Barbour v. Alabama Petitioner Christopher Barbour's Brief in Support of Petition for Writ of Certiorari to the Court of Criminal Appeals of Alabama
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August 25, 2004
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Brief Collection, LDF Court Filings. Barbour v. Alabama Petitioner Christopher Barbour's Brief in Support of Petition for Writ of Certiorari to the Court of Criminal Appeals of Alabama, 2004. 566b2172-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2beb4438-3eac-47ad-9662-83af9d252e2f/barbour-v-alabama-petitioner-christopher-barbours-brief-in-support-of-petition-for-writ-of-certiorari-to-the-court-of-criminal-appeals-of-alabama. Accessed May 15, 2025.
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SC-1031762
IN THE ALABAMA SUPREME COURT
)
CHRISTOPHER D. BARBOUR,)
) On Appeal from Court of
Criminal Appeals
) Case No.CR-00-1731
)
)
\/
)
)
)
Petitioner,
v .
STATE OF ALABAMA,
Respondent.
PETITIONER CHRISTOPHER BARBOUR'S BRIEF IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
ORAL ARGUMENT REQUESTED
THEODORE M . SHAW
Director-Counsel
MIRIAM S. GOHARA
NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC.
99 HUDSON ST., 16™ FLOOR
NEW YORK, NY 10013
(212) 965-2269
GEORGE H. KENDALL
HOLLAND Sc KNIGHT
195 BROADWAY
NEW YORK, NY 10007
(212) 513-3358
TABLE OF CONTENTS
Table of Contents............................................±
Table of A u t h o r i t i e s .................................. iii
Statement of the C a s e ........................................
Statement of Facts ....................................... 3
The Crime ........................................... ...
The Investigation ................................... 4
Discovery Of Blond Pubic Hair ...................... 8
Barbour Becomes The Investigation's Focus ........ 1 1
The Interrogation .....................................13
The Facts Contradict The Confession ............... 16
Pretrial Proceedings ................................ 1 7
Motions To Suppress Custodial Statements ........... 18
Trial Proceedings .................................... 21
Conviction and Sentence ............................ 26
Resolution of Christopher Hester's Case ........... 26
Grounds.................................................... 2 8
First Reason to Grant the W r i t ......................28
Merits of the Question .......................... 33
Second Reason to Grant the Writ ................... 4 1
Merits of the Question .......................... 43
Third Reason to Grant the W r i t ......................45
Merits of the Question .......................... 47
Fourth Reason to Grant the Writ ................... 61
Merits of the Question .......................... 63
Fifth Reason to Grant the W r i t ......................78
Merits of the Question .......................... 79
Sixth Reason to Grant the W r i t ....................... 81
Merits of the Question .......................... 83
Seventh Reason to Grant the W r i t ..................... 86
Merits of the Question .......................... 88
Eighth Reason to Grant the Writ ..................... 89
Merits of the Question .......................... 91
1. Mr. Barbour's Limited Education Disabled
Him From Representing Himself In His Rule
32 Proceedings................................ 95
1
2. Impaired Psychological State ............. 96
3. Inadequate Prison Resources............... 97
4. Inability to Investigate Claims ........ 99
5. Expertise Required To Litigate Post-
Conviction C a s e s ...........................1 02
6 . The Increasing Complexity Of The Habeas
Landscape And Pitfalls Of Post-Conviction
Litigation Have Resulted In An Accelerated
Post-Conviction Process Unforgiving Of Even
Minor M i s t a k e s ............................. 104
a. Supreme Court Decisions Since 1989
Have Made Habeas Corpus Law More
Complex And Less Comprehensible For
Pro Se Petitioners.................... 104
b. Passage Of AEDPA Has Accelerated The
Complex Habeas Process.................. 109
7. At No Time During His Post-Conviction
Proceedings Has Mr. Barbour Acted
Deliberately To Delay The Courts. His Rule
32 Proceedings Were Incomplete Through The
Failures Of His Court-Appointed Counsel And
Were Not His Fault ..................... 112
1 1
TABLE OF AUTHORITIES
FEDERAL CASES
Apprendi v. New Jersey 530 U.S. 466 (2000) ......... 82-86
Bae v. Peters. 950 F.2d 469 (7th Cir. 1 9 9 1 ) .............67
Baldwin v. Reese. 540 U.S. ___, 124 S .Ct. 1347
(2004) ......................................... 105, 107
Banks v. Dretke. 124 S . Ct 1256 (2004)............... 65, 72
Barr v. City of Columbia. 378 U.S. 146 (1964)........... 31
Brecht v. Abrahamson. 507 U.S. 619 (1993) ......... 108-109
Butler v, McKellar. 494 U.S. 407 (1990) ............. 108
Coleman v. Thomson. 501 U.S. 722 (1991)........... 105-106
Duncan v. Henry. 513 U.S. 364 (1995) ................. 105
Duncan v. Walker. 121 S .Ct. 2120 (2001) ............ 110-111
Falzerano v. Collier. 535 F.Supp. 800 (D.N.J. 1982) . . 99
Ford v. Georgia, 498 U.S. 411 (1991)............. 31, 33, 40
Graham v. Collins. 506 U.S. 461 (1993) 108
Henry v. Dees. 658 F.2d 406 (5th Cir. 1 9 8 1 ) ............... 66
James v. Kentucky. 466 U.S. 3 4 1 ........................... 3 1
Jones v. United States. 526 U.S. 227 (1999)............. 83
Keeney v. Tamavo-Reves. 504 U.S. 1 (1992)............. 106
Kyles y. Whitley. 514 U.S. 419 (1995)................... 65
Lambrix v. Singletary. 520 U.S. 518 (1997) ........... 107
McCleskey v. Zant. 499 U.S. 467 (1991) ............... 106
iii
McFarland v. Scott. 512 U.S. 849 (1994).................. 103
Murray v. Giarratano. 492 U.S. 1 (1989)........... 103, 109
NAACP v. Alabama ex rel. Patterson. 357 U.S. 449
( 1 9 5 8 ) ................................................ 30
NAACP v. Alabama ex rel. Flowers. 377 U.S. 288
( 1 9 6 4 ) ................................................ 3 1
O' Dell v. Netherland. 521 U.S. 151 (1996) ........... 107
O' Sullivan v. Boerckel. 526 U.S. 838 (1999)........... 106
Ring v. Arizona. 536 U.S. 584 (2002) ............... 82-86
Rose v. Lundy, 455 U.S. 509 (1982) ................... 105
Saffle v. Parks. 494 U.S. 484 (1990) ................. 107
Schriro v. Summerlin. 124 S . Ct. 2519 (2004) ........... 82
Strickland v. Washington. 466 U.S. 668 (1984).......... 107
Strickler v. Greene. 527 U.S. 263 (1999) 65
Strickler v. Greene. 119 S . Ct. 27 (1998) 72
Teague v. Lane. 489 U.S. 298 (1989)................. 107-108
United States v. Martinez. 3 F.3d 1191
(8th Cir. 1993) ...................................... 56
United States v. Beasley. 102 F.3d 1440
(8th Cir. 1996) ...................................... 56
STATE CASES
Allen v ._State, 825 So.2d 264 (Ala. Crim. App. 2001) . . 42
Barbour v. State. 673 So.2d 461
(Ala. Crim. App. 1 9 9 4 ) ...................... 1, 21, 64
iv
Borden v. State. 2002 WL 442147
(Ala. Crim. App. March 22, 2 0 0 2 ) ................... 79
Broadnax v. State. 825 So.2d 134
(Ala. Crim. App. June 30, 2000) ............... 56, 60
Brooks v. State, [Ms. CR-00-1134, April 26, 2002]
(Ala. Crim. App. 2 0 0 2 ) .......................... 30, 39
Brooks v. State. 2004 WL 595415
(Ala. Crim. App. March 26, 2 0 0 4 ) ........... 31, 32, 40
Brown v. State. 807 So.2d 17 (Ala. June 15, 2001) . . . . 57
Bruner v. People. 156 P.2d 111 (Colo. 1 9 4 5 ) ............. 66
Burch v. Sprinqhill Memorial Hospital. 730 So.2d 143
(Ala. 1999) ........................................... 30
Bush v. State. 431 So.2d 555 (Ala. Crim. App. 1982) . . . 84
Commonwealth v. Brison. 618 A.2d 420
(Pa. Super. Ct. 1992) .............................. 5 1
Commonwealth v. Fryer. 610 N.E.2d 903 (Mass. 1992) . . . 7 7
Commonwealth v. Reese. 663 A.2d 206
(Pa. Super. Ct. 1995) 5 1
Commonwealth v. Robinson. 682 A.2d 831
(Pa. Super. Ct. 1996)...................................5 7
Cowart v. State. 488 So.2d 497 (Ala. Cr. App. 1985) . . 98
DeFries v. State. 597 So.2d 742
(Ala. Crim. App. 1992) 98
Demos v. State. 696 So.2d 1296
(Fla. Dist. Ct. App. 1 9 9 7 ) ........................... 98
Dowdell v. State. 854 So.2d 1195 (Ala.Crim.App. 2002) . 47
Dubose v. State. 662 So.2d 1189 (Ala. 1 9 9 5 ) ............. 52
v
Ex Parte A.D.R., 690 So.2d 1208 (Ala. 1996) . . . 33, 36, 43
Ex Parte Allen. 825 So.2d 271 (Ala. 2002)............. 43
Ex Parte Barbour. 673 So.2d 473 (1995) 1
Ex Parte Fountain. 842 So.2d 726 (Ala. 2001) . . . . 30. 39
Ex Parte Love. 507 So.2d 979 (Ala. 1987) 40
Ex Parte Monk. 557 So.2d 832 (Ala. 1989) 66
Ex Parte Nesbitt. 850 So.2d 228, 232 (Ala. 2002) . . 42-43
Fjndlay v. Lewis. 831 P.2d 830 (Ariz. Ct. App. 1991) . . 99
Ford v .— State, 831 So.2d 641 (Ala.Crim.App. 2001) . . 78, 80
Fountain v. State.842 So.2d 719
(Ala.Crim.App. 2 0 0 0) ................... 29, 32-40, 43
Hammonds v. State. 777 So.2d 750
(Ala. Crim. App. 1 9 9 9 ) .............................. 52
Haney v. State. 603 So.2d 368 (Ala. Crim. App. 1991) . . 84
Hickson v. Allison. 928 S.W.2d 677 (Tex. Ct. App. 1996) . 99
Horsley v. State. 527 So.2d 1355 (Ala. Cr. App. 1988) . . 40
Jackson v. State. 732 So.2d 187 (Miss. 1 9 9 9 ) . . . . 9 9 , 100
Longmire v. State. 443 So.2d 1265
(Ala. 1982) ............................ 33, 35, 36, 43
Marshall v. State. 2003 WL 22221211
(Ala. Sept. 26, 2003) ...................... 3 3 ; 3 9 - 4 0
Nenno v. State. 970 S.W.2d 549 (Tex. Crim. App. 1998) . . 67
Parker v. State. 719 So.2d 259 (Ala. Crim. App. 1997) . . 35
People v. Tarsia. 415 N.Y.S.2d 120
(N.Y. App. Div. 1979) .............................. 66
vi
People v. Zimmer. 329 N.Y.S.2d 1 7 ................... 67-68
People v. Johnson, 112 Misc. 2d 590 (N.Y. Sup. Ct. 1981). 66
Perry v. State, 511 So.2d 268 (Ala. Cr. App. 1987) . . . 98
Pryor v. State. 599 So.2d 83 (Ala. Crim. App. 1992). . . 92
Ragan v. State, 642 S.W.2d 489 (Tex. Crim. App. 1982). . 76
Salstrom v. State. 714 P.2d 875 (Ariz. Ct. App. 1986) . 99
Sewell v. State. 592 N.Ed.2d 705 (Ind. App. 1992) . . 57, 60
Siebert v. State. 778 So.2d 857, 858 (Ala. 2000) . . . . 57
Simmons v. State. 797 So.2d 1134 (Ala. Crim. 1999) . . . 56
Snowden v. State. 574 So.2d 960 (Ala. Crim. App. 1990) . 56
State v. Buzzell. 617A.2d 1016 (Me. 1992) ............. 77
State v. James, 858P.2d 1012 (Utah Ct. App. 1993) . . . 77
State v. Johnson, 806 So.2d 1195 (Ala. 2001) . 35, 38, 116
State v. Kekona. 886 P.2d 740 (Haw. 1994) ............. 76
State v. Kilmer. 439 S.E.2d 881 (W. Va . 1 9 9 3 ) ....... 76
State v. Scales. 518 N.W.2d 587 (Minn. 1994) 76
State v. Simon. 297 N.W.2d 206 (Iowa 1980) ............. 99
State v. Thomas. 586 A.2d 250
(N.J. Super. Ct. App. Div. 1 9 9 1 ) ................... 5 1
Stephan v. State. 711 P.2d 1156 (Alaska 1985) ........ 76
West Virginia v, Farley. 452 S.E.2d 50 (W. V a . 1994) . . 66
Williams v. State. 522 So.2d 201 (Miss. 1988) ........ 7 7
vii
FEDERAL STATUTES
28 U.S.C. § 2254 (b) (1) ................................ m
28 U.S.C. § 2254 (e)(1) ................................ m
8 U.S.C. § 2244 (b) (2)....................................H O
8 U.S.C. § 2244(d)...................................110-111
Anti-Terrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. §§ 2241 109-112
STATE STATUTES
19A Ala. Code §§ 36-18-20 to -39 (Michie 2000 Supp.) . . 52
Alabama Death Act, 12 Ala. Code §§ 13A-5-39 to -59
(Michie 1994) passim
Rulg 3 2 Ala . R . Crim. P ...................................passitn
Rule 3 9 Ala.R.App. P ..................................... passim
OTHER AUTHORITIES
Liss Furedy, Countering Confessions Induced bv the
Polygraph: Of Confessionals and Psychological Rubber
Hoses. 29 Crim. L.Q. 91 (1986) 67
Daniel Givelber, The Right to Counsel In Collateral.
Post-Conviction Proceedings. 58 Md. L. Rev. 1393, 1395
(19") ...........................................100
David Thoreson Lykken, A Tremor in the Blood: Uses and
Abuses of the Lie Detector 205-15 (1981) ............... 67
Richard J. Ofshe & Richard A. Leo, Symposium On
Coercion: An Interdisciplinary Examination of
Coercion, Exploitation, and the Law: II. Coerced
Confessions: The Decision to Confess Falsely: Rational
viii
Choice and Irrational Action. 74 Denv. U. L. Rev 97 9
(1997) ........................ 67
Clive A. Stafford Smith & Remy Voisin Starns, Folly
By Fiat: Pretending That Death Row Inmates Can
Represent Themselves In State Capital Post-
Conviction Proceedings. 45 Loy. L. Rev. 55, 68 (1999) . 103
Laurin A. Wollan Jr., Representing the Death Row
Inmate: The Ethics of Advocacy. Collateral Style,
in Facing the Death Penalty 92, 98-99 (Michael L.
Radelet ed. , 1989) 1 0 3
The Spangenberg Group, Study of Capital Cases in
Virginia (Nov. 1988) 100
The Spangenberg Group, Time and Expense Analysis
in Post-Conviction Death Penalty Cases (Feb. 1989) . . 100
The Spangenberg Group, Time and Expense in Post-
Conviction Death Penalty Cases in North Carolina
(June 1 9 8 8 ) .............................................. 100
"You Don't Have To Be A Bleeding Heart." dialog
between Judge Abner Mikva and Judge John C. Godbold
14 Hum. Rts. 22, 24 (Winter 1 9 8 7 ) ...................... 1 03
xx
BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS
Comes now Petitioner, Christopher D. Barbour, by and
through undersigned counsel, and submits the following brief
in support of his petition to this Court for a writ of
certiorari to issue to the Court of Criminal Appeals in the
above-styled cause, pursuant to Rule 39, Alabama Rules of
Appellate Procedure.
STATEMENT OF THE CASE
Christopher Barbour was tried and convicted for the
capital murder of Thelma Roberts in June 1993. He was
sentenced to death on February 2, 1994. The Court of Criminal
Appeals affirmed his conviction and sentence on December 29,
1994. Barbour v. State, 673 So.2d 461 (Ala. Crim. App. 1994).
An application for rehearing was denied on March 3, 1995.
This Court affirmed the conviction and sentence on August 8 ,
1995. Ex Parte Barbour. 673 So.2d 473 (1995). Petitioner
filed a timely application for post-conviction relief pursuant
to Ala. R. Crim. P. 32. The Rule 32 petition was denied in an
unpublished order dated April 21, 1998. See Barbour v. State.
No. CC-92-1544,60-WRG, (Ala. Cir. Ct. (15th Cir.) Apr. 21,
1998) (order denying Rule 32 petition). Petitioner's court-
1
app°inted counsel withdrew without notice to or permission
from the court or Mr. Barbour and failed to file an appeal
from the circuit court's adverse judgment. He never sent Mr.
Barbour a copy of his record or his file, or advised him of
the deadlines by which he would have needed to appeal.
Petitioner's state and federal statutes of limitations ran.
On September 8 , 2000, Respondent moved to set an execution
date. In January 2001, the undersigned counsel accepted
representation of Mr. Barbour. On April 4, 2001, Mr. Barbour
moved the Circuit Court of Montgomery County to reopen his
Rule 32 proceeding. On April 20, 2001, this Court entered an
order that set May 25, 2001, as Mr. Barbour's execution date.
On April 24, 2001, Respondent moved the circuit court to
dismiss Mr. Barbour's Motion to Reopen. On May 3, 2001,
Respondent filed with the court a proposed order summarily
dismissing Mr. Barbour's petition. On May 4, 2001, Mr.
Barbour moved the court to defer consideration of the State's
request for summary dismissal to allow him time to file a
detailed response. He also proffered additional evidence in
support of the Motion to Reopen. The court granted Mr.
Barbour's motion. On May 9, 2001, Mr. Barbour filed a
detailed reply to the State's request for summary dismissal
2
and proffered additional evidence. On May 10, 2001, the State
filed a response to Mr. Barbour's reply with the Montgomery
County Circuit Court. That court summarily dismissed Mr.
Barbour's claims by adopting the State's proposed order on May
14, 2001. On May 21, 2001, undersigned counsel filed a notice
of appeal with the Court of Criminal Appeals, filed a motion
for a stay of his execution in this Court, and at the same
time pursued federal relief. The United States District Court
for the Middle District of Alabama granted Mr. Barbour's stay
motion on May 23, 2001. A timely appeal to the Court of
Criminal Appeals followed. On June 25, 2004, the Court of
Criminal Appeals affirmed the judgment of the circuit court
denying Petitioner's Motion to Reopen his Rule 32 proceedings.
The Court of Criminal Appeals denied Petitioner's timely
motion for rehearing on August 13, 2004. This timely appeal
followed.
STATEMENT OF FACTS
The Crime: On March 21, 1992, the body of Thelma Roberts,
an African-American Montgomery resident, was found in her home
at 3575 Manley Drive by her two teenage children when they
returned from a sleepover. She had been stabbed several times
and sexually assaulted. Soot covering the walls and floors of
3
Roberts's home suggested that her assailant(s) had attempted
to burn the house before departing. Initial police interviews
with her children, William and Lola Roberts, and others
revealed that the victim's husband, Melvin, had been with the
victim after the children departed the night of March 20.
Neighbors reported that his car was in the driveway until at
least 1 1 : 0 0 p.m., and that his car was again seen at the house
as early as 5:00 the following morning. (R.221-222 . ) 1 These
circumstances, along with the absence of any evidence of
forced entry, led police to focus their investigation upon
Melvin Roberts.
