Opinion
CIVIL NO. 95-0446-S-EJL
March 14, 2000
MEMORANDUM DECISION AND ORDER
I. OVERVIEW
Currently before the Court is the Mandate of the Ninth Circuit Court of Appeals, filed March 16, 1998, reversing in part and remanding the decision of this Court dismissing the petitioner, Donald M. Paradis' Petition for Writ of Habeas Corpus, filed August 1, 1996. Pursuant to the mandate the Court conducted an evidentiary hearing on the remanded issue on March 15, 16, and 22, 1999. Following the hearing the Court ordered a briefing schedule to be completed by the parties. That briefing is now concluded.
On remand, this Court must proceed in accordance with the mandate and such law of the case as was established by the appellate court. The Court reviewed that decision, the evidence presented at the evidentiary hearing, briefing by the parties and the transcripts of the petitioner's trial, the trial of Thomas Gibson, as well as the transcript of the federal evidentiary hearing of Gibson. Based on this review, the Court concludes the notes of Kootenai County Deputy Prosecutor Marc Haws contained material information and the non-disclosure of those notes constituted a violation under Brady v. Maryland, 373 U.S. 83 (1963).
II. BACKGROUND
A. Factual History
On June 22, 1980, Kimberly Palmer's body was discovered lying face down in a creek, at the bottom of a steep ravine, 50 to 80 feet below an overturned Volkswagen van, near Mellick Road in Kootenai County, Idaho. The body of Scott Currier, Palmer's friend, was found 20 to 30 feet from the same Volkswagen van, inside a blue sleeping bag. Three individuals were observed walking away from the Mellick Road site at approximately 7:30 a.m., on June 21, 1980. These individuals were later identified as Donald Paradis, Thomas Henry Gibson, and Larry Evans. Authorities investigating the crime believed that Scott Currier was killed during the early morning hours of June 21 at Paradis' house in Spokane, Washington and then transported to Idaho by Paradis, Gibson, and Evans. In contrast, investigation of the Mellick Road crime scene by the Kootenai County Sheriffs Office indicated that Palmer was killed in Idaho at or near the crime scene. Palmer's body was discovered face down in the creek, naked from the waist up, with her shirt underneath her, and wearing jeans without underpants. There was a large cut in the front of the jeans, through the zipper, which extended down through her skin near the labia ("labia wound"). Palmer also had a rip in the seat of her jeans, and marks or scratches on her chest.
A complete recitation of the relevant facts can be found in State v. Paradis, 106 Idaho 117 (1983), and Paradis v. State, 110 Idaho 534 (1986).
The petitioner and co-defendant Gibson were tried jointly for Currier's murder in Washington and acquitted in September 1980.
On the evening of June 22, 1980, Detective George Elliott and Officer Wesley Krueger transported the bodies of Palmer and Cumer to Portland, Oregon, for a postmortem examination by Dr. William Brady, Oregon's State Medical Examiner. Elliott and Krueger arrived around 9:15 a.m. on June 23, and were present for the majority of the autopsies of Currier and Palmer which concluded around 3:00 p.m. Elliott and Krueger returned to Idaho at 11:00 p.m. on June 23.
On June 24, 1980, a meeting was held at the Spokane County Sheriff's Office regarding Palmer and Currier's deaths. Law enforcement personnel from Kootenai County, Idaho and Spokane County, Washington attended. Present at this meeting were Elliott and Haws. Haws took notes at this meeting (Notes I), which are a subject of the petitioner's claim. Krueger was not present at this meeting. Elliott was the only person present at both the autopsy of Palmer and the June 24 meeting.
B. Procedural History
The petitioner and Gibson were tried separately in Kootenai County for Palmer's murder. Gibson was convicted of first degree murder and sentenced to death, State v. Gibson, 675 P.2d 33, 35 (Idaho 1983). Following Gibson's trial, the petitioner was also convicted and sentenced to death. The petitioner's conviction and the sentence of death were affirmed by the Idaho Supreme Court in State v. Paradis, 106 Idaho 117 (1983). The Idaho Supreme Court also affirmed the denial of state post-conviction relief. See Paradis v. State, 110 Idaho 534 (1986). The petitioner then filed a petition for writ of habeas corpus in the federal district court, which was denied. Paradis v. Arave, 667 F. Supp. 1361 (D. Idaho 1987), aff'd in part and rev'd in part, 954 F.2d 1483 (9th Cir. 1992), vacated and remanded, 507 U.S. 1026 (1993), aff'd on remand, 20 F.3d 950 (9th Cir. 1994).
Gibson's federal petition for writ of habeas corpus was granted, and the parties appealed to the Ninth Circuit Court of Appeals. On appeal the parties negotiated a settlement, allowing Gibson to plead guilty to Second Degree Murder for Palmer's death.
C. Current Proceedings
On November 9, 1995, the petitioner filed a second Petition for Writ of Habeas Corpus in federal court. On April 1, 1996, the Court granted the petitioner's motion to amend the petition to include claims: (a) trial counsel suffered conflict of interest, (b) the medical evidence showed that Palmer was not murdered in Idaho, (c) newly available witnesses contradicted the theory that Palmer was murdered in Idaho, and (d) the prosecution failed to disclose to the defense exculpatory evidence in its possession. The Court then denied the petitioner's third Amended Petition for Writ of Habeas Corpus and dismissed the case. The petitioner appealed the dismissal to the Ninth Circuit Court of Appeals. The court of appeals issued a decision on March 16, 1998, affirming in part, and reversing in part the decision of this Court, and remanded the case. Following the remand, on November 6, 1998, the Court ordered the matter set for an evidentiary hearing, on sole issue of whether the non-disclosure of notes taken by Haws constituted a Brady violation. That hearing was held March 15, 16, and 22, 1999.
III. DISCUSSION
A. Paradis v. Arave, 130 F.3d 385 (1998)
In the remand of this case, the court of appeals affirmed the dismissal of claims with respect to the petitioner's claims of conflict of interest, alleged Brady violation with regard to the non-disclosure of Dr. Reay's name on a list of potential witnesses, alleged Brady violation with regard to Pintler's memorandum to Haws, and newly available witness claim, but reversed with respect to the petitioner's Brady claim with regard to Haws' notes (claim D). Paradis, 130 F.3d at 400.
