James Dean Walker v. A.L. Lockhart, Superintendent of the Arkansas Department of Corrections

Koker incident is both participation ground for revo- and valid independent

cation, continued incarceration petitioner’s nor the the Constitution

violates neither also 713 F.2d 1378. See express no United States. laws of the petitioner’s com- opinion on the merits grounds the other revocation

plaints about the dispo- are not essential to they

because of the district parts

sition of this case. The addressing judgment peti- and order and insuffici-

tioner’s Fourth Amendment of the evidence claims are vacated and

ency is remanded with direction for the

the cause the petition.

district court to dismiss WALKER, Appellant,

James Dean LOCKHART, Superintendent

A.L. Department

Arkansas

Corrections, Appellee. (habeas).

No. 81-1700 of Appeals,

United States Court

Eighth Circuit. Nov. 1983.

Submitted

Decided Jan. April 30,1984. Denied

Certiorari

104 S.Ct. 2168. 13,1984. Recalled

Mandate June

claim of bias of the state trial judge. We affirm the orders of the district court deny- ing the writ of corpus. habeas the night April On defendant Walker and a companion, Russell Freeman Kumpe, were in the company of Mary Louise Roberts and Linda Ford at the South Main Business Men’s Club.. Following an altercation in which patron another shot, accidentally Walker Kumpe and fled the scene as did the two women. Ford accompanied the two men in their Oldsmo- bile, while Roberts followed in a cab. Al- derman, driver, the cab upon inquiry of Roberts, verified that the men were in- volved in the shooting at the club. He dispatcher notified his who instructed him to follow the Oldsmobile until police Alderman, however, arrived. was unable to keep pace with the Oldsmobile pro- as it Rock, ceeded into North Arkansas, Little but another cab driven Thomas Short up took the pursuit with the Alderman cab continuing to follow. Bristow, Jonesboro, Bill Ark., for appel- Rock, North Little Arkansas Police Offi- lant. cers Barentine Vaughan2 and were ordered Holder, Rock, Ark., Theodore Little for to give pursuit, they did in separate appellee. cars. Officer Barentine overtook and stopped Oldsmobile, parked his car LAY, HEANEY, Before Judge, Chief behind it. Vaughan Officer arrived imme- BRIGHT, ROSS, McMILLlAN, ARNOLD, diately thereafter parked his car more GIBSON, JOHN R. BOWMAN, FAGG and of the road. The cabs driven center Judges, Circuit en banc. arrived, Short and Alderman parking on the opposite side of the highway. Officer GIBSON, JOHN R. Circuit Judge. Barentine stepped to the front of Walker, James Dean convicted of murder car and ordered Kumpe get out of the out arising of an incident again car car, and come back to his police petition files a corpus. The dis- proceeded then to search him. Officer Vau- trict writ, court1 denied the hearing evi- ghan approached the Oldsmobile on the pas- dence on a portion of Walker’s claims senger side of the car. There was an ex- and refusing to hear additional evidence on change gunfire, as a result of which claims earlier asserted. Walker contends Walker was shot five times and Officer that, guidelines under the established in Vaughan was shot one time. Linda Ford States, Sanders v. United 83 was seated in the middle of the front seat 1068,10 S.Ct. (1963), L.Ed.2d 148 for succes- Walker, next sitting by who was sive habeas petitions, the district court right door. Ford later testified that Walk- denying erred in reconsideration of his er fired the first gun- shot. heard the She Woods, Henry 1. The Honorable United States 2. We note that the names of Officers Barentine Judge Vaughan multiple spellings District for the and opinions. Eastern District have of Ar spellings adopt kansas. we here are appear those that in the record of Walker’s second trial. court. judgment of the district affirmed the gun Vaughan when could see shot and (8th Cir. Bishop, 408 F.2d 1378 Walker v. fired. it 1969). lying near found Vaughan was Officer penitentiary escaped Oldsmobile, died door of front Litigation concerning in 1975. Arkansas his extradition the United States he could make time before a short within finally determined lying was also found statement. outside loaded snub-nosed Supreme Court.5 Oldsmobile, holding fully the in his hand. Un- pistol petition for filed a second Walker then him was right beside him or derneath together a civil corpus writ of habeas rights Wesson, & Smith caliber gun, .38 second § 1983.6 on 42 based U.S.C. claim ex- by ballistics later identified was which 1981, 2, the district court entered On June the gun from which being the perts as the finding that four of order a written caused Officer Vau- that fired bullet identi- petition grounds cal to plaintiff’s in were ghan’s death. petition in the earlier asserted those in corpus habeas determined for writ of was convicted first Walker In the 1967, relitigated. not be Walk- and should and was sentenced degree murder of first 1347, Lockhart, 1352 F.Supp. 514 by er v. was reversed This death. conviction to the (1) the Arkansas, (E.D.Ark.1981). These were: and the Supreme Court trial was in the murder presiding judge trial. v. new Walker remanded for case (2) there was (1965). plaintiff, 172, against biased Ark. 388 S.W.2d 13 State, 239 trial in the court state retrial,3 again official misconduct convicted Upon Walker Depart- Little Rock Police by the North but was sentenced degree murder of first withholding exculpatory allegedly ment in This conviction was imprisonment. to life (3) plaintiff, witnesses from Supreme Court of Arkan- evidence and that fair affirmed sas. Walker v. 300, publicity made a State, prejudicial pretrial 241 Ark. 408 cert, denied, (4) the sum impossible, (1966), 386 U.S. 905 S.W.2d 682, state claimed defects in the 1325, reh’g L.Ed.2d total of the 18 403 87 S.Ct. 2027, as to his consti- 926, 18 trial were so serious violate denied, 87 S.Ct. 387 U.S. The court (1967). right tutional to a fair trial. 987 L.Ed.2d present- ruled other issues not earlier corpus, filed for habeas apetition Walker con- It ed should be further considered. three-day hearing before the United and a hearing on these issues and ducted a new in resulted dismissal District Court States of his petition. denied Walker’s , 295 petition. Bishop, v. (E.D.Ark.1967).4 ap right He denying 767 then In Walker the F.Supp. the order court, panel relitigate grounds deter- previously to this and a unanimous those pealed operating sought in References the récord of Walker’s second sas to confine Walker was 3. eighth throughout opinion designated trial will be conformance with amendment —; II, to Walker’s Constitution. as R. references first habeas United States I, designated proceeding corpus certiorari, be as H. will Granting the United States Su- -; Walker’s second habeas cor- references to preme v. reversed and remanded. Pacileo Court II, proceeding designated pus 86, as —. 308, will be H. Walker, U.S. 101 66 L.Ed.2d 449 S.Ct. decision, (1980). per the Su- 304 curiam Henley, 4. The Honorable J. Smith then Chief preme Court held once the Governor Judge of the United States District Court for the California had issued warrant for arrest Arkansas, District Eastern later a mem- response the request rendition in of the Gov- court, hearing. ber of this conducted this Arkansas, ernor claims constitutional as to penal system defects in the Arkansas should Following escape, Walker remained at 5. his Arkansas, heard courts of not those of large apprehended in in until he was California 88, 101 California. Id. S.Ct. at 309. 1980, February Cali- Governor of 1979. request honored a that was made fornia rights in na- Walker’s civil claim is severable of Arkansas for arrest and Governor Walker’s subject ture from his habeas claim and is the separate disposition by challenged the rendition. Walker Governor's original panel. For issuance of the in both state and federal warrant purposes, designat- administrative court has He until courts. was unsuccessful he reached appeal ed from the denial of habeas California, which, Supreme Court of (habeas) appeal relief as No. 81-1700 April a writ of habeas issued dismissal of his section claim as , directing hearings superior court conduct (civil rights). No. 81-1700 penitentiary if in to determine which Arkan- in He recognized Brown. mined, carefully con- is a factual issue the district appli- argues appearance jus- guidelines for successive further sidered articulated Brown set down Sanders United tice consideration brought cations opposed States, objective, about an to a review, (1963). subjective, found that claims of The court trial court L.Ed.2d the same applica- grounds presented argues He this is sufficient to autho- bias. previously reconsidering determined rize the merits of his claim of it were tion before applica- adversely petitioner prior argues on the bias. Walker also that the ends of by reexamining on the determination was would be served tion. merits, there was no new evidence and issue because he is innocent. He bias points ing change giv- intervening the law which to the weakness of the evidence no would “serve justice by recon- to his He stresses vari- ends rise conviction. sidering plaintiffs suppressed the merits of the subse- ous claims of evidence and con- admittedly quent application.” flicting were dis- Lockhart, F.Supp. at 1350-51. cussed the decision of Arkansas Su- preme relating Court and two decisions followed, argu- appeal This then prior petition corpus. to the for habeas panel of this court. ments heard before 2, 1982, the case By order dated June I. The Trial Court’s Asserted Bias rehearing, en for referred to the court banc Considering A. Criteria for Successive requested parties to rebrief and the were Habeas Petitions following the issues: judicata Res does apply to 1) by What factors disclosed the records petitions for corpus. writ habeas See in this case indicate that this court 90, 12, McCurry, Allen v. 98 n. should or should' not consider a suc- 411, 12, 101 S.Ct. 416 n. 66 L.Ed.2d 308 petition cessive corpus by for habeas (1980). question consideration what appellant Walker. give a federal court should to a successive 2) Have the constitutional violations al- petition by habeas ed was discussed the Unit leged (including prejudice the trial Supreme States Court in Sanders v. judge suppression by of evidence States, 1, 15-19, 373 United U.S. 83 S.Ct. police them, prosecutors, or either of 1068, 1077-79, (1963).7 n violations) or other grossly Supreme Sanders Court established flawed or not guilt flawed the deter- guidelines several regulating successive in mination this case. applications grounds previously on heard 3) necessary, If should this court remand guidelines and determined. These were corpus the habeas action to the dis- by summarized as Court follows: trict court fór a determination on the Controlling weight may given be merits, properly of can this court rule prior denial of a application for federal on the corpus merits the habeas § corpus habeas (1) 2255 relief if petition in present appeal. ground presented the same in the subse- argument, After the first submission quent application was determined ad- vacated, and the ease was heard for a versely applicant prior ap- on the by second time the court en banc. (2) plication, determination was argues, Walker now merits, as he did (3) before on the the ends of court, district that there has change been a by not be served reaching the mer- law, primarily from the Fifth Cir- its of the subsequent application. in (5th Cir.1976) Brown, cuit’s decision United States v. curiam). 539 (per F.2d 467 States, 15, Sanders v. United 373 U.S. at (footnote He contends that the district court omitted). should 83 S.Ct. at 1077 have considered the claim of trial and courtroom bias judge arising Following decision, from the tone of voice the Sanders demeanor, Congress essentially which enacted a dealing new statute by States, 14, Although involved a motion a fed- Sanders v. 7. Sanders United 373 U.S. at Thus, prisoner guidelines rather § eral under 28 U.S.C. established in corpus, application fully Court applicable for habeas applica- than an Sanders are to habeas logical practical by prisoners. Wright, basis for treat- could find no tions state C. A. Miller & differently ing applications Cooper, ha- under E. successive Federal Practice Procedure procedure. (1978). under the motion § beas than at 684 1242 applicant. example, For sought petitions, U.S.C. with successive involuntary that an con- 2244(b) applies § the contention (1976). Section against in fession was admitted are provisions Similar prisoners.8 state ground him is a distinct for federal col- 9(b) of the Rules Govern- rule in contained involuntary relief. But a claim of lateral in the United States ing Cases Section predicated alleged psycho- Courts, confession became effective District a different logical coercion does not raise general effect of 1977.9 February predicated on 2244(b) codify “ground” than does one is 9(b) section rule physical alleged in Sanders. coercion. other Although outlined criteria words, grounds may often be 2244(b) identical do not 9(b) and section both rule allegations. proved different factual justice” the “ends refer specifically also, grounds may often identical agree that So test, apparently parties here arguments legal incorporated. supported different implicitly,

