|
...of evidence of third party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of "direct link" or connection between a specific third party and the crime. A second group of state courts, as well as federal courts, admit evidence of third party guilt if it is relevant under Federal Rule of Evidence 401, or its state equivalent, and not excluded by other rules of evidence, such as 403. While some scholars have lauded the 401/403 approach as the better test, in practice the two tests operate in much the same way and the evidentiary "bottom line" is that the defendant's evidence is frequently deemed inadmissible. Courts have offered two justifications for the strict restrictions on third party guilt evidence: (1) to prevent juror confusion and (2) to guard against fabricated statements by third parties. We explain why these fears are unfounded, and then turn to the focus of this Article: the importance of narrative relevance. Existing evidentiary restrictions fail to consider the role third party guilt evidence plays in shaping the narrative, or story, that the defendant will present to the jury in his defense. Empirical studies have shown that--more than legal standards, definitions or instructions--narrative plays a key role in the juror decision-making process. Without a thorough understanding and consideration of the narrative relevance of third party guilt evidence, restrictions on its use cannot be and are not being appropriately applied because they fail to account for the way in which jurors actually think and process information at trial.
After discussing the importance of narrative relevance, we propose a new test which is more consistent with a defendant's constitutional right to a fair trial and to present a complete defense. First, the threshold test for admissibility should be probable cause. If the evidence proffered by the defendant would permit the state to proceed with a criminal prosecution against the third party, then the defendant must be permitted to tell the story of third party guilt. A story for the goose is a story for the gander. Once the threshold test is satisfied, we propose that, with one significant exception, a defendant should be permitted to admit third party guilt evidence if that same evidence would be admissible against the third party were he the defendant. The exception is propensity evidence, as there is no need to balance the probative value of the third party guilt evidence against the danger of unfair prejudice because the third party suffers no prejudice by the admission of the evidence at a trial in which he is not the accused. Thus, admission of propensity (or other character) evidence concerning a third party should not be precluded.
"The universe is made of stories, not of atoms." (1)
INTRODUCTION
Bobby Lee Holmes was well known by the York, South Carolina police department as a troublemaker. (2) Just eighteen years old, he stood six feet, two inches tall and was an athletic 235 pounds. He did not appreciate that Officer Grady Harper was trying to break up his New Year's Eve party. This was not the first time Harper or other police officers had trouble with Holmes. And the local gendarmes suspected that Holmes was involved in a series of local thefts for which they had secured arrest warrants. (3)
On this particular occasion, December 31, 1989, Officer Harper responded to a call regarding a disturbance at the Cannon Court apartment complex and found Holmes drinking beer and arguing loudly with another man in a crowded parking lot. (4) Harper told the group to break it up and go home. (5) Most complied, but Holmes was not one to go quietly. He refused to leave and chose instead to taunt Harper with what Harper thereafter described as "a few choice words." (6)
Harper went back to his car and called for backup. Instead of waiting around for additional officers to arrest him, Holmes jumped into the back seat of his friend Terrance Digsby's car and the two fled. (7) Within minutes, however, Harper and his backup caught up with the two men and signaled the car to stop. As Digsby brought the car to a halt, Holmes jumped out and ran again. (8) Harper stayed with the car and arrested Digsby while the backup officers pursued Holmes. As Holmes darted in front of the officers' patrol car and rounded the corner of a churchyard, the officers jumped from the car and pursued him on foot. (9) They chased Holmes until he ran through some tall weeds near the roadside, jumped into a ditch, and disappeared. It was 5:20 a.m. (10)