The court of appeals held that the petitioner's claim was successive, but that the petitioner had shown cause and prejudice for failure to bring the claim. Id. The court of appeals found that the petitioner had made a showing under Murray v. Carrier, 477 U.S. 478, 488 (1986), that "some objective factor external to the defense" prevented him from bringing the claim earlier. Id, 130 F.3d at 393. In reaching this conclusion, the court was persuaded by the fact that although petitioner's defense counsel William Brown made a request for disclosure under Idaho Criminal Rule 16, he was not provided with these notes, and that petitioner's habeas counsel had sought to subpoena the documents from the Kootenai County Prosecutor's Office in 1987, as part of the first federal petition, and that subpoena had been quashed. Id.
William Brown died in the period between the 1987 hearing and the current petition.
The court then turned to the question of whether the petitioner suffered prejudice. The court interpreted the three sets of notes submitted on appeal, and found that Dr. Brady's testimony at trial conflicted with his prior opinions as expressed in the notes. The court also found that petitioner's counsel was not given the right to investigate the conflict or cross-examine on it. Id. at 395. The court was persuaded that this put the defense at an actual disadvantage in three respects: (1) Brown did not know about the lack of sexual assault and as a result did not investigate the issue of the labia wound, (2) the inference from the state of the labial tear to the time and location of Palmer's death, in light of Dr. Brady's initial opinion, would likely have evoked reasonable doubt that Palmer died in Idaho, and (3) contradictory opinions by Dr. Brady probably would have undermined confidence in the compatibility of the medical evidence with the State's theory. Id.
After the court determined that this Court's finding that no cause or prejudice existed was clearly erroneous and an abuse of discretion, the court went on to analyze the petitioner's alternative argument that the Court erred in finding that the petitioner had not made a sufficient showing of actual innocence. Id. The court found that the Court had applied an erroneous standard for the showing of actual innocence, and thus abused its discretion in not finding the petitioner to have shown actual innocence according to the standard delineated in Schiup v. Delo, 513 U.S. 298 (1995), and remanded the case back to this Court for an evidentiary hearing. Id. at 399.
In establishing a claim of actual innocence, "a habeas petitioner must show" a constitutional violation has probably resulted in the conviction of one who is actually innocent.' To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. 513 U.S. at 326 (quoting Carrier, 477 U.S. at 496).
1. Cause and Prejudice
At the evidentiary hearing held in March 1999, the petitioner conceded that Notes II, relied upon by the court of appeals in the remand decision was not properly part of the Brady claim since Notes II were trial notes taken by Haws during Gibson's trial. Haws also testified that these were notes taken at trial. Paradis Evidentiary Hearing Transcript (Paradis EH), p. 714. The respondent argues that since the court of appeals relied on Notes II in determining prejudice, this Court should re-examine the court's finding that the petitioner suffered prejudice.
Upon review the Court is not persuaded. The court of appeals decision reveals that it did not rely extensively on Notes II in determining that the petitioner suffered prejudice. Therefore, this Court will focus its analysis on whether Notes I and III should have been disclosed to the petitioner, and whether failure to disclose those notes constitutes a violation of Brady v. Maryland.
B. Standard of Review
The prosecution has a duty to disclose exculpatory evidence to the defense. In Brady v. Maryland, 373 U.S. at 87, the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. In United States v. Agurs, 427 U.S. 97, 107 (1976), the Court expanded Brady to include any material evidence even if not requested by the accused. In United States v. Bagley, 473 U.S. 667 (1985), the Court determined that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682. The Court also held that the duty to disclose encompasses impeachment evidence as well as exculpatory evidence. Id. at 676. To be material under Brady, undisclosed information or evidence acquired through that information must be admissible. United Sates v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989) (citing Brady, 373 U.S. at 89-90). In determining the materiality of undisclosed information, the reviewing court may consider "any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case." United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. l989) (quoting Bagley, 373 U.S. at 683).
Suppression of favorable evidence violates due process if it "undermines confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434 (1995). Suppressed evidence is to be considered collectively rather than item by item. Id. at 436. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 434. When a defendant has enough information to be able to ascertain the supposed Brady material on his own there is no suppression by the government. United States v. Brady, 67 F.3d 1421 (9th Cir. 1995) (citing United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991)).
C. Work Product Doctrine
As a threshold issue, this Court must determine if Notes I and III are exempt from disclosure under Brady under the attorney work product doctrine. The respondent alleges that the notes constitute attorney work product and are exempt from disclosure. The petitioner alleges the work product doctrine is "trumped" by the due process rights outlined in Brady, and argues that even upon review of the notes, and its determination of a potential Brady violation, the court of appeals makes no mention that the work product doctrine may be an issue. Finally, the petitioner argues that Kyles imposes an obligation on the prosecutor to turn over work product. Pet.'s Mem., p. 26 ( citing Kyles, 514 U.S. at 447). Kyles imposed a duty on the prosecutor to learn of any favorable evidence known to others acting on government's behalf in the case, including police, in order to avoid a Brady violation. Kyles, 514 U.S. at 437. In discussing this obligation, the United States Supreme Court stated that the prosecutor's own notes of his interview with a witness could have lead him to investigate the veracity of the witness statements taken by the police. Id. at 449. A critical reading of Kyles, does not persuade this Court that Kyles implies that the work product doctrine does not apply to Brady disclosure.
In Kyles, the Court held that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf including the police." Id. at 437. In discussing the responsibility to ascertain the eyewitness' inconsistent statements, the Court found that "[t]he prosecutor's notes of his interview with Beanie would have shown that police officers were asking Beanie about the whereabouts of the gun all day Sunday, the very day when he was twice at Kyles' s apartment and was allegedly seen by Johnny Burns lurking near the stove, where the gun was later found." Id. at 449.