the test has been language or be couched different deciding, the correct- ... assume, without ____ respects vary in immaterial ... or position.10 ness of this particular cases as doubts arise Should grounds are different or to whether two of Bias “Same B. Is the Claim same, they in fa- should be resolved and Determined Raised Ground” applicant. vor Prior Petition? Habeas respect first considera With States, v. United Sanders U.S. Sanders, we must' consider tion set forth at 1077. S.Ct. trial whether claim bias Walker’s tested, claim of bias So presented judge ground the same present petition argues application. in the earlier in “ground” as raised and determined same of and demeanor of the the tone voice application. the The district in prior court by either judge trial were not considered hearing the habeas considered first wheth- ruling the or this court district court allegedly prejudicial er re- judge’s the trial upon petition. the earlier habeas during the course of the trial and marks Sanders states: presence the of the constituted a deni- Bishop, simply a Walker v. mean suffi- By “ground,” process. we al of due granting the relief legal appeal for F.Supp. cient at 773. On this court care- basis omitting 2244(b) provides: effect "ends 8. Section of reference the S.Rep. justice” is of unclear. See 89th hearing evidentiary When after an the on Sess., Cong., reprinted 2d in 1966 U.S.Code issue, merits of a material or a factual (newly Cong. & Ad.News discovered law, hearing on the of of a merits an issue applying a consideration in section person custody pursuant judgment to the 2244(b); no or reference Sanders “ends a court a State has been court of denied 2244(a) (1976) justice”). Compare 28 § U.S.C. justice judge a the United States or or of the (statute, applicable prisoners, to federal incor- custody United States remedy or release from other 2244(b) porates justice”) § “ends of with id. application on for a writ of habeas (statute, applicable prisoners, to state omits application corpus, subsequent a for a writ justice"). generally Wright, C. "ends of See person in behalf such need Cooper, A. & Federal Practice and Miller E. by a of the not be entertained United (1978) (rule § Procedure at 691 9 does not justice judge or States or the United justice require if ends dictate new dismissal application alleges States unless the and is determination); Popper, R. Post-Conviction predicated ground on a factual or other (rule (1978) Remedies in Nutshell 185 go 9 fails to adjudicated hearing ap- on the of the earlier Sanders). as writ, as far court, plication for the and unless the omission, justice, judge applicant Despite or is satisfied that the substantial discretion 2244(b) application deliberately has not on the earlier remains in the federal courts. Section provides newly ground application or that a new "need not be withheld asserted other- Further, Advisory Committee wise abused the writ. entertained." 9(b) “Sanders, rule Note to states: 18 U.S.C. 9(b) provides: 9. Rule [sic], (b) § 2244 and subdivision make it clear petition may second successive be dis- A the court discretion to entertain a suc- has allege judge if the finds that it fails missed application____ up by The bar set sub- cessive grounds relief and the new or different for (b) rigid application, is division not one or, prior was the mérits if determination of the courts on a rather is within the discretion alleged, grounds are and different new case-by-case basis.” petitioner judge finds that the failure of grounds prior petition assert those consti- an abuse of the writ. tuted objection presence jury. out of the of the this claim and determined fully reviewed II, apparent- Walker’s counsel [R. 294-95.] follows: urge ly up did not follow and further Arkansas, which Supreme Court objection. error asserted It is clear highly respect, concluded we rulings Supreme from the Arkansas, Court of gen- even properly and court acted trial court, and this court district in the course erously towards carefully the entire record was re- trial, ex- judge that the the second prejudice viewed and that bias and were prejudice to bias or personal no hibited the ground found. Because the same was and was court, among other That jury. prior presented application in the given was that defendant things, noted merits, determined on the the district court the second prepare for months to seven properly again once refused to consider placed be his motion to judge. of the trial claim of bias the con- during that time for county jail granted as of his counsel was venience C. Will “Ends of Justice” Be Served court character- Arkansas what the was By Redetermining Same “sweeping motion ized as defendant’s Ground? examination of all private production the were to be objects tangible question The next under Sanders in evidence.” by the State whether justice” introduced the “ends of would be served redetermining Walker’s claim of F.2d at 1382. Bishop, 408 judge. bias of the state trial Sanders specifically also considered This court gives instruction as to the considerations to judge state trial made statements some months before weighed: trial to a minister if ground Even the same rejected sought permission companions who two to take Walker though on the merits on open application, it is baptism. Al- to church for applicant to show that the granting request, ends of by per- would be served sheriff to see deputy had warned the mitting the redetermination of heavily guarded and to that Walker ground. involved, If factual issues are attempted escape. if him he shoot II, [R. applicant entitled to a new judge also had said The trial 83.] upon showing that the evidentiary hear- anyway.” to “burn the S.O.B. he intended ing prior application on the was not full II, state- considering these [R. fair; we canvassed criteria of a- ments, as follows: this court concluded full and fair evidentiary hearing recently [A]ny thoughts innermost on the such Sain, 293, in Townsend v. U.S. 83 [372 part judge constituted no cause 745, (1963)], S.Ct. and that judge disqualification. for his The said repeated discussion need not be here. If give he could defendant a fair trial. that purely legal questions involved, are Supreme Court of Arkansas held applicant may be entitled to a new hear- showing there no of or that bias ing upon showing intervening change prejudice and the defendant was accord- in justification the law or some other for Judge Henley, fair trial. the the ed a Chief having point failed to raise a crucial or judge, United States district made argument in application. Two finding proceeding, in the habeas same points First, further the should be noted. canvass of the entire record of our foregoing enumeration is intend- the volumi- the second trial nous habeas record addition to exhaustive; ed to be the test is “the ends compels the same justice” of finely and it cannot be too part. on our conclusion Second, particularized. the burden is on that, F.2d 1382. Bishop, applicant although v. 408 the ground to show Walker application of the new was deter- asserting that the tone of voice and against mined him on the merits on a con- demeanor of the trial sidered, were not prior application, justice the ends of simply making is a differ- Walker would be served a redetermination of allegation prove the identical ent factual ground. ground of or of the trial bias Although States, of the dis- judge. the decisions Sanders v. 373 U.S. at United 16- 17, specif- do not (emphasis origi- trict court and of this court 83 S.Ct. at 1077-78 nal). of voice or demean- Walker not contend that ically refer to tone does the decision judge, evidentiary or of the trial nor does on the first habeas cor- Arkansas, Rather, Supreme pus of Walk- was not full and fair. of the er’s counsel at the second Court Walker justice trial raised this contends ends of test 1244 petition, and in the earlier habeas intervening change this court of an satisfied because by these courts of an insuf- affirmative conclusions alternatively because law, or preju- showing no to.rest his that there was bias upon which ficiency of a fair was denied dice or that defendant strand of Walker's The first conviction. The Brown court could not reach intervening trial. argument justice ends of —an a conclusion. specif- such a consideration change law —is The second in Sanders. ically enumerated the district agree argument insufficiency of his strand — facts” own set of Brown “unique to its catch- under the evidence —is asserted rather than a a first and that it involves the ends of Sanders language all of habeas application for writ successive finely particular- “cannot be too justice Lockhart, F.Supp. v. 514 corpus. Walker conten- each of these We consider ized.” at 1350-51. tions in turn. that other decisions have argues Law. Intervening Change of justice standard appearance of adopted the change in the intervening argues that is constitution- rule of as a new law springs primari- judicial regarding law bias cited, Mayberry The cases ally recognized. Brown, 539 F.2d v. from United States ly 455, Pennsylvania, 400 U.S. 91 S.Ct. curiam). Cir.1976) (5th (per 467 v. Mis- (1971), 499, Johnson 532 27 L.Ed.2d Brown, lawyer report- hearing in 1778, 212, 29 sissippi, 403 U.S. 91 S.Ct. trial, at a time Brown’s ed that some before Peters v. Kiff (1971), 407 U.S. L.Ed.2d 423 meeting, the trial state association bar (1972), 493, 2163, 33 L.Ed.2d 83 92 S.Ct. swimming

