271 F.3d 1174 | 9th Cir. | 2001
Lead Opinion
Opinion by Judge KLEINFELD; Dissent by Judge KOZINSKI
This case involves a procedurally barred habeas petition. The issue is whether the petitioner has presented evidence of actual innocence sufficiently strong to avoid the procedural barriers to raising an issue that would otherwise be procedurally barred.
Facts
In 1986, Sistrunk was convicted of forcibly raping a little girl. His jury trial took place in an Oregon state court, and he was sentenced to thirty years of imprisonment with a fifteen year minimum. He appealed to the Oregon Court of Appeals and petitioned for review to the Oregon Supreme Court without success.
The eleven year old victim knew the petitioner, enough so that when she saw him the day of the rape, shortly after getting out of school, she ran away from him. He had assaulted her once before, and she testified that she was scared of him, because of the assault, and because he had threatened to kill her family if she told. She ran back to her school, but it was locked, and he caught her. He grabbed her by the arm and walked her over a freeway and into an open garage. He laid his coat on a large, square pan on the floor, pulled down his pants and hers, and forced her on top of him, penetrating her painfully, and, ejaculated. Then he slapped her in the face with a five dollar bill, took her back to school, and warned her that he would kill her and her family if she told. She got an after-school activity bus that took her home. She bought flowers with the five dollars and took them home to her mother. Her mother realized that something was not right, got the girl to tell her what was wrong, and called the police and took the girl to the hospital. The girl had a fresh abrasion in her vaginal area. Subsequently, she began to have a burning sensation when she urinated and some discharge.
Sistrunk claims ineffective assistance of counsel because his trial attorney did not
The state’s main expert witness, Dr. Jan Bays, testified falsely. She testified that a scientific study proved that “it is very, very rare that a child lies about sex abuse” and that the chance of such a lie is only with teenagers, “never with the younger children.” She testified that the study established that “if the child comes forward with the story, themselves [sic], then it is the truth. If the child is younger than a teenager, then it is the truth.”
The “scientific study” to which Dr. Bays referred had not been published at the time of trial. Because the study was not published at the time of trial and because it contradicts Dr. Bays’s testimony, petitioner claims that it is newly available evidence. The article in question is in the Journal of Interpersonal Violence,
After the trial, Dr. Bays also co-authored an article in a law review, suggesting that “clinical experience and systematic studies confirm that deliberately false allegations of sexual abuse are infrequent.”
The issue of whether a photograph of Sistrunk’s penis should have been taken and submitted to the jury arises from a condition he has called neurofibromatosis. It causes pigmented spots and bumps on various areas of the patient’s skin.
The district court denied the petition, on the grounds that Sistrunk procedurally defaulted on his claims and has not made a showing of actual innocence sufficient to raise them despite the procedural default. The magistrate judge, despite recommending denial of the petition, expressed her concern about the case, particularly because of Dr. Bays’s false testimony vouching for the victim’s credibility.
The case did not turn entirely on the victim’s testimony. There was corroboration. A medical examination found abrasion of her vaginal area. Her subsequent discharge and pain on urination were consistent with rape. The girl’s description of the garage where Sistrunk took her and raped her was consistent with the garage of a person in the location. The garage door did not lock, and the homeowner often left it open. There was a dry, square, oil pan with leaves on the floor, in the place where the girl had described a large pan onto which Sistrunk tossed his coat. The garage had a coiled utility cord hanging where the girl described a “rope” on the wall. The unusual event of an eleven year old girl going to a flower shop and buying her mother five dollars worth of flowers on no special occasion makes the flowers chilling corroboration of the girl’s testimony that Sistrunk slapped her in the face with a five dollar bill he left her after raping her.
Analysis
We review denial of the writ de novo and may affirm on any ground supported by the record.