The United States Supreme Court has held that the work product doctrine did not excuse a federal prosecutor's failure to produce his notes of a witness statement. In Goldberg v. United States, 425 U.S. 94, 106-07 (1975), the Court held that the doctrine of attorney work product did not prevent disclosure under the Jencks Act. "Proper application of the Act will not compel disclosure of a Government lawyer's recordation of mental impressions, personal beliefs, trial strategy, legal conclusions, or anything else that `could not fairly be said to be the witness' own' statement. `If a government attorney has recorded only his own thoughts in his interview notes, the notes would seem both to come within the work product immunity and to fall without the statutory definition of a statement.'" Id. (citing Saunders v. United States, 316 F.2d 346, 350 (1963)).
In Armstrong v. United States, 517 U.S. 456 (1996), the defendant in a drug case had sought discovery of the prosecutor's files to show selective prosecution. The Court held that the defendant had failed to make a threshold showing of selective prosecution, thereby entitling him to discovery which might include government work product. In a concurring opinion Justice Breyer noted that discovery rules were not inviolate, citing the Advisory Notes to the Committee, as well as 2 C. Wright. Federal Practice and Procedure § 254, p. 81, and n. 60 (2d ed. 1982), which stated "[b]ecause Brady is based on the Constitution, it overrides court-made rules of procedure. Thus the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady." Armstrong, 517 U.S. at 475 (Breyer, J. concurring). Justice Breyer further noted that Rule 16 can be supplemented with discovery based upon other legal principles, "[t]he language of the work-product exception suggests the possibility of such supplementation, for it says, not that work product is `exemp[t]' from discovery, but that "this rule' does not authorize discovery of the prosecutor's work product." Id., 517 U.S. at 474 (quoting Fed. Rule Civ. Proc. 16(a)(2)). "The Advisory Committee's Notes make clear that the Committee believed that other rules of law may authorize (or require) discovery not mentioned in the Rule." Id. (citations omitted).
The work product doctrine is a concept vital to the integrity of the judicial process. An attorney's thoughts and ideas must remain inviolate, and the attorney must have the ability to transfer those thoughts to paper. See United States v. Nobles, 422 U.S. 225, 238 (1975). However, the Brady case and its progeny are based on a due process right, and although Goldberg was decided pursuant to the Jencks Act rather than under Brady, the same principle exists. The holding of the Court in Brady v. Maryland and subsequent cases give a due process right to the accused that information material to their case will be disclosed to them. This right would be eviscerated if an attorney could shield exculpatory witness statements or other evidence from disclosure by cloaking it as attorney work product. Haws testified at the evidentiary hearing that he believed the notes to be work product. Paradis EH, pp. 575, 579-80, 703. However, review of those notes does not reveal his thought processes, trial strategy or personal beliefs, rather they contain vital pieces of information conveyed to him by other persons working on the case that appear nowhere else. Paradis EH, pp. 76, 95-99, 102 (testimony of Elliot); pp. 391, 395-99, 412, 423, 483 § (testimony of Dr. Brady). Clearly, the statements of Dr. Brady indicating the nature of Palmer's injuries and cause of death, contained in Notes III, as well as several statements from Notes I, indicating information from the autopsy cannot be considered Haws thoughts or ideas. If this information is material, it should be disclosed pursuant to Brady.
IV. ARGUMENT
The petitioner alleges that Notes I and III, if disclosed, would have impeached the testimony of Dr. Brady; would have provided independent exculpatory information undermining Dr. Brady's testimony, contradicted the prosecutor's theory that Palmer died in Idaho, and would have changed the trial strategy of the defense. The petitioner also alleges that the notes reveal that Dr. Brady did not hold his opinions given at trial to a reasonable degree of medical certainty.
The respondent argues that there was enough information present, in the autopsy report, and through other sources to discover the information contained in the notes on their own. The respondent also alleges that the information in Notes I is speculation by Elliott and could not have been used to impeach Dr. Brady since he was not at the joint law enforcement meeting. In addition, the autopsy report indicated that the labia wound had not shown a vital reaction, and Dr. Larson testified to this information at the petitioner's trial.
V. EVIDENCE
The evidentiary hearing on this matter was conducted over three days. George Elliott, the investigating officer present at both the autopsy and the joint task force meeting, Wes Krueger, the second officer present at the autopsy, Dr. Glenn Faith, a general pathologist and member of the petitioner's trial team, Dr. William Brady, and Marc Haws testified regarding the Paradis trial, and the information contained in Notes I and III. The focus of the evidentiary hearing was the impact of the evidence at the petitioner's trial which established jurisdiction; the differential time of death for Palmer and Currier, the aspiration of water by Palmer, and the post mortem nature of the labia wound.
At the conclusion of the evidentiary hearing, the parties agreed that the affidavit of Dr. John Thornton, PhD, a luminol expert, would be admitted, as well as testimony taken at the Gibson federal evidentiary hearing in December 1996, from Dr. Todd Grey, chief medical examiner for the State of Utah. Paradis EH, p. 796.
In addition, there was significant argument and discussion at the hearing regarding Elliott's police report. It appeared that different copies of the report indicated that Palmer "was" and "was not" sexually assaulted. The original report, consisting of five typewritten pages, in the possession of the Kootenai County Sheriffs Office, was admitted in this proceeding pursuant to a signed stipulation. The Court will therefore find this constitutes the best evidence of what the report actually states, and it indicates on page 3, that "[t]he female victim was sexual assaulted." Stipulation for Admission of Evidence, Dkt. #91. The Court therefore finds that this was the report that was given to William Brown.
A. HAWS NOTES
1. Notes I
Notes I consists of one page of notes Haws took at a meeting of law enforcement officials on June 24, 1980. Paradis EH, p. 548, 552. The page of notes details information about the deaths of Palmer and Currier. The relevant portion of the notes on the issue of Palmer's death is as follows: "pathologist report" with "no time of death — either" written below it, then follows a discussion of Currier's injuries. Information regarding Palmer begins "VF strangled — "written below that is "voice box broken 2 parts" with "spoonful water in lungs — siphon prob — dead when went" on the next line. The next line has "in water" written directly below "dead," with "not sexually assaulted" written below that.