judge, sitting around while 488, Hayes, 94 S.Ct. Taylor U.S. and 2697, that he was pool grounds, on motel said (1974), crimi- deal with L.Ed.2d going at Brown’s trial and preside charges jury contempt pro- selection nal Id. get nigger.” “going he cedures, not establish'an interven- and do in the ha- judge, A district different argues. ing change in the law as Walker the remark hearing, beas concluded that justice as a considera- appearance it cast a serious had been made and contempt and other criminal tion both appear- on the case as far as shadow at least as far as In re settings goes back He re- justice ance of was concerned. 133, 136, Murchison, 75 S.Ct. however, record,' found that viewed the (1955), in which the Unit- L.Ed. 942 received a fair trial. Brown had Supreme stated: ed States Court is a basic A fair trial in a fair tribunal Appeals United States Court process. Fairness of requirement of due the Fifth The court ob- Circuit reversed. actual requires an absence of bias course the record not reflect the served that system trial of cases. But our judge, expres- tone of voice of the his facial prevent always endeavored to sions, law has unspoken or his attitudes and man- unfairness____ probability nerisms, even the might all of which have affected may bar stringent rule sometimes Such and its The court further verdict. by judges who have no actual bias language observed the of the United States very best Murchison, would do their in In re Supreme Court equally weigh be- 623, 625, the scales U.S. 99 L.Ed. contending parties. per- But satisfy tween (1955), “justice 942 must the way high function in the best form its appearance justice.” From this Walker of satisfy appearance the of “justice must appearance justice argues that the of stan- States, 348 v. United nature, justice.” dard, in objective which is is a Offutt 11, 13, 11, 14, L.Ed. 11. 75 S.Ct. 99 satisfying U.S. change in the law the ends of in Sanders. justice consideration curiam, not read the Brown per We do argument, further that a review of the trial cases on contempt jury selection record under such circumstances is not re- relies, establishing an interven- which it quired, by is the court’s conclu- answered in as it relates to the ing change the law sion in Brown: judge’s “The statement did judge. the trial claim bias justice, comport appearance with the has cited Brown only once in This court and it cannot be said from the record alone Dean, 647 F.2d 779, States v. 783 United appellant received a fair trial.” 539 Cir.1981), vacated, (8th (8th 667 F.2d 729 apparent F.2d at 470. It is record cert, denied, 1006, Cir.) (en banc), U.S. 456 was reviewed Brown. in (1982). 2296, 73 L.Ed.2d 1300 102 S.Ct. Dean reversed be- panel decision complete In our case we have a review of bias, court en banc juror but this cause of by Supreme the trial record Court and made ground on a different affirmed by both the district court and Arkansas

1245 finality just- case further of decision this Dean cannot be reference to Brown. no said to argument. ifies our of this intervening review recognize Brown as an change of law.11 evaluating sufficiency of the evi- dence, satisfied that the stan- we are Evidence. Walk Sufficiency of expressed in dard that we can use is that ends of argues that alternatively er 307, Virginia, 443 U.S. Jackson v. reexamining the by be served justice (1979): 2781, rele- “[T]he weakness, or insuf issue, based on the bias whether, question viewing is vant giving rise to evidence ficiency, of the light in the most favorable to the evidence sufficiency argues that conviction. rational trier of fact could prosecution, any Supreme falls within evidence found the essential elements of the have crime definition Sanders Court’s broad 13 beyond a reasonable doubt.” Id. finely too “cannot be ends of 319, (emphasis origi- 99 S.Ct. at 2789 upon an ex He launches particularized.” Lockhart, nal); see, e.g., Gipson v. 692 argument, the essence tensive factual 66, (8th Cir,1982) curiam); (per F.2d conflicts in because of various which is that (8th Parratt, 682 F.2d v. Fowler sup claims of evidence and various the pressed Cir.1982); Wyrick, 665 F.2d Lenza evidence, basis there is no factual (8th Cir.1981). Although he support jury’s verdict. Walker and his counsel are convinced the sufficien specifically refer to does not cy that there is no evidence to establish Walk- rule as established the evidence states, guilt. boldly er’s The brief “Cer- 307, 99 S.Ct. Virginia, 443 U.S. Jackson tainly, nothing there is which would be (1979), briefs, in his 61 L.Ed.2d explains called a fact which ver- arguments that at oral his counsel stated argument, accept- dict.” Walker’s which is on it. rely or stand he would dissent, by essentially ed based on the evidence was Sufficiency of considering conflicting all of the application for writ of original in the raised and conclusions drawn most favorable to by the district corpus considered habeas court in 1967 argument totally ignores Walker. His court in following evidence: petition in the second was it raised nor First, Ford, passenger Linda in 1981. by the district court considered middle seat of the Oldsmobile driven Kumpe, Thus, sufficiency of the not consider we do pushed testified that after she was ground raised as a distinct evidence Walker. consider this right into the car Walker sat to her with a Nonetheless, persuaded to we are II, gun on her. the car When [R. 605.] of the Su- argument because scene, stopped _at Ford saw Officer the “ends definition of preme Court’s broad Vaughan approach passenger side ap- and because of justice” in Sanders the car and saw that Walker still had the adoption of enthusiastic pellant’s counsel’s II, pistol out. When the door [R. 607-08.] as an additional sufficiency of the evidence II, opened, firing. Walker started [R. 608.] At least two justice consideration. ends of II, She then heard several shots. [R. 608.] Appel- support this action. reasons further lant knew that Walker had fired first be She this court states that unequivocally cause she could see the fire from Officer rule on the habeas properly can II, Vaughan's gun when he fired. [R. us, he before petition on the record Second, Short, court to determine driver says adequate for this law. We also believe cab Thomas contempo- arrived on the scene almost questions cy 11. Brown has in at been cited least fourteen of the evidence that would bar reconsidera- decisions, issue, appeals courts of none of which rec- tion of this we need not determine. Our ognizes intervening change, analysis essentially Brown as an of law. would be the same as it is when we examine the evidence to determine proceed- 12. The district court in the first habeas met, justice” whether the "ends of test has been ing observed as follows: and our conclusion would be the same under produced The evidence at both trials was justification approach whichever we used to the ample justify findings juries the of both question. Vaughan willfully, that Walker killed mali- Virginia ciously, premeditation Jackson v. overruled the "no-evi- and with and delibera- 13. Louisville, tion, City although Thompson dence” question guilt test of v. the of his or 624, (1960), jury, innocence was the and the second only upon showing jury might a which allowed relief that well have come to a different con- totally the state court conviction was devoid clusion. evidentiary support. F.Supp. Bishop, Walker v. 295 at 771. Whether finding this is a clear determination of sufficien- 1246 Vaughan, the a beyond saw Vau- crime reasonable doubt. Officer raneously with side of the v. 443 at passenger Virginia, Jackson U.S. 99 ghan approach looking into the S.Ct. at 2789. and bend over Oldsmobile 518; II, H. to someone. to talk window I, [R. points a Walker number inconsist- seconds, the car After a few 293-94.] vigorously that “It is argues He encies. absolutely transparent II, suddenly opened. Offi- 518.] door [R. not that could [he] backwards, pulling jumped Vaughan cer his Vaughan he sustained have shot [five after 518; I, II, H. he did so. gun as [R. any body]____ his one at shots to [N]o dancing was back- Vaughan While 295.] suggested has that the rid- time ever ... saw wards, heard a shot and Vau- Short dled and unconscious Walker could have II, under him. fly out from ghan’s feet [R. However, Vaughan.” shot Walker “[i]f II, rang out. shots Further [R. 519.] 518.] Vaughan, had to it before Vau- shot he do shot- a Altogether, heard one Short him, (Vau- a man ghan this means shot or five more shots pause and then four ghan) took shot at the heart ... was who I, succession, rapid “real like.” fired in [H. into his able to ... fire five bullets assail- over, shooting was Short After 295.] asserting improba- In the “inherent ant.” and saw one of walked around theory, princi- relies bility” of this Walker gun hand. kick out Walker’s officers autopsy report in the pally on a statement I, over, When Walker was turned [H. 298.] Short presumably “Death almost imme- that was gun underneath him. another saw (Defendant’s II, Exhibit diate.” 734 [R. I, [H. 299.] however, so, ig- “B”).] doing Walker testimony pathologist nores the McDonald, quali Captain Finally, Paul Davenport, report. that prepared Dr. expert, that the fied let testified bul ballistics pathologist, testified that Officer Vau- body Vaughan’s from removed Officer ghan’s death not instantaneous and was four-inch barrel .38 caliber matched the Smith & identified as er. “anything “immediate” meant to him that II, Wesson, 767], which was [R. II, minute a few minutes.” from a [R. weapon found under Walk 759, time, During length of Officer that ] F.Supp. at Bishop, v. 295 771. Walker II, Vaughan shots. could have fired [R. Captain determination, making that 760.] two other revolvers. McDonaldexamined [R. gun also II, argues Walker fully-loaded One was two- 737-38.] fully right he had in his hand Wesson, was inch barrel .38 caliber Smith & He argues Vaughan loaded. that when being away kicked

