The First “Duke Case”: Prosecutors’ Dirty Tricks
At the close of the Government’s case, the defendants moved for judgment of acquittal, arguing, among other points, that no direct forensic or witness testimony tied them to the murders. In response, the prosecutor argued, “The question before this jury is whether these defendants are guilty; not whether these defendants are the only persons who are guilty, but whether these defendants are guilty.” Id. at 2087.
During closing argument, the prosecution proposed that the defendants could be found guilty as aiders and abettors if not as principals in the death of Johnnie Battle. “This is a legal principle, ladies and gentlemen. His Honor will instruct you that you may find the defendant or defendants guilty of the crime charged, without finding that he or they personally committed each of the acts constituting the offense, or even that they were personally present at the commission of the offense.” Trial Tr. at 2785 (Government Closing Argument). The defendants objected to the introduction of this aiding and abetting charge for the first time in closing argument, arguing that there was no evidence to support the charge. Id. at 2841. The trial court overruled the objections,id. at 2821-22, and instructed the jury that they could find the defendants guilty of first-degree murder while armed, first-degree murder, second-degree murder while armed, second-degree murder, manslaughter while armed, or manslaughter, id. at 2847. In addition, the court gave an aiding and abetting instruction.
B. The Prosecution’s Use of Peremptory Challenges To Exclude White Jurors from the Jury Violated Petitioners Fifth Amendment Due Process Rights.
The prosecution at trial used peremptory challenges to strike all prospective white jurors from the jury. Given that Petitioners are white and the decedent was black, and that this case was framed as being racially-motivated, the Government’s use of peremptory challenges was improper and violated Batson v. Kentucky, 476 U.S. 79 (1986). Batson should be retroactively applied to Petitioner’s case because the Government’s use of peremptory challenges to remove all whites from the jury goes to the fundamental fairness of the proceeding, and because this case involved an interracial crime where the defendants have a good-faith, colorable claim of innocence. See Sawyer v. Smith, 497 U.S. 227,242 (1990) (noting that retroactivity is appropriate where the new rule (1) goes to the fundamental fairness of the proceeding, and (2) significantly improve[s] the pre-existing fact-finding procedures [that] are to be retroactively applied on habeas) (quoting Desist v. United States, 394 U.S. 244,262 (1969) (Harlan, J., dissenting)).
[From Appeal Document 21]
During the oral argument on appeal of the lower courts denial of Messrs. Eastridge, Sousa and Diamen’s joint motion to vacate their convictions, the government itself conceded that it is certainly reasonable to conclude that Messrs. Eastridge, Sousa and Diamen were not the actual stabbers. See March 20, 1997 Oral Argument Tr. at 62 (before Judges Ferrin, Ruiz and Kern).
Without further explanation or support, the government stated that it was continuing to oppose Messrs. Eastridge, Sousa and Diamen’s joint motion to vacate their convictions because there was evidence that they aided and abetted the attack. Although the D.C. Court of Appeals was divided with regard to whether Mr. Eastridge’s petition was procedurally barred, all three judges on the panel agreed that, at a minimum, Petitioners had presented a non-frivolous claim that they have spent many years behind bars for a crime that they did not commit. Diarnen, et. al. v. U.S., 725 A.2d 501, (D.C.Cir. 1999).
[From Appeal - p v.
I. THE GOVERNMENT’S ARGUMENT IS FOUNDED ON MISCHARACTERIZATIONS OF THE TRIAL RECORD.
An essential part of Petitioners request for relief is their actual innocence. The new evidence proffered by Petitioners and the trial record together virtually compel the conclusion that they were wrongly convicted. The Government claims that Petitioners all but ignore much of the physical evidence at trial and grossly understate the government’s evidence. Govt Br. at 32. It is the Government, however, that misstates the evidence. By ignoring the actual record, the Government repeatedly portrays as inculpatory evidence that in fact exonerates Petitioners.