Haws testified that he had not spoken with Dr. Brady prior to this meeting, but it was his impression that the information contained in Notes I was being conveyed from people who had been at the autopsy, and the most likely source of the pathology information in Notes I was Elliott. Paradis EH, pp. 560, 565. Elliott testified that he was the only person present at both the autopsy and law enforcement meeting. Paradis EH, p. 76.
Haws testified that the phrases "no time of death either," and "not sexually assaulted," in Notes I came from the pathologist through officers reporting at the meeting. Paradis EH, pp. 686, 765-66. Haws also stated that the phrase "spoonful water in lungs" was information reported by an officer at the meeting who indicated that Dr. Brady had commented on the presence of fluid in Palmer's lungs. Paradis EH, p. 673. Haws testified that he believed the phrase "prob dead when went in water" referred to a conclusion the officers reached based on what they had learned at the autopsy. Paradis EH, p. 682-83. Haws testified this information was conveyed to Brown through the testimony of Dr. Brady at Gibson's trial. Paradis EH, p. 685. Haws also testified that the siphon theory was Elliott's, and that there is information contained in Notes I which absolutely did not come from information obtained at the autopsy. Paradis EH, pp. 678, 703, 724. In reviewing Notes I, Elliott testified that Dr. Brady did not say "water in her lungs" at the autopsy. Paradis EH, p. 74. Elliott further testified that the phrases in Notes I "no time of death — either," "no blood Vm," "torture burns — blisters — on arm w/ tatoo — cigarettes," "puncture wounds — not bullets — deepest puncture," "post-mortem — smaller than pencil," "Vf strangled — voice box broken 2 parts," and "spoonful water in lungs" were observations that he obtained at the autopsy. Paradis EH, pp. 94-99, 102. Dr. Brady also testified that the phrases in Notes I "torture burns — blisters — on arm w/tatoo — cigarette," "puncture wounds — not bullets — deepest puncture," and "voice box broken 2 parts," were consistent with the autopsy findings. Paradis EH, pp. 395-99.
2.Notes III
Notes III is two pages of notes taken by Haws during an interview with Dr. Brady, immediately prior to Dr. Brady testifying in the Gibson trial. Paradis EH, p. 530. The notes relate to Dr. Brady's testimony concerning the condition of Palmer's body, and begin with three sections. Section one discusses Palmer's death by manual strangulation, section two the ligature component of the strangulation, and section three the condition of the lungs. Sections one and two do not reveal any information which was not previously available to the petitioner.
Section three, begins "lungs expand — fluffy — balloon," next line "not case w/ V." The next line reads ":. how much did drowning enter in?" Next line "A) stomach — not a lot of water," next line "B) lungs — not classical strangulation," and indented below on the next line "heavy — some water." The next line reads "`may have played a role,'" and the line below that "may have been alive when went."
Below section 3 is written "wound — outside genitalia — tear — enlarged." On the next line indented "after death — cut under tear on jeans," next line "right before — death — ." On the next line is written "No gross evid. sex. molest."
On page two of the notes "cut — 1" long — evid," next line "no bleeding" with a large circle, partially filled in with ink, lines, and an arrow. This "mark" is characterized by Haws as a "doodle." Paradis EH, p. 651. Below that is written "(jeans — bleeding?)." The last phrase on the page is "blood — ear — nose — could" followed on the next line by "have immediately followed," next line "strangulation."
Dr. Brady testified that he believed Notes III to be a line by line follow through on his autopsy; he does not recall the conversation with Haws that resulted in these notes, but believes that the notes do represent a discussion between himself and Haws. Paradis EH, pp. 417, 422. Dr. Brady testified that phrases listed on Notes III as items 1, 2, and 3 are an accurate representation of what he would have said to Haws. Paradis EH, p. 423. Dr. Brady testified that he and Haws talked about the items listed in the remainder of Notes III. Paradis EH, pp. 448-50, 459.
Haws testified that he provided Brown with a transcript of Dr. Brady's testimony at the Gibson trial, and that he believed the statements of Dr. Brady at the Gibson trial were consistent with Notes III, and the statement contained in section 3 "may have been alive when went in water." Paradis EH, pp. 598, 637. Haws also stated that he believed the phrase "prob — dead when went in water" from Notes I was consistent with the phrase "may have been alive when went in water" contained in Notes III. Paradis EH, pp. 619, 622.
B. DECOMPOSITION
At the Gibson trial Dr. Brady testified that because of the function of temperature relating to decomposition, one should be cautious about rendering a time of death based on decomposition, and there could be other explanations for those rates if Currier had been wrapped in a sleeping bag, and Palmer was in the water. Gibson Trial Transcript (Gibson TT), pp. 829, 845-46, 848. At the Paradis trial Dr. Brady testified that the decomposition of Currier's body would have been altered by placement inside the sleeping bag, and that the rate of decomposition of Palmer's body may have been arrested because she was placed in a cold stream, and that theory offered a logical explanation of why there were differences in the rates of decomposition. Paradis Trial Transcript (Paradis TT), pp. 453-54, 468. However, at both the Gibson and Paradis trials Dr. Brady testified that Currier's body was more decomposed than Palmer's body, and it was his opinion that Currier died before Palmer, based on the rates of decomposition. Gibson TT, p. 845; Paradis TT, pp. 452-55.