which was observed car approached gun first his he held shooting. 295 from Walker his head show he hand above F.Supp. at 771. The other a four-inch was .38, was submitting to the law. There is no which was under the barrel Colt front seat of found the record that Walker ever Id. at 772. Oldsmobile. placed his hands above his head. An offer the differences in class charac Because of proof respect rejected teristics, readily that the it was ascertained hearing. district court in the 1981 habeas Vaughan bullet which killed Officer did not II, II, Walker in the second trial A come from the Colt .38. [H. simply [R. 311-12.] 768.] Vaughan denied that he had shot microscopic study samples obtained led to a he had fired a ever shot the scene from the two Smith & Wessons II, shooting. He did positive fatal bullet 854-55.] identification [R. testify raising hands above his came & four-inch Smith Wesson. gave He no such II, head. also Captain McDonald testi [R. 768-69.] hearing. the first habeas fied he had no doubt about the identifi II, cation. [R. Other issues that Walker raises have extensively opinions. been treated in earlier viewing this evidence the These issues include: sawed-off Baren- After light prosecution, gun;14 allegation tine that Barentine most favorable we any gave alleged perjured testimony;15 conclude that could have found the rational trier fact testimony;16 suppression elements of Alderman essential (E.D. 1387; Bishop, F.Supp. F.Supp. 14. 16. F.2d at 777-80. Ark.1967). alleged sup- The dissent finds pression testimony. of Alderman's In the first (8th Bishop, 408 F.2d 1387-88 however, corpus proceeding, the district Cir.1969); F.Supp. at 777. expressly found that the State suppression guilty of nondisclosure as far

1247 paraffin finger- failure to conduct a occupied er. The fatal only events a few weapon print test on the found under Walk- place seconds at most and took during 17 er; unavailability darkness; Linda Ford and hours of all of the survivors Mary testify at the second tri- obviously frightened Roberts were and excited. 18 al; Mary the recantation of Roberts’ tes- In such credibility a situation serious 19 arise____ timony; report problems of defendant’s inevitably expert.20 absent ballistics juries The two which tried Walker us, reviewing the record available certainly were they aware were conclude that we determinations made problems faced with credibility. Both by the district court at the first habeas juries beyond were satisfied a reasonable hearing, appeal this court on from its deci- doubt from all of the evidence peti- sion, and the decision of the Arkansas Su- guilty degree tioner was of first murder. preme following Court the second convic- judgment The ultimate in the case is not tion, fully supported were conclusions lightly to be set in aside a collateral only by the record before those courts but proceeding by such as this a mere reiter- also the record before us. This makes arguments ation of already addressed appropriate the comments of the district unsuccessfully a mere judge in the first habeas that con- assertion that per- State’s witnesses testimony in the flicts were to be resolved jured themselves and that the State jury: knew it. This case involved the death of a Bishop, duty; officer line of witnesses F.Supp. 295 at 776-77. conclude, case included fellow officers of the de- We even considering these incon- ceased; prostitutes sistencies,21 two and one cab driv- some of which were not 669-70, F.Supp. Alderman was concerned. 295 at 780. 19. 241 Ark. at 408 S.W.2d at 920-21. The district court was not able to conclude that 773-74; State, statement, F.Supp. 20. 295 at Walker v. 241 Alderman had made a formal 300, 307-08, 905, (1966). Ark. 408 S.W.2d 910-11 testimony found that his at variance with eyewitnesses all the other that of who testified The trial court had ordered the defendant’s Interestingly, report at part at trial. Id. 779. the dissent ballistics pro- to be filed as of the testimony ceedings, stresses Alderman’s that when the but not to be admitted as evidence. In shooting began, Kumpe corpus proceeding, went under the Oldsmo- the first habeas Walker ar- Barentine, gued only requiring bile. The other Short and copy him to furnish a witnesses. Kumpe report stated that fled from the when privilege against scene violated his self- shooting commenced and ran into some F.Supp. bushes incrimination. 295 at 774. The dissent II, 519-21, away. or a ditch some distance report [R. now finds the exclusion of the to be a ruling” exemplifies Judge Kirby’s 660-61.] "crucial prejudice. ruling. We cannot find bias in this F.Supp. 17. 295 at 780. complete The unremarkable order to the record 1384-87; 775-76; F.Supp. 18. 408 F.2d at 295 Judge Kirby admitting did not commit State, 663, 665-69, Walker v. 241 Ark. 408 report report into evidence. The was no more 905, (1966) (McFadden, J., S.W.2d 918-20 with questions prepared by than answers to a list of Bland, J., dissenting part). defense counsel that covered selected areas Judge Kirby’s subject The dissent expert finds matter. The defense dissimilarities, grant thirty-minute similarities, refusal to recess so that asked about but not bullets, attempt defense counsel could to locate the two individual characteristics of the corpus proceeding,. women. In the first habeas gun” and was not asked whether the “Walker the district court found that F.Supp. the State had sub- fired the fatal bullet. 295 at 774 n. 5. Moreover, poenas demonstrated, issued for both women well in advance Walker has not trial, discover, good any of the second that the State we are had made unable to basis for admis- report, clearly faith and reasonable en, hearsay efforts to locate both wom- sion of this which is nothing and that the Empire State had to with under Arkansas do law. See New Insur- 758, 760, 763, present Taylor, fact that the women were not ance Co. at the 235 Ark. 4, 6, (1962); F.Supp. second trial. 295 at 776. S.W.2d Pipe This court Shearman Concrete 16, 26, accepted findings Wooldridge, these Co. v. observed 218 Ark. 234 S.W.2d Roberts, ample (1950); produce defense had time to the witness- Roberts v. 216 Ark. 453, 459-60, (1950). es if knew of their whereabouts. 226 S.W.2d counsel 583-84 counsel, F.2d at It is 1385. evident that defense informing Although the trial court that the women 21. the dissent discusses the first trial found, could length, trial, be seen and had from December 1 at some it is the second not the first subpoena to December to obtain a that is at issue. any If there were incon- these witnesses but did not do so. 241 Ark. sistencies in between the first and trials, 408 S.W.2d at particularly second respect to Offi- 1248 suc- a second or judgment as to whether any rational jury, before with- application shall be denied cessive guilt proof found could have fact trier of the merits. Even out consideration of doubt. Jackson reasonable beyond a judge the federal application, to such clearly 319, 324, 99 S.Ct. 443 U.S. Virginia, if the ends power and, has Thus, the in- 2791, 2781, sufficiency L.Ed.2d 61 — demand, duty reach the of merits____ argument the evidence —to that this are confident justice, not, under ends does soundly applied. power will be raised of the issues