The----Investigation: Police promptly identified
circumstances that suggested that Melvin Roberts likely was
implicated. Neighbors and family members told police that the
victim was trying to end their marriage. Mrs. Roberts had
moved to Manley Drive to begin this process of separation but
Mr. Roberts continued to visit persistently. (R.223.) A
family member told investigators that the marriage had failed
because "he was involved in extra-curricular marital activity
1 Cites herein to the record (R.) refer to the record in
the instant appeal. Cites to the trial record (Trial R.) or
trial transcript (Trial Tr.) refer to the record to this Court
on Mr. Barbour's direct appeal, Circuit Court Case No. CC-92-
1544-G, certified March 7, 1994.
4
and had beaten and abused" Mrs. Roberts. (R.227.) He and Mrs.
Roberts had argued about his living situation; he had advised
her that he had no place to live but she refused to take him
in. (IcL_) Other evidence suggested that while Mr. Roberts had
visited Mrs. Roberts on the evening of March 20, and appeared
again early the next morning, he did not return home within
that time frame. One of Mr. Roberts's neighbors told police
that Mr. Roberts s car was loud and always would awaken her.
She was sure that she did not hear him come home on March 20
or leave early on the morning of March 21. (Id.) A friend of
Mr. Roberts reported that he was acting strangely on the
morning his wife's body was found, before anyone had
discovered her death. (R.224-25.)
Police suspicion of Mr. Roberts grew significantly when
they spoke with him on the afternoon of March 21. He appeared
at his wife's home a few hours after her death had been
reported and agreed to a police interview. While still at the
scene, he cried and denied having anything to do with his
wife's death. This behavior struck some officers as
odd. (R. 229 ("it was believed by this detective that the subject
was intentionally attempting to cry in front of this
detective.")). Once at the station house, Mr. Roberts gave a
5
statement that conflicted sharply with the confirmed facts
provided by other witnesses. This further strengthened police
suspicion that Roberts had killed his wife. According to
police: "it appears that Melvin Roberts is the only subject
capable of committing the offense at the time."(R.239-40.)
The police began to suspect that the victim's son,
William, might also be implicated. During their third or
fourth interview with him, police learned for the first time
that Mrs. Roberts had just received a substantial tax-refund
check. She had given $250 each to William and Lola, kept some,
and placed the remainder in the bank. William had showed some
of his friends this money and told them about the refund
check. (R.247.) They also learned that William was a member of
a gang, and that he wanted to get out of it but to do so, he
had to kill a parent. This information led police to conclude
"we did get enough information from him to still hold him as
a suspect, but not the prime suspect." (Id.) With news of the
tax refund, police again searched Mrs. Roberts's bedroom. In
an unlocked footlocker, they found not only money but a check
that Melvin Roberts had left for her. This discovery further
lessened the likelihood that the crime's motive was robbery.
Soon, informants and others began to provide additional
6
leads to the police. Informants told police of high-school
students who had boasted about knowing about the
killing.(R.249.) An elderly citizen reported that she had
been told that William Roberts and several other youths had
committed the crime. Police interviewed the source of the
elderly woman's information, to no avail. (R.251.) A neighbor
of Mrs. Roberts - Juanita Jones - also reported that she had
received a disturbing note under her door after she had
appeared on a TV news story about the crime. This letter
threatened her with death and said that she had been seen on
TV talking about the murder. Police collected this threatening
note. Other neighbors reported still more possible suspects.
On April 2, police spoke with the Bonnie Davis family. They
reported their suspicion that a white postal worker had a
romantic interest in Mrs. Roberts. They said they did not
believe that Mrs. Roberts had told her husband about her tax-
refund check. They also reported that Mrs. Roberts would
sometimes meet a black male at a local bar.
While these new leads were developing, police continued
to investigate Melvin Roberts. They learned that Lola, had
given her father a key to Mrs. Roberts's house. Although
Melvin Roberts had told police "a long story about how he lost
7
the key," an inspection of Mr. Roberts's key ring revealed a
key that matched the house key. (R.252).
Discovery Of Blond Pubic Hair; During their investigation
and near arrest of Melvin Roberts for his wife's murder,
police became aware of forensic evidence that soon altered the
focus of the investigation. "We learned upon examination of
the body a white or Caucasian pubic hair was found on the
sheet that she was wrapped in. This Caucasian hair was found
in the proximity of the area where her genitalia would have
been located on the sheet. With this new evidence, we are
confounded." (R.248) In the first month after the crime, the
best and only real suspect had been Melvin Roberts, or
possibly neighborhood gang members. The recovery of the
Caucasian pubic hair suggested that one of Mrs. Roberts's
attackers was a white male. The focus of the investigation
shifted toward developing new suspects.
On April 21, a white gang member, Wayne Freeman, gave
police the names of several gang members, including a
Christopher Franklin, "a known burglar . . . [who] broke into
the residence of [a police officer]." (R.265.) In a
subsequent interview, Franklin told police that Christopher
Hester (a co-defendant in this case) had told him of others
8
who may have known about Mrs. Roberts's murder. This led
police to round up alleged gang members for interviews.
Several denied having information about the crime but "stated
that probably Christopher Barber (sic) knew something about
it." (R.267.) This was the first time that police heard Mr.
Barbour's name in connection with the Roberts homicide. Later
that day, police picked up two men, one of whom would later be
charged, along with Mr. Barbour, with Mrs. Roberts's murder —
Christopher Hester and Michael Mitchell. Mr. Hester had been
wanted on charges of statutory rape and passing bad checks,
and Mr. Mitchell on a burglary charge. Hester readily admitted
to both the rape and fraud offenses but denied any involvement
in the Roberts murder. (R.268.) Also on April 21, the police
also picked up teenager Ranzy Young, whom they believed might
have some information about the crime. Despite considerable
effort, the police obtained no productive information from
Young. Det. Danny Carmichael characterized the Roberts
investigation's status at this moment as one of considerable
frustration: "after great screaming, crying, and gnashing of
teeth we still were no further along in this investigation
that we were to start with." (Id. (Emphasis added).)
The following day, Fire Department Investigator William
9
Davis and Det. Carmichael searched for Mr. Barbour, as, in the
words of the police report, "the roundup continues." (R.276.)
Lt. Davis had interest in Mr. Barbour because of a fire
investigation he was pursuing involving small fires set at
area supermarkets. Det. Carmichael had heard only generally
that Mr. Barbour might have some information about the Roberts
homicide. They located Barbour at the Eastdale Mall. They
brought him back to police headquarters and questioned
"intently with regard to his association with . . . Ramsay
Young." Id. Mr. Barbour cooperated fully and told police that
he and Young knew each other and had recently passed some bad
checks. Davis and Carmichael asked about numerous gang
members; Barbour said he knew only one, Mr. Hester. After
questioning, Barbour was released. While Carmichael concluded
that "we did not get anything concrete from [Barbour] ," he
would likely be easy to get information from in the future. He
described Barbour as "a whimpie little thing, and scares real
easy." (R.277, 276 (emphasis added).) Mr. Barbour
subsequently told his grandfather that Det. Carmichael had
beaten him and scared him half to death . 2 At this time, Mr.
2 Both Mr. Barbour and his grandfather testified about
this fear at the pretrial suppression hearing.
10
Barbour was 22 years old and had no criminal record. His
mother had committed suicide six months earlier and he had
become quite depressed and dependent on alcohol. He was
homeless and living in the woods behind the mall.
Barbour Becomes The Investigation's Focus: Three days
later, Carmichael got his first clue that Hester and Barbour
might have been involved in the Roberts case. Nicky Langley,
a sixteen-year-old informant, told Carmichael that Hester and
Barbour had attended her birthday party on March 19, 1992, the
day before the crime. Hester and Barbour were at the afternoon
party for about an hour and then left. Langley did not see
them again until roughly midnight the following evening, March
20, at another party. They arrived at the party with beer,
liquor, and $500 in cash. They told Langley that they had
cashed some checks from the account of Hester's aunt, Angela
McDougald. Langley told police that the name she saw on the
checkbook was indeed "Angela McDougald." She also said she
saw a large butcher knife in the trunk of Hester's car. After
staying only a short time, Hester and Barbour left. Langley
slept over at the house where the party was held. When she
awoke the next morning, she saw Hester and Barbour asleep and
11
"apparently drunk . " 3 When they awoke, neither made any
statement about what they had done after leaving the party.
Langley told police she did not see Hester or Barbour again
until two weeks later, at yet another party. By her account,
after many had left the party, and in the presence of Langley
and others, Hester and Barbour "started bragging about killing
a lady and cutting off her head and putting it in a box." Mr.
Hester advised that they had broken into a house, cut a lady's
head off, put it in a box, taken several of her things,
including a checkbook, broke several pictures, and left . 4
Langley attributed these statements to Mr. Hester, not Mr.
Barbour. (R.283, 303.)
The police interviewed Jeffrey Defee, the host of the
March 20 party, after his arrest for theft. Mr. Defee offered
3 This account presents no information of value to the
Roberts homicide. It provides the well-known fact that Hester
and Barbour were engaging in passing bad checks, but the money
they possessed that night apparently came from the McDougald
account. Most importantly, Langley never described seeing any
blood on either Hester or Barbour, nor seeing any item from
the Roberts home in their possession. Moreover, the knife
used to kill Thelma Roberts was found in her chest, (Trial
Tr.189; even if Langley saw a knife in Mr. Barbour's car, it
could not have been the murder weapon.
4 This account is substantially inconsistent with the
known facts about the crime. There was no evidence of break-
in, Mrs. Roberts's body was not decapitated and there was no
report of Mrs. Roberts's checkbook being stolen or missing.
12
information seeking a deal on his charges. He told a police
investigator that in March, Barbour came by his house late one
night, seeking a place to stay. At that time, Barbour told
Defee that he and Hester "had killed a female after they raped
her." Jones left the interview room, and when he returned,
Defee said he had lied, that Barbour had never come to his
house and never said anything about a murder. He said he made
that story up. (R.285). Carmichael later interviewed Defee and
concluded that Defee "is a little crook trying to get any help
(on his charges) that he can get." (R.289.) Around the same
time, Cedric Evans, a neighbor of Mrs. Roberts, told police
that he believed several neighborhood boys were involved in
the crime. (R.287.)
On April 28, Davis and Carmichael located Barbour again
and spoke to him about the Roberts crime. Barbour gave them no
new information. Davis persuaded Barbour to submit to a
polygraph test on May 1 concerning the supermarket arsons.
(R.289.) Davis also instructed Barbour to call him every day
at 8 : 0 0 a.m. until the day of the polygraph or else he would
"beat him within an inch of his life." (Trial Tr.6 8 .)
The__Interrogation: As agreed, on May 1, Christopher
Barbour was taken to a fire station to undergo the polygraph
13
examination regarding the supermarket fires. At some point
prior to the test, Lt. Davis and Det. Carmichael changed the
focus from store fires to the fire on Manley Dr. (the Roberts
crime). They did not notify Mr. Barbour of the subject change
until immediately before the administration of the polygraph.
At the conclusion of the polygraph, the examiner, Fire
Department Lieutenant McKee, told Barbour that his answers
produced "some irregularities." McKee led Barbour to believe
that the results of the exam incriminated him in the murder,
and that those results would be admissible against Barbour in
court . 5 Later that afternoon, Barbour was questioned by Lt.
Davis, the man who had threatened to "beat him within an inch
of his life" if he did not cooperate with the investigation.
Confronted with the "incriminating" results of the polygraph
test and intimidated by McKee's representation that those
results would prove him guilty in a court of law, Barbour
began to answer Davis's questions about Manley Drive. Bit by
bit, Davis described details of the crime scene, and
instructed Barbour on how to adopt those details into his
answers. The interrogation session ended when Davis produced
5 Both assertions were misleading. The polygraph exam
results did not reveal a link between Mr. Barbour and the
crime and surely were not admissible in court.
14
a tape-recorder and directed Mr. Barbour to give a voice-
recorded confession, using information which comported
generally with what investigators discovered at Mrs. Roberts's
home at Manley Drive on March 21, 1992.
Davis next extended Barbour unusual treatment for a
suspected murderer. He made sure that Barbour was fed dinner,
given a tour of the fire station, and allowed to sit on the
fire truck prior to being transported, at Det. Carmichael's
request, to police headquarters. There, Mr. Barbour again
reviewed his story with Carmichael and Davis. When he left out
any details, Carmichael or Davis prompted him to include them.
Finally, after "rehearsal," Davis and Carmichael placed Mr.
Barbour in "the video room" and a video-recorded statement was
produced.
Again, in a question-and-answer format, Barbour explained
the crime in the following narrative: On the evening of March
20, he was riding around with Hester and Mitchell, looking for
a place to drink a twelve-pack of beer. At some point, they
traveled to Manley Drive to visit Cedric Evans. Evans's
mother answered the door and said that her son was not at
home. Hester then told Barbour and Mitchell to wait in the
car. Hester returned to the car and announced that they could
15
take their beer and drink in Mrs. Roberts's home. Barbour
brought the beer into the house, sat down in the living room
with Mitchell, Hester, and Roberts, and all of them drank.
Thereafter, Roberts, and Hester retreated to the rear of the
house. A short time later, Barbour and Mitchell heard Hester
and Mrs. Roberts arguing; when they found the two in the
bedroom, Roberts was nude and Hester was wearing only his
pants. The three men overwhelmed Mrs. Roberts and beat her. As
Mitchell and Barbour held Roberts down, Hester sexually
assaulted her. Barbour said that he then ran to the kitchen,
grabbed a large knife, returned to the bedroom, and stabbed
Roberts several times in the chest. He then gathered some
papers and clothing and lit fires in the bedroom. The men
left, and Barbour was dropped off and spent the night in his
car behind the mall. Shortly after he gave this statement,
Mr. Barbour was arrested and charged with capital murder.
The Facts Contradict The Confession: After securing Mr.
Barbour's statements, police were unable to collect any
corroborating evidence. Crude DNA testing of semen recovered
from Mrs. Roberts undermined Mr. Barbour's incriminating
statements. The results of this testing contradicted a key
aspect of Mr. Barbour's confession: they definitively excluded
16
Mr. Hester as the individual who sexually assaulted Mrs.
Roberts.
No physical evidence linking Mr. Barbour, or any of his
alleged cohorts, was ever found in the Roberts home or on the
suspects: no fingerprints, no blood, no fibers, and no beer
cans. No eyewitnesses placed Barbour, Hester, or Mitchell in
the Manley Drive area on the night of the crime. In a
predominantly African-American, tightly knit neighborhood,
this fact is key; three unfamiliar white boys spending an hour
in the vicinity on the night a 40-year-old mother of two was
murdered surely would have caught someone's attention . 6 In
fact, Cedric Evans's mother, Ruth Evans, questioned by police
immediately after discovery of Thelma Roberts's body, did not
report Hester or anyone else visiting her home on March 20,
1992. (R.221.)
Pretrial Proceedings: The circuit court appointed two
Montgomery attorneys-- civil practitioners Frank Riggs and
Clifford Heard-- to represent Mr. Barbour. Although neither
Mr. Riggs nor Mr. Heard had any prior experience defending a
6 On the day Mrs. Roberts's body was discovered, police
canvassed the neighborhood and specifically inquired about
unfamiliar cars or people in the area on the prior evening.
None of the neighbors with whom police spoke reported any
such person or vehicle. (R. at 221-23.)
17
capital case, and only limited criminal-defense experience at
all, they recognized immediately that they lacked the
resources to offer Mr. Barbour an adequate defense. At that
time, Alabama placed a $1,000 cap on compensation for court-
appointed counsel. Trial counsel attacked this system and
alleged that it was wholly unreasonable and would prevent an
effective defense. Twice, counsel filed a Motion to Require
the State to Pay Reasonable Attorney's Fees. (Trial R.16,38-
39.) Mr. Riggs filed a detailed affidavit in support thereof.
(Aff. of Frank Riggs.) After the trial court denied the
motion, (Trial R. at 61.), counsel filed a Motion for Writ of
Mandamus for Approval of Fees to this Court, which denied the
motion. (Trial R.68-76, 77) The Alabama Supreme Court
affirmed. (Trial R.81.) Mr. Barbour's counsel were forced to
proceed with trial despite the certainty that they would lack
sufficient resources to render effective assistance.
Motions To Suppress Custodial Statements: On July 10, 1992,
Mr. Barbour was indicted on four counts of capital murder: (1)
murder during rape (12 Ala. Code S13A-5-40(3)); (2) murder
during arson (§13A-5-40(a)); (3) murder during burglary (§13A-
5-40(4)); and (4) murder during robbery (§13A-5-40(2)). The
state offered Mr. Barbour no plea bargain. Counsel focused
18
their pre-trial efforts on suppressing Barbour's May 1
statements. On August 21, 1992, a suppression hearing was held
in Montgomery County Circuit Court before Circuit Judge
William Gordon. Another was held on December 29, 1992. At
both hearings, Mr. Barbour moved the court to suppress his
statements on the grounds that the police had physically
abused and psychologically intimidated him until he falsely
incriminated himself. At the August hearing, Mr. Riggs, a
former prosecutor, described Mr. Barbour's interrogation and
subsequent confession as "nickel and dime" questioning tactics
whereby police "[got Mr. Barbour] to agree to a little
something and he agreed to that. And then you get him to
agree to a little something more, and pretty soon he has
committed himself to the point where he just can't say no
anymore." (Trial Tr.4.) Counsel also argued the coercive
effect of the polygraph: " [E]xtracting a confession out of
[Mr. Barbour] by means of a polygraph examination is just as
coercive as [beating him with] a rubber hose except that it is
psychological and not physical."(Id. ) Mr. Riggs also noted
the centrality of the confession to the prosecution's case:
"[T]his boy's life hangs on whether we are correct on this
point or not. He has made alleged confessions which are very
19
incriminating. And we don't think the State has any other
evidence that would be sufficient to prove his guilt." (id.)
At the December hearing, Mr. Barbour's grandfather, John
Brown, testified that Mr. Barbour told him before his arrest
that Det. Carmichael and Lt. Davis had physically abused him
during the interrogations. (Trial Tr.98-99.) Mr. Brown also
testified that he knew of others who had complained that
Carmichael had abused them as well. At the same hearing, Mr.
Barbour testified about the circumstances of the repeated
interrogations by Carmichael and Davis during the last week of
April 1992. He reported that during the interrogations, the
officers were verbally and physically abusive. (Trial Tr.67.)
He described in detail Carmichael's slapping his face
repeatedly with the front and back of his hand when Barbour
was unable to answer his questions. (Trial Tr.67.) He
further reported that Lt. Davis had "threatened to beat [him]
within an inch of [his] life" if he did not cooperate. (Trial
Tr.68.) Such threats caused Mr. Barbour to be "very" afraid
of Davis. (Id.) Mr. Barbour also testified to the deception
leading up to the polygraph and its coercive effect on him.
(Trial Tr. 69-71.) He reported that no one had apprised him of
the change in the subject of the polygraph until he had
20
arrived at the fire department. (Trial Tr.70.) He feared
throughout that Davis would physically harm him if he did not
cooperate or if he asked for a lawyer. (Trial Tr.70, 77.)
Mr. Barbour also moved the court to grant discovery of law-
enforcement records which would tend to show that these
officers had engaged in a pattern of abusing suspects. On
January 13, 1993, the court denied Mr. Barbour's motions and
ruled his May 1 statements admissible at trial. (Trial R.65.)
The trial court's denial of Mr. Barbour's motion to suppress
assumed that the police used coercive tactics yet concluded
that the tactics were not sufficient as a matter of law to
exclude the confession. See Barbour v. State. 673 So.2d 461,
465 (Ala.Crim.App. 1994).
Trial Proceedings: Barbour was tried in June 1993. The State's
case consisted entirely of Mr. Barbour's May 1, 1992,
statements to police. During the guilt phase not a single lay
witness testified for the State. The State's only evidence
linking Mr. Barbour to the murder consisted of his in-custody
statements and the testimony of Det. Carmichael and Lt. Davis
describing Mr. Barbour's confession. Mr. Barbour's attorneys
made no attempt to impeach the trial testimony of Carmichael
or Davis or the credibility of Mr. Barbour's in-custody
21
statements by raising the coercion during cross-examination.