At the evidentiary hearing Dr. Brady testified that he autopsied Currier first because his body was significantly more decomposed, indicating that he had been dead for a longer period of time, and at the time of the autopsy he knew that Palmer had been found face down in the stream, and Currier had been found in a sleeping bag. Paradis EH, pp. 355, 377. Dr. Brady testified that Elliott and Krueger were present at the autopsy, heard him dictate findings and asked him questions related to the observations and findings, but he did not recall having a conversation with Elliott about the time of death of Palmer and Currier. Paradis EH, pp. 333-34, 353. Elliott testified that he asked Dr. Brady questions during the autopsy, particularly questions regarding time and location of Palmer's death. Paradis EH, pp. 64-66. Dr. Brady also testified that he does not remember making the statement "probably dead when went in water" to officers at the autopsy because he needed more information to draw that conclusion, but did agree that it is possible he could have made it. Paradis EH, p. 412, 483. Dr. Brady testified that he did offer an opinion on the relative time of death of Currier and Palmer at trial, and he was able to do this based on information he received from the prosecutor. Paradis EH, pp. 356, 358-60. The petitioner then introduced the testimony of Dr. Brady at the Seattle trial of Roseanna Moline on September 18, 1980, in which he offers his opinion that there was a day or less difference between the time Palmer and Currier died. Paradis EH, p. 362-63. Dr. Brady was also shown his testimony from the trial of State v. Laurence Evans, taken in 1986, where he testified that it was equally possible that Palmer died before Currier, and he agreed that it was an accurate reflection of his testimony. Paradis EH, p. 388. Dr. Brady ultimately admitted that the information that he had concerning Palmer's lungs prior to testifying at the Gibson trial was the same as he had after the autopsy, and that he had acquired no new information. Paradis EH, p. 471.
At the evidentiary hearing, Dr. Faith testified that as a member of the defense team he would have found it useful to have access to the information "no time of death — either" because: (1) the defense had never been told that Dr. Brady could not express a differential time of death for Palmer and Currier, (2) the phrase went against what was stated in Dr. Brady's trial testimony, and (3) he felt that Dr. Brady's trial opinion about time of death, was not supported by the autopsy, but he had nothing to back up his belief. Paradis EH, pp. 212-15. Dr. Faith also testified that he felt there was a direct conflict between Dr. Brady's trial testimony "Scott had been dead a number of hours longer than Kimberly in my opinion" and the statement "no time of death — either." Paradis EH, p. 309.
At the Gibson evidentiary hearing, Dr. Grey testified that he reviewed the autopsy protocol, autopsy photographs, the police report, as well as deposition testimony of Dr. Brady, but did not consult with Dr. Brady in preparation for the hearing. Gibson Evidentiaty Hearing, pp. 342, 344, 397. Dr. Grey testified that the difference between two states of decomposition cannot reliably be used to conclude that there was a significant difference in the time of death because factors affecting decomposition are temperature of the environment, temperature of the body at the time of death, the extent of injury, and how the body is stored following death. Gibson EH, p. 367. Dr. Grey testified that he would try to assess the variables that affect decomposition to determine if decomposition is reflective of different times of death or is based on these variables. Gibson EH, pp. 369-70.
2. ASPIRATION OF WATER INTO LUNGS
At the Gibson and Paradis trials Dr. Brady testified that the lungs of Palmer were partially expanded and heavy, weighing approximately 1150 grams, or twice the normal weight. Gibson TT, pp. 795, 824,; Paradis TT, p. 447. At the Gibson trial, he testified that there was more fluid in the back of the lungs, and based on this fluid, he considered it a strong likelihood that Palmer inhaled water at the time of her death. Gibson TT, pp. 825, 827, 832. At the Gibson trial Dr. Brady stated that at the time of the autopsy Palmer's lungs were decomposing because a small amount of dirty water in the lungs which contained bacteria. Gibson TT, p. 825. Gibson's trial counsel inquired whether Dr. Brady could state where Palmer died, and Dr. Brady testified, "I have indicated, Mr. Vrable, that I think there is a very strong likelihood that she was alive when she went in the water and inhaled some water, that's my opinion." Gibson TT, p. 839. He offered substantially the same opinion at the Paradis trial, in response to the question, "How do you think Kimberly Palmer died," Dr. Brady stated, "Kimberly Ann Palmer, I believe, was strangled. I believe she was strangled and shortly afterwards aspirated some amount of water during her terminal, during her last moments, with her last breath, I think she inhaled some water." Paradis TT; pp. 651-52.
Dr. Brady testified that he did not recall saying "spoonful of water in lungs," and does not believe he said it, but upon being shown his testimony from his November 25, 1996, deposition in which he stated that it was possible that he told the officers about a teaspoon of water in Palmer's lungs, he agreed that was an accurate reflection of his testimony. Paradis EH, pp. 401-02, 482. Elliott testified that he was present when Dr. Brady cut open Palmer's lungs and a small amount of fluid came out. Paradis EH, p. 101. Elliott also testified that he called Dr. Brady after the autopsy and asked him if it was possible that Palmer could have gotten fluid in her lungs from the creek, and during this conversation he was the person who first mentioned the issue of a siphon. Paradis EH, pp. 73, 76. Dr. Brady testified that he does not remember talking to Elliott on the phone about the siphon theory. Paradis EH, p. 410.
Dr. Brady testified that he believes the term "may" expresses some uncertainty, and that there is a difference between "may have been alive when went in water," contained in Notes III, and "I think she inhaled water exactly, that's what happened." Paradis EH, pp. 424, 442-43.
At the evidentiary hearing, Dr. Faith stated that the phrase "spoonful of water in lungs — siphon prob — dead when went in water" told him that the body was dead and placed in water, because the idea of a siphon does not apply to human anatomy, and a spoonful of water would not suggest drowning. Paradis EH, p. 216-17. Dr. Faith testified that the autopsy protocol was silent on the whole theory of aspiration of water by Palmer or water playing a role in Palmer's death. Paradis EH, p. 264. Dr. Faith also testified that there was a discrepancy between the pathology information contained in Notes I and Notes III and the testimony given by Dr. Brady in the Gibson and Paradis trials. Paradis EH, pp. 221, 259, 262-63.
Haws testified that jurisdiction was an important issue in the trial, but that based upon the medical evidence in the autopsy report he could not prove one way or another whether Palmer aspirated water. Paradis EH, pp. 623-24. Haws testified the autopsy report does not communicate a quantity of liquid in Palmer's lungs, and this information was not communicated to Brown except for Dr. Brady's testimony at Gibson's trial. Paradis EH, pp. 675-77. Dr. Brady testified that the autopsy report, with respect to the lungs, does not delineate an opinion he offered at trial, and that he did not list a contributing cause in autopsy report, but believes the autopsy report would give enough information to a pathologist about fluid in Palmer's lungs. Paradis EH, pp. 427-28. Dr. Brady also testified that he talked with Dr. Larson and Brown about the autopsy report before trial, but does not remember if he shared his opinion about aspiration of water with Dr. Larson. Paradis EH, pp. 429-30.