justify reexamination petition. in the second again States, at 18- 373 U.S. v. United Sanders 19, 1078-79. 83 S.Ct. at prop- D. Conclusion that the district We conclude grounds should that the several erly ruled 2, in 1981 The district court its June reconsidered, properly refused and not be and relies on two decisions of order cites these to hear additional rejected appeals courts of that have other successive corpus. grounds. applications for writ of habeas ex rel. Town United States example of presents a classic This case (7th Cir.), Twomey, 452 F.2d 350 send v. consideration of to have a second an effort cert, 190, denied, 854, 34 409 U.S. 93 S.Ct. decided. There painstakingly once issues is no reason (1972),the held L.Ed.2d 98 that in cation that were stating Seventh Circuit that what dis- believe district court abused its discretion in and what this court decided 1967 trict reconsidering grounds appli in a habeas in 1969 can be decided better court decided today. determined, previously persistent effort we have is What “[wjhile should writ never arguments present same case, judicial proper in the econo denied point another hopes that at some my dictates restrictive limitations on re judges consider the case group of will Similarly, at 357. the Second runs.” Id. concurring sympathetic light. more Circuit in United States ex rel. Schnitzler Virginia, 443 U.S. opinion in Jackson v. cert, Follette, (2d Cir.), 406 F.2d 319 v. denied, 2781, 12, 12, n. 61 n. 99 S.Ct. 2798 337 (1979), quotes Justice Stevens L.Ed.2d at (1969), L.Ed.2d court appeals’ prior held that the district article, Bator’s length from Professor bound to the court of was follow Law and Federal Finality in Criminal decision on a habeas Prisoners, 76 Corpus State Habeas application, upon rendered a factual and (1963), as follows: Harv.L.Rev. legal background identical to that before be, presumption must it The me, seems to Judge the district court. Chief Lumbard once, job if it can be well done corpus juris observed that federal habeas should not be done twice. If one set of prisoners diction over state is “a branch of capable performing institutions is as the task at hand as jurisprudence badly criminal which is another, should we principles finality.” need of some 322. Id. at challenge it. The not ask both to do really way: proceed- runs the other if a applied The tests of were Sanders ing is held to determine the facts and law Twomey they and Follette as were both the case, processes used in that court in case. A final word district proceeding in a are fitted to the task appropriate: Sanders manner not inferior to those principles governing denial of a proceeding, ... in a second so that be used applica- relitigation on a successive one cannot demonstrate that [habeas] are addressed to the discre- merely repetition tion tion of the federal trial sound consist of would not judges. second-guessing, why Theirs is not the should major just responsibility proceeding Why for the first “count”? should all, federal col- duplicate sound administration we effort? After it is remedies, purpose go-around lateral and theirs must be the the first very Barentine, Henley’s are satisfied that these issues knew or cer we observations that defense thoroughly developed Vaughan on cross-examina had shot Walker were was on notice Further, support- we are in full have known that tion at the second trial. knew or should agreement ing reached evidence was available. Id. Chief with the conclusions ballistics Judge Henley nothing Judge Henley also observed that the defense on Chief that there verge suggest suppressed than one occasion was on the record to that evidence more Vaughan asking simple question F.Supp. of whether at 775. The dis at the first trial. 295 Judge doing any shooting, suggests, did not. Id. overlooks Chief sent so decide the case. sequent go-around it any Neither nor sub- The district court heard evidence on grounds can assure ultimate three since the claim of two If, then, previous newly truth. candidly determina- discovered evidence was ignored, tion is to be we must have hearing. some abandoned the outset of the II, justification reasoned institutional why The district court con- [H. sidered 173-74.] Walker’s due should this be so. process claim and found it to Although be without merit. objectionable What ... seems so is sec- Walker’s counsel decided to abandon this ond-guessing merely for the sake of sec- following presentation claim of the evi- ond-guessing, in the service of the illuso- dence, the district court found there nowas ry only try notion that if we enough hard credible in report the record to it. find the we will “truth.” II, 365, [H. 499.] every reject There is reason efforts to have the initial determination of Finally, the district court ruled that the district court and of this court be sec- ineffective Walker’s claim of assistance ond-guessed. As Justice Harlan once ob- counsel was unsustainable. At the habeas served: counsel who had Walker’s former Both the representing clearly individual criminal in him defendant assisted at trial society and have insuring an interest in testified that he not intimidated. was [H. II, 369, there point will at some The district court found be the cer- tainty that litiga- comes with an end to Walker had received an excellent defense tion, experienced attorneys, and that ultimately by was no intimidation attention will two there by judge by focused not on whether a free from error the trial conviction was Department, Little Police but rather on whether the North Rock prisoner praised the place can be restored to a and Walker’s defense had been in useful II, community. by this court. glowing terms [H. 499-500.] States, v. 373 Sanders United U.S. at 24- 25, (Harlan, J., 83 S.Ct. 1081-82 seriously urge error in Walker does Clark, J., dissenting). carefully reviewing findings. After these justice Consideration of the ends of in- record, findings that these we conclude volves not the interest of the accused clearly errone- the trial court were not public but the interest of the in 52(a); in. ous. Fed.R.Civ.P. see Weiland justice. gave The incident that rise to 1284, (8th Cir.), Parratt, 1289 530 F.2d cert, nearly Walker’s conviction occurred twenty denied, 429 50 U.S. years ago. Retrial would in all likelihood (1976). L.Ed.2d 118 considerations, an impossibility. be as well as the These denying orders of the district court analysis, support Sanders the writ of habeas are affirmed. the refusal of the district court to retry the carefully issues so decided. ARNOLD, Judge, concurring. Circuit II. Additional Grounds Asserted join opinion I of the in Court its order, In its June the district entirety, appropriate and deem it to add a granted evidentiary hearing few words. grounds the new or additional Walker’s second asserted petition for writ of habeas judge The trial prejudiced. was corpus. Lockhart, See Walker statements, this know because of his own (1) F.Supp. at 1353. These newly were: Ordinarily which are record. no further discovered evidence that would exonerate inquiry necessary. would be Nothing else Walker; (2) process a denial of due because process would matter. If due any- means alleged of an inducement state authori- thing, it means a trial before an unbiased apply ties not to for a writ of certiorari judge jury. That why is I made the 1969; following ruling this court’s statement at argument, quoted the oral (3) Bright, post, p. 1252, a denial effective assistance of coun- my Brother that “if I alleged sel because er’s counsel officers intimidation of Walk- had been on this court when this case came judge by police the trial before, up writ.” I grant would have voted to and other officials. My ought sponsibilities, just further remark that "there to be a Having as we have ours. said that, p. reprieve,” quoted, post, im- was I also remain of the view that this case does Arkansas, provident. clemency not our busi- Executive little credit to the State of ness. The Governor has his constitutional re- beginning case. If in fact course, State’s I not on fact, was Court availability of the witnesses Ford when the denial of the first years ago, such Roberts could have been shown in unanimously affirmed. petition order, defense short have would not counsel the 1969 who sat on Walk- Only judge one night, wit- very out that found Judge. gone an active Circuit panel is still er Only nesses who knew Ford and Roberts were are active judges who Members three town, presented them chambers today were on the Court then. Court morning in a support next strike or for mistrial? of motion point judge today is this: If in Ford fact a fresh issue is asked to presented with available, per- and if her problem from far different solve who tran- son script have differed repudiate opinion of his would is asked to first very now counsel question before own Court on instance, prose- have her and the question the found demolished latter him. the calling by cution her as a defense witness? get Dean a simply, “Did James not not, the is sufficient- trial?,” rather, Perhaps the but likelihood “Did United fair but ly great persuade that the of Appeals Eighth the to me denial of for States Court held, Circuit, the in fact on fullest 30-minute continuance was not it the consid- when evidentiary so ing in the trial as the dissent- hearing, an crucial second eration and after opinion argues. got a fair Dean Walker James justice egregiously so that the ends err report, As the defense ballistics I sim- to Court, later, years to require the same ply fault have no to find with the trial It opposite to conclusion?” is not come a disagreement the hearsay judge’s ruling. It not then, simple agreement question, any theory. on trial court’s admissible order that record,” posi- with this Court’s report “part made be that, (I the fact that I suspect tion. have any but for mean, may simply whatever it can- do, through leaf work to I could other stipulation reasonably by not be aas read Reporter volume of Federal prosecution report the read right could be opinion find at which I one of this Court with least jury. prosecutor in his to No more disagree.) Something than agree parte mind would ex justi- to disagreement mere must shown be expert by of an hired the de- examination fy a petition. habeas successive evidence, fense admitted least be into in re- without some substantial concession something What is that more? Sanders turn. States, v. United (1963), gives some exam Finally, dispositive I return stan- to ples, applies but of them here. There none dard, justice.” Certainly jus- “the ends evidence, no is of the first habeas new unrevealed the time petitioner sys- tice is crucial in our to proceeding. There is no party tem. But he is not the to change in the law. There is of course no right fair- case. The State also has a to post-conviction claim of in the first taint ness, and we have to consider well the simply There is the claim proceeding. this Court in 1969 as a effect on whole of a decision to administration misapplied law grant this successive grants I of no case that facts. know has, all, application. Petitioner been petition in that successive habeas situation. by jury, meets convicted on (5th (United Cir.1976), Brown, 539 F.2d 467 States He Virginia the Jackson v. standard. by dissenting opin relied It does claim that the was biased. 