To the prosecution's frustration, evidence contradicting
the crux of Barbour's confession emerged at trial. Police had
collected blood from Mr. Barbour, Mr. Hester, and Melvin
Roberts. (Trial Tr.349.) They also collected semen from
vaginal and anal swabs taken from Mrs. Roberts. The State
conducted HLA DQ alpha DNA tests comparing the semen retrieved
from the vaginal swab to the blood of the three suspects.
(Trial Tr.350.)
During Mr. Barbour's trial, defense counsel objected to
the admission of the DNA evidence on the grounds that the test
conducted was not specific enough to be probative. (Trial Tr.
356.) In an in camera conference, the State's DNA expert,
serologist Larry Huys, explained that his tests excluded
Hester as the source of the semen taken from Thelma Roberts.
According to Huys, the semen collected from the vaginal swab
contained four possible genetic characteristics. (Trial Tr.
360.) Hester's blood contained a characteristic not found in
the semen collected from the vaginal swab. (Trial Tr.361.)
Mr. Huys testified that the absence of Hester's trait from the
sample taken from the victim certainly excluded him as the
source of the semen. (Trial Tr.361.) This news caught the
22
prosecution by surprise. Huys also stated that Mr. Barbour's
blood contained two traits found in the vaginal swab; his
blood did not contain any characteristics absent from the
swab. (Trial Tr.362.) Huys told the court, and the
prosecution acknowledged, that one in three Caucasian men
might have been the source of semen with the characteristics
found in the vaginal swab. (Trial Tr.357, 364-65.) Although
the prosecutors told the judge that the DNA evidence would
show that the semen found on Mrs. Roberts could have been
either Barbour's or Hester's, Huys contradicted this and
confirmed that the evidence definitively excluded Hester as
the source. (Trial Tr. 356,361-62.) The prosecution's theory
of the case relied on Mr. Barbour's custodial statements, in
which he said that Mr. Hester was the only person who had
sexual contact with the victim. When the DNA evidence seemed
to contradict this account, the prosecution decided not to
present the results of the DNA test to the jury, despite the
judge's ruling the evidence admissible. (Trial Tr.367-68.)
Mr. Huys concluded his testimony in front of the jury, but
never stated whether the serological evidence linked Mr.
Barbour to the victim. Despite the absence of scientific
evidence linking Mr. Barbour, or Mr. Hester, to the victim,
23
the only conclusion the jury could draw from Mr. Huys's
appearance and testimony was that powerful scientific evidence
incriminated Mr. Barbour. Mr. Barbour's trial counsel never
used this major flaw in the prosecution's evidence to impeach
Mr. Barbour's in-custody statements. In fact, they never
cross-examined Mr. Huys after the in camera conference. The
jury therefore never learned that the DNA evidence flatly
contradicted a key assertion in the prosecution's theory of
the case.7
Additional inconsistencies between the physical evidence
and Mr. Barbour's May 1 statements abound. Although the victim
was discovered with a plastic bag over her head (Trial Tr.
189), Mr. Barbour's statements never include any attempted
suffocation and do not mention this significant detail. The
medical examiner also testified that the assailant had
manually strangled the deceased. (Trial R.321.) In his
custodial statement, despite several questions clearly aimed
at eliciting information about the plastic bag and manual
strangling, Mr. Barbour flatly denied any attempt to kill Ms.
’Moreover, despite the uncontroverted evidence that the
DNA excluded Hester as the rapist, the prosecution continued
to insist throughout the trial that Hester raped the deceased
with the aid of Barbour and Mitchell. (Trial Tr. 428-29, 433,
435, 456, 459, 634, 648, 669-70, 686, 693).
24
Roberts by any means other than stabbing:
Q: Before you stabbed her, did y'all try to kill her
in any way?
A: No, we just you know we were hitting on her.
Q: Did you do anything to her that might cause
death? . . .
A: No, sir. I didn't. None of us did.
(R. at 511-12.)
The same line of questioning, seemingly designed to
elicit testimony about the plastic bag, continued later in the
interrogation. Mr. Barbour never caught on:
Q: Okay. Y'all stood and looked at her, okay, did
the sight repulse you.
A: Yes.
Q: Did you do anything to overcome that repulsion?
. . . Did you, did you do anything to put her out of
your mind, put the picture out of your mind?
A: No, unh-uh.
Q: Do you understand what I am saying?
A: You mean like cover her up or something?
Q: Yeah.
A: No, unh-uh. I didn't, I just went over and lit
the fire.
(R. at 524.)
The prosecution's forensic hair analyst also testified
that the blond pubic hair found at the scene was dissimilar to
that of Mr. Barbour. (Trial Tr.304.)8 In short, Mr. Barbour's
in-custody statements, the cornerstone of the prosecution's
case, was flatly contradicted by the physical evidence.
8 Mr. Barbour has dark brown hair. Christopher Hester is
blond, but the prosecution made no attempt to link the hair to
him.
25
Conviction And Sentence; On June 24, 1993, the jury convicted
Mr. Barbour of three counts of capital murder. At the
sentencing phase, Mr. Barbour's father and grandfather
testified to the devastating effect his mother's suicide had
on Christopher and to events and circumstances of his
childhood and adolescence. (Trial R.517-84.) In addition, a
defense psychologist who had evaluated Mr. Barbour testified
that he suffered from "conduct disorder" and "antisocial
personality disorder." (Trial R.590.) The doctor also
testified that Mr. Barbour had a particularly "intense"
relationship with his mother, that her death had caused him
extreme emotional distress," and that he became dependent on
alcohol as a result. (Trial R.590, 597). After the
conclusion of the sentencing phase, the jury by a vote of 10-2
recommended death.(Trial R.677). On August 10, 1993, Judge
Gordon held Mr. Barbour's sentencing hearing. (Trial R.667-
98.) On January 31, 1994, the court adopted the jury's
recommendation and sentenced Mr. Barbour to death. (Trial
R.699-700.) The court found that two aggravating
circumstances outweighed several mitigating circumstances.
(Trial R. 207-23.)
Resolution of Christopher Hester's Case: Three months after
26
Barbour's sentencing, the State agreed to a generous plea
agreement with Christopher Hester that is entirely
inconsistent with a belief that he was a central actor in a
capital-murder case. While awaiting trial, he had already
pleaded guilty to two other crimes-passing bad checks and
statutory rape-and received a sentence of ten years to life.
On April 14, 1994, he entered a plea of guilty to felony
murder, and received a sentence of ten years to life.
At the plea hearing, Mr. Hester provided an account of
the Roberts crime that bore no resemblance to the evidence the
State had presented at Barbour's trial. In Hester's version,
Michael Mitchell was not present at all, but a young woman
was.9 Hester did not gain voluntary entrance to the Roberts
house, as Barbour's confession had stated, but instead he,
Barbour, and the young woman broke into the house. He denied
seeing or touching Mrs. Roberts. (R.532.) He claimed that Mr.
Barbour went to the area of the house near Mrs. Roberts's
bedroom, and that he learned that she might have been harmed
only days later when Barbour said he had run into a problem.
9 State of Alabama v. Christopher Hester. In the Fifteenth
Judicial Circuit, Montgomery County, Montgomery, Alabama, No.
cc-92 -16 8 0. (R. at 531.)
27
(Id_J10 Before two different factfinders, two fundamentally
different versions of the crime were put forward. Barbour's
jury was urged to find that Mike Mitchell aided and abetted
the crime while Hester's account identified the young woman as
the third participant. Barbour's jury was told it should
conclude that only Hester raped Mrs. Roberts; Hester's judge
was asked to conclude that only Barbour sexually assaulted the
victim. Barbour's jury was asked to find, given the lack of
any evidence of a break-in, that Mrs. Roberts had invited
Mitchell, Hester, and Barbour into her home; Hester said the
method of entry was by force and not invitation.11
GROUNDS
Mr. Barbour alleges as grounds for the issuance of the
writ the following:
1- First Reason to Grant the Writ: Pursuant to Rule
39(a) (1) (D), Ala.R .App.P ., the basis of this petition for the
10 This account is highly unlikely. Mrs. Roberts's house
was quite small. It would have been next to impossible for one
person to beat up and sexually assault Mrs. Roberts, run to
the kitchen and retrieve a butcher knife, repeatedly stab her,
s^d set the house on fire and not be noticed by others in the
house at the same time.
11 This forced-entry theory contradicts William Roberts's
testimony that he used his key to open the locked front door
when he returned home on March 21, 1992. (Trial Tr. at 183.)
And Police found no evidence of forced entry.
28
writ of certiorari is that the decision of the Court of
Criminal Appeals is in conflict with prior decisions of the
Court of Criminal Appeals, of this Court and of the Supreme
Court of the United States on the same point of law. The
Court of Criminal Appeals held that:
Barbour's reliance on Fountain v. stat-p.fid?
So.2d 719 (Ala. Crim. App. 2000) . . . is
misplaced . . .
[W] e note that this Court's holding in
Fountain v. State - that a second Rule 32
petition may be used to obtain an out-of-
time appeal from the denial of a previous
Rule 32 petition when the petitioner
failed, through no fault of his own, to
receive notice of the dismissal of the
earlier petition in time to file a timely
notice of appeal- was effectively overruled
by the Supreme Court in Marshall v. State.
[Ms. 1012217, September 26, 2003 __ So.2d
__/ __ (Ala. 2003)("[T]he writ of mandamus
is 'the only remedy available' to those
who, . . . through no fault of their own,
fail to receive notice of the dismissal of
their Rule 32 petition in time to effect a
timely appeal therefrom.") . . .
Because the circuit court had no
authority to reopen the proceeding related
to Barbour's previous Rule 32 petition, the
court used the only method available for
reviewing Barbour's additional claims-
treating the motion as a successive
petition, as provided in Rule 32.2(b),
Ala.R.Crim.P.
Barbour v. State. Slip Op. at 11.
At the time Mr. Barbour filed his Motion to Reopen his
29
Rule 32 proceedings, the law of this Court and of the Court of
Criminal Appeals was clear that an out-of-time appeal from the
denial of a Rule 32 motion could be considered something other
than a successive petition. See Marshall v. State. 2003 WL
22221211, *2 (Ala. Sept. 26, 2003)("The Court of Criminal
Appeals concluded that, because Marshall never received notice
that his first Rule 32 petition had been dismissed, he was
entitled to an out-of-time appeal based on the authority of Ex
Parte Fountain. 842 So.2d 726 (Ala. 2001) and Brooks v. State,
[Ms. CR-00-1134, April 26, 2002] (Ala.Crim.App. 2002).") This
Court has also held that "There is no bright line test for
determining when this Court will treat a particular filing as
a mandamus petition and when it will treat it as a notice of
appeal." Burch v. Springhill Memorial Hospital. 73 0 So.2d
143, 146 (Ala. 1999). The United States Supreme Court has
held that "'Novelty in procedural requirements cannot be
permitted to thwart review in this Court applied for by those
who, in justified reliance upon prior decisions, seek
vindication in state courts of their federal constitutional
rights.' NAACP v. Alabama ex rel. Patterson. 357 U.S. 449,
457-458 . . . (1958) . In the NAACP case, we declined to apply
a state procedural rule . . . because the defendant in that
30
case could not be 'deemed to have been apprised of its
existence.'" Ford v. Georgia. 498 U.S. 411, 423-424 (1991).
The Court went on to state, "In James v. Kentucky. 466 U.S.
341 • • • (1984), we held that only a 'firmly established and
regularly followed state practice' may be interposed by a
State to prevent subsequent review by this Court of a federal
constitutional claim." Ford, at 424 (citing Barr v. City of
Columbia, 378 U.S. 146, 149 (1964) and NAACP v. Alabama ex
rel. Flowers. 377 U.S. 288, 297 (1964)).
Perhaps most remarkably, the Court of Criminal Appeals'
dismissing Mr. Barbour's Motion rather than treating it as a
writ of mandamus is in direct contravention of its own
precedent in Brooks v. State. 2004 WL 595415, *1
(Ala.Crim.App. March 26, 2004) . In Brooks, the Court of
Criminal Appeals not only allowed an out-of-time appeal from
the denial of a Rule 32 petition, but it twice sua sponte
treated the petitioner's motion as a mandamus petition, once
before Marshall was decided and once again after Marshall was
decided. See Brooks. 2004 WL 595415, at *2. The Court of
Criminal Appeals' refusal to so treat Mr. Barbour's Motion to
Reopen is therefore inexplicable and cannot withstand its own
precedent.
31
Because at the time Mr. Barbour filed his Motion to
Reopen, the Court of Criminal Appeals had been relying on
Fountain to resolve situations like Mr. Barbour's in which the
petitioner through no fault of his own missed the deadline for
appealing denial of his Rule 32 petition, Mr. Barbour was
entitled to rely on the law in effect at the time he filed his
motion. He cannot be faulted for failing to anticipate
changes in the law and he cannot be penalized for failing to
follow new state procedural rules decided while his case was
pending on appeal. Moreover, the Court of Criminal Appeals
erred in refusing, without explanation, to follow its own
precedent and treat Mr. Barbour's Motion to Reopen as a
mandamus petition in light of Marshall and Brooks.
Marshall was decided well after Mr. Barbour had filed his
Motion to Reopen and well into the time his appeal was pending
in the Court of Criminal Appeals. This Court's opinion in
Marshall recognized that the Court of Criminal Appeals had
until that point been relying on Fountain to resolve such
questions. See Marshall. 2003 WL 22221211, *2. The Court of
Criminal Appeals' holding that Mr. Barbour's only appropriate
remedy is a writ of mandamus is therefore in direct
contravention of the state of Alabama law at the time Mr.
32
Barbour filed his motion and the appeal from the denial of the
motion. It is also in direct contravention of the United
States Supreme Court's holding in Ford v. Georgia. 498 U.S. at
411. The Court of Criminal Appeals erred in failing to follow
the decisions of the United States Supreme Court holding that
new state procedural rules cannot operate to preclude
appellate review of claims presented before such rules were
adopted and in effect.
Merits of the Question:
The Court of Criminal Appeals bases its denial of Mr.
Barbour's claim that he is entitled to complete his incomplete
Rule 32 proceedings via a "Motion to Reopen," which would
allow him also to amend his Rule 32 petition to include
additional claims, on two grounds: First, that Mr. Barbour's
reliance on Fountain v. State. 842 So.2d 719 (Ala.Crim.App.
2000); Ex Parte A.D.R., 690 So.2d 1208 (Ala. 1996); and
Lonqmire v. State. 443 So.2d 1265 (Ala. 1982) to support his
claim is "misplaced" because these cases do not authorize
reopening or amendment of Rule 32 proceedings. Barbour. Slip
Op. at 10. Second, that Fountain was "effectively overruled"
by this Court's decision in Marshall v. State. 2003 WL
22221211, *2 (Ala. Sept. 26, 2003) , which held that the writ
33
of mandamus is the only remedy available to those who through
no fault of their own fail to receive notice of the dismissal
of their Rule 32 petition in time to effect a timely appeal
therefrom. Barbour. Slip Op. at 10-11.
With regard to the court's first basis for denying Mr.
Barbour's appeal, at the time Mr. Barbour filed his Motion to
Reopen, Alabama law clearly recognized courts' discretion to
allow out-of-time appeals in Rule 32 proceedings when failure
to timely appeal was no fault of the petitioner's. The
circuit court's failure to allow Mr. Barbour this opportunity
when his court-appointed counsel abandoned his case prior to
completion and when Mr. Barbour presented colorable claims of
innocence and sought DNA testing which has the potential to
exonerate him, amounted to an abuse of discretion.
Fountain was the governing law at the time Mr. Barbour
sought leave to reopen his incomplete Rule 32 proceedings. In
Fountain, the Court of Criminal Appeals held that where
failure to timely appeal a denial of a Rule 32 petition for
post-conviction relief is not the fault of the petitioner, the
circuit court may permit an out-of-time appeal of that
dismissal. 842 So.2d at 723. Fountain's original Rule 32
motion was dismissed and no appeal was filed for more than
34
three years. Fountain was never notified of the judgment nor
of his right to appeal the judgment. Finding it highly
significant that the failure to file an appeal was not the
fault of the petitioner, the circuit court granted Fountain's
request for an out-of-time appeal. The Court of Criminal
Appeals affirmed, relying on the intent of the Alabama Rules
of Criminal Procedure -- "... to secure simplicity in procedure
[and] fairness in administration..." — as well as prior case
law, to conclude that the circuit court possessed the
authority to grant an out-of-time 1 appeal in a Rule 32
proceeding. Fountain. 842 So.2d at 721; see also State v.
Johnson, 806 So.2d 1195 (Ala. 2001) (vacating the circuit
court's dismissal of the petitioner's Rule 32 proceeding
because petitioner was never notified of the dismissal and
thus was unaware of his right to appeal within 42 days of that
order); see also Parker v. State. 719 So.2d 259 (Ala. Crim.
App. 1997) (stating that the petitioner's allegation that he
had not taken direct appeal because counsel told him he could
not, if true, would entitle him to an out-of-time appeal).
Fountain is also consistent with other cases in which the
record demonstrates that an appeal as of right was lost due to
no fault of the defendant. In Longmire v. State. 443 So.2d
35
1265 (Ala. 1982), the defendant was convicted of two felonies
and wished to appeal. His court-appointed attorney failed to
file a notice of appeal. Nearly two years later, the
defendant filed a coram nobis petition, seeking either a new
trial or leave to file an out-of-time appeal. After
determining that the defendant was not at fault, the circuit
court allowed the late appeal to be filed. The Court of
Criminal Appeals reversed, but this Court affirmed the circuit
court, finding that "the circumstances of this case warrant
our granting the petitioner an appeal of his conviction."
Longmire, 443 So.2d at 1269. The circumstances cited were
that "the defendant desired an appeal of his conviction and
informed his court-appointed counsel of his desire to appeal.
Through no fault of his own, however, an appeal was never
perfected and the time for petitioner's appeal lapsed." Id.;
see also Ex parte A.D.R.. 690 So.2d 1208 (Ala. 1996)(reversing
the Court of Criminal Appeals and allowing out-of-time appeal
of juvenile transfer order via Rule 32 petition).
At the time Mr. Barbour sought to complete his Rule 32
proceedings, Fountain and the other cases cited established
circuit courts' authority to permit out-of-time appeals where
the failure to file an appeal is not the fault of the
36
petitioner. The Court of Criminal Appeals, however, while
acknowledging that Fountain permitted an out-of-time appeal
from a trial court's Rule 32 judgment, held that Fountain did
not allow for amendment of an earlier petition. Barbour. Slip
Op. at 10. The Court of Criminal Appeals relied on an
erroneous reading of Fountain and ignored the fact that Rule
32 petitioners have the right to amend any time before the
entry of judgment. Here, it is undisputed that Mr. Barbour
detrimentally relied on his court-appointed counsel to
safeguard his rights throughout his Rule 32 proceedings. His
lawyer abandoned him prior to the circuit court's entry of
judgement, at a time when he could have amended his petition
to add new claims, proffered new evidence, and prepared a
brief. Ala.R .Crim.P. 32.7(b); Barbour Aff. at f 6; R. at 559-
60 .
Moreover, neither counsel nor the court advised Mr.
Barbour of his right to appeal, or of the necessity of filing
a notice of appeal, although Rule 32 clearly provides a right
of appeal to both parties. See Ala. R. Crim. P. 32.10. Thus,
a Rule 32 proceeding is not complete unless and until an
appeal is fully prosecuted, or until the party who loses in
the circuit court makes the informed choice not to pursue
37
appellate remedies. In this esse, Mr. Bsrbour was presented
with no such choice. Mr. Berbour certeinly desired to appeal
the denial of Rule 32 relief; his failure to do so was not an
informed choice but was the direct result of his counsel's
unsuthorized withdrawal from his esse.
