## Motion for Remand for Evidentiary Hearing No. WR-47,593-02 IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN



### Ex parte Randal Franklin Caraway

Applicant Habeas Corpus

Proceeding under Article 11.07, et seq ., C.Cr.P., in Case Number 19072B, from the 91st District Court of

Eastland County

TO THE HONORABLE COURT OF CRIMINAL APPEALS: COMES NOW, Randal Franklin Caraway, Applicant, by and through his attorneys, John G. Jasuta and David A. Schulman, and respectfully files this Motion for Remand for Evidentiary Hearing, and would show the Court: I Applicant filed an application for a writ of habeas corpus in Cause Number 19072B, in the habeas court, on June 14, 2014. The application was transferred to the Court of Criminal Appeals, received on July 11, 2014 and docketed as indicated above. On August 15, 2014, a Supplemental Clerk’s Record was received at the Court of Criminal Appeals containing the habeas court’s Findings of Fact and Conclusions of Law, which had been signed WR-47,593-02 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 8/7/2015 2:44:15 PM Accepted 8/7/2015 3:00:37 PM

ABEL ACOSTA CLERKby the habeas court on August 8, 2014, to wh ich Applicant objected on March 10, 2015, with notice o f those o b jections b eing filed with this Court the same day. I Appl i cant a sserts t hat the habeas court improperly denied him the opp o r tun i t

y to present his claims in a live evidentiary hearing. In that regard, Applicant would show the Court that, in his habeas corpus application, he stated facts which, if true, would entitle him to relief, in multiple respects: A Applicant’s alleg ation as to the r ecantation of incriminating trial t estimony is s upported by the Jenkins affidavit, submitted as Exhibit “C” to the habeas application. The State’s answer created contested factual issues, but did not purport to resolve the issue without the making of credibility cho i ces, more suitable after confrontation. The State m ade no effort to explain Jen kins’ reduced senten ce, which he swore was the payoff for the perjured testimony. That the individuals named as t hose who coerced the testimony have denied the truth of the al legation, again, does nothing but create a factual issue requiring resolution.

2B

Counsel for t he State clearly m isund er st o od Dr. Peerwani’s affidavit (attached as Exhibit “F” to the habeas application) and the State’s answer, and findings based on that answer, m isstated the substance of that affidavit. In the 2013 affidavit Dr. Peerwani did not state the cause of death as manual strangulation b ut, instead, stated that, given current and m odern medical knowledge and procedures, the cause of death could not be determined. It is true t hat D r . Peerwani testified at trial that his identification of t he cause of death at trial was due to history, which went unex pl ained. However, the State’s r esponse missed the point o f Dr

. Peerwani’s affidavit which was that his t rial testimony was wrong, and would not be t he s am e t o day, given modern medical protocols. According to Dr. P eerwan i , he could

n ot, given those modern protocols and procedures, use what others told him in arriving at a scientific conclusion and his testimony would not be that which was offered at trial. Provided with the o pportunity in a live evidentiary hear i n g , Dr. Peerwani will t estify that t he trial testimony t hat the cause of death was homicide and the method was manual strangulation

was based entirely on what he had been told by i nvo lved law

3enforcement officers and that neither would have been made but for that improper intervention. The science, Dr. P eerwani will also testify, could not s how eith er cause of death or method of death and should not have been given because it was false testimony, as it was based on unsupportable hearsay. The State’s answer somewhat disingenuously states that the evidence at trial showed that Dr. Peerwani could not have come up with t he conclusion that there had been manual strangu l at ion unless someone told him, when that statement also totally misses the point. At trial, notwithstanding the lack o f scientific support, Dr. Peerwani was allowed to give an expert s cientific opinion t hat there was a homicide and that it had b een cau sed by m anual strangulation. In fact, as will be s hown in test i mo ny , f ollowing modern protocols, Dr. Peerwani, and other moder n p athologists, do not speak with anyone who has any interest in t he conclusion drawn. Such “ expert” t estimony could not be given today because it was not based on any scientific enquiry or expertise. It is, perhaps, only coincidental, that the autopsy was performed on Oct o ber 5, 1994, with law enforcement officers Preston and White present, and it was the next d ay that Preston wrote out the c onfession for Applicant to sign. Thus, at the time

4of the autopsy, Applicant had not confessed t o anything, making any “history” s usp ect , at b est, and, possibly, a complete fabrication. The “history” was the opinion of law enforcement, and only that. It was not science. Through its answer to the habea s application, the State ignores t h e f

act that, given the advances in medical technology and p rocedures, Dr

. Peerwani’s testimony that there was a homicide would not be given, that his evidence that the method of death was manual strangulation would never have been heard by the jury, and, therefore, the testimony he actually gave at trial was false testimony. Dr. Peerwani’s current affidavit and his proposed testimony based on that affidavit clearly raise factual issues r equiring

r esolution through evidentiary methods, and not unsupported credibility choices based on denials by the State without support. C The State’s answer also neglected, and did not men tion the additional medical evidence on this topic, all of which requires proper resolution o f t he issue. T wo forensic pathol ogists have

sworn that the evidence which was heard by the jury would not be given today because it is u nsupported by medical ex amination.