Petitioner concedes that his claim would be procedurally barred but for the “Schlup gateway.” The Supreme Court held in Schlup v. Delo
The briefs do not discuss whether the elaborate Sehlup analysis applies to cases where the death penalty is not at stake, or whether the AEDPA standard supplants the Sehlup standard. Both sides argue on the assumption that the Sehlup standard applies. Because we ultimately decide that the requirements for the Sehlup gateway are not met, we assume without deciding that Sehlup applies,
Sistrunk’s first argument is that the district court erred by requiring that “new evidence” for purposes of the Sehlup gateway be newly available rather than newly presented. We need not decide whether he is correct,
We also need not decide on the strength of Sistrunk’s legal claims, including his claim that the jury should have been instructed on a lesser included offense. The issue in this case is whether Sistrunk’s evidence of actual innocence is strong enough to get him through the Sehlup gateway so that his claims can be consid
Sistrunk’s evidence does not purport to show that he did not rape the little girl, just that Dr. Bays should not have been allowed to vouch for the girl’s testimony, and that the girl should have been impeached by a photograph that would have shown that his penis was not bumpy, as the girl had testified. Thus the evidence that Sistrunk seeks to introduce as proof of his innocence is merely impeachment evidence. Where the new evidence “casts a vast shadow of doubt over the reliability”
In this case there is not “a reasonable probability that the outcome of [petitioner’s] trial would have been different” had the jury been furnished with the material undermining the expert’s credibility and showing what Sistrunk’s penis looked like.
The victim’s account, not the expert’s testimony, was most central to establishing guilt. The victim’s account was plausible, internally consistent, and well corroborated. Her accurate description of the garage, the unlikely expenditure of $5 by an eleven year old for flowers for her mother when no occasion called for flowers, her prompt disclosure of the rape, the abrasion found at the hospital on the victim’s vaginal area, and petitioner’s implausible responses all contributed to the credibility of her account.
Likewise, evidence that Sistrunk’s penis was free of neurofibromas does not necessarily impeach the victim’s credibility regarding the rape, despite her description of Sistrunk as having a “bumpy” penis. First, “bumpy” does not necessarily refer to neurofibromas but, rather, could reflect an initial reaction to the appearance of male genitalia. Second, an honest and reasonably observant little girl, being raped by a man with neurofibromas conspicuously spotting his body might not notice that they are absent from his penis.
It is one thing to hold, as we did in Camger, that new evidence that undermines the credibility of the prosecution’s case may alone suffice to get an otherwise barred petitioner through the Schlup gateway. It would be quite another to hold, as
Sistrunk argues that he should pass through the Schlup gateway under our decision in Mach v. Stewart.
Sistrunk has failed to demonstrate that he can pass through the Schlup gateway to allow consideration of his procedurally barred claims.
AFFIRMED.
.State v. Sistrunk, 85 Or.App. 558, 737 P.2d 978 (1987); rev. denied, 303 Or. 590, 739 P.2d 570 (1987).
. Sistrunk v. Wright, 99 Or.App. 488, 782 P.2d 958 (1989).
. Sistrunk v. Zenon, 140 Or.App. 644, 917 P.2d 77 (1996), rev. denied, 323 Or. 483, 918 P.2d 847 (1996).
. David P.H. Jones and J. Melbourne McGraw, Reliable and Fictitious Accounts of Sexual Abuse in Children, 2 Journal of Interpersonal Violence 1 (March 1987).
. Id. at 31.
. Id. at 38.
.Id. at 39.
. Jones and McGraw, 2 Journal of Interpersonal Violence at 39.
. Meyers, Bays, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Nebraska Law Review 1, 115 (1989).
. Harrison's Principles of Internal Medicine 2006-7 (Kurt J. Isselbacher et al. eds., 9th ed. 1980).
. See Bonin v. Calderon, 77 F.3d 1155, 1157 (9th Cir.1996).
. 28 U.S.C. § 2254 (1994 ed„ Supp. V); see also Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir.1999).
. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
. Id. at 316, 115 S.Ct. 851.
. 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
. Id. at 330, 115 S.Ct. 851.
. 132 F.3d 463 (9th Cir.1997).
. Id. at 477.
. See Herrera, 506 U.S. at 417, 113 S.Ct. 853.
. 28 U.S.C. § 2254(e)(2).
. The cases do not make the issue of application in cases that do not consider the death penalty clear. In Schlup, 513 U.S. at 301, 115 S.Ct. 851, the Court specifically limited its grant of certiorari to "consider whether the Sawyer standard provides adequate protection against the kind of miscarriage of justice that would result from the execution of a person who is actually innocent” (emphasis added). This language may imply that the Court intended to limit its holding to death penalty cases. In Paradis v. Arave, 130 F.3d 385 (9th Cir.1997), we applied Sehlup to a case in which the petitioner’s death sentence had already been commuted to a life sentence, but we did not consider the possible issue of whether Sehlup applied once the death penalty was removed from consideration.
.The Sehlup opinion speaks of "newly presented evidence.” 513 U.S. at 330, 115 S.Ct. 851. However, at least one other court has found that newly presented evidence that was available to the petitioner at trial should not be considered "new.” Bannister v. Delo, 100 F.3d 610, 618 (8th Cir.1996).
. Carriger, 132 F.3d at 477.
. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
. Carriger, 132 F.3d at 481.
. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
. Carriger, 132 F.3d at 482.
. 28 U.S.C. § 2254(e)(2)(B).
. Schlup, 513 U.S. at 327, 115 S.Ct. 851.
. Carriger, 132 F.3d at 477.
. 28 U.S.C. § 2254(e)(2)(B).
. 137 F.3d 630 (9th Cir.1997).
. Wood v. Hall, 130 F.3d 373, 379 (9th Cir.1997) (denying the petition in a case where there was an undisclosed medical report, but the government stipulated that the victim’s hymen was intact, where there was other evidence that the rape occurred, and the statute and instructions allowed conviction for "any penetration, however slight”).
Dissenting Opinion
dissenting:
Emanuel Sistrunk has served almost fifteen years for a crime he probably did not commit. Sistrunk was convicted of raping Jane Roe,
The testimony of a victim — particularly a very young one — is a highly tenuous ground on which to rest a conviction. A jury might develop a reasonable doubt from the total absence of corroborating evidence. If the jury nevertheless convicts, we are bound by that determination. However, when the state’s case is so heavily dependent on a single witness, errors affecting the witness’s credibility take on enormous significance. Here, there is strong reason to believe that the jury’s decision to believe Roe beyond a reasonable doubt was heavily influenced by the false testimony of a prosecution expert. Moreover, the trial court improperly denied defendant the opportunity to present evidence that would have undermined the victim’s credibility. I don’t share the majority’s confidence that the jury would have convicted anyway; no reasonable jury would have convicted defendant but for these serious errors.
The expert witness issue is clear-cut and dispositive. Admission of the expert’s testimony was highly questionable to begin with. The expert had nothing to say about the crime, nor about any connection Sis-trunk might have had to it. Her only function was to lend credence to Roe’s testimony. To that end, Dr. Jan Bays
What is new is the discovery that the expert lied. As the majority bluntly puts it, the “study” in question “does not say what Dr. Bays testified that it said, nor is it a scientific study establishing anything at all.” Maj. Op. at 1177. In other words, the expert fabricated the supposedly scientific proof on which she relied in persuading the jury that the prosecution’s witness was being truthful. We have here not merely improper vouching, not merely supplanting of the jury by an expert, but doing so by means of perjury. Because the prosecution’s case against Sistrunk depended on having the jury believe that the complaining witness was both accurate and truthful, I cannot agree that Dr. Bays’s testimony was merely “icing on the cake.” Id. at 1181. Jurors seldom have experience with sexually abused children. If an expert testifies, based on an allegedly scientific study, that such children never lie, jurors would be hard put to reach the opposite conclusion.