Sometime later that morning, between 6:00 and 7:00 a.m., Mary Stewart heard someone knocking at the front door. Ms. Stewart was eighty-six years old and lived in an apartment about a mile from Cannon Court. When she opened the door, an unidentified man burst into Ms. Stewart's home and began to beat her in the head while demanding money. Ms. Stewart told him that her money was in her purse. The perpetrator took forty dollars from the purse and then pushed her into the bedroom where he anally raped her. (11) Then, the man tore the telephone from the wall in Ms. Stewart's living room and left. When her attacker was gone, Ms. Stewart took a shower "to get the nasty off" and called her friend, Maggie Thrasher. (12) Ms. Thrasher called another friend, Alaine Byers, who drove to the police department for help. (13) Ms. Stewart lived long enough to describe her attacker as "a short, dark skinned fellow, chunky wide," in his late twenties, and with "kind of long hair," (14) but a head injury she sustained during the attack eventually caused her to fall into a coma. (15) She died ten weeks later, having never regained consciousness. (16)
The first officers to arrive at the scene began collecting evidence from Ms. Stewart's apartment. (17) Officer Dale Edwards collected a single paper towel from Ms. Stewart with which she had cleaned herself after the attack. (18) Edwards also gathered Ms. Stewart's nightgown, robe, and slippers from the bathroom floor where she had dropped them and tossed them into a brown paper bag he found under her kitchen sink. (19) Lieutenant Barnett helped Edwards to fold Ms. Stewart's bed sheets and pillow cases and placed them together in another paper bag. Neither man wore gloves. (20)
At 8:46 a.m., Captain William Mobley arrived and took charge of the investigation. He locked himself inside the apartment and told the other officers to leave so that he could finish processing the scene by himself. (21) Alone inside the apartment, Captain Mobley took photographs and dusted for fingerprints. He collected additional evidence, including a second paper towel which he claimed to have found in Ms. Stewart's bathroom trash can. (22) Like Edwards and Barnett, Mobley failed to wear gloves throughout the evidence collection process. Captain Mobley took all of the evidence he had gathered back to his office and placed it on his desk where, the next day, he inventoried it by sifting through the bags and documenting it in an evidence log. Again, Mobley did not wear gloves, nor did he wash his hands between handling individual items of evidence. (23)
Back at the station, Officer Harper reported that Bobby Lee Holmes had eluded police that morning at Cannon Court, about a mile from Ms. Stewart's home. By 11:30 a.m., Captain Mobley had decided that Holmes, the known troublemaker who had gotten away, was his prime suspect in Ms. Stewart's attack. (24) Mobley did not waste time. Although he had no evidence linking Holmes to the crime, Mobley set out immediately to find him. At 2:00 p.m. that same day, Mobley and Sergeant James Smith found Holmes at home with his father in their apartment and arrested him--ostensibly not for the assault on Ms. Stewart, and not for his conduct early that morning when he ran from police, but for the outstanding theft warrant. (25) Holmes was asleep in his bedroom. Mobley later testified that Bobby's father, Willie Holmes, showed the officers to the bedroom door: "the door opened and Bobby Holmes was standing there. He had on a black hooded kind of pull-over type sweat shirt on and was in his underwear and white socks on." (26)
Mobley told Holmes he was under arrest and directed him to get dressed: "While he was getting dressed, Sergeant Smith was standing there and noticed a blue and white striped tank top laying in a chair at the foot of the bed. And at that time Sergeant Smith noted to me that it appeared the tank top had some blood on it." (27)
The officers asked Holmes where the blood had come from and he told them he had been in a fight the night before: "As a result of that, we asked both Willie Holmes and them if they had any objection if we took that tank top with us." (28)
Willie Holmes supposedly said it was fine for the officers to take the shirt. Bobby Holmes said nothing. At the station, the officers also took the blue jeans, black sweatshirt, socks and underwear that Holmes was wearing at the time. (29) The investigation was essentially over in less than twenty-four hours. Two months later, the State charged Holmes with criminal sexual conduct, robbery, burglary and murder. (30) The prosecutor subsequently filed a notice of his intention to seek the death penalty. Although the prosecution offered Holmes a very favorable plea bargain which would have resulted in his release after just a few years incarceration, Holmes said no and demanded a jury trial.
Lacking a confession or any eyewitness testimony, the State's case against Holmes was based entirely on forensic evidence. First, the State presented evidence that Holmes's palm print had been found on the interior side of Ms. Stewart's apartment door. Captain Mobley told the jury that when he dusted Ms. Stewart's apartment for fingerprints, he lifted two usable prints--a partial palm print on the interior side of the door, and a second palm print located on the exterior side. (31) Mobley stated that he sent both prints to the State Law Enforcement Division ("SLED") for processing. SLED Agent Steven Derrick later testified that he examined both prints and found that the interior palm print matched the inked standards taken from Bobby Holmes. (32) The exterior print was never identified.