Haws also testified that prior to the Gibson trial he did not feel that Dr. Brady would testify to a reasonable medical certainty that Palmer aspirated water. Paradis EH, p. 626. Both Haws and Dr. Brady testified that Dr. Brady only offered an opinion to a reasonable degree of medical certainty about the fact that Palmer died of manual strangulation, and that other testimony by Dr. Brady, including the opinion about aspiration of water was only Dr. Brady's opinion. Paradis EH, pp. 627-28, 738-39 ( Haws); pp. 445-46, 486, 488-89 ( Brady). Haws testified that he thought Dr. Brady was testifying as both a fact and expert witness, and did not believe that an expert witness in 1980 had to offer an opinion to a reasonable degree of medical certainty, rather he only had to state the basis for his opinion and the facts he was relying on. Paradis EH, pp. 740, 769.
On the issue of aspiration of water at the Gibson evidentiary hearing, Dr. Grey testified that there is nothing unusual about finding heavy, wet, gelatinous, boggy lungs in a manual strangulation case. Gibson EH, p. 350. He further testified that if he found a substance he believed to be water, he would identify that in the autopsy report. Gibson EH, pp. 362. Dr. Grey testified that the autopsy report contained a lot of negative information that would go against active aspiration of water; no description of foam (produced when water is mixed with the fluid lining the air sack of the lungs), detritus or debris mixed with water from a shallow creek, and no water in the stomach. Gibson EH, p. 361. Dr. Grey also expressed the opinion that the autopsy report did not support Dr. Brady's conclusion that it was "highly likely" Palmer aspirated water and that it was Dr. Grey's "professional opinion that Dr. Brady's testimony at the Gibson trial, in substantial respects as set forth below, was misleading and/or without scientific basis, and that the conclusions of Dr. Brady were irresponsible and unprofessional." Gibson EH, pp. 346-47.
3. LABIA WOUND
At the Gibson trial Dr. Brady testified that Palmer had sustained a tearing injury to her groin (labia wound) which showed no evidence of bleeding or crusting. Gibson TT, p. 795. He further testified that a normal reaction would be bleeding, and the lack of bleeding was caused by the fact that the injury occurred at or after death, and the fluid was either wiped away or washed away due to the partial submersion of Palmer's body. Gibson TT, pp. 816-17. At the Paradis trial, Brown did not ask Dr. Brady any questions about the labia wound because he did not want to raise the specter of sexual abuse. Paradis Evidentiary Hearing Transcript (1987), pp. 666-667. Brown did call a medical expert, Dr. Larson who testified that the labia wound would bleed if inflicted prior to death, but that the labia wound appeared to be a post-mortem wound and speculated that the tear was caused as Palmer's body was passed over a barb-wire fence prior to its placement in the creek at the Mellick Road scene. Paradis TT, p. 581.
1. Sexual Assault
At the evidentiary hearing Haws testified that the phrase "no gross evidence of sexual molestation" was not communicated to Brown, but felt it was unnecessary since the petitioner was not charged with a sexual crime. Paradis EH, p. 688. Dr. Faith testified that he knew that evidence of sexual assault wasn't crucial to cause or time of death, but knew that Brown did not want to get into the subject matter because of its inflammatory contribution to an inflamed community and possibly an inflamed jury, and it would add another criminal element to detract from the key issue of cause and place of death. Paradis EH, p. 310. Dr. Faith testified that he felt Brown was concerned because the police report said Palmer was sexually assaulted, and that if Brown had known this was an error he would have questioned Dr. Brady concerning the labia wound. Paradis EH, p. 314, 316.
2. Lack of blood on Palmer's jeans
At the Paradis trial, forensic chemist Pam Server (Marcum) testified that she examined the jeans under ultraviolet light and was unable to identify any blood stains on the jeans. Paradis TT, pp. 476, 479. At the petitioner's request, prior to the 1987 evidentiary hearing, Marcum (Server) analyzed Palmer's jeans using a sensitive chemical test known as a luminol test. At that hearing, Marcum testified that Palmer's jeans showed no evidence of blood. Evidentiary Hearing Transcript (1987), pp. 1097-98. Marcum also stated that exposure to water normally will not interfere with the ability of the luminol test to detect a dry blood stain, but that a fresh blood stain can be completely washed out of a fabric and thereby escape discovery. Evidentiaty Hearing Transcript (7987), pp. 1103-04, 1126-27 This testimony is refuted by the affidavit supplied by Dr. Thornton which states that if there was any blood on the Palmer's jeans, the luminol test would have detected the blood. Affidavit of John I. Thornton, dated May 9, 1996, p. 4. Dr. Thornton did agree that fresh blood stains are difficult to detect with luminol, but disputed the fact that the blood stain could have possibly been washed clean from the fabric. Affidavit, p. 4. In reaching his conclusion, Dr. Thornton considered that (1) Palmer's jeans covered the wound, (2) Palmer's body lay across the stream in about 5 inches of water, and (3) the water did not cover her body entirely. Affidavit, p. 4. Dr. Thornton indicated that he believed significant amounts of blood from the labia wound would have been absorbed by Palmer's jeans, that blood would not have washed away in the stream, but would have wicked up higher on the cloth to a point outside the water, in addition to some blood being reabsorbed from the water, and that all these actions would have left enough blood to allow a luminol test to detect blood if it were present. Affidavit, p. 4.
a. Blood on Palmer's nose and ear
At the hearing Haws testified that he provided all photographs to the petitioner, including color slides which contained shots of the blood on the ear and nose. Paradis EH, p. 744, 754-55. Brown had previously denied that he received color photographs or slides in discovery. Evidentiary Hearing Transcript (1987), p. 653. Dr. Brady testified that he believes that Dr. Larson had photographs of Palmer's nose and face. Paradis EH, p. 475. However, references to photographs in the Paradis trial refer only to black and white photographs. Paradis EH, pp. 752-53.