5Modern medical p rotocols simply d o not allow for the interjection of t he opinions of others, and c ertainly not p olice officers, into the medical examination and the conclusion s to be drawn from t hat examination. D Additionally, the State either ignored or f ailed to understand and ack nowledge, that additional “evidence” from Dr. Peerwani, including d emonstrations of manual strangulation and discussions of how lo ng victims would struggle and retain

co nsciousness until death would ensue, would not have b een admissible at trial, as i t would not have been relevant to any issues before the jury. The State was able, due to t he introduction of this spurious evidence, to argue that Applicant’s confession was “consistent with t h e medical evidence” (RR Vol. 5, PP. 523-524). The truth is t hat the “medical evidence” presented at trial was false, based as it was o n the statements made to the pathologist by law enforcement officers. E The State argued in its response that t here is no evidence showing a violation of Brady v . Maryland , 3 73 U.S. 83, 1963). The State did not respond, h o wever, to some of the Brady

6violations alleged in the habeas corpus application. Thus, several of the State’s failu r es to provide exculpatory and favorable evidence to d ef

ense counsel remain unexplained. Resolution through appropriate means is required, and the most appropriate means would be a live evidentiary hearing. An example is found regarding the statement mad e to authorities by Jessica Bryan, the deceased ’ s daughter, who informed police that she, and Applicant, had arrived home at 9 :27 p.m., and that she had awakened t hree times during the night, on each occasion observing Applicant alone and awake at the kitchen table. During one of t hose times she heard Applicant arguing with someone, took the phone, and spoke with her mother. The failure to provide this information to defense coun sel remains unexplained. Another example o f a Brady violation to which the State failed to respond is found in the written notes of the interview of Jessica Bryan in which it is stated that the deceased was at Roy Parker’s house when Jessica s poke with her. The State p ut on evidence, at trial, that the deceased was next door, at Shawna Rhyne’s house until she returned home. That evidence was directly contradicted by the notes which were n ever r evealed to the defense, yet the

7State offered no response to allegations in the habeas application pertaining to Bryan’s notes, and the allegat ion remains unresolved. Yet another example which has not been disputed is that the deceased’s father reported to police that he had spoken with Shawna Rhynes, who told him that s he had last seen the deceased at 9:00 p .m. on the night of her disappearance. The State put Shawna Rhynes on the stand to testify that she walked the deceased home after midnight and left her f ighting with Applicant, despite the f

act that counsel for the State knew Shawna had told the deceased’s father something entirely different. This report was not given t o t he defense, and most c ertainly was never shown to the jury. The failure t o provide this information t o defense counsel remains unexplained, despite its contradiction of the testimony of

one of the State’s star witnesses. Only through presen t at i o n of evidence at a live evid en t i ar y hearing can t his explanation be obtained, and complete and fair resolution achieved. F The State disputes trial c ounsel Sanov’s affidavit a s not based

on recollection. Trial c ounsel Sanov s wore to his usual p ractices at t he t ime in question, and those statements of his practices have

8not been contradicted by the State. His statement is nothing more than an assertion that he has no r eason t o believe t hat he would have failed to act in accord an ce with his usual practices, which would have included investigat i ng facts which would have benefitted his client. What San o v’ s st atements are not is “rank speculation.” The Sanov affidavit, when combined with that f r o m Mr. Escoved o , i s an excellent example of a Brady violation. Sanov stated in h is affidavit that, had he seen t he note referring to Escovedo, he would have co n t act ed him as a part of his investigation, according to his usual practices at the t ime. Mr. Escovedo swore that no one co n t acted him. Mr. Sanov is not guessing, he is reciting his history, his usual course of practice and his belief that h e was not given this information because he failed to act in his usual manner by investigating it. If it does nothing else, the Sanov affidavit creates factual issues which require resolution by actual investigation and

evid e nt iar

y p re s e n t at i o n , e s c h ewing s p e cu lat io n . Sanov ’s evid e nc e should b e accorded the same respect the State wishes accorded to that of Mr. Siebert, that he had an o p en f ile policy, despite the