1258-59, first, ion, post, pp. successive, petition lief.) was a difficult, impossible, if not for the would be State to may post-conviction re for retry point. him at An error may there be such a case doubt No sufficiently grave cause a rever- it, day, not be this one should some appeal, sal on direct or on the first habeas several reasons. application, sufficiently grave, but not weighed in all the when the balance with First, persuaded I am not that the trial “justice,” other constituent elements judge’s any bias did Walker actual harm appli- on a justify relief successive that would not have occurred if the case view, category my cation. that.is had judge. been tried another error committed here fits. which the recess, judge deny did short desired defense counsel to them to try enable Accordingly, although there much show that two witnesses “could be found dissenting opinion, denial of admire the nightly post, in Little Rock nightclubs,” p. unjust to me less than seems writ 1256. But this incident occurred near the judgment granting it. I vote to affirm Court, join and I delineate in Judge of the District John detail the obvious inconsisten- cogent opinion evidence, R. for this Court cies so deficiencies in the Gibson’s now ably by Judge Bright. discussed en banc. When these facts by present were illuminated gave judges counsel it cause for all on this court LAY, Judge, dissenting. Chief guilt concern as to Walker’s join Judge I Bright’s dissent but I innocence. separately rejoinder write Judge Ar I 2) nold’s concern. view a too am reluctant to re sufficiency light of evidence in prior holding of this court on the analyzed record had overall never been petition of a raising basis successive majority as has now been done ground. Normally, same of unless the “ends dissenting judges. it, justice” require we need not and 3) The obvious error of the Arkansas However, should not do so. as Justice Supreme Court relating and of this court out, pointed Harlan earlier should not have a federal courts question of bias and finality fetish about apparent is made when viewed or liberty when life is at stake and when light the inconsistent and there are the reopen demonstrable reasons to deficient evidence surrounding Walker’s convic- proceedings.1 tion. Notwithstanding Judge Arnold’s affirma- occurred, says tion of what he has Walk- 4) holding, Subsequent to our earlier present petition er’s for a writ of habeas intervening Virgin- decisions of Jackson corpus is not denied now this court ia, 99 61 L.Ed.2d 443 U.S. S.Ct. petition because of the successive doctrine. (1979), 427 Agurs, and United States v. holding by this been the court’s Had short it. But a S.Ct. 49 L.Ed.2d 342 U.S. (1976), order, opinion might joined I have Supreme Court were decided notwithstanding whatever rubric majority of the United States. As the points use, majority the that has chosen to the fact is out, sufficiency was not raised as an inde- of evidence in Judge opinion Gibson’s has not fol- the second trial rule, petition lowed successive but has or in pendent ground the district court painstakingly analyzed the entire record (I majority feel the errs in this court. concerning postconvic- both trials and all attempting to resolve this issue when it has proceedings. tion presented to the district court nor not been independent ground in this as an briefed petition designed The successive rule is court). However, the relevance of Jackson dispose litigation, of frivolous to con- primary cause for Agurs and has been judicial energies, provide and to serve degree some (a study first in searching of the record repose pri- of and confidence in the case) in this any postconviction proceeding judicial proceedings. It must turn as judicial question to the bias as it relates presumption a grouping well on of suppression of material evidence. and the judges any quali- should not new be more These issues were determined and not pass judgment pre- fied to ceded us. than those who decision; analyzed.in prior our the overall record, of the in terms of whether evidence a rational trier of fact could hold happened But this is not what has here. beyond a (en years For two now this entire court guilty, reasonable doubt that Walker banc) engaged analysis: has been in record Prior to was not taken into account. Jack- sifting, probing, rescreening, examining, a federal court could Agurs, son and reexamining pages and hundreds of review a state court record terms judicial energies records. intended to any evidence to sus- whether there existed protected and under the be conserved suc- Surely the new tain a conviction. stan- petition long ago doctrine have cessive require much more of review a dards expended by judges all of the been of this record when re- searching analysis of the viewing collateral issues of Why? court. I think the reasons should judicial bias why given plena- be obvious this court has evidence. When this is suppression and proceedings: ry review to these done, say that the it is difficult for me to 1) prior any judgment, petition” Our v. Bish- doctrine has “successive (8th Cir.1969), op, 408 F.2d 1378 did not way been offended. States, 1, 24, J., Sanders v. United dissenting). 1068, 1081, (1963) (Harlan, S.Ct. important panel ous erred and that BRIGHT, Judge, dissenting, Circuit should, case, give finality in this interest of LAY, Judge, HEANEY and joined by Chief important way to the more interest McMILLIAN, Judges. Circuit eighteen-year miscar- righting grievous, We dissent. riage justice. upon rests conviction murder join this dis- judges three other who Officer theory that implausible highly the Vaughan, panel prior believe that the sent also fatal bullet having taken a affirming court made mistake the heart, fire could thereafter the and wound wound to six shots Our examination petition for a initial denial Walker’s times. Walker five Additionally, corpus. one writ of habeas lengthy records of majority in the judge who votes with the and two habeas trials Walker’s two agree also present proceeding seems inescapable conclu- hearings leads us Arnold, Judge panel erred. that the in done injustice has been great sion that a and that Walker attorney the argu- colloquy with the entitled to habeas relief. during the oral State of Arkansas primarily justice rests miscarriage of This court, open appeal, of this said in ment (1) ad- grounds: upon two substantial Here, you got have a case where the Judge Kirby, C. William prejudice mitted the trial Walker’s prejudiced. all judge was [trial] know it presided over both of who judge you telling that. All are us is that trials, who manifested his any I am didn't make difference. But rulings through several crucial telling you that I had been on this if Walker, thereby ensuring that the against up before, I when this case came court would story; the whole not hear jury would I grant have the writ. voted (2) prosecutors po- the actions see, just I don’t don't see how State lice, crucial evidence that suppressed I justify under- of Arkansas can [it]. falsity established very could well have making. legal points you are stand against case Walker. of the state’s entire Moreover, may right, that’s we They what as a indicates the record whole going to a record are like vote on. But with strong probability that did not the shoot this, prejudiced, that is Vaughan. really ought reprieve. there to be a Arnold, Judge Richard S. of [Statement may be to These bold statements make transcript of 1983 oral ar- November eighteen year-old about an has conviction that gument added).] (emphasis by and affirmed been reviewed Court, Supreme State, v. Arkansas Walker responded After counsel for the State that (1966); by 241 Ark. S.W.2d 905 408 Governor, reprieve a was matter for the a courts, v. two federal district Walker Lock Judge Arnold-added: hart, (E.D.Ark.1981) F.Supp. 1347 514 and It is for counsel for to the State advise (E.D. Bishop, F.Supp. v. Walker Governor, the business. say, maybe you but what he does is his Ark.1967); court, and this Walker v. I just you don’t see how can (8th Cir.1969). Yet, Bishop, 408 F.2d 1378 saying are not this. ring true, public’s, if the in these statements saying judge You are not was not courts’, as well as the interest the finali prejudiced. [Id.] ty the give way of criminal must convictions constituting Thus one of the five votes the denies Walker relief important ensuring concern more of majority from prejudiced today who, person having ato been con unfair admittedly trial before an victed of a crime in an unfair does judge timing rests on —on appear guilty on the whole record be rectify it is now too late to a belief Here, beyond a reasonable doubt. Walk prior mistake made in 1969 a panel o filing er’s of a application successive for fthis right court has no provides corpus writ of habeas this court obligation to correct the error that un proper rectifying gross a with the means now, justly imprisons perhaps Walker miscarriage justice. We would issue the questionable Despite highly forever. writ. guilt, may evidence of remain Judge Heaney, joins in prison We note that who rest of his life. His case has dissent, panel Arkansas, this on the this served a become cause celebre affirmed the denial of Walker’s attorneys court which first 408 his us inform that at Walker’s Bishop, supra, petition. parole hearings busloads attended (1969). joining protest His this possible F.2d at 1378 to been release. Walker has previ- opinion emphasize parole every application. serves to denied case, finality In this the usual corpus notions of habeas dismissing his claim § give way justice. should to the interests of Initially, under U.S.C. 1983. panel a Supreme As the United States Court has this court Judges Heaney, consisting said: Bright, argument and Ross oral heard appeal. panel this to the court en referred the matter finality litiga- Conventional notions of banc, agreed hear, place liberty tion have no at stake and where life or actually heard, and then renewed' oral ar- infringement of constitu- gument appeal. in this Subsequently, the rights “government tional If alleged. argued second, again case was and before a always ... be accountable to the [is] [to] different, en banc court under circum- judiciary imprisonment,” for a Fay man’s * * * stances related in the addendum Noia, 391, 402, following U.S. [372 822, 829, (1963) dissent. ], access to the courts on habeas must not be thus Several justify considerations the initial impeded. inapplicability judi- of res en banc review in this case. In the event habeas, then, cata is inherent in the successfully Walker habeas establishes a basis for very role and function of the writ. relief, has, as we believe he States, supra, v. United [Sanders court, grant relief, directly must contra- U.S. 83 S.Ct. at 1073.] vene the der the panels. decision of one of its Un- support relief, of habeas this dissent Eighth practice, Circuit’s panel propositions: advances four prior must panel precedent, follow only the court en banc can overrule the 1) proper It is sitting for this court en panel. decision of a committed Remedying errors banc to entertain Walker’s successive ha- panel previous case petition. beas represents significant departure from the 2) expressed prejudice Judge Wil- appellate normal process and should be tak- Kirby, liam C. state trial only en in the extremely rare case in which presided trials, over both of Walker’s in- petitioner the al errors of can demonstrate constitution- fected Walker’s second trial to such an great magnitude. extent aside. the conviction should be set

