence supporting Petitioner’s alibi. Had the jury been presented with the above-described evidence, it is, at the least, reasonably likely that it would have credited Petitioner’s testimony.

⁷ Moreover, to the extent post-trial counsel was precluded from presenting this evidence as a result of this Court’s order limiting the nature of the evidentiary hearing, see e.g. Order 7/22/02, post-trial counsel was nevertheless ineffective for failing to present a full and complete proffer of that evidence in order to preserve the issue for appeal. In addition, to the extent this Court’s order limiting the evidentiary presentation did, in fact, preclude counsel from presenting evidence rebutting trial counsel’s claims, that order deprived Petitioner of his rights to a full and fair hearing, to effective assistance of counsel and his right to a full and fair appellate review in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9 and 25 and Article V Section 9 of the Pennsylvania Constitution.

⁸ See also Beck v. Alabama, 447 U.S. 625 (1980); Ake v. Oklahoma, 470 U.S. 68 (1985); Caldwell v. Mississippi, 472 U.S. 320 (1985); Ford v. Wainwright, 477 U.S. 399, 414 (1986) (each holding that a capital case requires heightened judicial review and enforcement of procedural safeguards).

⁹ This duty continues past a defendant’s arrest, conviction and sentencing. E.g. Commonwealth v. Strong, 761 A. 2d 1167 (Pa. 2000) (PCRA relief granted where Brady claim was based upon post-conviction discovery of prosecution file); Commonwealth v. Williams, 732 A. 2d 1167, 1175-76 (Pa. 1999); Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976). Accordingly, even now, the prosecution is constitutionally required to turn over the tape to undersigned counsel and counsel hereby requests disclosure.

¹⁰ Mr. Gallagher was also Petitioner’s mental health counselor.

¹¹ As described elsewhere in this Petition, the court’s pretrial ruling precluding defense counsel from obtaining Leuw’s mental health records violated the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution. For the reasons described therein and above, to the extent the court’s order also precluded Petitioner’s counsel from cross-examining Leuw on these matters, that order also violated Petitioner’s federal constitutional rights.

¹² Although Ms. Johnson initially told the police that she did return the wig, (see Exhibit 13 (Police Report at 142, Tpr. Peters, 10/29/97 (Interview of Malissa Johnson)), she later remembered that she did not and specifically contacted the police to tell them that. Exhibit 14 (Police Report at 175, Tpr. Olweiler, 11/6/97 (Interview of Malissa Johnson)). Indeed, even now, Ms. Johnson definitively states that she never returned the wig. Certification of Witnesses (Malissa Johnson). Thus, counsel’s reliance on a perceived concern that her testimony would have been qualified as a basis for not calling her to dispute Leuw’s claim, (see NT 8/1-2/02 at 252), is simply not true.

¹³ As described above, apparently, Steven Curren took someone up on this request. He contacted the police claiming that Petitioner made inculpatory statements. Exhibit 15 (Police Report at 199-200, Tpr. Mowrey, 12/18/97 (contact with Curren)); He did not, however, pass a polygraph test. Exhibit 16 (Springettsbury Township Police, Officer Robert Soop, 1/7/98, Polygraph Report). Not surprising, the police did not polygraph any of the other “jailhouse snitches” after receiving those test results.

¹⁴ Indeed, that affidavit of probable cause was executed by Trooper Mowrey, the investigating officer in Petitioner’s case.

¹⁵ Although the police did recover a weapon in the Virginia stand-off incident, that weapon was ultimately identified as one taken from Joseph Smith the day after the Holiday Hair robbery.

¹⁶ Rottmund did, albeit grudgingly, acknowledge on cross-examination that he could not rule out Myers’ gun as the murder weapon. NT 10/29/98 at 33.

¹⁷ Counsel claimed during post-conviction proceedings that he contacted a ballistician, Lonny Harden, who told counsel that he could not help the defense. NT 8/1-2/02 at 271-72. At an evidentiary hearing, Petitioner will present evidence directly disputing counsel’s claim

¹⁸ Although he contended it supported its theory that Petitioner committed the robbery/attempted rape, the prosecutor did not admit that letter during the robbery/attempted rape trial.

¹⁹ There was no transcript of the preliminary hearing. Instead, the prosecution presented witnesses who testified to what they recalled Ms. Myers testified. See NT 10/26/98 at 43-44 (Det. Smith describing preliminary hearing testimony not transcribed); id. at 51-52 (DJ Garber, same).

²⁰ As described elsewhere, the presentation of this testimony violated the spousal privilege. See Claim IV.

²¹ Mr. Donovan was not the William Donivan who was assigned as a defense investigator.

²² Accord Riggins v. Nevada, 504 U.S. 127, 138 (1992) (shackling “permissible only in extreme situations, where it is the ‘fairest and most reasonable way’ to control a disruptive defendant” (citing Holbrook, quoting Allen)); Szuchon v. Lehman, 273 F.3d 299, 314-15 (3d Cir. 2001); Roche v. Anderson, 132 F.Supp.2d 688, 702-04 (N.D. Ind. 2001), aff’d in relevant part, Roche v. Davis, 291 F.3d 473, 482-84 (7th Cir. 2002); Duckett v. Godinez, 67 F.3d 734, 746-49 (9th Cir. 1995); Elledge v. Dugger, 823 F.2d 1439, 1450-52 (11th Cir.), modified on unrelated grounds, 833 F.2d 250 (11th Cir. 1987) (holding granting relief on shackling issue not modified).

²³ The 2003 Guidelines include direct appeal counsel under the discussion of post-conviction counsel, which applies to all counsel who enter a case after the time of conviction.