9Seibert’s admission that he had no recollection of the exhibit s. 1 Acco r di n g equal respect to the evidence from the sources demonstrates, once again , the need for a genuine evidentiary hearing. G The evidence before the habeas c ourt clearly demonstrated inconsistencies in the State’s evidence, i n cl uding whether Applicant actually directed the d etectives to the body. The State referred in its answer, on multiple occasions, to the confession and the “fact” t hat Applicant showed the officers where t he body was hidden. Interest ingly enough, this was not stated in Kenneth Preston’s initi al m e mo describing the discovery of the body. In “OFFENSE/INCIDENT REPORT MEMO # 941015" it states: At approximately 10:30 PM on 10/04/94 Cisco Police Department Det. Sgt. Kenneth Preston and Chief Fairbanks were directed to a trash pit approximately 4 miles southwest of Cisco. It was there that the s emi-nude body of a white f

emale was found decease d

. The b ody was wrapped in some type of blanket. The body is belie ve d to b e that of Tamiy Deneen B ry an , white female, 30 years o f age, which was reported missing s in c e

1 Interestingly, the record shows Mr. Siebert’s assertion that no evi d en ce was not shown to Mr. Sanov during t h i s o pen file review is false. T wo documents, dated October 24, 1994, and February 9, 1995, were revealed t o counsel on the third day o f trial (RR Vo l

. 4, P P. 275-281). These documents related to matters which went to t he heart of Applicant’s defense, just as the matters discussed herein, and they had been in t he State’s file for fifteen months. Clearly, contrary to the affidavit of Mr. Siebert, n o t everything within the State’s file was revealed to Mr. Sanov. 1009/27/94. The body is believed to have been d umpe d th e re by suspect #1 after being carried there by the suspect in the above described vehicle. O d d ly enough, no mention is made of either Applicant by name,

or of Susp ect #1, being the person who “directed” the maker of that report to t he location, seemingly an important fact

. If “Suspect #1,” or Applicant, had directed the search, why was the body only “suspected” of having been left there by Suspect #1? Why doesn ’t the report assert that Applicant had c onfessed and was the per so n wh o led the police to t he body? The only

r easo nable explanation is that Applicant had not confessed an d had n o t l ed the p olice to the body. Despite this inconsistency going directly to the heart o f the State’s answer, no true investigation was had through the one traditional method available to h abeas c ourts allowing for presentation, and scrutiny, of reliable evidence - a live evidentiary hearing. H Th ere are multiple examples of the failure of t he poli ce to reveal evidence contradictor y to the theory by which Applicant would b e held acco u nt ab le. There is even a phone slip from a police chief of a neighboring jurisdiction t o the investigators in this case, clearly showing that there was a witness t o the deceased’s intoxication the alleged night of the murder.

11The evidence contained in that note was contrary to the State sponsored evidence that there w ere no drugs and an inconsequ en t i al amount of alcohol in t he d eceased’s body at the time of death. Nevertheless, the State maintained in its answer that, it is “unclear if there was a failure to d isclose” this inf o rm ation. The State’s answer, t herefore, d emonstrates the ne e d for a hearing at which it can show t hat it did divulge information directly contrary to its theory of the case. The actual facts, when presented in a live evidentiary hearing, will show that the absence of drugs and alcohol in the body, if true, w eighed t otally against Applicant kill i n g t he deceased and disposing of the b o dy the night of the killing, as the State presented the case t o the jury. The evidence actually s hows t hat t h e deceased did not die that night and maybe even t hat Mr. Escovedo’s evidence, also unrevealed, was true. It is clear that evidence ex ists that there were multiple instances of non-revelation of material information to M r . S anov given his affidavit, as well as, perhaps, the State, if their claim of not having t he evidence found in the police files is believed. All of this is, of course, in co n sequential, because the police’s failure to divulge excu lp atory evidence is attributed to the prosecution t eam.

12Kyles v. Whi t l e y, 514 U.S. 419, 437-438 (1995); Ex parte Chavez, 213 S.W.3d 320, 325 (Tex.Cr.App. 2006); Ex parte Mitchell , 977 S.W.2d 575, 5 78 (Tex.Cr.App. 1997); Ex p a rte Castellano , 863 S.W.2d 47 6 (Tex.Cr.App. 1993); Ex parte Adams , 768 S.W.2d 281 (Tex.Cr.App. 1989). I I Much has been written about the necessit y of confrontation in the s earch for truth, with a recognition that t h e co urtroom is that place where that search is conducted. The courtroom is the c rucible o f the law, where the fire of litigation tests the intellectual and political forces that inform soc i a l p o l icy. Discovery - the p rocess by which litigants identify and assemble their evidence - provides the fuel for the fire. James Gibson, A Topic Both Timely and Timeless , 10 RICH. J.L. & TECH. 49 (2004). Our literature and case law are replete with references to the “crucible” of the courtroom. Members of the Supreme Court of the United St at es u se it often. Regarding the Confrontation Clause, for example, the Court recently wrote: To be s ure , the [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular m anner: by testing in the crucible of cross-examination.