Becsuse counsel's abandonment prevented Mr. Berbour from
exercising amendment and sppellete rights, the circuit court
erred in concluding thst the originsl proceedings ran through
completion. Under these circumstences, the circuit court's
refusel to allow Mr. Bsrbour the opportunity to seek an out-
of-time sppesl of its denisl of post-conviction relief denied
Mr. Bsrbour his right to procedure due process emd resulted
in a miscsrrisge of justice.
At the time Mr. Bsrbour sought to reopen his Rule 32
proceedings, the holding of Fountciin clecirly estciblished that
the circuit court possessed cin equitaible power to permit out-
of-time cippecils where there wss no evidence thait the
petitioner sbused the system and where the petitioner wais
utterly without fault. See atlso Johnson. 806 So.2d 1195
(citing Ex Psrte Weeks. 611 So.2d 259 (Alci. 1992)).
The Court of Criminsl Appeels' second holding with regjard
to this issue suggests thcit even if Fountsin did allow for
38
completion of Rule 32 proceedings that were terminated because
of a failure to timely appeal through no fault of the
petitioner's, Fountain is no longer governing law on this
point, having been overruled by this Court's opinion in
Marshall v. State, 2003 WL 22221211 (Ala. Sept. 26, 2003).
Barbour. Slip Op. at 10.
As discussed, supra, at the time Mr. Barbour filed his
Motion to Reopen his Rule 32 proceedings, the law of this
Court and of the Court of Criminal Appeals was clear that an
out-of-time appeal from the denial of- a Rule 32 motion could
be considered something other than a successive petition. See
Marshall v.__State, 2003 WL 22221211, *2 (Ala. Sept. 26,
2003)("The Court of Criminal Appeals concluded that, because
Marshall never received notice that his first Rule 32 petition
had been dismissed, he was entitled to an out-of-time appeal
based on the authority of Ex Parte Fountain. 842 So. 2d 726
(Ala. 2001) and Brooks v. State. [Ms. CR-00-1134, April 26,
2002] (Ala.Crim.App. 2002).") Mr. Barbour justifiably relied
on Fountain, the governing case at the time he moved the court
to allow him to complete his incomplete Rule 32 proceedings
and followed procedures allowed by the holding therein.
Moreover, even if the Court of Criminal Appeals determined
39
that a writ of mandamus is the appropriate remedy for a
petitioner in Mr. Barbour's position, it should have remanded
Mr. Barbour's case with instructions for him to file, and for
the circuit court to consider, a writ of mandamus presenting
the issues he raised in his Motion to Reopen. In short, Mr.
Barbour's motion should not have been rejected because it did
not comport with procedural rules which were not established
at the time he sought to complete his Rule 32 proceedings.
Brooks v. State,2004 WL 595415, *1 (Ala.Crim.App. March 26,
2004)(using discretion to treat out-of-time appeal from denial
of Rule 32 petition as mandamus petition before Marshall was
decided); Ex Parte Love. 507 So.2d 979 (Ala. 1987); Horslev
— State, 527 So.2d 1355 (Ala. Crim. App. 1988); Ford v.
Georgia. 498 U.S. 411, 424 (1991).
Finally, the Court of Criminal Appeals held that the
circuit court had no choice but to treat Mr. Barbour's claims
as a successive petition pursuant to Ala. R. Crim. P. 32.2(b).
For all the reasons cited supra. Mr. Barbour maintains that
his Motion to Reopen was not a successive petition and was
authorized pursuant to Fountain. However, even if the Court
of Criminal Appeals chose to view Mr. Barbour's Motion to
Reopen as a successive Rule 32 petition, it should have
40
reached the merits of his claims because the facts of this
case meet the two-pronged test in Rule 32.2(b). See Ala. R.
Crim. P. 32.2(b) (allowing successive petitions to be filed
when "good cause" is shown and "failure to entertain the
successive petition will result in a miscarriage of justice");
see also Ex Parte Ingram. So.2d 863, 866 (Ala. 1996) (allowing
the filing of a successive petition where a newly-appointed
attorney was"understandably confused" as to how to proceed
with a post-conviction claim) . The two prongs required by
Rule 32.2(b) will be presented in the discussion of Mr.
Barbour's claims on the merits, infra.
Mr. Barbour challenges his conviction and sentence as
violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and respectfully
requests this Court to reverse the judgment of the Court of
Criminal Appeals at Slip Op. at 9-12.
2. Second Reason to Grant the Writ: Pursuant to Rule
39(a)(1)(C), Ala.R.App.P., the issue is whether the Court of
Criminal Appeals erred in holding that:
Rule 32, Ala.R.Crim.P., contains no
provision that allows for the 'reopening'
of a Rule 32 petition after an order
denying the petition has been entered.
Indeed, Rule 32.7(b), Ala.R .Crim.P.,
states: "Amendments to pleadings may be
41
permitted at any stage of the proceedings
prior to the entry of -judgment. " (Emphasis
added.) See also Allen v. State. 825 So.2d
264, 268 (Ala.Crim.App. 2001), aff'd, 825
So.2d 271 (Ala. 2002) . Because the circuit
court had long since entered its judgment
in Barbour's initial Rule 32 petition,
Barbour was not entitled to amend that
petition.
Barbour_v. State. Slip Op. at 9. This holding ignores Mr.
Barbour's argument that his Rule 32 proceedings were never
completed.
This Court has never had an occasion to decide whether
when the petitioner's court-appointed counsel abandons his
Rule 32 proceedings without notice or authorization and when
the court fails to apprise the petitioner of his right to
appeal or the necessity of filing a notice of appeal, the
failure to appeal the denial of the petition constitutes a
valid completion of the proceedings. In short, this Court
must decide first whether Mr. Barbour's Rule 32 proceedings
can in good faith be considered complete. If this Court
decides that the proceedings are not complete, then this Court
must decide whether Mr. Barbour has a right to amend his
petition to add new claims which would have been properly
before the trial court before it entered its judgment had
counsel not abandoned this case. See Ex Parte Nesbitt. 850
42
So.2d 228, 232 (Ala. 2002).
Merits of the Question:
Mr. Barbour's second court-appointed counsel, without
notice or authorization, withdrew following the Rule 32
hearing, at a time when it was still possible to amend the
petition, proffer new evidence, and prepare a brief. See Ex
Parte__Nesbitt. 850 So.2d at 232 (citing Rule 32.7(b),
Ala.R .Crim.P. and Ex Parte Allen. 825 So.2d 271
(Ala.2002) ("Leave to amend a Rule 32 petition is within the
discretion of the trial court, and it should be freely
granted.")); Barbour Aff.f 6; R.559-60. Neither counsel nor
the court advised Mr. Barbour of his right to appeal, or of
the necessity of filing a notice of appeal. Because counsel's
abandonment prevented Mr. Barbour from exercising amendment
and appellate rights, the trial court erred in concluding that
the original proceedings ran through completion.
As discussed, supra, at the time Mr. Barbour filed his
Motion to Reopen, Fountain. Longmire, and A.D.R,. made clear
that circuit courts possessed the authority, where the law was
otherwise silent, to overlook an untimely filing and grant an
out-of-time filing upon a showing of good cause. This line of
authority plainly allowed the lower courts to treat Mr.
43
Barbour's motion as, inter alia, an attempt to amend his
timely filed Rule 32 petition to add new claims. The facts in
this case plainly satisfy the cause requirement as set forth
in the above-cited cases; Mr. Barbour wanted to complete his
Rule 32 proceedings and found himself precluded only because
his appointed attorney abandoned him before completion of the
i
proceedings.
Moreover, as he sets forth suora and below, Mr. Barbour
has asked to be heard on profoundly important questions, i . e . .
whether he is guilty of this offense; whether evidence that
would undermine the reliability of his custodial statements
was wrongly withheld at trial; whether recent developments
show that Alabama's method of execution constitutes cruel and
unusual punishment; and whether Alabama's failure to provide
counsel as of right to indigents condemned in state post-
conviction proceedings is unconstitutional. Compared to the
cases cited above which approve the exercise of discretion in
allowing out-of-time filings, Mr. Barbour's claims are equally
or even more weighty. The lower courts' unwillingness to
consider these claims simply because Mr. Barbour's court-
appointed counsel failed, without notice or authorization, to
complete his Rule 32 proceedings is an abuse of discretion
44
which has resulted in a miscarriage of justice.
3. Third Reason to Grant the Writ: Pursuant to Rule
39(a) (1) (C) , Ala.R .App.P ., a material question requiring
decision by the Court of Criminal Appeals is one of first
impression for this Court. The issue is whether the Court of
Criminal Appeals erred in holding that:
[G]iven the particular circumstances of this case,
the circuit court correctly determined that Barbour
was not entitled to [DNA] testing, based on his
failure to demonstrate that the grounds for this
claim are based upon "newly discovered facts," as
defined in Rule 32.1(e), Ala.R.Crim.P. . . . As the
circuit court correctly noted, Barbour's conviction
for the capital offense of murder committed during
rape in the first degree rested on Barbour's
participation in the rape as an accomplice, rather
than the actual rapist. There was no evidence
presented at trial pointing to Barbour as the person
who raped Thelma Roberts. Instead, all of the
evidence -- including his own confessions --
established that Barbour's participation in the rape
was limited to holding Roberts on the floor while
Hester raped her. Accordingly, there is no need for
postconviction DNA testing in this case; such
testing would have no relevance. . . The purpose of
DNA testing is to exonerate a wrongfully convicted
defendant. It should not be used as a method to
circumvent procedural bars whose purpose is to
prohibit a petitioner from relitigating claims over
and over again.
Barbour v. State. Slip Op. at 18, 19-20.
The question is whether the Court of Criminal Appeals'
holding misapprehends the potential for DNA testing to
exonerate Mr. Barbour in this case while at the same time
45
identifying the real perpetrator. The Court of Criminal
Appeals recognized that Mr. Barbour's claim is not
procedurally barred. Id. at 18 n. 6. Yet it failed to
recognize that many requests for DNA testing do not fit neatly
within the circumstances prescribed by Rule 32.1(e), which
cannot anticipate all the unique circumstances presented by
such requests. The court's holding also fails to recognize
that Mr. Barbour's request for DNA testing has the potential
to identify the real culprit by matching the DNA found on the
deceased with a profile in the State's DNA database.
This Court has never addressed whether in a case such as
Mr. Barbour's in which retesting of the DNA evidence has the
potential not only to identify the real perpetrator but also
to retest the reliability of the only evidence linking the
condemned to the crime, such DNA testing should be allowed.
Here, incriminating statements are the only thing linking Mr.
Barbour to the crime -- no physical or testimonial evidence
otherwise confirms the presence of any of the alleged
perpetrators -- the fact that the State's own rudimentary pre
-trial DNA testing at trial already dismantled one pillar of
the prosecution's case, the identity of the alleged rapist,
renders testing the reliability of Mr. Barbour's confession
46
all the more crucial.12 To resolve these questions, the Court
should grant certiorari in this case.
Merits of the Question:
Although DNA tests were performed at the time of Mr.
Barbour's arrest, those tests were unsophisticated compared to
the testing presently available. In fact, in recognition of
the constant evolution of DNA science, the United States
Department of Justice has issued recommendations for handling
DNA-test requests aimed at courts, attorneys, and forensic
laboratories. See U.S. Dep't of Justice, Postconviction DNA
Testing:__Recommendations for Handling Requests (Dep't of
Justice September 1999) (herein cited as Recommendations) (R.
at 16-146.) We urge this Court to resolve this issue of first
impression by adopting the guidelines in the Department of
Justice Recommendations. In Mr. Barbour's case, this
requires: (1) an order for all entities in possession of DNA
evidence to preserve such evidence for testing; and (2) an
12 Moreover, as evinced by the special concurrence of
Judge Shaw and the dissent of Judge Baschab in Dowdell v.
State, 854 So.2d 1195, 1199, 1203 (Ala.Crim.App. 2002) and
Judge Baschab's dissent in this case, Barbour. Slip Op. at 32,
requests for DNA testing present complicated issues that do
not fit neatly within the strictures of Rule 32 and have never
been resolved by Alabama courts. At the same time, the
Alabama legislature has fashioned no procedure for inmates to
request DNA testing.
47
order for STR DNA testing of any preserved biological
evidence.
Despite the fact that today's technology could yield
findings that would either confirm without doubt the
correctness of the jury's decision, or demonstrate just as
surely that Mr. Barbour was wrongly convicted of this crime,
the State consistently has opposed any further examination of
the biological evidence for an assortment of procedural
reasons, and also, gamely but unpersuasively, asserted that an
exoneration of Mr. Barbour would not affect the outcome of his
case. The circuit court adopted the State's argument that Mr.
Barbour's DNA claim was procedurally defaulted. See Barbour.
Slip Op. at 13. The Court of Criminal Appeals held that the
circuit court erred in concluding that Mr. Barbour's request
for DNA testing was defaulted, id. at 17, but held that Mr.
Barbour failed to demonstrate that the grounds for his claim
are based on "newly discovered facts," pursuant to Rule
32.1(e). In so holding, the Court of Criminal Appeals
ratified the State's argument that DNA testing would have no
relevance to this case because the State has never contended
that Mr. Barbour raped the deceased. Id. at 19. This holding
misapprehends the critical facts.
DNA tests capable of establishing that Mr. Barbour is not
the source of the semen left at the crime scene are critical
to corroborating his claim that he incriminated himself in
this crime only after the chief law enforcement officers
investigating the case physically abused him and
psychologically intimidated him to the point that he felt he
had no other choice. Mr. Barbour's in-custody statements were
literally the only evidence linking him to this crime.
At trial, the State presented to the jury its entire
theory of this case through Mr. Barbour's videotaped statement
and the testimony of the two law enforcement officers who
interrogated him and obtained that statement. Not one shred
of physical evidence links Mr. Barbour to this crime. The
only physical evidence available, the semen, definitively
excludes Chris Hester, the person whom Mr. Barbour implicated
in his custodial statements as the rapist. This information,
which critically undermines Mr. Barbour's confession, the
cornerstone of the prosecution's case against him, was never
presented to the jury. In fact, because the prosecution
elected to terminate the testimony of the serological expert,
the jury was left with the opposite impression that
incontrovertible scientific evidence may have linked Mr.
49
Barbour to the victim. Had the jury learned instead that DNA
testing excluded Mr. Hester as the rapist, and excluded Mr.
Barbour as well, Mr. Barbour's confession likely would have
carried little weight. See Recommendations at 25 (urging
post-conviction courts to consider the manner in which DNA
testing was presented to the factfinder at trial and
recommending re-examination of the evidence where DNA tests
were inaccurately presented to the trier-of-fact) .13
13 As noted in the affidavit of Peter Neufeld, Co-Founder
and Co-Director of the Innocence Project, the prosecutors in
Mr. Barbour's case told the judge in an in camera conference
that the DNA evidence would show that the semen found on Ms.
Roberts could have been either Mr. Barbour's or Christopher
Hester's. (Trial Tr. at 356; Neufeld Aff. at ^5-6; R. at
613.) However, the State's witness, serologist Larry Huys,
contradicted this statement. Instead, Huys notified the judge
and the parties that the evidence definitively excluded Mr.
Hester as a source of the semen. (Trial Tr. at 361-62.) The
prosecution's theory of the case relied on Mr. Barbour's pre
trial statements in which he said that Mr. Hester was the only
person who had sexual contact with the victim. When the DNA
evidence seemed to contradict this account, the prosecution
decided not to present the results of the HLA DQ Alpha test to
the jury, despite the judge's ruling the evidence admissible.
(Trial Tr. at 367-68.) Mr. Barbour's trial counsel did not
exploit this major flaw in the prosecution's evidence or use
it to undermine the credibility of Mr. Barbour's in-custody
statements. The jury therefore never learned that the DNA
evidence flatly contradicted the prosecution's theory of the
case. A DNA test result which pinpoints the characteristics
of Ms. Roberts's sexual assailant and definitively excludes
Mr. Barbour and Mr. Hester as that assailant, is exactly the
type of evidence which casts reasonable doubt in the minds of
jurors. Such testing was unavailable at the time of Mr.
Barbour's trial, but the Court now has the opportunity to
50
This Court now has the opportunity and the duty to see
that all potentially exculpatory facts come to light before
Mr. Barbour, who asserts his innocence, is put to death. See
Recommendations at 12 (citing State v. Thomas. 586 A.2d 250,
253-54 (N.J. Super. Ct. App. Div. 1991) (allowing DNA testing
on a seven-year-old rape kit and reasoning that where "[t]here
is a possibility, if not a probability, that DNA testing now
can put to rest the question of a defendant's guilt . . . [the
court] would rather permit the testing than sit by while a
possibly innocent man languishes in prison") (quotation marks
omitted); see also Commonwealth v, Reese. 663 A.2d 206, 207,
209-10 (Pa. Super. Ct. 1995) (ordering a new trial where DNA
testing excluded the defendant as the source of the semen;
though the State argued during post-conviction proceedings,
and after release of the exculpatory test results, that the
rapist had not ejaculated, the court determined that a new
trial was nevertheless appropriate because the jury had been
led to believe that the semen belonged to the defendant and
had not heard this alternative presentation of the facts; the
court reasoned that the results of the DNA evidence would have
affected the outcome of the trial had they been introduced to
allow discovery of this evidence.
51
the jury); see also Commonwealth v. Brison. 618 A.2d 420, 423
(Pa. Super. Ct. 1992) ("where evidence has been preserved
which has high exculpatory potential, that evidence should be
discovered after conviction"); cf. Dubose v. State. 662 So.2d
1189, 1199 (Ala. 1995) (holding that where the State had no
physical evidence or other evidence directly linking the
defendant to the crime other than DNA evidence collected at
the crime scene, the defense was entitled to receive funds to
procure an independent expert to re-test the DNA sample in
order to determine whether it in fact implicated the
defendant).
DNA testing may very well reveal the identity of the real
murderer of Thelma Roberts. Since 1994, Alabama has
maintained a statewide DNA database, including DNA from all
persons convicted of felonies after May 6, 1994, and persons
incarcerated as of May 6, 1994, as a result of felony
convictions. See 19A Ala. Code §§ 36-18-20 to - 39, (Michie
2000 Supp.); see also Hammonds v. State. 777 So.2d 750, 756-57
(Ala. Crim. App. 1999) . The murder of Thelma Roberts took
place in March 1992. There is an excellent chance that her
assailant has since been convicted of another felony and that
his DNA is contained in the State's DNA database. Thus,
52
additional testing of the Roberts specimens will likely both
definitively exclude Chris Barbour as the sexual assailant and
result in an identification of the real killer. Under these
circumstances, courts should order DNA testing.14
Mr. Barbour has proffered facts which show that the type
of testing that is required to pinpoint the identity of the
donor of the semen was not available in Alabama at all until
14 Mr. Barbour's case falls into what the Recommendations
designate as "Category 1" cases. Category 1 cases are those
in which biological evidence was collected and still exists.
If the evidence is subjected to DNA testing or retesting,
exclusionary results will exonerate the petitioner. See
Recommendations at 4. The Recommendations urge that in
Category 1 cases, "prosecutors and defense counsel should
concur on the need for DNA testing." Id. at xiii (emphasis
added). Mr. Barbour's case is a Category 1 case in that the
evidence collected from the victim could both exclude him as
the rapist and at the same time match the DNA of an offender
catalogued in the state's DNA database, thus exonerating Mr.
Barbour in the murder as well. Twelve years after this crime,
it is highly likely that the real killer has been apprehended
for another offense and has been included in the database.
Even if the court does not agree that Mr. Barbour's is a
Category 1 case, it is certainly a Category 2 case. Category
2 cases are those in which biological evidence was collected
and still exists; exclusionary results in Category 2 cases
"would probably support the petitioner's claim of innocence,
but reasonable persons might disagree as to whether the
results are exonerative." Recommendations at 5. In cases
such as this, where the conviction was based exclusively on a
confession, any impeachment of that confession is critical to
a claim of innocence. Here, DNA evidence excluding both Mr.