Second, SLED Agent John Barron testified that three sets of consistent fibers indicated contact between Ms. Stewart and Holmes. Agent Barron described how he searched for fiber evidence by hanging each piece of evidence over a table and scraping the fibers onto a sheet of paper:
[O]ur policy is to deal with one bag of evidence at a time in what we call a clean room, in which the evidence is placed or hung over a clean piece of paper. And the evidence then is picked and scraped for the evidence. The evidence that is found, that is recovered, then is secured. Then the area is cleaned and a new piece of paper is placed down and then another bag of evidence is then processed. (33)
Agent Barron mounted any fibers that he "believe[d to be] probative" on microscope slides and visually compared them for similarities in size, shape and color. (34) He found three sets of fibers which he believed indicated that some of Bobby Holmes's clothing came into contact with items recovered from Ms. Stewart's apartment. First, Agent Barron told the jury that he scraped several black cotton and polyester fibers from Ms. Stewart's bed sheets. He compared these fibers with black fibers taken from Holmes's hooded sweatshirt and determined that they were consistent. Similarly, Barron testified that he also found a set of blue acrylic fibers on Ms. Stewart's nightgown which were consistent with the fibers from Holmes's blue jeans. Barron also stated that he had found several brown and gold fibers on Ms. Stewart's nightgown and a similar lump of brown and gold fibers on Holmes's underwear. Both the nightgown and the underwear, he opined, likely came into contact with some third source containing brown and gold fibers. Agent Barron did not attempt to locate this unidentified source. (35)
Finally, FBI Agent Lawrence Presley testified that a spot of blood on Holmes's blue and white striped tank top contained Ms. Stewart's DNA. FBI Agent Frank Baechtel told the jury that a second round of tests confirmed that the striped tank top contained Ms. Stewart's blood. In fact, Baechtel stated that he had found a mixture of both Ms. Stewart's and Holmes's blood on the tank top, on the paper towel recovered at the scene by Captain Mobley, and on Holmes's underwear. Baechtel closed his testimony by telling the jury that the odds of finding another African-American, other than Bobby Holmes, whose DNA could have contributed to these mixtures was 1 in 72 million. (36) "Essentially, what that means," Baechtel explained, "is 99.999999 percent of the population is excluded as to the possible contributor to that [blood] stains." (37) On that high note, the State rested its case.
Holmes's attorneys told the jury that their client was the victim of a rush to judgment resulting from a sloppy investigation by law enforcement officers who failed to pursue other, more credible leads. These same officers, the defense contended, incompetently, and possibly maliciously, collected and tested the forensic evidence. In fact, the defense pointed at Captain Mobley as a potential villain, claiming he had both the motive and the opportunity to plant forensic evidence against Holmes.
With respect to the palm print, former SLED Agent Donald Girndt testified that it was standard procedure to take complete "orienting photos" of all lifted prints to show their precise location at the scene. (38) In this case, however, Captain Mobley failed to properly photograph the prints and, since he processed the scene alone, there was no way to prove that the print actually came from Ms. Stewart's door. Moreover, Girndt noted that a series of vertical lines running through the print found on the interior side of the door (attributed to Holmes) were not present on the print found on the exterior side of the door (the unidentified print). This discrepancy, he explained, meant that the two prints did not come from the same surface. The vertical lines were of the type likely to be found on a rough, unpainted surface--not on the smooth painted door of Ms. Stewart's apartment. (39) This, Holmes's attorneys argued, was evidence of fabrication.
With respect to the State's fiber evidence, defense expert John Kilbourn testified that, in general, it was of low probative value because the particular fibers in this case are so commonly produced:
[Here,] where we have a black sweat shirt having black cotton fibers and black polyester fibers, we basically do not have any way of knowing how many hundreds or thousands of those black sweat shirts were produced by this company.... Furthermore, we don't know how many other companies use these black fibers to also make black sweat shirts. And we also don't know how many other types of garments might have been made with the same color, black polyester and cotton.... (40)
Kilbourn also stated that SLED Agent Barron should have used the "taping method" of fiber collection, in which the fibers are lifted off of evidence with wide pieces of cellophane tape, rather than the scraping method because scraping creates a greater risk of cross-contamination, especially where, as in this case, multiple items of evidence were scraped by the same technician, on the same day, and in the same room. Finally, Kilbourn testified that he had examined the fibers collected by Agent Barron and Barron's test results, and in his opinion, there was no evidence to suggest that any of the items collected from Ms. Stewart's apartment had come into contact with Bobby Holmes's clothing. (41)