. . . Dispensing with confrontation b ecause testimony is obviously reliable is akin to dispensing with jury trial

13because a defendant is obviously guilty. This is not what the Sixth

Amendment prescribes." Melend ez-D iaz v. Massachusetts , 557 U.S. 305, 312 (2009). Along that line, in one its most landscape-changing Confrontation Clause cases, the Court wrote: Where testimonia l statements are involved, we do not think the Framers meant to l eave the S ixth Amendment's p rotection to the vagaries of the rules of evidence, much l ess to amorphous notions of "reliability." Certainly none of the authorities discussed above ackn o w ledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge i s fundamentally at odds with the right of confrontation. To b e sure, the Cl ause's ultimate goal i s to ensure reliability of evidence, but it i s a procedural rather than a substantive guarantee. It commands, not that evidenc e b e r e liable, but that reliability be assessed in a particular manner: b y testing in the crucible of cross-examination. The Clause thus reflects a judgm e nt , not only a bout the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 ("This open examination o f witnesses

. . . is much more c onducive to the clearing u

p of truth"); M

. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial te s ting "beats and bolts out the Truth much better"). Crawford v. W

ashington , 541 U.S. 36, 61-62 (2004). Similarly,

more than forty years ago, J u stice Marshall, joined by Justices Douglas and Brennan, wrote, albeit in dissent, that “ In o u r system of justice, the right of confrontation provides the crucible for testing t h e t rut h of accusations

. . ..” Arnett v. Kennedy, 416 U.S. 134, 214-215 (1974)(Marshall, J., dissenting). Also, seventy years ago, Justice Murphy, defending the r ig h t of the Associated

14Press to disseminate the news, wrote general ly t hat evidence, unless undisputed, “should be thoroughly tested in the crucible of cross-examination and c ounter-evidence.” Associated Pr ess v. United States , 326 U.S. 1, 57-58 (1945)(Murphy, J., dissenting). III The role o f t he trial c ourt in habeas corp u s mat ters brought pursuant to Art. 11.07, § 3, is that o f the fact-finder. The ultimate decision is to be made by the Court of Criminal Appeals, guided by t he informed findings and recommendation of the trial court. Applicant a sserts that t he only way the Court can properly assist the Court of Criminal Appeals in its investigation and truly resolve the quest i o n o f whether the State violated the requirements of Brady is to schedule a live evidentiary hearing , at wh i ch time Applicant would be able to introduce live testimony supporting his claims. I V A p p licant would suggest that, due to t he time required to obtain witnesses and ensure their presence, as well as to prepare for a f ull and c omplete hearing, the hearing be scheduled no less than sixty (60) days from the date of the setting of the hearing.

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### Prayer

WHEREFORE, PREMISES CONSIDERED, Applicant, Randal Fr an k lin Caraway, respectfully prays that t his Honorable Court will remand thi s cause to the trial / habeas c ourt so that a live evidentiary hearing can be held, at which time Applicant can present l ive testimony in support of his claims; and, after such hearing and u po n p r op er consideration by t he Court of Criminal Appeals, Applicant will be granted the relief to which he is entitled. Respectfully submitted:

John G. Jasuta Attorney at Law State Bar No. 10592300 lawyer1@johnjasuta.com David A. Schulman Attorney at Law State Bar No. 17833400 zdrdavida@davischulman.com 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Applicant

16Certificate of Compliance and Delivery

This is to certify that: (1) this docum en t , created using WordPerfectTM X7 software, contains 3,234 words, excluding those items permitted by Rule 9.4 (i)(1), Tex. R. A p p .Pro., and complies with Rules 9.4 (i)(2)(B) an d 9 .4 (i)(3), Tex.R.App.Pro.; and (2) on August 6, 2015, a t rue and correct copy of the above and foregoing “Motion for Remand for Evidentiary Hearing” was transmitted via the eServi ce function on the State’s eFiling portal, to John R. Sari nge r (s ari n ge r

@ wag s t af f l a w . c o m ) , att o rn ey p ro t e m , c o u ns e l f o r the State of Texas.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ John G. Jasuta

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