We are all aware of the ever-growing caseloads that have inundated the federal 3) clearly The record in this case shows procedure courts. The adopted in this prosecution withheld crucial evi- case—under previous which a denial of ha- trials, dence at Walker’s and that the with- beas relief will be reconsidered only when evidence, surfaced, held as it later demon- the court en banc deems it appropriate— was, strates that Walker probability, all will assure that the most exceptional wrongly convicted. of cases will be heard more than once. In 4) examining record, After the full tak-. all but such extraordinary cases, successive ing into evidentiary account the matters petitions for can disposed by Judge Kirby’s tainted preju- manifest summarily. Thus we need not refrain dice and the suppressed by from granting relief in this case for fear prosecutors police, or no rational trier of open our action will judicial flood- fact guilty. would find Walker gates to successive corpus petitions. habeas majority opinion, supra 1241-42, correctly states the test for consideration of I. Appropriateness Entertaining petition: a second habeas may A court En Banc This Successive Petition for consider corpus petition a successive for habeas Writ Corpus. Habeas justice when require the ends of it. appealed Walker the 1981 district court States, 1, 15, Sanders v. United denying petition 1068, 1077, order his second for a writ (1963).1 decision, Following Congress the Sanders en- justice judge the United States or a or of the regulating acted a appli- new statute successive United custody States release from or other by prisoners. cations for remedy habeas relief state application on an for a writ of habeas statute, 2244(b) This now codified as 28 U.S.C. corpus, § subsequent application a for a writ of (1976), provides: person in behalf of such need by not be evidentiary entertained hearing When after an a court of on the the United issue, States or a merits of a material factual a the United law, hearing application States alleges unless the on the merits of an issue of predicated person custody pursuant ground on a factual judgment or other adjudicated ap- on the a State court has of the been denied a court earlier as a Smith & police-type weapon described we justice” on which the “ends It is revolver with a four- .38 caliber they justify and that Wesson inch barrel. fied that conclude focus here. testi- claims, Prosecution witnesses of Walker’s review a new gun police underneath found writ. grant the we should he was rolled over next to Walker when or onto witness found. Other shooting. A his back after the Background. II. gun empty when described Shooting. A. disputed loca- testimony High- on Arkansas Travelling southeast gun was found. tion where sus- of two criminal pursuit way 130 stopped a Barentine Gene pects, Officer B. First Trial. white, driven Oldsmobile late-model both Kumpe. passengers, Two Russell seated did not prosecution, the first the State seat, accompanied front in the car’s from two bullets disclose evidence center, and Kumpe: Linda Ford sat gun had been recovered Vaughan’s Al- passenger’s side. on the sat surgery during Walker’s af- body Walker’s ter the and then a shootout stopped immediately after Barentine most shooting. proceeded on The State Vaughan arrived on the car, Officer Vaughan shot theory that first minutes, taxicabs driven Within scene. engaged in Barentine and Walker Aaron Paul Alderman Thomas Short through the back window of cul- arrived, witness events in time to also explain Walker shot To how Oldsmobile. shooting. minating in the theorized that Walker Vaughan the State Kumpe out of the ordered four- guns, Barentine & Wesson had two Smith began to search revolver, of the car under- allegedly driver’s side him. found inch-barrel neath Walker after the right side Vaughan approached the shooting, and the broke out of the Oldsmobile. Gunfire then Wesson snub-nosed revolv- unfired Smith & right of the Oldsmobile. right on the side The State hand. er found Walker’s Walker, first, firing shot Vau- alleged that point, precise order of events At this Wesson four-inch ghan with Smith & point during At some uncertain. becomes revolver, up holding but somehow wound confusion, escape. Bar- Kumpe tried to the entine revolver. only fully-loaded snub-nosed fired twice and downed him. Baren- theory support in the This found four from the tine fired shots Walker Ford, sat between age Linda Oldsmobile, help, radioed back reloaded Vau- Kumpe and Walker. She described revolver, again. his and fired once approach passenger’s side of ghan’s ended, shooting Vaughan lay When the open the door was the Oldsmobile: “[t]hen wound to dead or near death with bullet I, firing.” started 120.]2 [Walker] [R. Walker, times, lay his wounded five heart. however, cross-examination, Ford con- On Oldsmobile, only face down beside actually see Walker ceded that she did not Vaughan. right hand feet from few Walker I, fire. [R. .38 fully-loaded, held a snub-nosed Indeed, undisputed It is & Wesson revolver. careful examination of the Smith Vaughan. Po- gun did not shoot record indicates that Ford’s conclusion that that this lice also found a .38 caliber any Colt revolver Walker “fired” rested direct Walker, gun fully also This observation on Ford’s the Oldsmobile. loaded, having it did not undisputed it is noticed no flash from the officer’s Vaughan. Finally, police gun recovered a at the time she heard the first shot: shoot writ, court, plication 4267, for the and unless the Federal Practice and Procedure at § justice, applicant (1978); Williamson, or is satisfied that the Corpus: Federal Habeas application deliberately not on the has earlier Applications Limitations on Successive newly ground Prisoner, withheld asserted or other- Mary Same Wm. & L.Rev. 265 (1973). wise abused the writ. Although this statute does not mention the 2. References to the record of Walker's first trial criterion, justice” "ends of courts and commen- designated throughout opinion this as R. will be interpreted enacting tators have the statute as I, —; the record of Walker's See, references to principles e.g., announced in Sanders. II, —; designated Craven, second trial will be as R. 1243, (9th Cancino v. 467 F.2d corpus pro- Walker’s first habeas Cir.1972); references to ceeding United States ex rel. Townsend v. I, cert, designated as H. —. (7th will be Cir.), Twomey, 452 F.2d 354-55 denied, theory S.Ct. the State’s For our discussion of D., Miller, (1972); Wright, Cooper, 17 C. A. II. & E. Walker’s second see Section infra. Q (Cross-examination): you do prejudiced. How Counsel called three ministers wasn’t firing? know it the officer Baptist affiliated the Markham Street in Rock, Little had Church who become (Linda Ford): A Because I him saw acquainted religious with Walker at servic- door, opened he whenever and I jail. in They es held testified that gun could see the fire from when- his asked to they when Walker their church become member of fired, ever he shot that and it was the first Judge Kirby’s went to I, I had heard. [R. 121.] request that Walker be allowed to office to go addition, the first eabdriver baptized. Testifying church to to the scene, Short, Thomas testified that after exchange the ministers had with about right opened, door of Oldsmobile he Kirby, Ray Judge Reverend Branscum Vaughan “just up heard a shot and raised stated: ground off the and fell flat on chest.” his I, Short, too, conceded he came judge's to the office [R. 82-83.] fired, did not see only shots but heard our request made here to Judge known I, them. Short iden- Judge nevertheless Kirby. Kirby expressed [R. 90.] himself tified Walker trial person as the saying any he didn’t have confi- I, 84.], fired the shot and described profession [i.e., dence in James’ [R. of faith] Vaughan’s man, reaction when did, shot as follows: he and that had killed a but he turn, make the statement to Mr. Hal- open, When the why, door came he was deputy] lum chief he going that was dancing on the jig, this and he stepped up [the back grant request bank, he but wanted him side of the just about guarded heavily and if shot, James made a that time I heard a him I and then seen down, move shoot him jump there, this because he just off bank he didn’t want him I, brought fell flat back to him on his chest. [R. 84.]3 because, he intended to burn the S.O.B. Davenport, Dr. Leo exam- State’s II, anyway. [R. 83.] ining pathologist, repeating what he wrote Vaughan’s autopsy report, described testimony of the two other ministers Vaughan’s death from the bullet wound substantially paralleled that of Reverend I, “almost immediate.” Baren- [R. 194.] Branscum. supported tine’s testimony theo- State’s response testimony, Judge this Kir- ry engaged that he in shoot- by said: I, out Vaughan. after Walker shot [R. 194.] say it, I wouldn’t I I say didn’t cer- testimony, plus This ballistics evidence tainly misrepresented I it if said it. I linking the & Smith Wesson revolver al- nothing burning have is to do with him. It legedly found near Walker to the bullet up jury or gets whether not he heart, Vaughan’s represented essence that sentence. All I have to do is call the put of the State’s case. Walker’s counsel I givehim shots as see them and [sic] insanity on an defense prosecu- which the reasonably up fair trial. It is to me tion easily jury discredited. The deliberat- was, him punish to burn him. it we If minutes, just ed twelve found Walker II, wouldn’t have to have 86 trial. [R. guilty, and him sentenced to death. (emphasis added).] appeal, attorneys On new assisted Walk- Judge Kirby request overruled the for re- Supreme er’s trial counsel. The Arkansas cusal, as well as a serious motion for conviction, holding Court reversed change venue resting upon undue and the State’s use of Officer prejudicial newspaper public- and broadcast Vaughan’s widow as to the kind of father II, ity. [R. Vaughan and husband Officer had been Early Judge Kirby expressed irrelevant, prejudicial was not but also rights by stating view Walker’s potential jurors State, to Walker. 239 Ark. the dire: inception at the of voir (1965). 388 S.W.2d 13 Judge Kirby’s C. Rulings on Crucial way By explanation, might say I Matters in Walker’s Trial. Second that this is the second time this pretrial hearing, At a tried, Walker’s counsel case has been bewill the second disqualify Judge moved to Kirby grossly Mr. as time. Walker was tried once and Walker, heart, theory 3. This account undermines the State’s wounded shots fired six Vaughan, being the second trial that page See infra. Mary ignores re- Ford Roberts Court naed Linda and Supreme and the convicted retrial, (1) it that was it here for two vital back it and sent versed considerations— to tes retrial, obligation present this gentle- prosecution’s and ladies is the and this (2) that the timony in a “live” form and II, 147-48.] men. [R. may have known then that defense counsel’s defense Kirby overruled Judge to town pressured had been leave Roberts prejudiced statement that objections give police and that she intended to II, trial. [R. 149.] second to testimony would tend exonerate prosecution’s beginning of the Near the only at This information surfaced Walker. sought to case, read prosecutor proceeding in feder subsequent very important Roberts, testimony of two first trial al court. Mary witnesses, Ford and Linda not to these matters establish We relate per- these calling witnesses rather than prosecutors necessari- police or the that the that these prosecutor asserted The son. witnesses were evidence, empha- to suppressed this ly could not absent and Judge Kirby’s crucial nature size the stated subpoenaed. Defense counsel to recess ruling denying Walker’s counsel Lit- nightly in found could be both women wit- to that the enable them demonstrate counsel nightclubs. Defense tle Rock Rock the Little nesses were available thirty-minute recess to obtain pleaded for a permitted defense counsel been area. Had were prove the women witnesses who could in the Little Rock area. The this demonstrate, prosecutor would so to either have Mary rejected court Linda and had to locate Ford testimony from plea. damaging The place during the trial and Roberts Linda was read into evidence without Ford testimony stand, forgo their them on the adequate new opportunity an amination. The prior that she saw cross-ex- altogether. also read the prosecutor Mary relating testimony Roberts the defense Prior to the second shooting. nothing permission to sought and obtained at the three revolvers seized submit the scene of caliber Smith & Judge Kirby’s devastating effect of (the .38 shooting snub-nosed ruling more on this matter becomes even Wesson, the .38 caliber examining the apparent after Oldsmobile, and .38 found Colt had have come before caliber, & Wesson four-inch-barrel Smith produce Judge Kirby required the State Walker) to found underneath allegedly first habeas its witnesses. At Walker’s hearing, Berg, a noted firearms examin Stanton O. Mary Vau- Roberts testified Judge Minnesota. Minneapolis, er from Kirby ghan shot never fired first she directing the de entered an order gun. even aim his saw Walker fire or I, [H. of this fendant to “file with the Clerk stated that between She further 89.] proceedings part of the record and Court as first had informed the and second trials she report herein the written ballistics of said really police she intended tell what examiner, copy firearms furnish testimony at happened change her * * * II, Prosecuting Attorney.” I, 75-76, [the] [R. trial. 