Opinion
No. M1988-00026-SC-DPE-PD
Filed April 5, 2002 (jsr)
ORDER
On March 22, 2002, Abu-Ali Abdur'Rahman filed a motion to recall the mandate issued by this Court in State v. Jones, 789 S.W.2d 545 (Tenn. 1990), and to consider post-judgment facts in support of the motion. Abdur'Rahman alleges that he has obtained new proof of racial discrimination by the prosecution in the selection of the jury in his 1987 capital murder trial and that this new proof establishes a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, he relies on prosecution notes obtained after issuance of the mandate, which allegedly demonstrate that the racially neutral reasons articulated by the prosecutor for removing certain African-American jurors were a pretext for racial discrimination. Abdur'Rahman requests that the Court consider the prosecution notes and an affidavit of one of the prospective jurors dismissed by the prosecutor as post-judgment facts under Tenn.R.App.P. 14.
On April 1, 2002, the State filed a response in opposition to the motion. The State asserts that the materials upon which Abdur'Rahman relies are not new evidence, that these materials are inappropriate for consideration by this Court, and that these materials do not establish extraordinary circumstances warranting recall of the mandate.
On April 2, 2002, Abdur'Rahman filed a reply to the State's response, reasserting that the materials establish a Batson violation. In addition, on that same day, the NAACP Legal Defense Fund, Inc., sought and was granted permission to file an amicus curiae brief in support of Abdur'Rahman's motion. On April 4, 2002, Abdur'Rahman filed a motion seeking a stay of execution, asserting that a stay is necessary to allow proper consideration of his motion to recall mandate.
After carefully considering the motions, the response, the reply, and the amicus curiae brief, a majority of this Court concludes that the motions are not well-taken. It appears that the materials upon which Abdur'Rahman relies in support of his motion to recall mandate were available to him as early as January of 1992, after the decision of the Court of Appeals in Capital Case Resource Center v. Woodall, No. 01A01-9104-CH-00150, 1992 Tenn. App. LEXIS 94 (Tenn.Ct.App. Jan. 29, 1992), which held that files maintained by the District Attorney General can be obtained under the Tennessee Public Records Act at the conclusion of the direct appeal in a criminal case. Exhibit 2 to Abdur'Rahman's reply to the State's response indicates that the prosecution's file, including the notes, were given to counsel for Abdur'Rahman at least by October 20, 1997, and apparently several years earlier during the state post-conviction proceedings. The delay in presenting this claim is therefore inexplicable. See In re Byrd, 269 F.3d 561, 572 (6th Cir. 2001) (concluding that federal habeas petitioner was not entitled to bring a second or successive petition to raise a claim of perjured testimony, when "[h]e sat on this evidence, like a chicken waiting for an egg to hatch, for twelve years, despite repeated contact with both state and federal courts"). In any event, these materials do not contain post-judgment facts within the meaning of Tenn. R.App. P. 14. The materials do not relate to facts occurring after judgment nor do they describe facts which are unrelated to the merits, readily ascertainable, and not subject to dispute. See Tenn.R.App.P. 14(a); Advisory Commission Comments to Tenn.R.App.P. 14; Duncan v. Duncan, 672 S.W.2d 765, 767-69 (Tenn. 1984).
Furthermore, even if these materials are appropriate for consideration, they do not warrant recalling the mandate. The power to recall mandate is an extraordinary remedy and should be exercised sparingly. See, e.g., Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 1498, 140 L.Ed.2d 728 (1998) (stating that the power to recall mandate "is one of last resort, to be held in reserve against grave, unforeseen contingencies"). Moreover, to warrant a recall, the circumstances should be "sufficient to override the strong public policy that there should be an end to a case in litigation." Hines v. Royal Indemnity Co., 253 F.2d 111, 114 (6th Cir. 1958); see also Yocom v. Bratcher, 578 S.W.2d 44, 46 (Ky. 1979) ("There is a strong policy of repose which requires that mandates and the opinions which they effectuate carry a heavy seal of finality."). Abdur'Rahman is urging this Court to use the extraordinary remedy of recall to re-litigate issues previously determined not only by this Court, but according to the response of the State, by the federal district court as well. Contrary to the position of Abdur'Rahman, the materials presented do not conclusively establish that the racially neutral reasons offered by the prosecution for excusing the African-American jurors were merely pretextual in violation of Batson. Indeed, the materials support this Court's direct appeal decision on Abdur'Rahman's Batson claim.