Hester and Mr. Barbour as the rapist dismantles the pillars of
Mr. Barbour's confession and the State's case against him.
The Court should therefore order DNA testing to shed light on
this critical issue.
53
1999. As an indigent, condemned prisoner in Alabama, Mr.
Barbour had no means of access to sophisticated DNA testing
available in private laboratories in other states. (See
Neufeld Aff. at U1I 13-15; R. at 617-18.) In fact, the type of
testing Mr. Barbour now seeks was not available to trial
counsel or to Rule 32 counsel at any time during the course of
their representation of him. Because, as Mr. Barbour
demonstrates, a test result that excludes Mr. Barbour and/or
Mr. Hester as the source of the semen evidence would
significantly destroy the credibility of Mr. Barbour's
custodial statements -- the only evidence linking him to the
a miscarriage would take place if the execution were
permitted to go forward in advance of such testing.
In light of the above, it is clear that the Court of
Criminal Appeals' erred in holding that Mr. Barbour has failed
to meet the requirements of Rule 32.1(e) Ala.R .Crim.P., which
provides in relevant part:
"Subject to the limitations of Rule 32.2, any defendant
who has been convicted of a criminal offense may institute a
proceeding in the court of original conviction to secure
appropriate relief on the ground that:
\\
"(e) Newly discovered material facts exist which require
that the conviction or sentence be vacated by the court,
because:
54
"(1) The facts relied upon were not known by the
petitioner or the petitioner's counsel at the time of trial or
sentencing or in time to file a post-trial motion pursuant to
Rule 24, or in time to be included in any previous collateral
proceeding and could not have been discovered by any of those
time through the exercise of reasonable diligence;
"(2) The facts are not merely cumulative to other facts
that were known;
"(3) The facts do not merely amount to impeachment
evidence;
"(4) If the facts had been known at the time of trial or
of sentencing, the result probably would have been different;
and
"(5) The facts establish that the petitioner is innocent
of the crime for which the petitioner was convicted or should
not have received the sentence that the petitioner received."
With regard to 32.1(e)(1), the availability of STR
testing and its capacity to pinpoint the genetic
characteristics of the assailant(s) in this case were unknown
by Mr. Barbour's trial counsel at the time of his sentencing
or in time to file a post-trial motion pursuant to Rule 24.
STR testing was simply unavailable in Alabama at the time of
Mr. Barbour's trial, direct appeal, or at the time of the
filing of his Rule 32 petition. Mr. Barbour has established
that the HLA-DQ Alpha DNA tests performed at the time of his
arrest and trial were rudimentary at best. The tests simply
could not definitively identify the source of the semen
collected from the crime scene. Far more discriminating DNA
55
tests are available today: (1)Restriction Fragment Length
Polymorphism (RFLP) testing has a "high degree of
discrimination such that falsely accused individuals will
likely be excluded with testing [with very small samples]" (R.
at 59.); (2) Polymerase Chain Reaction (PCR) testing of
several short tandem repeats (STR) produces the most reliable
identification of sources of biological evidence and is likely
to replace RFLP testing in most labs across the country. See
Recommendations at 28. Today's DNA technology, unlike that
employed at the time of Mr. Barbour's trial, has evolved so
that it is capable of determining the precise genetic
characteristics of Thelma Roberts's assailant.15 See
15 Alabama courts have long taken judicial notice of the
reliability of both RFLP and PCR testing. See Broadnax v .
State, 825 So.2d 134, 174 (Ala. Crim. App. June 30, 2000)
(citing United States v. Beasley. 102 F.3d 1440, 1448 (8th
Cir. 1996) (holding that judicial notice of the reliability of
PCR DNA testing would be taken in future cases) and United
States v. Martinez, 3 F.3d 1191, 1197 (8th Cir. 1993) (holding
that the reliability of RFLP testing was subject to judicial
notice)); see also Simmons v. State. 797 So.2d 1134, 1146
(Ala. Crim. 1999) ("This court has acknowledged the
reliability of the theory and techniques used in the PCR
method of DNA analysis.").
Moreover, Alabama courts have recognized that DNA testing
is constantly evolving and improving, and that courts should
allow for changes in technology when deciding whether to allow
certain types of testing in particular cases. See Broadnax.
825 So.2d at 174 ("We recognize that the state of scientific
theories and the techniques for producing DNA evidence is not
static, and that the scientific community undoubtedly will
56
Recommendations at 24-25 (recognizing the limitations of HLA
DQ alpha testing, recommending that more discriminatory DNA
testing capable of pinpointing the source of the evidence be
permitted when it is available, and stating that "changes in
expertise and technology available for forensic DNA testing
may require the reexamination of previously inconclusive test
results and/or retesting of [previously collected] samples").
Thus, Mr. Barbour's request for STR DNA testing meets the
requirements for newly-discovered evidence prescribed by Rule
32.1(e), and thereby excludes this claim from the two-year
statute of limitations prescribed by Rule 32.2(c) and
overcomes the procedural default rules of Rule 32.2(a). See
Brown v. State. 807 So.2d 17 (Ala. June 15, 2001); see also
Siebert v. State. 778 So.2d 857, 858 (Ala. 2000) .
produce new theories and techniques regarding DNA."); see also
Snowden v. State. 574 So.2d 960, 966 (Ala. Crim. App. 1990)
(recognizing that DNA databases are constantly changing); see
also Sewell__v. State, 592 N.Ed.2d 705, 707-8 (Ind.App.
1992)(granting an order preserving DNA evidence and ordering
testing where " [a]dvances in technology may yield potential
for exculpation where none previously existed" and recognizing
that a defendant should not be required to "anticipate
forensic science advances" before being granted a right to
discovery of DNA evidence"); see also Commonwealth v. Reese.
663 A.2d 206, 207, 209-10 (Pa. Super. Ct. 1995) (holding that
DNA testing is viable "after-acquired evidence" not available
at the trial with exculpatory potential and ordering post-
conviction DNA testing); see also Commonwealth v. Robinson.
682 A.2d 831 (Pa. Super. Ct. 1996).
57
In addition, the facts that Mr. Barbour seeks to
establish through the STR DNA testing are not "merely
cumulative to other facts that were known." The newly-
available STR DNA tests have the capacity to exclude
definitively Mr. Barbour as a source of the semen. The
rudimentary DNA testing performed at the time of Mr. Barbour's
trial preliminarily included him along with one in three
Caucasian men and an unknown number of non-Caucasian men, as
possible sources of the semen. (Trial Tr. at 357, 364-65.)
Thus, the STR tests will provide new, and previously
unattainable, evidence. See Ala. R. Crim. P. 32.1(e)(2).
A DNA test's exclusion of Mr. Barbour as a source of the
semen would present incontrovertible evidence that neither he
nor any of the alleged assailants of the victim sexually
assaulted her. This evidence would establish that the crime
did not take place as the prosecution alleged and would
dismantle the crux of the case against Christopher Barbour by
destroying the credibility of his in-custody statements.
Thus, the results of the DNA testing sought would certainly
amount to more than impeachment evidence, pursuant to Rule
32.1(e) (3) . In addition, had Mr. Barbour's jury learned that
sophisticated DNA tests with the capacity to pinpoint the
58
identity of the assailant(s) had eliminated both Christopher
Hester and Christopher Barbour as those assailants, the jury
very likely would have reached a different result in this
case, pursuant to Rule 32.1(e) (4) . Instead, because the state
serologist's testimony was truncated once the prosecution
learned that the DNA tests contradicted its theory of the
case, the jury was left with the erroneous impression that
scientific evidence implicated Mr. Barbour and his alleged
accomplices. (Trial Tr. at 367-68).
Finally, STR DNA tests excluding Mr. Barbour would remove
the last leg of the State's case against him. Michael
Mitchell, one of Mr. Barbour's alleged accomplices according
to the prosecution's theory at Mr. Barbour's trial, was never
arrested or charged with this crime, indicating that
authorities never seriously believed that he was involved.
Christopher Hester was allowed to plead guilty upon a very
different factual version of this crime as part of a package
deal pursuant to which he is already eligible for parole. Yet
Christopher Barbour's conviction and sentence have rested on
the version of the facts presented at his trial. Since before
his arrest, and steadfastly since, Mr. Barbour has maintained
his innocence. None of the physical evidence implicates him,
59
Hester, or Mitchell. A DNA test excluding him as the sexual
assailant would once and for all dismantle the State's theory
that he participated in the alleged crime. Moreover, STR
testing has the capacity, through cross-referencing with the
State's DNA database, to identify the real perpetrator,
thereby definitively exonerating Mr. Barbour. See Ala. R.
Crim. P. 32.1 (e) (5) .
Thus, it is clear that Mr. Barbour's DNA claim meets all
the requirements of Rule 32.1(e) and the circuit court abused
its discretion in refusing to consider this claim on the
merits. This Court should reverse the decision of the circuit
court and order DNA retesting of the biological evidence in
light of new technology which will either: (1) definitively
exclude Mr. Barbour as the source of the semen found at the
crime scene while pinpointing the actual semen source, and
thereby seriously impeach his in-custody statement; or (2)
definitively identify Mr. Barbour as the source of the semen
and put to rest any doubt about Mr. Barbour's alleged
participation in the crime. See Broadnax. 825 So.2d 134 at
175 (recognizing that DNA testing should be permitted when a
party establishes that it is relevant to a fact at issue in
the case); see also Recommendations at 12 (citing Sewell. 592
60
N .E .2d at 707-08) .
Mr. Barbour challenges his conviction and sentence as
violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and urges this
Court to reverse the Court of Criminal Appeals' holding at
Slip Op. at 18-20 and adopt the guidelines contained in the
Recommendations and not pigeon-hole requests for DNA testing
into Rule 32.1(e), which cannot anticipate the unique
circumstances presented by such requests.
4• Fourth Reason to Grant the Writ: Pursuant to Rule
39(a) (1) (C) , Ala . R . App . P . , the fourth reason to grant the writ
of certiorari is that Mr. Barbour's Brady claim presents a
question of first impression to this Court. The issue is
whether the Court of Criminal Appeals erred in holding that:
The [circuit] court correctly concluded
that because Barbour had failed to meet the
requirements of Rule 32.1(e),
Ala.R .Crim.P., to establish a claim based
on newly discovered evidence, Barbour's
Brady claim was procedurally barred
pursuant to Rule 32.2(a)(2) and (a)(4),
because it was raised and addressed at
trial and on appeal, and pursuant to Rule
32.2(b), because it was raised in his
previous Rule 32 petition.
Barbour v. State. Slip Op. at 23.
The question Mr. Barbour's case presents is whether when
61
a Rule 32 petitioner proffers new evidence in support of a
claim that has never been considered on its merits such
evidence is nevertheless procedurally barred as res judicata
pursuant to Rules 32.2(a)(2), 32.2(a)(4), and 32.2(b).
Mr. Barbour attached to his Motion to Reopen four
affidavits of people interrogated by Carmichael and/or Davis
in connection with the murder of Thelma Roberts. All the
affidavits, including those of the deceased's husband and
children, reported abuse and coercion during the
interrogations. (R. 563, 569-70, 566, 623.) These witnesses
had never before testified to their treatment by the police
investigating Roberts's murder, at trial or via affidavit.
The Court of Criminal Appeals' affirmation of the trial
court's conclusion that Mr. Barbour presented "virtually the
same evidence in support of his Brady claim [as he had
presented] on two previous occasions" is therefore unsupported
by the record. Barbour. Slip Op. at 23.
Moreover, although it is true that Mr. Barbour's Bradv
claim was raised at trial, on direct appeal, and in his Rule
32 petition, the State made no disclosures of the evidence
sought, and the courts never required any disclosure. Because
of this, no court has had the opportunity to examine the
62
evidence Mr. Barbour seeks and decide whether to grant
discovery and whether to decide this claim on the merits. Mr.
Barbour's new evidence is sufficient for this Court to
conclude that Carmichael and Davis likely used the tactics
that Mr. Barbour describes in their other interrogations, that
evidence of such tactics exists in law enforcement files, and
that such evidence, if disclosed, would require reassessment
of Mr. Barbour's claim that his confession was coerced and
that he was entitled to discovery at trial which tended to
corroborate his allegations of police abuse. The question
before this Court is whether a claim may be considered
procedurally barred as res judicata, pursuant to Rules
32.2(a)(2), 32.2(a)(4), and 32.2(b) when the evidence
supporting the merits of the claim has never been reviewed by
any court, particularly when a petitioner proffers new
evidence in support of the claim he raised at trial, on direct
appeal, and in his Rule 32 proceeding.
Merits of the Question:
Since before he was arrested, Mr. Barbour has maintained
that the chief investigators of the Roberts murder, Detective
Danny Carmichael and Lieutenant William Davis, of the
Montgomery Police Department and the Montgomery Fire
63
Department, respectively, physically abused him and
psychologically intimidated him until he falsely incriminated
himself and two others in this crime. In support of his
claim, Mr. Barbour's grandfather, John Brown, testified at the
pre-trial suppression hearing that Mr. Barbour reported to him
before he was arrested that Det. Carmichael had "beat up on
him" during interrogation. (Suppression Hr'g Tr. at 9 9.) Mr.
Brown also testified that he knew of other people who had been
abused by Det. Carmichael during the course of investigations
into other matters. (See Id. at 98-99.) Despite this
testimony, and Mr. Barbour's own corroborating statements, the
court declined to suppress his in-custody statements. The
trial court's decision is particularly remarkable considering
its own finding that Mr. Brown and Mr. Barbour's accounts of
law-enforcement coercion were credible. See Barbour v. State.
673 So.2d 461, 465 (Ala. Crim. App. 1994) ("'The Court accepts
counsel's representations [of police abuse] as truth.'")
(quoting Montgomery County Circuit Court (emphasis added)).
Again, in contradiction of its own factual findings, the trial
court also denied Mr. Barbour's request for discovery of
Montgomery Police Department Records that likely would have
borne out some of Mr. Barbour's allegations of abuse. (id. at
64
102-3.) The court thus precluded any opportunity for Mr.
Barbour to discover evidence which might have strengthened his
claim that his in-custody statements were fabrications
produced by coercive and abusive police tactics.
Throughout his trial and Rule 32 proceedings, Mr. Barbour
has requested Brady discovery of the personnel files and other
records that likely would show that Det. Carmichael and/or Lt.
Davis had a history of abusing suspects.16 The court
repeatedly denied these requests. As discussed, supra. at the
time he presented his Motion to Reopen, Mr. Barbour, by and
16 Mr. Barbour is entitled to the records under Bradv
because they would impeach credibility of his interrogators
and corroborate his claim that he was physically and
psychologically coerced into confessing to this crime. See
Banks v, Dretke, 124 S . Ct. 1256, 1272 (2004) ('"The evidence at
issue must be favorable to the accused, either because it is
exculpatory or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.'")(quoting
Strickler v, Greene. 527 U.S. 263, 281-282 (1999)). In this
case, there can be no question that evidence corroborating Mr.
Barbour's claims of police coercion would be material. His
inculpatory statement is the only evidence linking him to this
crime. If it is discredited, the entire case against him
unravels. See Banks, at 1276 ("[T]he materiality standard for
Brady claims is met when 'the favorable evidence could
reasonably be taken to put to whole case in such a different
light as to undermine confidence in the outcome of the
verdict.'")(quoting Kvles v. Whitley. 514 U.S. 419 (1995));
Ala.R .Crim.P. 16(f) ("Nothing in this Rule 16.1 shall be
construed to limit the discovery of exculpatory material or
other material to which a defendant is entitled under
constitutional provisions or other provisions of law.").
65
through counsel, obtained affidavits from Thelma Roberts's
children and husband, among others, that corroborate his story
that he was mistreated and intimidated by law enforcement. In
light of this newly discovered evidence, Mr. Barbour urged the
circuit court to grant his Brady request.17 The court again
refused. Thus, not only has Mr. Barbour never obtained access
to the records he seeks, but no court has ever ordered the
State to disclose whether such records exist, much less ever
conducted an in camera review of the contents of the records
to determine whether Mr. Barbour's claim has any merit.18
17 The trial court clearly possessed broad discretion to
grant the discovery Mr. Barbour sought, and could have done so
without compromising the prosecution's interest in protecting
privileged material by simply conducting an in camera review
of the records and ordering disclosure of appropriate
portions. See Ex Parte Monk. 557 So.2d 832, 836-837 (Ala.
1989)(approving the trial court's ordering discovery and
conducting in camera review of the materials before ordering
disclosure of particular documents).
18 In addition to the threats of physical harm, Mr.
Barbour has asserted that the misrepresentation of the
subject, results and admissibility of the polygraph test
administered to him immediately before his incriminating
statements rendered his statements involuntary and coerced.
Courts have looked unfavorably on the use of polygraph
exams to induce confessions. The use of the polygraph during
police interrogation has great "potential for abuse." People
v. Johnson. 112 Misc. 2d 590, 596 (N.Y. Sup. Ct. 1981). Courts
across the country have found that polygraph misuse is a
factor to be considered in determining whether impermissible
coercion produced the confession. See , e . q . Henry v . Dees. 658
F.2d 406, 409 (5th Cir. 1981); West Virginia v, Farley. 452
66
S.E.2d 50, 60 (W. Va. 1994); People v. Tarsia. 415 N.Y.S.2d
120, 122 (N.Y. App. Div. 1979); Bruner v. People. 156 P.2d
111, 121 (Colo. 1945)
In addition, misrepresentation of polygraph results by an
examiner or a police officer is a coercive tactic frowned upon
by the courts. See, e.g. Bae v. Peters. 950 F.2d 469, 475 (7th
Cir. 1991).
Concern over the coercive nature of polygraph
examinations has developed a field of research and literature
devoted to understanding when such interrogation methods
produce involuntary confessions. See Liss Furedy, Countering
Confessions Induced by the Polygraph: Of Confessionals and
Psychological Rubber Hoses. 29 Crim. L.Q. 91 (1986); See also
David Thoreson Lykken, A Tremor in the Blood: Uses and Abuses
of the Lie Detector 205-15 (1981) (Drawn from this work are
numerous examples in which "failed" polygraph results
compelled false confessions.); see also Richard J. Ofshe &
Richard A. Leo, Symposium On Coercion: An Interdisciplinary
Examination__of Coercion, Exploitation, and the Law: II,
.Coerced Confessions: The Decision to Confess Falsely: Rational
Choice and Irrational Action. 74 Denv. U. L. Rev. 979 (1997)
(detailing the cases of Sonja Stapleton and Peter Reilly who
both gave false confessions after 'flunking' polygraph
examinations but were later proved innocent).
Foremost experts in the field of psychology agree:
The effect of negative lie detector results, in
conjunction with other false evidence ploys, can be so
devastating that it can actually shatter a person's
belief in his innocence as well as convince him that he
will be convicted.
See Ofshe, 74 Denv. U.L. Rev. at 1041; see also Nenno v .
State, 970 S.W.2d 549, 558 (Tex. Crim. App. 1998) (noting
examiner's plea for the defendant to tell the truth as well as
the sense of inevitability is a circumstance to consider in
suppressing statements to police). In this case, the trickery
used by the detectives prior to, during and after Christopher
Barbour's polygraph examination was reasonably likely to
procure an untrue statement.
The administrator of the test, Lt. Mckee's,
67
Mr. Barbour supplemented his motion with the sworn
affidavits of four other persons who were subjected to abuse
misrepresentation of the legal principle on in-court polygraph
use enhanced the abusive atmosphere coercing the involuntary
confession. See People v. Zimmer. 329 N.Y.S.2d 17, aff'd . 339
N.Y.S.2d 671 (N.Y. App. Div. 1972) (suppressing written and
oral confessions that the defendant made after three hours of
police interrogation and a polygraph examination).