A. The Blood Evidence Is Not as Represented by the Government.
The Government seeks to leave the impression that the blood evidence pointed to Petitioners as participants in the murder. The opposite is true - the actual blood evidence in the record is highly exculpatory:
--The Government asserts that blood in the car was in both the front and back seats. Govt Br. at 15. In fact, the record shows that blood was confined to the area immediately surrounding Stephen Jones (including the left rear seat of the car, the left rear door panel, a very small amount on the back of the front seat, and small scrapings from the center back seat and rear left seat).2/ Tr. at 563-65,568-69, 1219, 1243.$
--The Government states that Diamen had blood near a tear in his pants, with blood on the newspapers on the floor and on his seat. Govt Br. at 32-33; id. at 15. In fact, the record shows that bloody newspapers were found only in the rear seat near Jones, Tr. at 562,1219, and there was no blood on the front seat at all. Perhaps the Governments confusion stems from the fact that it erroneously places Diamen in the rear left seat. See Govt Br. at 32. The trial record shows Diamen was sitting in thefront right passenger seat. Tr. at 662.4/
1 The Government apparently chose to use as its fact source statements made in earlier Government briefs instead of referring to the trial record itself. The result is highly misleading. Jones is the one person in the car who did in fact participate in the murder. He admitted doing so by recanting his earlier testimony in an affidavit submitted by Petitioners, and in that affidavit confirmed that Petitioners were not among the three other participants in the murder.- See Affidavit of Stephen Jones, Ex. I: 4.
2 The Government chose not to file any portions of the trial transcripts. Petitioners have filed an additional set of exhibits, which provide additional portions of the transcript not reproduced in Petitioners original Exhibit II. The entire trial transcript is available.
In its eagerness to tie Diamen’s small blood stain to the murder, the Government fails to mention that the blood near the tear in Diamen’s pants was Diamen’s own blood. Tr. at 628-29 (testimony of the Governments serologist). No blood connected to the victim was ever found on Diamen.
Using a similar approach, the Government notes more than once that Sousa had blood on his shirt. Govt Br. at 32; at 15. It fails to mention, however, that this blood trace was too small to type because it was only the-fifth of the size of a dime or half the size, maybe, of an eraser on a wooden pencil. Tr. at 587 (testimony of the Governments serologist).
--The Government states that the Government’s serologist at trial indicated that the decedent’s blood type appeared on the weapons and clothing of several [petitioners], Govt Br. at 34 (quoting United States v. Eastridge, 110 Wash. L. Rep. 1181, 1186 @.C. Super. Ct. 1982) (alteration in original)). This is blatantly inaccurate. The trial transcript shows that the serologist gave no such testimony. Rather, as discussed above, a preliminary test showed the decedent’s blood type only on Jones (a later test was inconclusive), see Tr. at 545-58;g the blood stain on Diamen was his own blood, Tr. at 628-29; and the drop of blood on Sousa was too small to type, Tr. at 587-89.
--This means that Sousa was driving the car, Diamen was in the front passenger seat, Jones was in the rear left seat (behind the driver, where the blood and bloody newspapers were found), and Eastridge was in the rear right seat. Tr. at 662.
In stark contrast to the lack of any significant blood on Petitioners, Jones was covered in blood - it was on his jeans jacket and boots, and had soaked all the way through his jeans to his long johns. Tr. at 544-61.
In short, the blood evidence involving Petitioners is completely inconsistent with participation in a murder the witnesses characterized as involving [a] great deal of blood, an excessive amount of blood. Tr. at 906 (testimony of Sergeant John Horn) . ~ Other than two small instances of blood traces untied to the murder, there was no blood on Diamen’s or Sousa’s hands, boots, or elsewhere on their bodies or clothing.P Tr. at 543-95,588-90,758. There was no blood on Eastridge at all. Tr. at 591-92,626 (testimony of the Governments serologist).
B. The Knife Evidence Is Not as Represented by the Government.
--By all accounts, Battle’s death was very bloody. See, e.p., Tr. at 349 (testimony of John White, the first witness to the body) (Battle’s body was bleeding profusely); Tr. at 971 (testimony of Sergeant Richard Scott) (stating that there was quite a bit of blood).
--Although the Government makes much of the clothing found in the trunk of the car (which was never admitted into evidence at trial) in an apparent attempt to link Petitioners to the murder, Govt Br. at 34-35 & n.20, the Government fails to note that there was no blood on any of this clothing and it was consequently of no evidentiary value.