Finally, several defense experts addressed the State's DNA evidence. Janine Arvizu, a lab quality assurance consultant, told the jury that the integrity of the blood test results was seriously jeopardized because (1) the chemicals inside the rape kit tubes used to collect Ms. Stewart's blood had expired, causing the blood inside to become too degraded to test; (2) as a result, SLED agents had used a piece of blood-covered cloth cut from Ms. Stewart's nightgown as a "known" sample of her blood when, in fact, it was not a pure sample; (3) moreover, a tube of Ms. Stewart's blood from a second rape kit had been lost and SLED agents had failed to test the remaining items of evidence for chemicals which would verify that the lost tube had not been used to falsely deposit Ms. Stewart's blood on other items of evidence, such as Holmes's clothing; and, (4) the officers' failure to wear gloves, particularly Captain Mobley's failure when he inventoried all of the evidence at once, created a risk that they could have transferred DNA from one item of evidence to the other with their hands. (42) Dr. Peter D'Eustachio agreed that the high risk of contamination in this case rendered the test results unreliable. (43) Aside from the risk of contamination, however, he testified that he had examined the test results and found that they did not, in fact, reveal a mixture of Holmes's and Ms. Stewart's DNA. (44) The mixture, he found, contained results which neither Holmes's nor Ms. Stewart's DNA could produce as well as other irregularities that could not be explained:
At the end of the day, it's unreliable tests.... [I]t wasn't handled in the way that we now know is necessary to prevent contamination from one item to the next or from outside sources. Known samples, which should clearly give us high quality views of those peoples [sic] DNA were clearly degraded. Known samples were handled too close together in time and place with some unknown samples. And finally, there are some features of the--where the tracings need to be completely interpreted and accounted for in order to be scientifically reliable. There are some features of those tracings that did not get interpreted, and it adds up to a test that is not reliable. (45)
Prosecutor Tommy Pope scoffed at the suggestion that Holmes had been framed and argued that Holmes's attorneys were simply trying to blow smoke by complaining about violations of protocol. "What you have got to do is take from the stand what you heard, apply your common sense and find the truth of the matter," he told the jury. (46) "[I]f you are going to frame [somebody], and it's going to be Bobby Holmes, where is this raping, murdering, beating fellow that actually did this thing?" (47)
No doubt this is exactly the question the jurors had been asking themselves. If the test results were wrong--contaminated, misapplied, or even fabricated--and Bobby Holmes was innocent, who was the real killer? Holmes had offered them no alternative story. He must have done it. The jury convicted him of murder and sentenced him to death.
What the jury did not know was that Holmes did indeed have an alternative story to tell--but he was judicially silenced. The defense team had amassed a wealth of evidence implicating another man, Jimmy McCaw White, as Ms. Stewart's killer. White was a local African-American with a long police record and a history of violence. (48) He was twenty-two years old and wore his hair in a long shag. (49) While Bobby Holmes was partying with his friends a few blocks away, Ms. Meshelley Gilmore saw Jimmy White standing in the parking lot across from Ms. Stewart's apartment as she drove away from her home around 4:00 a.m. (50) He was still standing there, Ms. Gilmore reported, when she returned to her home approximately forty-five minutes later. (51) Ms. Frenetta Jamison and Ms. Delores Brown both saw White walking toward Ms. Stewart's apartment complex between 4:00 and 5:00 a.m. as they each made their way home from separate places. (52) Eighty-seven year old Annie Boyd, who lived next door to Ms. Stewart, never actually saw Jimmy White on the morning of Ms. Stewart's attack, but she was certain she had heard him when a man knocked on her door during the night and said, "Open the door my man, this is Jimmy, open the door." (53)
Ms. Brown and Ms. Gilmore reported to the police that White was in the right place at the right time to have committed the crime. (54) Captain Mobley sent an officer to talk to White. White claimed he was nowhere near Ms. Stewart's apartment at the time of the attack. He was certain of this because an acquaintance named Joshua Lytle had given him a ride from a bar to his home in Sharon, South Carolina more than four hours before the assault occurred. (55) That was good enough for the York police department. It did not matter that Joshua Lytle said he never gave White a ride. (56) Why waste their time? They had their man.
Feeling secure in Holmes's arrest, White began to boast that he had gotten away with murder. Rumors spread around town that White was the real killer....
NOTE: All illustrations and photos
have been removed from this article.
More articles from American Criminal Law Review
Congressional investigations: politics and process., June 22, 2007
What's wrong with a little more double jeopardy? A 21st century recali..., June 22, 2007
Learning from Katrina: emphasizing the right to a speedy trial to prot..., June 22, 2007
Technical knockout: Hudson v. Michigan and the unfortunate demise of t..., June 22, 2007
Looking for additional articles?
Search our database of over 3 million articles.
Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication
name or publication date.
About Goliath
Whether you're looking for sales prospects, competitive information, company
analysis or best practices in managing your organization,
Goliath can help you meet your business needs.
Our extensive business information databases empower business
professionals with both the breadth and depth of credible,
authoritative information they need to support their business
goals. Whether it be strategic planning, sales prospecting,
company research or defining management best practices -
Goliath is your leading source for accurate information.
|