The investigator in Zimmer insisted the defendant was
lying. Subsequently, Zimmer made an oral statement that was
later reduced to writing. The court concluded:
[Defendant] was as surely coerced into the confession by
the use of the polygraph test as if she had been forced
by some other means to give the police officers the
statement they were seeking . . . For all she knew, the
examination could be used against her to show she had
been lying. She was not told that such results could not
be used against her on trial under any circumstances.
Id. at 24.
Mr. Barbour was similarly coerced into making oral and
recorded statements after more than twelve hours of
interrogation. Such statements were made only after officers
misled Mr. Barbour into believing the examination results
"showed irregularities" and could be used in court. Such
trickery, in light of the totality of circumstances of the
interrogation, produced undue psychological pressure which
renders any statement made by Mr. Barbour thereafter
inadmissible in evidence.
68
and coercive practices by Carmichael and Davis during the
investigation of this crime. Melvin Roberts, the victim's
husband, recalled three weeks of humiliating and physically
abusive interrogation that nearly broke him. "During these
interrogations, sometimes the officers would yell and shout at
me and tell me I would spend the rest of my life in prison.
On other occasions, they were very quiet. On at least one
occasion, one officer, Detective Carmichael, kicked me because
he thought I was refusing to tell him that I was involved in
this crime. These meetings left me exhausted, confused and
very upset. I simply could not understand how the police
would believe that I killed my wife." (Melvin Roberts Aff. at
1 5; R. at 563.)
Mr. Roberts's son William, who discovered his mother's
body and called the police, recalled similar treatment.
6. Within a few days after the murder, the police began
to tell me that I was responsible for her death and that
I had better come clean with them. They also told me
that they suspected my father played a significant role
in her death. I repeatedly claimed my innocence as well
as my father's. At times, officers were become angry with
me because I was not giving them the answers they wanted.
7. During these interrogations, I was subjected to
physical abuse and threats. On one occasion, Detective
Carmichael slapped me hard while I was sitting on a small
stool in a small, windowless room at the police station.
He was mad that I was not confessing to the crime. He
also threatened that I would spend a long time in the
69
county jail. Fire Inspector Davis also took me to the
fire station, put me in a small room, and told me I
should admit the crime. I became mad and told him he was
accusing me of this crime because I was black. At that,
Davis picked me up and slammed me against the wall.
8. Both officers told me that if they did not charge
others with the crime within the next few days, I and my
father would be formally charged with my mother's murder.
They said they had plenty of evidence against us both.
Both pressed me hard to admit my guilt as well as my
father's .
9. During these sessions, my will was nearly overcome.
But what kept me from giving up was the anger I felt that
these officers were working hard to get me, an innocent
person, to confess to this horrible crime. I was
subjected to unwarranted abuse and brutality by the
police as was my father.
(William Roberts Aff.; R. at 569-70.) Lola Roberts, the
victim's daughter, recalled that she was threatened with jail
by officers if she did not tell them who killed her mother,
and she was wrongly accused of embarrassing and humiliating
conduct i.e ., having sex with several young males in her
neighborhood and of being in a gang. (See Lola Roberts Aff.
at 7; R. at 566.) Cedric Evans affirmed that he was
questioned on several occasions about the crime, and that
during one interrogation, Det. Carmichael "put his gun on the
table and many pictures of the crime scene, and ask me if I
was going to let these white boys get away with the murder of
a black woman. When I told him I did not know who killed Mrs.
70
Roberts and could not help him, he said he would tell me what
to say. I said I cannot do that. Carmichael got mad, picked up
the gun and pictures, and left." (See Cedric Evans Aff. at f
1; R. at 623.)
These accounts describe chilling police tactics employed
during the questioning of witnesses and suspects. The
witnesses were verbally and physically abused, yelled at,
humiliated, terrorized, and told that police would tell them
what to testify about if they agreed to testify. They
corroborate Mr. Barbour's account, made prior to trial, that
he involuntarily made incriminating statements only because he
was terrified of Lt. Davis and Det. Carmichael. They even
corroborate Carmichael's own description of Mr. Barbour after
their first meeting: ”a whimpie little thing, and scares real
easy." (R. at 276.) They make clear the types of material
that Mr. Barbour sought from police and fire-department files
concerning the interrogation tactics of Davis and Carmichael.
The Court of Criminal Appeals held that this claim was
procedurally barred because it was litigated before the trial
court and was raised and addressed on direct appeal. Barbour.
Slip Op. at 23. Although it is true that the claim was raised
in those venues, the state made no disclosures, and the courts
71
never required any disclosure. Mr. Barbour's new evidence is
sufficient for this Court to conclude that Carmichael and
Davis likely used the tactics that Mr. Barbour describes in
their other interrogations and investigations, that evidence
of such tactics exists in police and fire-department files,
and that such evidence, if disclosed, would require
reassessment of this claim. Mr. Barbour cannot be faulted for
not securing this evidence from government files. The State
has successfully resisted his repeated efforts to acquire such
evidence. There is now good reason to believe that the State
has suppressed evidence of the abusive interrogation practices
of police who participated in the investigation of this case.
This defense does not allow the State to prohibit post
conviction access to material that should have been disclosed
in earlier proceedings. See e . g . Banks v. Dretke. 124 S .Ct.
1256 (2004); Strickler v. Greene. 119 S .Ct. 27 (1998).
The Court of Criminal Appeals also held that the
successor-petition ban precludes review of Mr. Barbour's
incomplete Rule 32 proceeding. Barbour. Slip Op. at 23. Mr.
Barbour reiterates that this is not a successive proceeding
and therefore this bar does not apply. Even if it is judged
to be such a proceeding, Mr. Barbour can show adequate cause.
72
He previously asked the State to disclose such information; it
refused to do so. He can demonstrate the significant
likelihood that the State possesses such information, in light
of the affidavits he proffered showing that others in this
investigation were abused and nearly gave false incriminating
statements to stop the abuse. Because the disclosure of such
information would seriously undermine the credibility of Mr.
Bsrbour's custodial statements, and because these statements
are the only evidence the State presented to the jury to prove
Mr. Barbour's guilt and justify his capital sentence, a
miscarriage of justice could occur if disclosure is denied.
Finally, the Court of Criminal Appeals concluded that Mr.
Barbour failed to satisfy the newly-discovered-facts
requirement of Rule 32.1(e). As an initial matter, Mr.
Barbour again disputes that his Motion to Reopen is a
successive petition. However, even if this Court considers it
a successive petition, the affidavits proffered with the
Motion to Reopen fit squarely within the "newly discovered
facts" exception prescribed by Rule 32.1(e). First, the facts
provided in the affidavits were unknown to Mr. Barbour or his
counsel at the time of trial, direct appeal, and his original
Rule 32 petition. Mr. Barbour cannot legitimately be faulted
73
for failing to obtain non-public government files that confirm
that Davis and Carmichael used abusive interrogation tactics
in this and other cases. Even without a defense request, the
prosecution bore the responsibility to disclose such material,
given the critical role of the confession in Mr. Barbour's
case. See 32.1(e) (1) . Second, the affidavits proffer
evidence that Det. Carmichael and Lt. Davis abused other
suspects in this case. No such evidence has been presented
yet, and therefore the affidavits cannot be considered
cumulative to other facts that were known. 32.1(e)(2). As
discussed extensively, infra. the evidence of law enforcement
abuse of suspects during the investigation of this case stands
to dismantle the only evidence against Mr. Barbour, his own
incriminating statements. Thus, it certainly amounts to much
more than mere impeachment and had these facts been known at
the time of trial of sentencing, the result probably would
have been different, pursuant to Rule 32.1(e)(3) and Rule
32.1(e)(4). Finally, if Mr. Barbour's incriminating statements
are discredited as the product of police abuse, literally no
other evidence against him remains: no physical evidence, no
eyewitnesses, and no proceeds of the crime. Thus, his
conviction cannot stand, and he meets the innocence
74
requirement of Rule 32.1(2) (5) . The new facts that Mr. Barbour
proffered below confirm that it is highly likely such material
exists, and the State should be ordered to disclose this
information.
Although each of Mr. Barbour's Brady requests until now
has been denied, the statements of witnesses corroborating his
accounts of police abuse now require this Court to order the
State to turn over discovery materials which should have been
provided to Mr. Barbour before his trial.
Moreover, any law-enforcement records tending to show
that Det. Carmichael and/or Lt. Davis abused suspects during
interrogations is exculpatory of Mr. Barbour, considering the
centrality of his confession to his conviction. Such
materials also would certainly have changed the outcome of Mr.
Barbour's trial had they resulted in the suppression of his
custodial incriminating statements. The Court should be
mindful of the fact that the prosecution presented no other
evidence against Mr. Barbour. Thus, the legality and
credibility of his confession must be thoroughly tested before
he is executed for this crime.19
19 Any argument that the videotaping of Mr. Barbour's
incriminating statements proves that they were voluntary and
uncoerced ignores the reality that many videotaped statements
75
are only the final products of various forms of coercion and
hours of interrogation preceding the taping of the
confessions. Recorded confessions, consisting merely of
recapitulations at the conclusion of interrogation, are
unreliable as evidence and unfairly prejudicial
In a 1992 study of 2,400 police and sheriff's agencies,
48% recorded the entire interrogation and not simply the
recapitulation. See William Geller, Videotaping Interrogations
—Confessions, 4-5 (National Institute of Justice: Research
in Brief) (U.S. Dep't of Justice, 1993) (reporting agency and
attorney concerns that "recaps" are full of leading questions
and "suspects who have been Pavlov-dogged into a reaction
during rehearsals"). The increased practice of audio and video
recording has produced new developments in legislative and
judicial regulation of police interrogations.
Several jurisdictions now require recordings of
interrogations in their entirety. See Stephan v. State. 711
P.2d 1156, 1164 (Alaska 1985) ("The defendant may have been
deprived of potentially favorable evidence simply because a
police officer, in his own discretion, chose to turn the
recorder on twenty minutes into the interview rather than at
the beginning. Exclusion is warranted under these
circumstances because the arbitrary failure to preserve the
entire conversation directly affects a defendant's ability to
present his defense at trial or at a suppression hearing) ; see
also State v. Scales. 518 N . W . 2d 587, 592 (Minn. 1994) ( " [W] e
hold that all custodial interrogation including any
information about rights, any waiver of those rights, and all
questioning shall be electronically recorded where feasible
and must be recorded when questioning occurs at a place of
detention"). The State of Texas has a statutory requirement
that custodial statements used against a defendant in a
criminal proceeding be recorded. See Ragan v. State. 642
S.W.2d 489, 490 (Tex. Crim. App. 1982).
A growing number of state courts warn of the dangers of
partial documentation and recommend recording complete
interrogations. See State v. Kekona. 886 P.2d 740, 746 (Haw.
1994) ("A recording would also help to demonstrate the
voluntariness of the confession, the context in which a
particular statement was made and of course, the actual
content of the statement . . . . Consequently, . . . [we]
stress the importance of utilizing tape recordings during
76
custodial interrogations when feasible) (emphasis added); see
also State v. Kilmer. 439 S.E.2d 881, 893 (W. Va. 1993) ("[I]t
would be the wiser course for law enforcement officers to
record, either by videotape or by electronic recording device,
the interrogation of a suspect where feasible and where such
equipment is available, since such recording would be
beneficial not only to law enforcement, but to the suspect and
the court when determining the admissibility of a
confession"); see also Commonwealth v. Fryer. 610 N.E.2d 903,
910 (Mass. 1992) ("Defendants, prosecutors, and courts spend
an enormous amount of time and effort trying to determine
precisely what transpires during custodial interrogations, and
all would be benefitted in some way by a complete electronic
recording") (emphasis added); see also State v. Buzzel1.
617A.2d 1016, 1018 (Me. 1992) (finding there are "obvious
benefits to be realized when statements are recorded"); see
also Williams v. State. 522 So.2d 201, 208 (Miss. 1988) ("If
a recording does exist it will often help to demonstrate the
voluntariness of the confession, the context in which a
particular_statement was made, and of course, the actual
content of the statement" ) (emphasis added); see also State v.
James, 858P.2d 1012, 1018 (Utah Ct. App. 1993) (noting several
policy reasons for recording interrogations including
"avoiding unwarranted claims of coercion and avoiding actual
coercive tactics by police. In addition, recording an
interrogation may show the voluntariness of the confession,
the context in which a particular statement was made, and the
actual content of the statement").
In Mr. Barbour's case, no part of his April 1992
encounters with police and subsequent interrogations were
recorded. The polygraph exam and post-polygraph questioning
were not recorded either. In fact, more than five hours
elapsed between the conclusion of the polygraph and the audio-
taping of Mr. Barbour's first statement. Yet another hour and
a half elapsed before the video-taping of his second
statement. These are significant gaps in time for which no
record of Mr. Barbour's questioning exists; the unrecorded
questioning may contain all manner of coercion, coaching, and
fabrication by law enforcement. Thus, the incomplete
recording of Mr. Barbour's interrogation renders the final
product, his incriminating statements, wholly unreliable.
77
Mr. Barbour challenges his conviction and sentence as
violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and urges this
Court to reverse the judgment of the Court of Criminal Appeals
on this claim.
5 - Fifth Reason to Grant the Writ: Pursuant to Rule
39(a) (1) (D) , Ala.R.App.P., the fifth reason this Court should
issue a writ of certiorari in this case is that the decision
of the Court of Criminal Appeals is in conflict with prior
decisions of the Court of Criminal Appeals on the same point
of law. In its opinion, the Court of Criminal Appeals held:
[T]he circuit court correctly found that
Barbour's [Brady] claim . . . did not
provide a "clear and specific statement of
the grounds upon which relief is sought,
including full disclosure of the factual
basis of those grounds," as required by
Rule 32.6(b), Ala . R . Crim. P . As the court
found, Barbour's claim consisted of "some
conclusory allegations against Investigator
Davis and Detective Carmichael," and failed
to "contend with any factual specificity
how they allegedly physically abused him or
how they physically abused other unnamed
criminal defendants." Thus the circuit
court correctly ruled that the claim had
not been sufficiently pleaded, as required
by Rule 32.3 and 32.6(b), Ala.R .Crim.P . .
. Accordingly, summary disposition of
this claim was proper.
Barbour, Slip Op. at 23-24.
78
In Ford v. State, 831 So.2d 641, 644(Ala.Crim.App. 2001),
the Court of Criminal Appeals held that "[A]t the pleading
stage of Rule 32 proceedings, a Rule 32 petitioner does not
have the burden of proving his claims by a preponderance of
the evidence. Rather, at the pleading stage, a petitioner must
provide only 'a clear and specific statement of the grounds
upon which relief is sought. 1 Rule 32.6 (b) , Ala . R . Crim. P . Once
a_ petitioner has met his burden of pleading so as to avoid
summary disposition pursuant to Rule 32.7(d), Ala.R .Crim.P .,
he is then entitled to an opportunity to present evidence in
order to satisfy his burden of proof." See also. Borden v.
State, 2002 WL 442147, *2 (Ala.Crim.App. March 22, 2002). As
discussed infra, Mr. Barbour has at every stage of his trial,
appellate and post-conviction proceedings pled with as much
specificity as was available to him the grounds for his Brady
claim. Moreover, Mr. Barbour's accounts and the accounts of
his grandfather and members of the Roberts family exceed the
pleading requirements of Rule 32.6(b). The Court of Criminal
Appeals' holding to the contrary is in direct contravention of
its own holdings. This Court ought grant certiorari on this
ground.
Merits of the Question:
79
The Court of Criminal Appeals' affirmation of the trial
court's finding is erroneous. At every stage Mr. Barbour has
pled all the facts available to him in support of his Brady
claim that he is entitled to files documenting complaints
against the officers who interrogated him. As discussed more
fully in the statement of facts, in the pre-trial suppression
hearing, Mr. Barbour described in detail Carmichael's slapping
his face repeatedly with the front and back of his hand when
Barbour was unable to answer his questions. (Trial Tr.67.)
He further reported that Lt. Davis had "threatened to beat
[him] within an inch of [his] life" if he did not cooperate.
(Trial Tr.68.) Such threats caused Mr. Barbour to be "very"
afraid of Davis. (Id.) Mr. Barbour also testified to the
deception leading up to the polygraph and its coercive effect
on him. (Trial Tr. 69-71.) He reported that no one had
apprised him of the change in the subject of the polygraph
until he had arrived at the fire department. (Trial Tr.70.)
He feared throughout that Davis would physically harm him if
he did not cooperate or if he asked for a lawyer. (Trial
Tr.70, 77.) In his Amended Rule 32 petition, Mr. Barbour
again extensively pled that he had been abused, tricked, and
coerced by his interrogators. See Amended Rule 32 Petition at
80
13-22. In paragraphs 51-56 of his Motion to Reopen, Mr.
Barbour pled all the facts available to him in support of this
claim, which amounted to full disclosure of the factual basis
of his claims as required by Rule 32.6(b); in paragraphs 79-83
of his motion, he pled the legal basis for his claim. Mr.
Barbour added the additional facts corroborating his Brady
claim and his claims of police abuse, those provided in the
affidavits from the deceased's family members and her former
neighbor, as soon as they became available to him when he
moved to reopen his Rule 32 proceedings. (R. 563, 569-70,
566, 623.) These provided additional, specific accounts of
abusive, coercive tactics used by the officers who
investigated this homicide which go well beyond Ford's
requirement that a Rule 32 petitioner need only provide "a
clear and specific statement of the grounds upon which relief
is sought." The Court of Criminal Appeals' holding that Mr.
Barbour's proffered specific factual information in support of
his Brady claim therefore cannot withstand its own precedent
in Ford v .— State,831 So. 2d at 644 and the requirements of Rule
32.6(b). Mr. Barbour challenges his conviction and sentence
as violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and urges this
81
Court to reverse the Court of Criminal Appeals' judgment on
this claim.
6- Sixth_Reason to Grant the Writ: Pursuant to Rule
39(a)(1)(C), Ala.R .App.P ., the sixth ground to Grant Mr.
Barbour's writ of certiorari is that a material question
requiring decision by the Court of Criminal Appeals is one of
first impression this Court. The issue is whether the Court
of Criminal Appeals erred in holding that: "Here, just as in
Boyd [v.— State, (Ms. CR-02-0037, September 26, 2003) (holding
that Apprendi v. New Jersey 530 U.S. 466 (2000) and Ring v.
Arizona, 536 U.S. 584 (2002) 'are not applied retroactively to
postconviction proceedings')], Barbour's contention that the
rule in Apprendi_v. New Jersey -- and by extension, the rule
in Ring— 3^__Arizona -- apply retroactively to his death
sentence is without merit. No basis for relief exists as to
this claim." Barbour v. State. Slip Op. at 26-27.
The question of first impression before this Court is
whether when a Rule 32 petitioner, such as Mr. Barbour, whose
Rule 32 proceedings were left incomplete through no fault of
his own, seeks to complete his Rule 32 proceedings by adding,
inter alia, an Apprendi/Ring claim, such a claim should be
82
considered as applying non-retroactively to his case.20
The Court of Criminal Appeals bases its holding on this
issue on the assumption that Mr. Barbour's Rule 32 proceeding
was completed and that his Motion to Reopen is not valid. Mr.
Barbour has presented persuasive arguments that his Rule 32
proceedings were never completed through no fault of his, and
that his Motion to Reopen is a valid means by which to
complete them by presenting his claims, including this one, as
part of his Rule 32 petition. For this reason, this Court
ought grant certiorari on this question.
Merits of the Question:
The Supreme Court held in Apprendi v. New Jersey. 53 0
U.S. 466 (2000), that "'any fact (other than a prior
conviction) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt[,]7" id. at 476 (quoting
Jones v. United States. 526 U.S. 227, 243 n.6 (1999)), and in
Ring v ._Arizona. 536 U.S. 584 (2002) that Arizona's capital
sentencing structure "which allow [ed] a sentencing judge,
20 This term, the United States Supreme Court decided in
Schriro v. Summerlin. 124 S .Ct. 2519 (2004) that Ring does not
apply retroactively to cases already decided on direct review.