Abdur'Rahman specifically contends that the notes indicate that the prosecutor struck two African-American jurors — Robert Thomas and Sharon Baker — for racially biased reasons. With regard to juror Thomas, he points to a "rating" system used by the prosecution that purportedly scored Thomas as "more acceptable than five white jurors and equally acceptable as five other white jurors" who were not removed. However, the handwritten notes on their face contain no indication of the criteria for the prosecution's "ratings" or the weight given to the individual "ratings" in exercising peremptory challenges. Moreover, Abdur'Rahman's motion appears to ignore the primary reason for excusing Thomas, credited by both the trial court and this Court, which was that the juror was "a close friend of defense counsel from whom he had solicited money for the church he had once pastored." Jones, 789 S.W.2d at 549. That explanation is fully supported by the notes which plainly state: "Lionel [Barrett] he have known each other for several years. When he had church going he came to Lionel for a donation. He worked downtown delivering office supplies — thinks of Lionel as a friend." (Emphasis in original.) The notes also reflect numerous valid race-neutral reasons for the prosecutor's excusing juror Sharon Baker that were credited by both the trial court and this Court. These include Baker's demeanor and behavior during voir dire ("was sitting in the jury box reading a book during voir dire" and "she will not look at defendant") and her answers to questions (referred to a death sentence as a "killing"). See Jones, 789 S.W.2d at 549. In sum, Abdur'Rahman's contentions furnish no basis for the extraordinary remedy of recall of the mandate.
In closing, we feel compelled to respond to the dissent's comments on the perceived failure of state appellate review despite their irrelevance to the issues raised by the motion to recall. We emphasize that the brevity of an appellate opinion does not indicate that the appellate court did not thoroughly review the record and the relevant law in deciding the case. We have no doubt that at every level judges have thoroughly reviewed this case and pursued justice, as they are required to do by their oath of office.
Accordingly, the motion to recall mandate and the motion for stay of execution are hereby DENIED.
Concurring:
E. Riley Anderson, Janice M. Holder, William M. Barker, JJ.
Dissenting by Separate Order:
Adolpho A. Birch, Jr., J.
DS ADOLPHO A. BIRCH, JR., JUSTICE.
DX
DISSENTING ORDER
Though recall of a mandate is an extraordinary remedy, the totality of the circumstances presented here convince me that such a remedy is warranted. Thus, I cannot join the majority's decision to deny relief on Abdur'Rahman's motions. Moreover, even were I to concede that this motion affords little ground for the relief sought, I would, nevertheless, dissent because I do not agree that this Court should have set an execution date for Abdur'Rahman in the first instance.Because of the need for finality in the justice system, a mandate may be recalled only in extraordinary circumstances. See generally Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir. 1997) (noting that the power to recall a mandate is "reserved for extreme and necessitous cases"). As the State admits, however, this Court has an inherent authority to vacate an otherwise final judgment where circumstances require. Cf. 16 C. Wright et al., Federal Practice and Procedure § 3938 (2d ed. 1996) (discussing inherent power of recall). This Court has consistently held in other contexts that where a defendant raises serious claims but would be unfairly deprived of an opportunity to be heard because of procedural technicalities, due process requires us to weigh the defendant's interest in attacking constitutional violations against the State's interest in enforcing procedural barriers. See, e.g., Burford v. State, 845 S.W.2d 204, 208-09 (Tenn. 1992) (due process exception to the post-conviction statute of limitations); Workman v. State, 41 S.W.3d 1000 (Tenn. 2001) (due process exception to statutory limitations on the writ of error coram nobis where claims of "actual innocence" had been asserted).
Abdur'Rahman contends that the prosecution's notes, not available for his review until after his direct appeal, reveal that the State used peremptory challenges to remove Afro-American prospective jurors solely for race-based reasons. Assuming, arguendo, that this is provable, it posits an issue of utmost seriousness, for such racial discrimination is prohibited by the Constitution and has been condemned by the United States Supreme Court. See Batson v. Kentucky, 476 U.S. 79 (1986). Moreover, as is articulately noted in the thoughtful and well-drafted amicus curiae brief of the NAACP Legal Defense Fund, Inc., claims of invidious racial discrimination in our courts destroy public faith in the justice system. Thus, if Abdur'Rahman's claims are sustained, I would hold that their undeniably profound seriousness warrants recall of the mandate, and due process concerns outweigh any interest the State might have in enforcing procedural barriers to a remedy.
Despite the majority's discussion of recall of the mandate, I would respectfully submit that its order must actually be read solely as a judgment that it does not find Abdur'Rahman's Batson claim convincing. Surely, if the prosecution's notes had explicitly stated that the State intended to remove jurors solely because of their race, I cannot imagine that the majority would allow such an injustice to stand by holding that recall of the mandate is not an available remedy. Accordingly, I do not accord great weight to the majority's discussion of delay in this case or to the discussion whether the prosecution's notes qualify as "post-judgment facts" as contemplated by Tenn.R.App.P. 14.
With regard to juror Thomas, the allegations contained in the motion are not entirely persuasive. But with regard to juror Baker, the justifications given by the State for dismissal are quite problematic. For example, one justification offered by the State is that Baker gave "short, cryptic" answers to questions on voir dire. The nature of her answers was understandable, however, in light of the lengthy, complex leading questions, some stretching for a paragraph or more in the record, asked by the State. It is significant that the otherwise detailed notes from the prosecution contain no comment on Baker's responses. Likewise, the State's notes are critical of Baker for "not look[ing] at the defendant," yet at trial the State faulted Thomas for looking at defense counsel and smiling. There appears to be some inconsistency in the expectations of what these jurors "should have done." Overall, when the notes regarding Baker are compared to notes regarding jurors who were not struck, questions arise concerning whether the reasons given by the State for striking her were honest, or whether they were merely pretextual.