--The Government represents that this blood-stained knife was found the following day in a location where petitioner Diamen had been seen. Govt Br. at 32 n.16. This is blatantly wrong. The knife found on the grassy bank where Diamen had reportedly been sitting was marked Government Exhibit 3E at trial. Tr. at 625-26,1229, 1498-99. The blood-stained Puma knife, however, was marked Government Exhibit 3A. It was found in a backyard near the site of the murder, not where Diamen had been seen sitting. Tr. at 528-29,625-26.
--Contrary to the impression the Government tries to create, no trial evidence tied any of Petitioners knives to the crime. The knife found under Sousa’s seat was dusty and had no blood on it. ComDare Tr. at 1267 & Trial Exhibit 3B Govt Br. at 32 The knife recovered from Eastridge was a small Ranger Junior folding knife with no traces of blood on it. ComDare Tr. at 1067, 1070-72, 1080 & Trial Exhibit 3D with Govt Br. at 33. The knife found on the grassy bank where Diamen is said to have been sitting (Exhibit 3E), did not have any blood on it and was never connected to the murder. Tr. at 625-26, 1229,1498-99.
--The Government also mentions that popcorn [was] found on the sidewalk near where Eastridge’s car had been parked. Govt Br. at 33. The popcorn was actually found scattered from 43rd Street to Wisconsin Avenue. Tr. at 913-14. In any event, the popcorn is irrelevant to the question of Petitioners involvement in Battles death.
In short, like the blood evidence, the knife evidence helps to exonerate Petitioners. The only knives that could be associated with them did not have any blood on them - and the only knife ever found with blood stains on it (the 12-inch Puma hunting knife) was never connected to any of the Petitioners.
C.Other Important Evidence Is Mischaracterized.
The Government also mischaracterizes other key exculpatory evidence in the trial record: The Government notes that Eastridge had a whiskey bottle on the car floor near him, and states that a witness had seen someone jogging down Wisconsin Avenue, toward the decedent, during the chase, carrying a whiskey bottle. Govt Br. at 33 (emphasis added). Exactly the opposite is true. Stephen Maday testified at trial that the person with the whiskey bottle jogged north on Wisconsin Avenue, in the opposite direction of Battle’s chasers. Tr. at 1826, 1841. Maday testified without contradiction that the person with the whiskey bottle was not one of the chasers. Tr. at 1832. At trial, the Government admitted that Eastridge was the person with the bottle - the same person Maday saw running in the opposite direction from those chasing the victim. Tr. at 2790.-d
9 When the police arrested Jones, his knife was still on him, in its sheath with no blood on it. Tr. at 625-26. This provides further support for Joness affidavit, in which he admits having participated in the murder by tackling and punching Battle, but not by stabbing him. Jones Aff. Pp 13-15.
--The Government incorrectly asserts that a witness identified Petitioners and Jones as part of the group that harassed Battle before his death. Govt Br. at 13. In fact, not - one of the trial witnesses identified Petitioners as having been part of any group other than the Richter group. Tommy Motlagh never described Petitioners as chasers or harassers of Battle. He identified them only as having been at his club. Tr. at 4951, 495x.
--Contrary to the Governments contention, the forensic evidence does not corroborate Willettss testimony that Eastridge and Sousa sliced the decedent’s ear and cut off his nose. Tr. at 1663-64; Govt Br. at 33. The deputy medical examiner who testified about the autopsy results made no mention of any wounds to the decedent’s ear, and his description of the wounds to decedent’s nose in no way suggests that it was cut off. Tr. at 1883-86.
In sum, the Government’s inaccurate, revisionary statement of the evidence at trial does nothing to undercut Petitioners showing of actual innocence.- ld
This is not the first time that the Government has mischaracterized the whiskey bottle evidence as inculpating Eastridge. At trial, one of the government prosecutors said during opening argument that the evidence would show that one of the individuals chasing . . . had a whiskey bottle. Tr. at 65. At closing, the other government prosecutor argued that Eastridge had admitted handling the whiskey bottle, as if that implicated rather than exonerated him; the prosecutor then tied the whiskey bottle to the Government’s misstatement on opening argument. Tr. at 2790 (You remember that bottle . . .). Eastridge’s attorney’s failure to make proper use of the whiskey bottle as a defense at trial constituted ineffective assistance of counsel. Pet.at 62-63.
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