However, this Court has never decided or addressed Ring's
retroactivity in a case similarly situated to Mr. Barbour's.
83
sitting without a jury, to find an aggravating circumstance
necessary for imposition of the death penalty[,]" violated the
Sixth Amendment. 536 U.S. at 589, 609.
Application of Apprendi/Ring to Mr. Barbour's sentence is
straightforward. Under the Alabama Death Act, 12 Ala. Code §§
13A-5-39 to -59 (Michie 1994), a defendant convicted of
capital murder is entitled to a sentencing hearing before the
trial jury. See 12 Ala. Code § 13A-5-46 (Michie 1994) . The
State presents evidence of statutory aggravating factors and
the defense may present mitigating factors. See 12 Ala. Code
§ 13A-5-45(g) (Michie 1994). The jury then renders an advisory
opinion, recommending death if at least 10 jurors find that
the aggravating factors, if any, outweigh the mitigating
factors. See 12 Ala. Code §§ 13A-5-46(e), (f) (Michie 1994).
There is no statutory or constitutional requirement that the
jury make any specific findings of aggravating or mitigating
circumstances. See Hanev v. State. 603 So.2d 368 (Ala. Crim.
App. 1991), aff'd , 603 So.2d 412 (Ala. 1992), cert, denied.
507 U.S. 925 (1993). Rather, the judge must enter specific
written findings concerning the existence or lack thereof of
each aggravating circumstance enumerated in § 13A-5-49, each
mitigating circumstance enumerated in § 13A-5-51, and any
84
additional mitigating circumstances offered pursuant to § 13A-
5-52, as well as findings of fact regarding the crime and the
defendant's participation in it. See 12 Ala. Code § 13A-5-
47(d) (Michie 1994). See also Bush v. State. 431 So.2d 555,
(Ala. Crim. App. 1982), aff'd . 431 So.2d 563 (Ala.), cert.
denied, 464 U.S. 865 (1983) (holding that because the jury-
need not make any specific findings and because its
recommendation is only advisory, entry of specific findings
regarding aggravating circumstances is for the judge alone).
After reviewing the jury's recommendation, along with the rest
of the evidence, the judge issues a written sentencing order
and imposes sentence. See 12 Ala. Code §§ 13A-5-47(d), (e)
(Michie 1994) .
A judge cannot impose a death sentence without
independently finding the existence of one of the statutory
aggravating factors. See 12 Ala. Code § 13A-5-47(e) (Michie
1994). A death sentence cannot be imposed on the basis of the
jury verdict alone; the trial jury is never instructed to find
the existence of an aggravating circumstance beyond a
reasonable doubt. Thus, the defendant is rendered eligible for
a greater punishment (i.e., death) if, and only if, the judge
makes certain factual findings. As a result, Alabama's
85
capital-sentencing scheme falls squarely within the
Apprendi/Ring rule. Mr. Barbour was death-sentenced pursuant
to this unconstitutional scheme, and he is entitled to relief.
As discussed, supra, the Court of Criminal Appeals' holding
that Apprendi/Ring do not apply retroactively and therefore
Mr. Barbour cannot now raise his Apprendi/Ring claim should be
reversed by this Court. Mr. Barbour has persuasively
described the reasons that his Rule 32 proceedings were never
completed, through no fault of his. Had he been afforded an
opportunity to amend his petition, he could have included a
claim challenging Alabama's capital sentencing scheme. The
unauthorized and unannounced abandonment of his court-
appointed counsel left him without this chance. Thus, this
Court should consider Mr. Barbour's Apprendi/Ring claim as
having been presented in his timely filed Rule 32 petition.
Mr. Barbour challenges his conviction and sentence as
violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and respectfully
requests that this Court reverse the holding of the Court of
Criminal Appeals on this issue at Barbour. Slip Op. at 27.
7- Seventh Reason to Grant the Writ: Pursuant to Rule
39(a) (1) (C) , Ala . R . App . P . , the seventh reason to Grant the
86
wirit is that it presents a question of first impression for
the Supreme Court of Alabama. The issue is whether the Court
of Criminal Appeals erred in holding that:
Barbour next argues that the manner of
execution used by the State of Alabama
violates the Eighth Amendment' s prohibition
against cruel and unusual punishment.
We first note that this claim was
raised in Barbour's initial Rule 32
petition. . . Because this claim was
presented in Barbour's previous Rule 32
petition, it is barred as a successive
claim. See Rule 32.2(b), Ala.R .Crim.P. We
further note that the Court has rejected
this argument on numerous occasions. . . We
further note that the passage of Act No.
2002-492, Ala. Acts 2002, which provides
for lethal injection as an alternate means
of execution. Act No. 2002-492 became
effective July 1, 2002. Based on the
passage of this Act, Barbour's argument is
effectively moot.
Barbour v. State. Slip Op. at 27-28.
The question of first impression before this Court is
whether when a Rule 32 petitioner, such as Mr. Barbour, whose
Rule 32 proceedings were left incomplete through no fault of
his own, seeks to complete his Rule 32 proceedings by amending
a claim, such as his method of execution claim, such an
amendment should be allowed as part of the completion of the
incomplete proceedings.
The Court of Criminal Appeals bases its holding on this
87
issue on the assumption that Mr. Barbour's Rule 32 proceeding
was completed and that his Motion to Reopen is not valid. Mr.
Barbour has presented persuasive arguments that his Rule 32
proceedings were never completed through no fault of his, and
that his Motion to Reopen is a valid means by which to
complete them by presenting his claims, including this one, as
part of his Rule 32 petition. For this reason, this Court
should grant certiorari on this question.
Merits of the Question:
As discussed extensively supra. Mr. Barbour sought to
complete his Rule 32 proceedings by amending his timely filed
petition and by appealing the circuit court's denial of his
claims. But for the unauthorized and unannounced abandonment
of his court-appointed counsel, Mr. Barbour would have been
entitled to present all his claims, including his Eighth
Amendment claim, before his statute of limitations expired.
As described supra, the Court of Criminal Appeals' treatment
of Mr. Barbour's Motion to Reopen and all the claims therein
as successive is erroneous.
Alabama's two methods of execution violate the Eighth
Amendment. Mr. Barbour has challenged electrocution and
contends that the undeveloped procedures implementing lethal
88
injection in Alabama also violate the Eighth Amendment. Mr.
Barbour challenges his conviction and sentence as violative of
the Fifth, Sixth, Eighth and Fourteenth Amendments of the
United States Constitution, and respectfully requests that
this Court to reverse the Court of Criminal Appeals' holding
on this issue at Barbour. Slip Op. at 27.
8. Eighth Reason to Grant the Writ: Pursuant to Rule
39(a)(1)(C), Ala.R.App.P ., the eighth ground for this Court to
grant the petition for the writ of certiorari is that a
material question requiring decision by the Court of Criminal
Appeals is one of first impression for this Court. The issue
is whether the Court of Criminal Appeals erred in holding
that:
Barbour also argues that " [g]iven the
increasing complexity in capital post
conviction proceedings, the court below
erred in rejecting [his] right to counsel
claim in such proceedings." We note that
Barbour did not raise this claim in his
initial Rule 32 petition or in the
subsequent amendments to that petition.
Because this claim was not raised in
Barbour's previous Rule 32 petition, the
circuit court determined that the claim was
barred as a successive petition, pursuant
to Rule 32.2(b), A l a .R .Crim.P .
Additionally, the court determined that
Barbour's claim was time-barred, based on
Rule 32.2(c), Ala.R.Crim.P........
Barbour failed to allege in his
petition that the grounds for this claim
89
could not have been raised or ascertained
through reasonable diligence when his first
petition and the resulting amendments were
filed [pursuant to Rule 32.2(b),
Ala.R .Crim.P.]. . . .
Further, Barbour cannot show that the
failure to entertain this claim would
result in a miscarriage of justice. . . .
Because Barbour failed to show that
the court's refusal to entertain this claim
resulted in a miscarriage of justice, the
circuit court properly determined that this
claim was procedurally barred pursuant to
Rule 32.2(b), Ala.R .Crim.P .
Barbour v. State. Slip Op. 28-32.
The question of first impression before this Court is
whether when a Rule 32 petitioner, such as Mr. Barbour, whose
Rule 32 proceedings were left incomplete through no fault of
his own, seeks to complete his Rule 32 proceedings by adding,
inter alia, a right to counsel in post-conviction proceedings
claim, such a claim should be considered as part of the
completion of the incomplete proceedings.
Mr. Barbour reiterates that the successive petition bar
does not apply to his case. The Court of Criminal Appeals
erred in failing to treat his Motion to Reopen and all claims
raised therein as a completion of his Rule 32 proceedings, and
not as a successive petition.
Even if this Court affirms the Court of Criminal
Appeals's treatment of Mr. Barbour's motion as a successive
90
petition, Mr. Barbour details, infra. the physical and
intellectual limitations which preclude his ability to
represent himself. He also details the increasing complexity
of post-conviction practice. As a condemned inmate with
credible claims of innocence who narrowly escaped execution
after his court-appointed counsel left his case uncompleted,
his entire argument with regard to this issue illustrates the
miscarriage of justice that results from Alabama's failure to
recognize a right to post-conviction counsel in capital cases.
The Court of Criminal Appeals bases its holding on this
issue on the assumption that Mr. Barbour's Rule 32 proceeding
was completed and that his Motion to Reopen is not valid. Mr.
Barbour has presented persuasive arguments that his Rule 32
proceedings were never completed through no fault of his, and
that his Motion to Reopen is a valid means by which to
complete them by presenting his claims, including this one, as
part of his Rule 32 petition. For this reason, this Court
should grant certiorari on this question.
Merits of the Question:
Mr. Barbour alleged below that Alabama's failure to
provide adequate legal services to convicted inmates pursuing
Rule 32 relief violates state and federal due process
91
guarantees. Alabama provides no right to counsel to indigent
condemned inmates after their direct appeals. This policy has
produced a crisis in Alabama's post-conviction system, as
exemplified by this case.
Through the efforts of Alabama's Equal Justice Initiative
(EJI) , pro bono counsel from Michigan was secured to assist
Mr. Barbour with a pro se Rule 32 petition. The trial court
reviewed Mr. Barbour's petition, determined that it contained
claims warranting review, and subsequently used its discretion
to appoint counsel to assist him with his Rule 32
proceedings.21 In appointing counsel, the trial court made two
important findings: (1) Mr. Barbour was entitled to the
assistance of post-conviction counsel; and (2) Mr. Barbour was
unable to proceed without the assistance of counsel. In fact,
after Mr. Barbour's first appointed counsel was forced to
withdraw because of a conflict of interest, the court
appointed a second Rule 32 attorney to assist him. That
attorney superficially amended Mr. Barbour's pro se petition
21 Rule 32 provides no right to counsel for indigent
prisoners seeking aid in pre-filing matters. But once a
petition for relief is filed, the court possesses the
discretion to appoint counsel if the court determines that
claims in the petition are not frivolous. See Pryor v. State.
599 So.2d 83, 85 (Ala. Crim. App. 1992).
92
and represented him at a Rule 32 hearing. The hearing
centered around an ineffective assistance of counsel claim and
consisted of a cursory cross-examination of Mr. Barbour's
trial counsel. No other evidence was presented.
Shortly after the conclusion of the hearing, Mr.
Barbour's court-appointed counsel simply ceased representing
him. Counsel never indicated to Mr. Barbour the consequences
of an adverse judgment or his options in the wake of denial of
his petition. Counsel did not even seek the court's
permission to withdraw from the case. Counsel never filed a
notice of appeal on Mr. Barbour's behalf or provided him with
a copy of his record. As a result of his attorney's
abandonment, Mr. Barbour literally was denied the assistance
of counsel at a critical juncture of his post-conviction
review. Counsel's actions left Mr. Barbour without the
resources to amend his Rule 32 petition or appeal the trial
court's denial of his Rule 32 petition.
Moreover, after his post-conviction counsel withdrew from
his case, Mr. Barbour had no access to any pro bono lawyer
willing to represent him throughout his Rule 32 appeal. More
significantly, he did not have means by which he might have
learned that he was entitled to appeal denial of his petition,
93
or the requirements necessary to do so. Consequently, Mr.
Barbour's Rule 32 petition remained uncompleted without his
knowledge, until he learned from EJI that the State had moved
for his execution date.
Even if Mr. Barbour had been notified by his original
Rule 32 counsel of his right to appeal denial of his petition,
he lacked the knowledge, skills, and means to pursue his own
appeal from prison. As detailed in the ensuing argument, Mr.
Barbour, an indigent condemned prisoner, does not have access
to the latest Supreme Court decisions, nor does he have the
training or the education to navigate habeas corpus law
without the assistance of counsel. The law library for the
death row population at Holman Penitentiary where Mr. Barbour
is incarcerated is dismally inadequate and hopelessly
disorganized. Rule 32 proceedings are critical in the
capital-review process. Often, they are prisoners' first
opportunity to raise claims such as the adequacy of trial
counsel's performance, the suppression of exculpatory
material, or evidence of innocence. To expect an eighth-grade
dropout such as Mr. Barbour to rely solely upon his own
ability and these poor resources to investigate and plead his
own post-conviction petition is patently unreasonable. Mr.
94
Barbour urges this Court to recognize the role Alabama's
current crisis in post-conviction counsel has played in
limiting his access to exhaustive Rule 32 review.
The Court of Criminal Appeals held that because Mr.
Barbour had the assistance of counsel during part of his Rule
32 proceedings, he should have been able to raise his claim
challenging the inadequacy of Alabama's system for appointing
counsel to assist in pursuing post-conviction relief in his
amended petition. Barbour. Slip Op. at 30. Moreover, the
Court of Criminal Appeals' holding ignores the Catch-22 that
Mr. Barbour found himself in: counsel's abandonment of Mr.
Barbour prior to completion of his Rule 32 proceedings
highlights the basis for this claim, and yet he had no means
by which to raise the claim without counsel. The Court of
Criminal Appeals' holding on this claim fails to take into
account the myriad obstacles preventing a death row inmate in
Mr. Barbour's position from representing himself in post
conviction proceedings.
1 • Mr._Barbour's Limited Education Disabled Him From
Representing Himself In His Rule 32 Proceedings.
Mr. Barbour is an eighth-grade dropout who earned his GED
in prison. He does not read or write well by any standard.
Most well-educated people untrained in the law, and even most
95
lawyers without post-conviction expertise, would be challenged
to perform the intensive preparation necessary to establish
post-conviction claims or to compose a competent post
conviction application. To suggest that an impoverished,
condemned inmate lacking a basic education to overcome his
intellectual deficits can nevertheless master one of the most
technically complex areas of the law sufficiently and draft
the motions necessary to save his own life simply defies
common sense.22
2 . Impaired Psychological State
Prior to his arrest for capital murder Mr. Barbour had
never been involved in any significant brushes with the law.
Finding himself not only arrested, but tried, convicted, and
sentenced to death for the most serious of crimes has been
psychologically devastating for Mr. Barbour.23 For almost a
22 See Clive A. Stafford Smith & Remy Voisin Starns, Folly
By_Fiat :__Pretending That Death Row Inmates Can Represent
Themselves In State Capital Post-Conviction Proceedings. 45
Loy. L. Rev. 55, 68 (1999) (noting that the Verbal IQ (VIQ)
score of Alabama Death Row inmates is approximately 20% below
the average VIQ score of the general American population).
23 Even before he was arrested Mr. Barbour had suffered
from depression and had attempted suicide at least once. His
mother also struggled with depression and committed suicide
just four months before the crime for which Mr. Barbour was
convicted, facts which strongly suggest that he has a family
history of depression.
96
decade, Mr. Barbour has lived in prison under the specter of
death. By the time the State moved to set an execution date
for him in late 2000, Mr. Barbour was in no psychological
condition to concentrate on drafting complicated legal
documents on his own behalf. See Smith, supra, discussing
studies indicating that death row prisoners suffer "from a
very high degree of mental instability [which] is perhaps not
surprising, given the fact that the inmate has the damoclean
sword of death hanging over him at all times" and also noting
that depressive symptoms alone (i.e., reduced concentration,
reduced energy, reduced initiative, interpersonal withdrawal,
feelings of apathy and hopelessness, various somatic
complaints, and loss of perspective) could have a profound
impact on the inmate's ability to represent himself"). Put
simply, Mr. Barbour's lack of education combined with his
impaired emotional state presented insurmountable hindrances
to his ability to act as his own post-conviction counsel.
3 . Inadequate Prison Resources
The State suggested below that Mr. Barbour enjoyed access
to resources in prison containing sufficient materials for him
to draft his own post-conviction pleadings. (See Respondent
Haley's Motion To Dismiss Federal Proceedings For Failure To
97
seeComply With The Statute Of Limitations, at 10;
hiso State's Response to Barbour's Motion For A Stay Of
Execution, filed in the United States District Court for the
Middle District of Alabama at 16.) The State referred to
Holman Penitentiary's death row law library as the source of
these materials, since the library is the only place condemned
prisoners in Alabama have access to legal materials.
The Holman death-row law library is incomplete,
disorganized, and unstaffed. Prisoners are allowed only one
short visit per week to the facility. They are responsible
for opening boxes of new books and shelving them themselves.
As a result, the volumes are in no particular order and sets
of books are usually incomplete. No librarian is available to
assist prisoners with locating materials or to answer basic
research questions. No paralegal is on staff to assist with
the drafting of legal papers. Any contention that Mr.
Barbour, who is barely literate and never finished junior high
school, is capable of sifting through disorganized legal
reporters and case books searching for precedent to support
legal arguments he is incapable of composing is baseless.24
See Cowart v. State. 488 So.2d 497 (Ala. Crim. App.
1985) (holding that adequate law libraries or adequate
assistance from persons trained in the law must be provided to
98
4. Inability to Investigate Claims
a prisoner); DeFries v. State, 597 So.2d 742 (Ala. Crim. App.
1992) (holding that the constitutional guarantee of right of
access to the courts mandates that prisoners be afforded
adequate law libraries or adequate assistance from persons
trained in the law); Perry v. State. 511 So.2d 268 (Ala. Crim.
App. 1987) (holding that prison authorities are required to
assist inmates in the preparation and filing of meaningful
legal papers by providing access to adequate law libraries or
adequate assistance of persons trained in the law) ; Demos v.
State, 696 So.2d 1296 (Fla. Dist. Ct. App. 1997) (holding that
the fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in preparation
and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from
persons trained in the law); Jackson v. State. 732 So.2d 187,
191 (Miss. 1999) (granting condemned inmate's motion for
appointment of state post-conviction counsel and noting that
failure to appoint counsel in state post-conviction
proceedings "ignores the reality that indigent death row
inmates are simply not able, on their own, to competently
engage in [post-conviction] litigation"); Hickson v. Allison.
928 S.W.2d 677 (Tex. Ct. App. 1996) (holding that prison
administrators have a duty to maintain an adequate law library
and provide inmates with useful access to the library);See
also Falzerano v. Collier. 535 F.Supp. 800, 803 (D.N.J. 1982)
(noting that even a complete prison law library would not
afford a prisoner much chance of success in pursuing relief
Pro se) ; State v. Simon, 297 N.W.2d 206 (Iowa 1980) (holding
that adequate preparation for judicial proceedings requires
access by prison inmates to an adequate law library or
suitable alternatives); Salstrom v. State. 714 P.2d 875 (Ariz.
Ct. App. 1986) (holding that in the absence of other forms of
adequate legal assistance to prisoners, prison administrators
must provide inmates with adequate law libraries in order to
ensure they will have meaningful access to the courts);
Findlay v. Lewis. 831 P.2d 830 (Ariz. Ct. App. 1991) (holding
that the adequacy of legal materials provided to prisoners is
measured by whether they are of sufficient practical value in
preparing, pleading, and litigating case).