Haws testified that he recorded the phrase "blood — ear — nose — could — have immediately followed strangulation," and that he discussed this issue with Dr. Brady. Paradis EH, pp. 663-65, 688. Dr. Brady testified that information pertaining to blood on the ear and nose was not in the autopsy report, but that the area in the photographs looks bloody is really skin slippage due to Palmer's face being in the water. Paradis EH, p. 464-65.
3. Vital Reaction
At the evidentiary hearing Dr. Brady stated that the phrase "no vital reaction" did not mean "no bleeding," only that he did not see any blood at the time after he washed Palmer's body down and had done the autopsy, and he assumed the wound had bled and the blood washed away, but he has no evidence that the wound did bleed. Paradis EH, pp. 450, 452, 455. Haws testified that he would interpret the phrase in the autopsy report "no evident vital reaction" to be consistent with "cut — 1" long — evid — no bleeding" as contained in Notes III. Paradis EH, p. 645-48. Haws testified that he did understand that the longer after death the labia wound was inflicted the less likely there would be a presence of blood. Paradis EH, p. 650. Dr. Faith testified that the labia wound was a crucial area because the autopsy report stated that there was no vital reaction and if it was a post-mortem wound, the prosecution's theory that Palmer was injured while alive at the creek could not be true. Paradis EH, pp. 316-17.
At the Gibson evidentiary hearing Dr. Grey testified that a labia wound showing no vital reaction is a post mortem wound. Gibson EH, p. 378. He also testified that the wound would ooze blood 1/2 hour after death; that injuries immersed in water can have a washed appearance to them, and to determine if there was hemorrhaging associated with a laceration it would need to be dissected, which was not done in Palmer's case. Gibson EH, pp. 382, 383-84, 415. Dr. Grey testified that he would have expected to find blood on Palmer's jeans, and would have diagramed and photographed the labia wound. Gibson EH, p. 385. Dr. Grey's opinion was that Palmer died as a result of strangulation; she also received a post mortem labia injury, and there was no evidence that she actively aspirated water, leading him to conclude that it seemed most consistent that she died in Washington and her body was transported to Idaho. Gibson EH, pp. 392-93.
VI. ANALYSIS
In order to establish the State's jurisdiction over the crime, it was necessary that the prosecution prove Palmer died in Idaho. The testimony of Dr. Brady regarding the differential time of death of Currier and Palmer based on Currier's advanced decomposition and his theory that Palmer had inhaled water from the creek was instrumental in establishing jurisdiction.
The petitioner had the advantage of being tried after his co-defendant, and having the transcript of Dr. Brady's testimony at the Gibson trial. However the petitioner's claim is not that Dr. Brady had different opinions at the Gibson and Paradis trials, rather that Dr. Brady had an entirely different opinion regarding the time of death of Palmer, and whether she took an agonal gasp of water at the time of the autopsy than he had at the two trials.
Notes I and III reveal information that was not available from the Gibson transcript: (1) that Dr. Brady could not offer a time of death for either Palmer or Currier, (2) that Dr. Brady did not offer the theory of aspiration of water until trial, (3) Palmer's lungs only contained a small amount of water, and (4) Palmer was not sexually assaulted. The testimony at the evidentiary hearing as well as review of all the evidence presented to the Court reveals that the following pieces of information contained in Notes I and Notes Jill were not available to the defense team: "no time of death — either," "spoonful of water in lungs — siphon — prob — dead when went in water," "may have played a role," "may have been alive when went," "blood — ear — nose — could have immediately followed strangulation." In addition, evidence concerning the labia wound contained in Notes I and III: "cut — 1" long — evid — no bleeding" "wound — outside genitalia — tear — enlarged, after death — cut under tear on jeans" "right before death," was indicated in the autopsy report only as a labia wound having "no vital reaction."
A review of Dr. Brady's trial testimony regarding decomposition indicates that he was equivocal about the issue of decomposition, repeatedly clarifying that it was something to be cautious about using to determine time of death. In addition, he also testified that decomposition could be affected by Palmer's body being in the cool water rather than a warm sleeping bag. However, Dr. Brady offered the unequivocal opinion that Currier died before Palmer. Dr. Faith's testimony indicates that the defense team knew Dr. Brady's testimony about time of death wasn't supported by the autopsy protocol, but couldn't back up that belief. The information contained in Notes I indicating an inability to indicate differential times for the deaths of Palmer and Currier would have allowed Brown to challenge Dr. Brady's final opinion regarding time of death, and perhaps undermine his credibility.
At the petitioner's trial Dr. Brady's opinions regarding aspiration of water by Palmer were a crucial element establishing jurisdiction. Dr. Faith indicated that the information contained in Notes I, "spoonful of water in lungs — siphon prob — dead when went in water" would have given him additional information regarding Dr. Brady's theory of aspiration of water which contradicted his trial testimony. In addition, Dr. Brady's uncertainty about Palmer being alive or dead when she was placed in the creek, as reflected in Notes III, is not evident from his testimony at the Gibson and Paradis trials. Lastly, had the defense known the amount of water was only a "spoonful of water" it may have contradicted any evidence that Palmer's additional lung weight was due to inhalation of water. This lack of information significantly hampered any attempt by the defense to refute Dr. Brady's statement "I believe she was strangled and shortly afterwards aspirated some amount of water during her terminal, during her last moments, with her last breath, I think she inhaled some water." Paradis TT; p. 651-52.
There was conflicting testimony about whether evidence concerning the lack of sexual assault on Palmer found in Notes I and III, "not sexually assaulted," "no gross evidence sexual molestation," was available to the defense. The Court has found that the police report indicated that Palmer had been sexually assaulted. Testimony by both Dr. Faith and Brown indicates that Brown understood the importance of establishing that the labia wound was a post-mortem wound, but that he was believed the evidence indicated that Palmer had been sexually assaulted and he was afraid of raising the specter of sexual abuse by asking about the labia wound.