Thomas testified that he and defense counsel Lionel Barrett were close friends, and regardless of his race, it would be anticipated that the State would strike him from the jury because of that friendship.
Were my concerns about the State's treatment of Baker considered in isolation, I might join my colleagues in holding that Abdur'Rahman's claims are not sufficiently clear and compelling to mandate the extraordinary remedy he has requested. In the context of what has propelled this case to its present posture, however, the allegations ofBatson violations take on a new and more urgent significance. Specifically, I continue to hold deep concerns, as expressed in prior dissenting orders, regarding whether the majority is moving toward a just result. Most notably, none of the judges who have reviewed this case, even those on the Sixth Circuit Court of Appeals, has seriously disputed that Abdur'Rahman's trial counsel was woefully incompetent and demonstrably ineffective in representing Abdur'Rahman. It seems strikingly unfair, in my view, that we should allow such an extreme and final punishment to be imposed upon a man whose only chance to defend himself before a jury was snatched away by ineffective counsel. Additionally, I yet adhere to my belief that Abdur'Rahman has been placed in an untenable position with regard to possible claims of incompetency that may arise as his execution date approaches. The majority's failure to guarantee him access to a mental health professional could result in the unconstitutional execution of a man whose mental condition prevents him from understanding the nature of, or reasons for, his punishment. Finally, I continue to be troubled by allegations of prosecutorial misconduct that have surfaced to plague this case. Although these allegations have not been thus far overwhelming, their existence infuses additional gravity into the Batson claims that now have arisen. Taking all of these considerations together, I find the balance weighs in favor of granting relief.
The Sixth Circuit Court of Appeals held, in a 2-1 decision, that the death penalty should be reinstated not because Abdur'Rahman's trial counsel was effective, but because he was not prejudiced by the incompetence of his attorneys. See generally Abdur'Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000).
Finally, even if I did not hold the above-expressed views, I would dissent because I disagree with the setting of an execution date, as the majority has done. In my prior dissenting order in this case, I asserted that extenuating circumstances present in this case should compel this Court to certify to the Governor, pursuant to Tenn. Code Ann. § 40-27-106 (1997), that Abdur'Rahman's death sentence should be commuted to life in prison. Cf. also State v. Workman, 22 S.W.3d 807, 816-17 (Tenn. 2000) (Birch, J., dissenting from the majority decision to set an execution date, on the ground that a certificate of commutation should have been issued by the Court). Based upon the concerns I have expressed, I cannot agree with the Court's decision to advance this cause toward an execution which I deem improper. In other words, because I did not agree that an execution date should have been set in the first place, I cannot agree to the carrying out of that execution.
In conclusion, I am compelled to comment, on the record, upon what I perceive to be the most egregious of the several problems in this case. As this Court has considered the issues before us, it has become increasingly clear to me that our appellate review failed at the post-conviction stage. The Tennessee Court of Criminal Appeals's review of Abdur'Rahman's ineffective assistance of counsel claim can only be described as cursory. The case was reviewed by only two judges rather than the usual three, and one of those two judges was a Special Judge whose experience was predominantly civil. The opinion rendered by that court was barely three pages long, with merely two paragraphs devoted to discussion of the ineffectiveness of trial counsel. See Jones v. State, No. 01 C01-9402-CR-00079, available at 1995 WL 75427 (Tenn.Crim.App. 1995) (holding that trial counsel was ineffective, but deciding that Abdur'Rahman was not prejudiced as a result). Unfortunately, this Court refused to grant permission to appeal that decision. And ironically, when the Sixth Circuit Court of Appeals overturned the United States District Court's lengthy, detailed holding that Abdur'Rahman was "seriously prejudiced" by his trial counsel's "utterly ineffective" performance, its fundamental rationale was that the findings of the state post-conviction court, as upheld by the Court of Criminal Appeals, must be "presumed correct." See Abdur'Rahman v. Bell, 226 F.3d 696, 700-01 (6th Cir. 2000). Hence, the cursory review described above essentially barred Abdur'Rahman from receiving appropriate consideration at the federal level. Such a result is, in my view, unacceptable. Lamentably, there are some who would opine, notwithstanding the glaring insufficiencies present in this case, that the ineffective assistance of counsel issue has been litigated, is final as a matter of law regardless of the result, and that our justice system's shortcomings, however clear in hindsight, are now beyond correction. In my view, however, it is plainly unconscionable in a death penalty case to ponder our errors, declare that our hands are tied, and yet send Abdur'Rahman to be executed. Our duty clearly calls for us to relentlessly pursue a just result.
Abdur'Rahman v. Bell, 999 F. Supp. 1073, 1077 (M.D.Tenn. 1998).
For the foregoing reasons, I would recall the mandate in this case and grant the stay of execution as requested by Abdur'Rahman. Accordingly, I respectfully dissent.