99
Moreover, even if Holman's death-row library were well-
equipped and well-staffed, the pursuit of post-conviction
remedies requires resources beyond those available to an
incarcerated person like Mr. Barbour. Lawyers devote an
average of 600 to 900 hours to the preparation of state habeas
proceedings.25 Such preparation goes beyond traditional legal
research and includes an intense investigation of facts
outside the record. The pursuit of such information is
impossible from the confines of a maximum-security prison.
See Jackson, 732 So. 2d at 190. ("Applications for post
conviction relief often raise issues which require
investigation, analysis and presentation of facts outside the
appellate record. The inmate is confined, unable to
investigate, and often without training in the law or the
mental ability to comprehend the requirements of the [post-
conviction statute]."); see also Smith, supra. at 89-100
(discussing the myriad post-conviction claims, including
issues of ineffective assistance of trial counsel, the
inmate's mental health competency, violations of the rules of
25 The Spangenberg Group, Time and Expense Analysis in
Post-Conviction Death Penalty Cases (Feb. 1989), at 15; The
Spangenberg Group, Study of Capital Cases in Virain-ia (Nov.
1988) at 19; The Spangenberg Group, Time and Expense in Post-
Co.nviction Death Penalty Cases in North Carolina (June 1988)
100
discovery, juror misconduct, challenges to prior convictions,
and actual innocence, and noting that "one factor . . . binds
almost all [these issues] together, and that is the need for
a thorough factual investigation prior to pleading and
proof"); see also Daniel Givelber, The Right to Counsel In
Collateral, Post-Conviction Proceedings. 58 Md. L. Rev. 1393,
1395 (1999). Mr. Barbour is confined to his prison cell for
23 hours every day. Once a week he is allowed access to the
death-row law library; the amount of time he is allowed in the
library varies from week to week. His phone calls are limited
to people on a pre-approved phone list limited to eight
numbers. Because of Mr. Barbour's strict confinement, the
pursuit of witnesses, jurors, records, or an attorney to
assist him with a post-conviction appeal are acts simply
beyond his capabilities.
In preparing Mr. Barbour's Motion to Reopen the Rule 32
Proceedings and the motions for stay of his execution,
undersigned pro bono counsel spent hundreds of hours
personally interviewing critical witnesses, hired a private
investigator who spent nearly one hundred hours locating and
interviewing dozens more witnesses, including people who Mr.
Barbour's court-appointed counsel never attempted to contact
101
during his uncompleted Rule 32 proceedings. Undersigned
counsel also procured the records of Christopher Hester, Mr.
Barbour's co-defendant. This investigation does not include
the hundreds of hours devoted to analyzing the information
gathered. Such intensive investigation is basic and integral
to post-conviction litigation. The impossibility of Mr.
Barbour's having conducted this work from his cell at Holman
is obvious to any reasonable person. The State nevertheless
insisted below that Mr. Barbour was capable of completing, and
timely completing, his own Rule 32 proceedings without the
assistance of counsel.
5 • Expertise Required To Litigate Post-Conviction Cases
The level of expertise required to effectively litigate
post-conviction cases is illustrated most effectively by the
Alabama Attorney General's office's own practices. Alabama,
like all other states employing the death penalty, allows only
highly specialized and trained assistant attorneys general to
litigate capital post-conviction cases. This sound practice
is based on the State's understanding that state and federal
collateral proceedings are technical, complicated, and the
highest-stakes cases litigated. Thus, the State does not
expect any of its attorneys, however competent and
102
experienced, to handle capital post-conviction proceedings
competently without specialized training. Consistent with
this principle, no reasonable person can honestly expect
indigent death-row inmates to represent themselves competently
in such proceedings either.26 See "You Don't Have To Be A
Bleeding Heart," dialog between Judge Abner Mikva and Judge
John C . Godbold [former Chief Judge of the United States Court
of Appeals for the Eleventh Circuit], 14 Hum. Rts. 22, 24
(Winter 1987) ("[T]he average trial lawyer, no matter what his
or her expertise, doesn't know any more about habeas than he
does about atomic energy."); see also McFarland v. Scott. 512
U.S. 849, 855-56 (1994) ("The complexity of our jurisprudence
26 One lawyer has aptly touched on the complexity of
capital post-conviction cases, and the diverse range of
experiences attorneys litigating such cases must bring to the
work: "The competent collateral lawyer will bridge not only
the horizontal divide between trial and appellate experience,
but the vertical divide between federal and state law and
courts. Few lawyers are equally at home on all sides of these
divides." Laurin A. Wollan Jr., Representing the Death Row
Inmate:_The Ethics of Advocacy, Collateral Style, in Facing
the Death Penalty 92, 98-99 (Michael L. Radelet ed., 1989);
.see— also, Smith, supra, at 56 (" [N]obody in his right mind
would expect the average inmate to be capable of proceeding
pro se in a capital case -- researching the most complex
issues known to the law, investigating the facts from his
narrow death row cell, and providing himself with meaningful
legal representation.") And yet, in Mr. Barbour's case, the
State contends that he is capable of just such impossible
feats.
103
in this area [capital post-conviction representation] . .
makes it unlikely that capital defendants will be able to file
successful petitions for collateral relief without the
assistance of persons learned in the law."); see also Murray
y- Giarratano, 492 U.S. 1, 28 (1989) (Stevens, J. , dissenting)
("[T]his Court's death penalty jurisprudence is unquestionably
difficult even for a trained lawyer to master.").
6 • The_Increasing Complexity Of The Habeas Landscape
And_Pitfalls Of Post-Conviction Litigation Have
Resulted In An Accelerated Post-Conviction Process
Unforgiving Of Even Minor Mistakes.
a. Supreme Court Decisions Since 1989 Have
Made Habeas Corpus Law More Complex And
Less Comprehensible For Pro Se Petitioners
As outlined above, Mr. Barbour was physically and
intellectually incapable of representing himself. Moreover,
even without physical confinement or intellectual limitations,
Mr. Barbour would have been ill-advised to take over his own
post-conviction representation. This is because both state
and federal post-conviction litigation has become increasingly
complex and unforgiving of errors. Mr. Barbour, or anyone
else incompetent to properly present his collateral claims,
might well have foreclosed his chance to adjudicate these
claims at all by filing incomplete or flawed pleadings. In
fact, court-appointed counsel's failures nearly accomplished
104
this result.
In the last ten years, several Supreme Court decisions
and Congress's passage of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA) , 28 U.S.C. §§ 2241, et sea. . have
changed the face of state and federal post-conviction remedies
so that they work faster, and are more complicated, more
fî -3-1/ and less tolerant of litigants' errors, no matter how
technical they may be. The cumulative effect of many of these
changes has transformed habeas from a flexible process
somewhat forgiving of errors to one governed by strict
procedural rules. A description of only a few of the
increasing number of post-conviction pitfalls follows.
First, pursuant to well-established post-conviction
rules, a petitioner who fails to raise claims in state habeas
will be precluded from presenting those claims during federal
habeas review. In other words, a federal court reviewing a
habeas petition may not consider any procedurally defaulted
claims -- those not presented, or improperly presented -- to
the state habeas trial court. See, e.g,. Coleman v, Thomson.
501 U.S. 722 (1991); Baldwin v. Reese. 540 U.S. , 124
S.ct. 1347 (2004) . Similarly, federal courts often refuse to
consider such claims on the grounds that state remedies have
105
not been exhausted. See. e .q .. Duncan v. Henry. 513 U.S. 364
(1995) ; see also Rose v. Lundy. 455 U.S. 509, 510 (1982). The
Supreme Court's rule in Coleman replaced a more flexible
standard that presumed the availability of federal review on
the merits of a claim absent clear evidence that the prisoner
had deliberately bypassed the appeal. In the same vein, the
Court has held that a similar default rule applies to state
discretionary appeals where a prisoner fails to include all
claims he wishes to present in federal habeas proceedings.
See, e . g . , O'Sullivan v. Boerckel. 526 U.S. 838 (1999).
Thus, if Mr. Barbour had begun representing himself after his
attorney left his case, and failed to litigate, or improperly
litigated, critical post-conviction claims in state court, he
would have run the risk of foreclosing consideration of these
issues by the federal courts.
The Supreme Court has also held that claims presented for
the first time in second or successive federal habeas
petitions are barred, again replacing a traditionally
forgiving standard with a strict default rule, requiring a
showing of "cause and prejudice" for "inexcusable neglect" in
failing to include claims in initial federal habeas petitions.
See, e.g., McCleskev v. Zant. 499 U.S. 467 (1991). The Court
106
has since extended the holdings of Coleman and McCleskey to
bar in federal habeas petitions the introduction of facts that
were not timely presented in state post-conviction
proceedings. See Keeney v. Tamavo-Reyes. 504 U.S. 1 (1992)
Thus, even if Mr. Barbour had somehow managed to appeal
the denial of his state post-conviction petition, and even if
he had managed to file a federal habeas petition, he would
have borne the heavy burden of investigating, researching,
developing, and presenting every possible collateral claim he
needed to in his first post-conviction petition. Otherwise,
a defective initial petition would have been fatal to
subsequent federal review of any omitted, and possibly
meritorious, claims. See Baldwin v. Reess. 540 U.S. ___ , 124
S.ct. 1347 (2004). As discussed above, fact - intensive claims
that require extensive pre-filing and time-consuming
investigation, such as Brady and Strickland violations,27 are
simply impossible for a prisoner like Mr. Barbour to pursue
and establish from the confines of his death-row cell.
The Supreme Court's decision in Teague v. Lane. 489 U.S.
298 (1989) restricts federal courts from granting habeas
relief if doing so would require the court to announce or
27 Strickland v. Washington. 466 U.S. 668 (1984).
107
apply a new rule of criminal procedure. Subsequent Supreme
Court cases have demonstrated that the Court still has not
established the criteria for identifying new rules.28
Discerning the viability of a claim pursuant to Teague and its
progeny presents a particularly formidable challenge to
indigent pro se petitioners, who are far less likely than the
United States Supreme Court or competent counsel to know
whether a decision rendered after the date of finality of
their conviction is one that can be presented in post
conviction proceedings because it announced or did not
announce a new rule. No reasonable tribunal can honestly
expect Mr. Barbour, uneducated and untrained in the law, to be
28 See, e.g., O'Dell v. Netherland. 521 U.S. 151, 156, 170
(1996) (5-4) (disagreeing over whether the case in question
involved a new rule); Lambrix v. Singletary. 520 U.S. 518,
528, 541 (1997) (5-4) (same); Saffle v. Parks. 494 U.S. 484,
488 (1990) (5-4) ("[I]t is . . . difficult . . . to determine
whether we announce a new rule when a decision extends the
reasoning of our prior cases."); Butler v. McKellar. 494 U.S.
407, 418 (1990) (5-4) (Brennan, J., dissenting) ("[T]he
analytical distinction between legal rules 'prevailing' at the
time of conviction and 'new' legal rules is far from sharp.") .
Compare McKellar, 494 U.S. at 415 (stating that a rule is new
if characterized by "significant difference of opinion on the
part of several lower courts that had considered the question
previously"), with Graham v. Collins. 506 U.S. 461, 467 (1993)
(5-4) ("[U]nless reasonable jurists hearing petitioner's claim
at the time his conviction became final 'would have felt
compelled by existing precedent' to rule in his favor, we are
barred from doing so now.") (citation omitted).
108
capable of such a difficult determination. This is yet
another example of the impossibility of a prisoner's
successfully representing himself in habeas proceedings.
In its holding in Brecht v. Abrahamson. 507 U.S. 619
(1993), the Supreme Court adopted a more labor-intensive
harmless-error standard for habeas cases. The Brecht standard
requires scrutiny of the entire record in order to ascertain
whether the error claimed by the petitioner produced a
"substantial and injurious effect or influence in determining
the jury's verdict." 507 U.S. at 622. Although Brecht
imposes a burden on both parties, a thorough review of the
record is disproportionately burdensome to indigent inmates,
who often lack access to the full record, to legal materials,
and legal training to identify error. See Murray v .
Giarratano, 492 U.S. 1, 27 (1989) (Stevens, J., dissenting).
In Mr. Barbour's case, his court-appointed Rule 32
attorney never provided him with a copy of his post-conviction
file or a copy of the record. Mr. Barbour thus lacked the
essential element needed to develop any post-conviction
petition, never mind a petition that complies with the Supreme
Court's demanding standards. Moreover, even if he had been
provided a copy of his case record, Mr. Barbour, like most
109
people untrained in the law, is uneducated in the "harmless
error" doctrine, and his limited access to Holman's skeletal
law library likely would have contributed little to his legal
knowledge of relevant Supreme Court jurisprudence.
b • Passage Of AEDPA Has Accelerated The
Complex Habeas Process.
The Supreme Court's increasingly stringent approach to
habeas petitions has been accelerated by Congress's passage in
1996 of AEDPA. This legislation has further complicated
habeas law while truncating the time within which a federal
habeas claim may be raised. AEDPA has effectively accelerated
the state habeas filing process as well. With its one-year
statute of limitations for federal habeas petitions, AEDPA
shortens the time available to investigate and prepare for
post-conviction review generally. See 28 U.S.C. § 2244(d).
AEDPA's tolling provisions and its inflexible one-year
limitations period have been interpreted by experienced habeas
attorneys as encouraging the filing of federal habeas claims
sooner rather than later in order to preserve the opportunity
for a hearing on the merits of the petitioner's claims.
However, rushing to file habeas petitions can produce dire
consequences. First, a hastily prepared federal habeas
petition that does not plead all colorable federal claims will
110
forfeit later review of any omitted claims under the strict
rule against successive petitions in § 2244(b)(2).29 Second,
§ 2244(d) compels prisoners to file state habeas petitions
quickly in order to stop the federal clock and properly
exhaust claims for federal review pursuant to § 2254(b)(1).
Yet hastily filing state habeas claims presents its own
serious pitfalls, especially because in many cases state
habeas presents the petitioner's first and last opportunity to
develop critical facts. See 28 U.S.C. § 2254(e)(1) ("In a
proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue by a State
29 Moreover, the Supreme Court has interpreted AEDPA's
tolling provisions to mean that a properly filed first federal
habeas petition does not toll the statute's limitation period.
See Duncan v. Walker. 121 S .Ct. 2120 (2001). Thus, if a
petitioner has filed a federal habeas petition which contains
claims unexhausted in state court, and the petition is
dismissed by the federal court for that or any other reason,
the time during which the petition was pending in federal
court is subtracted from the AEDPA statute of limitations.
Id. Though Duncan does not apply directly to Mr. Barbour's
case, it demonstrates the constantly changing state of habeas
law and that the meaning of central provisions of AEDPA are
still very much subject to divergent interpretations. In
addition, it illustrates the dangers of anyone, especially a
prisoner like Mr. Barbour, rushing to file a federal habeas
petition in order to satisfy AEDPA's strict tolling
provisions. Petitioners who followed this conventional wisdom
may now find themselves out of time pursuant to Duncan.
Ill
court shall be presumed to be correct.").
In short, AEDPA requires quick filing of state and
federal petitions and at the same time stiffens the penalties
for sloppy pleading and inadequate factual development, which
sometimes foreclose meaningful state habeas review. This
results in particularly dire consequences for indigent capital
petitioners proceeding pro se. AEDPA's strict procedural
requirements further illustrate the impossibility of Mr.
Barbour's having effectively represented himself in his Rule
32 proceedings. Had he amended his petition on his own, he
likely would have mis-plead critical claims or omitted them
altogether, thereby foreclosing review of those claims by the
state or federal courts. Even if Mr. Barbour had been aware
of the AEDPA deadlines and even if he had struggled to cobble
together an amendment to his original Rule 32 petition or an
appeal of its dismissal and then attempted a federal habeas
petition, more likely than not, he would have committed some
procedural misstep or inartful pleading which would have
prevented the courts from reviewing the merits of his claims.
Many attorneys trained in this complex area of the law lose
post-conviction cases for these very reasons. Yet the Court
of Criminal Appeal holding suggests that Mr. Barbour is at
112
fault for not pursuing the completion of his own Rule 32
proceedings in the face of the same procedural rules which
intimidate seasoned lawyers.
7 • At No Time During His Post-Conviction Proceedings
Has Mr. Barbour Acted Deliberately To Delay The
C°urts. His Rule 32 Proceedings Were Incomplete
Through The Failures Of His Court-Appointed Counsel
And Were Not His Fault.
This Court should not penalize Mr. Barbour for the
failings of his court-appointed counsel. As detailed above,
Mr. Barbour simply lacked the knowledge, the intellectual
ability, the emotional health, and the resources to
investigate and plead his own post-conviction case. To
suggest otherwise is to ignore the facts of the life of an
indigent prisoner on death row.
After Mr. Barbour's counsel abandoned him and left his
case incomplete, he never notified Mr. Barbour of his right to
appeal the court's adverse judgment. No reasonable person can
honestly believe that Mr. Barbour, a condemned indigent
inmate, would have voluntarily relinquished his appeals. In
fact, he has shown no signs of giving up his appeals before or
since the lapse in his Rule 32 proceedings. Mr. Barbour
simply remained uninformed of the status of his case. He had
no idea that the onus was on him to pursue an appeal of the
113
trial court's denial of his state post-conviction petition or
that such an appeal was even possible. And even if he had
been aware of his right to appeal, he was utterly incapable of
pursuing it without the assistance of counsel. Only after EJI
notified him that the State had moved the Alabama Supreme
Court to set a date for his execution, did Mr. Barbour realize
that the State believed that his post-conviction process had
run its course. Only through the diligent efforts of EJI was
Mr. Barbour able to retain pro bono. out-of-state counsel. As
soon as Mr. Barbour realized he was out of time, and as soon
as he learned that he would be represented by counsel, he re
initiated his attempts at post-conviction relief. Thus, this
Court should recognize Mr. Barbour's impossible position after
his original court-appointed Rule 32 counsel left his case
uncompleted and should therefore not count the time during
which the original Rule 32 petition remained unappealed toward
the statute of limitations. Instead, this Court should either
remand to the circuit court with instructions to reopen Mr.
Barbour's Rule 32 proceedings to allow him to amend his
original claims, as he would have done with the assistance of
competent counsel, or at least order the circuit court to re
enter its April 1998 judgment so that Mr. Barbour may file a
114
timely appeal of this adverse decision. Finally, the Court of
Criminal Appeals erred in holding that Mr. Barbour has failed
to demonstrate that a miscarriage of justice has resulted from
the circuit courts' refusal to "entertain this claim," and
therefore the circuit court correctly determined that this
claim is barred as successive, pursuant to Rule 32.2(b).
Barbour, Slip Op. at 31-32.
First, Mr. Barbour again asserts that the successor
petition bar does not bar review of this claim because his
motion to re-open is not a successive petition. In addition,
Mr. Barbour contends that as a condemned inmate with credible
claims of innocence who narrowly escaped execution after his
court-appointed counsel left his case uncompleted, his entire
argument with regard to this issue illustrates the miscarriage
of justice that results from Alabama's refusal to recognize a
right to post-conviction counsel in capital cases.
Mr. Barbour challenges his conviction and sentence as
violative of the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution, and respectfully
urges this Court to reverse the holding of the Court of
Criminal Appeals on this issue.
115
Respectfully submitted,
THEODORE M . SHAW
Director-Counsel
MIRIAM S. GOHARA
NAACP LEGAL DEFENSE AND EDUCATIONAL
FUND, INC.
99 HUDSON ST., 16th FLOOR
NEW YORK, NY 10013
(212) 965-2269
GEORGE H . KENDALL
HOLLAND & KNIGHT
195 BROADWAY
NEW YORK, NY 10007
(212) 513-3358
116
CERTIFICATE OF SERVICE
I certify that on 4uV ’2-5 2004, I
attached document by first-class mail
served a copy of the
on:
J. Clayton Crenshaw
Office of the Attorney General
Alabama State House
11 South Union Street
Montgomery, AL 36130
Miriam Gohara
| v.