The problem of the expert’s false vouching was compounded when the trial judge improperly prevented petitioner from gathering and introducing evidence that would have undermined the complaining witness’s credibility. Roe testified that her assailant had a bumpy penis. As the jury could easily observe, petitioner suffers from neurofibromatosis, which creates bumps or lumps in his skin. The most plausible interpretation of Roe’s statement is that she saw her assailant’s penis, and that it had the types of bumps the jury could plainly see on visible portions of defendant’s body. The clear inference the jury could draw is that petitioner was the
Petitioner sought to introduce a photograph of his erect penis showing that it has no bumps. This would have been strong graphic evidence that the complaining witness was confused or untruthful. The trial court refused to allow defense counsel to take such a photograph, describing the necessary arrangements as “cumbersome” and the evidence as “misleading and confusing.” Because the evidence would have been highly relevant and easily procured, I can imagine nothing except the trial judge’s personal prissiness that could have motivated his decision to prohibit it. But when a man’s life is at stake — and to an adult man, a thirty-year sentence pretty much is life' — -the judge’s personal distaste for the evidence cannot be a sufficient reason to prevent the jury from seeing it.
New evidence, consisting of a medical examination performed after trial, discloses “no fibromas of [Sistrunk’s] external genitalia”; in other words, his penis isn’t bumpy, just as the photograph would have shown. The substitute of allowing petitioner’s girlfriend to testify as to the appearance of his penis was plainly inadequate. The jury could have inferred that the girlfriend was biased in his favor and would tailor her testimony accordingly; they may have wondered why petitioner did not present a photograph or the result of a medical exam. Allowing petitioner to present the photograph would have forced the jury to consider whether the young witness had guessed that petitioner must have bumps on hir penis and embellished her story to make herself more credible.
The supposedly corroborating evidence that my colleagues find so persuasive does nothing to cure these problems affecting the credibility of the prosecution’s principal witness. Evidence that the witness had suffered some trauma to her vagina merely proves that someone may have raped her; in no way does it confirm her identification of petitioner as the assailant. The same is true of her description of the garage and the bizarre story of the five dollars petitioner supposedly gave her after the rape. It may be that whatever sexual assault Roe suffered happened in the garage in question, but nothing of petitioner’s was found in or near the garage, so her knowledge of the garage does nothing to tie petitioner to her story. The five dollar payment may or may not support the claim of rape, but it does nothing to point the finger at petitioner any more than at anyone else who might have had five dollars in his pocket on the day in question.
As the majority recognizes, we held in Carriger v. Stewart, 132 F.3d 463, 477-78 (9th Cir.1997), that a petitioner can pass through the Schlwp gateway with evidence that undermines a key witness’s testimony. The prosecution’s case against Carriger was much stronger than that against Sis-trunk. For one thing, there was no doubt that a crime had been committed: The victim was found dead, tied up, bludgeoned and strangled. Here, by contrast, it’s unclear that a rape occurred, as no semen or pubic hair were found on the victim’s body; Roe may have injured herself some other way. In Carriger, there was strong circumstantial proof that petitioner had participated in the crime, because his fingerprint was found on the adhesive tape that bound the victim’s body. Here, there is nothing at all, other than the word of the victim, to connect petitioner to whatever crime did occur. In Carriger, the en banc court held that impeachment of the principal witness’s testimony was sufficient to satisfy Schlup. Carriger, 132 F.3d at 478. This must be doubly true here, where the witness’s testimony was the whole of the government’s case against petitioner, and the so-called expert who vouched for that
We have here a miscarriage of justice. No reasonable jury would have convicted petitioner in a trial free of the serious errors affecting the complaining witness’s credibility. Because I cannot join my colleagues in their contrary conclusion, I respectfully dissent.
Not her real name.
Her real name.