At the Gibson trial Elliott testified that he was present at the autopsy and oral and vaginal swabs were taken from Palmer, and there was nothing to indicate sexual assault. Gibson TT, p. 643. He also testified that after tests were completed he never received information indicating that there had been a sexual assault. Gibson TT, p. 644. Gibson's attorney attempted to question Elliott about why his police report contradicted his testimony that Palmer was not sexually assaulted, but this line of questioning was not pursued and the entire colloquy was ambiguous on the issue. At trial, the petitioner's medical expert, Dr. Larson, was questioned by Brown about the labia wound and attempted to refute Dr. Brady's opinion that Palmer died in Idaho by focusing on the post mortem nature of the labia wound. The questioning of Dr. Larson by Brown tends to contradict Brown's testimony that he wished to avoid the issue of the labia wound, while Brown's absence of questions to Dr. Brady about the labia wound would seem to support his claim. However, this Court was ultimately persuaded by the testimony of both Brown and Dr. Faith that the belief Palmer had been sexually assaulted prevented Brown from pursuing an issue that might have refuted jurisdiction.
Based on the information before it, the Court finds that Brown had no knowledge about the lack of sexual assault, and the ambiguous testimony by Elliott in the Gibson trial was insufficient to provide him knowledge of the prosecution's error in supplying the wrong report. The evidence further indicates that this lack of information had a chilling effect on the petitioner's ability to question Dr. Brady regarding the wound.
At the petitioner's trial there was testimony that the forensic chemist was unable to detect blood on Palmer's jeans. The affidavit of Dr. John Thornton also indicates that it would have been extremely improbable that the blood was washed out of Palmer's jeans by creek water. The petitioner argues that the phrase contained in Notes III, "blood — ear — nose — could — have immediately followed strangulation" would have further supported the fact that there was no blood on Palmer's jeans, and the wound was therefore post mortem. The petitioner theorizes that it would have been impossible for the creek water to wash the blood out of Palmer's jeans if there was insufficient water to wash the blood off her face. It appears that the color photographs would have provided evidence of the blood on Palmer's face, but there was conflicting evidence about whether Brown received the photographs. As such, the petitioner has not supported his claim that this information was not disclosed to him prior to trial.
At the time Haws turned the Gibson transcript over to the petitioner, he had in his possession Notes I and III which contradicted the opinions given by Dr. Brady at the Gibson trial. In addition those notes contained information which was directly contradicted by the police report given to the petitioner. Haws' testimony at the evidentiary hearing that he believed the phrase "prob dead when went in water," contained in Notes I was conveyed to Brown through the Gibson transcript is clearly unpersuasive upon review of the transcript. In addition, Haws' testimony that the phrase "may have been alive when went in water" was consistent with Dr. Brady's testimony at the Gibson trial is refuted by Dr. Brady's own testimony at Gibson's trial, as well as Dr. Brady's testimony at the evidentiary hearing. At the Gibson trial, Dr. Brady testified, "Kimberly Ann Palmer, I believe, was strangled. I believe she was strangled and shortly afterwards aspirated some amount of water during her terminal, during her last moments, with her last breath, I think she inhaled water." Gibson TT, pp. 651-52. This testimony does not indicate that, in some respect, Dr. Brady thought the aspiration of water theory was a possibility, rather it suggests his opinion and belief. In addition, at the evidentiary hearing, Dr. Brady testified that the term "may" expresses some uncertainty. Paradis EH, pp. 424-442-43. Dr. Brady's testimony that he obtained additional information from the prosecution which aided his conclusions contained in the autopsy report is also unpersuasive. Dr. Brady's claim is refuted by his own testimony that he held the same opinion in the Moline trial in September 1980, as in the Gibson trial, and that he obtained no new pathological information after the autopsy. Notes I and III contain significantly different opinions from both the autopsy report and the testimony at the Gibson trial.
Review of the Trial Transcript indicates that although Brown called a medical expert in an attempt to refute Dr. Brady's testimony, Dr. Brady was the more credible witness and the jury relied on his testimony in reaching a verdict. Notes I and III would not have been admissible as evidence in this case; it is also possible that Notes I could not have been used as impeachment evidence, however, the pathological information contained in the notes, which conflicted with opinions later given by Dr. Brady at the Gibson trial, and then at the Paradis trial, could have lead the petitioner's defense team to discover admissible evidence. In addition, the undisclosed information appears to have put the defense team at a substantial disadvantage in preparing their case. The notes would have provided independent exculpatory information undermining Dr. Brady's testimony and contradicted the theory that Palmer died in Idaho. The Court cannot definitively determine that the information contained in the notes, which shows an inability to determine time of death, lack of sexual assault, and the opinion that Palmer was probably dead when she went in the water would have sufficiently undermined the credibility of Dr. Brady or jurisdiction in this case. However, under Brady and its progeny, that is not the determination for this Court to make. This Court must determine whether the evidence that was not disclosed to the defense was material. See Bagley, 473 U.S. at 682.
The Ninth Circuit Court of Appeals previously concluded that the notes conflicted with Dr. Brady's testimony at trial and that counsel was not given the right to investigate or cross-examine on it. The court of appeals further concluded that the defense was put to an actual disadvantage as previously outlined in this decision. Nothing in the evidentiary hearing occurred or was presented that would make these notes less material. This Court therefore concludes that the undisclosed information was material, and there is a reasonable probability that had Notes I and III been disclosed to the defense, the result of the proceeding would have been different, and the suppression of the notes undermines confidence in the outcome of this trial. The Court does not conclude, however, that the circumstantial evidence given at trial and/or the weight to be given to the credibility of witnesses is conclusively contradicted by the notes or the testimony given at the evidentiary hearing or that a reasonable juror would necessarily find the petitioner not guilty of having killed Palmer in Idaho.
VI. CONCLUSION
Upon remand, the petitioner has supported his claim that the non-disclosure of Notes I and III, taken by Marc Haws, constitutes a violation of his due process rights under Brady v. Maryland.
VI. ORDER
Based on the foregoing, and being otherwise fully advised in the premises, the court HEREBY ORDERS that:
(1) The petitioner's Petition for Writ of Habeas Corpus is GRANTED on the claim of alleged Brady violation with respect to notes taken by Marc Haws (Notes I and III).
(2) The State of Idaho has 120 days to initiate new proceedings against the petitioner.
IT IS SO ORDERED.