124- Walker’s second [H. prosecutor coun and defense 24-25.] Rock testified that North Little She 25.] II, approved the form. sel order [R. impliedly suggested she leave town police ] I, the second trial. before 97-102.] 25. [H. on several occa- Roberts also stated that Berg’s report cast on a ballistics doubt her officers had intimidated sions part critical of the State’s case: the identi I, case. regarding [H. fication of .38 caliber & Wesson Smith supra suggestion, at 1247 majority’s revolver found underneath Walker as the murder subpoe might weapon.4 n. the defense have Although the defense report Berg pertinent part: 4. The states in 10. What was of this bul- the condition fatal by you? let when received you performed State whether Very poor A. condition. weapon allegedly ballistics test on found [the present 11. Would the of this bul- Walker], condition underneath so what test did if positive let of the bullet make identification you perform. difficult? A. Yes—test bullets were fired recovered A. Yes it would. One side of lead bullet compared microscopically. and examined and badly battered and scratched. The nose speci- weapon 9. Was this test fired and the badly ex scratched. One side of [the] bullet compared with the bullet mens fatal removed (2) rifling markings hibits marks. land Two body Vaughan? of officer [from] (3) are fair visible and in condition. Three A. Yes. order, complied trial, the theory with terms the the entire at the State's first and Judge prosecution present never received this evidence. the a forced to differ- Kirby, despite pretrial making his order theory. prosecution the ent now theorized record, Walker, first, report part approval order, pretrial Vaughan of the and the firing that the heart and that ed, shot parties Vaughan, both fatally form of the wound- times, prohibited reading wounding the defense from his six fired revolver report into to evidence. reaction Walker five times.5 Kirby’s Judge ruling, attorney support theory, its new To the State ad- stated: essentially duced the same evidence as at prosecution time to the first trial. At this we want record read Linda good that the relied in Ford’s from the first that show faith on defendant trial firing Vaughan. made started Order the Court Walker Aided by Judge directing produce Kirby’s us to this exclusion of the deliver defense’s report, fully report, prosecution we complied ballistics that ballistics introduced attempt with the Order of Court its own ballistics evidence in an and deliv- to copy Jernigan that prose- ered a cuting attorney] to Mr. establish the Smith & .38 cali- Wesson [the copy allegedly a the ber revolver and filed found underneath directed, Clerk, fired support as the Court to become a Walker the fatal bullet. To theory wounded, part proceedings; Vaughan, fatally of the record and and its Walker, pauper, he have prosecution this defendant is a could shot money bring expert Davenport, have Dr. Leo doesn’t and Minneapolis, an called ining pathologist, exam- State’s him keep down here for a from week who testified his way in Vaughan’s autopsy report Minnesota. We had no statement knowing just immediate,” of [Berg], we need that death was when would “almost meant Court, just Vaughan anywhere day before died “from min- yesterday, allow min- ute to few refused to us 30 minutes” he was wound- II, delay utes to locate our ed. witnesses. [R. 759.] only alternative we would had have have spend been to thousands E. Walker’s keeping expert dollars in First Corpus here a week Habeas Pro- we, ceeding bring Suppressed him that distance when Aider- —The faith, good Testimony. man upon relied the order this II, court had made. [R. 848-49]. At Walker’s first habeas hearing, Aaron Paul Alderman appeared as a witness in D. The Prosecutor’s Evidence at Walk- support petition. of Walker’s Alderman er’s Second Trial. the second cabdriver to scene, arrive on the Prior to Walker’s second eyewitness his coun- was an shooting. Fol- sought sel and obtained ballistics evidence lowing the shooting, gave he North Little possession prosecution. Con- Rock his I, statement. A [H. trary Judge Kirby’s comment that the month or two after the shooting incident, merely defense wanted “to make prose- Lakeland, Alderman moved to Florida. He divulge II, cutor his case” 52], the stated that he or [R. had called the criminal court conclusively ballistics evidence demonstrat- the prosecuting attorney’s office before ed that none of Barentine’s shots wounded the trial first availability advise Walker. This destroyed I, disclosure a witness. Alderman was [H. 169-70.] groove markings are grooves widths, visible of which two are and their direction of damaged fairly good and the other is in condi quite twist etc. A disimilarities [sic] few elapse tion. Because of the time since it has were noted in the individual characteristics. (almost years) been fired [Emphasis 2lA areas of added.] light bullet contains film [sic] of lead oxida positive tion. All of these make factors identi majority suggests (supra 21) 5. The at 1247 n. fication difficult. that the defense at first knew should examination, you your able Vaughan, Barentine, 12. Were from have known that shot notwithstanding the condition of the bullet support Walker. That assertion derives no any bul- plain [sic] detect disimilariiies the fatal the record. The fact State test If theory let and those fired from [revolver]? offered that Barentine shot Walker please [any] produce so list and describe disimilarities did the ballistics evidence noted. [sic] the first trial. The defense learned exist- A. were No disimilaritiés noted in the [sic] prosecutor ence of when the class characteristics such as number of finally divulged lands it before the second trial. Vaughan he that Alderman testified saw fact, and, never as a witness called never received I, Alderman at Walker. fire [H. 155.] of either Walker’s notification shots, Vau- four five stated after trials. standing. I, ghan remained 148.] [H. testimony com- view, Alderman’s In our fact, Vaughan re- Alderman stated that prosecution’s theo- undermines pletely fallen on after Walker had mained his feet Vaughan and shot Walker ry that I, 142, 148, of the Oldsmobile. out [H. to his wound fatal bullet Vaughan, with a moment, shooting subsided for a 157.] five times. More- heart, wounded Walker then heard one more shot and Alderman that either over, establishes the evidence pipe. in a sounded like a shot barrel Rock North Little or the prosecutor the police mony. I, Vaughan steps took a few 141.] [H. testi- crucial suppressed Alderman’s shot, fell on his and forward back this testified when the face. Alderman began, Kumpe go under shooting he saw night of that on the Alderman testified I, After the the Oldsmobile. shooting, incident, and [H. 142.] he drove shooting Ford the Roberts Walker Kumpe get told to out Barentine motel. Kumpe’s and run, Kumpe under started to from but Barentine fired the car. arrived, standing Kumpe they When him. stopped twice and I, the taxicab Ford left outside. and I, 134.] [H. the motel rooms. went into one of [H. approached Alderman Walker and Vau- Aider- brandishing what Kumpe, 134.] lying the Oldsmobile. ghan, both beside Special” “.38 as a Police man described it was he who first Alderman stated that barrel, Aider- told a four- or five-inch with man to leave. Walker, I, He said rolled over. [H. 163.] I, point, thisAt 134.] [H. pistol in his that Walker held a snub-nosed hand. man discovered the got apparently Ford Kumpe, and chamber, Upon checking Aider- away. and drove the white Oldsmobile into fully gun loaded. cab, Roberts, in Alderman’s remained I, 143, gun Alderman took the 165.] [H. to follow the Oldsmobile. Alderman asked I, it in from Walker and stuck his belt. [H. Alderman, upon learning from Roberts Vaughan, Alderman went over to 143.] in a had been involved Kumpe and Walker gun him and checked his and turned over shooting earlier that eve- incident barroom ning, fired. discovered that all six shells had been dispatcher his taxi his via informed I, 143-44, picking up After Vau- [H. ghan’s 165.] asked Alderman dispatcher radio. follow relay gun, gave guns to a Alderman both he would and said Oldsmobile police officer. I, police. the information [H. away the two As walked Alderman 135.] men, he anoth- wounded he stated that saw Oldsmobile, gun near rear end of the er Oldsmobile. Alderman followed I, gun lay keep cab He testified that this realized that his could not soon 145.] [H. Kumpe during where had been the ex- for assistance. Thomas pace radioed I, gunfire. Short, call, cabdriver, change of Alderman heard Alderman’s another [H. 145.] pointed gun out to an joined pursuit. arrived at stated officer self. he Short gun him- shooting just picking up rather than behind the scene ap- He stated that it looked like the same police and Alderman arrived two cars gun Kumpe that he seen brandish at to three minutes behind had proximately two I, motel. Shortly after arrived the police. Alderman [H. 148.] scene, him to Barentine shouted at on III. The Ends Justice Require That car. headlights and move the off shut WeReconsider The Judge’s Trial Ex- I, into the Alderman reached 151-52.] [H. pressed Against Bias Walker. lights, cab, turned off the moved cab First, slightly, parked Judge Kirby one of the ran behind stated that he “in- Walker, tended to po- cars. that both burn” Alderman stated and then he ex- I, plained headlights up that if lice cars had their on. it were to him he would [H. give approach Vaughan Nevertheless, Alderman saw Walker a trial.6 154.] Judge Kirby passenger’s-side give door the Oldsmobile ruled that he could Walk- Walker, II, er fair say “get out the car with trial. [R. 30.] I, court held trial. hands that Walker had your up[.]” Alderman received a fair [H. 140.] Vaughan open Bishop, supra, the door and heard saw 408 F.2d I, shout, it, today at 1382. a got gun.” majority he’s “Hold denies Walker [H. retrial, regardless shooting began. Then the whether the trial was supra. statement, see Kirby’s page quotation Judge complete For a not, “finality.” conclusory We Linda Ford’s fair or reasons of statement hold otherwise. That Walker could first trial that Walker firing,” “started admittedly prosecution’s on the and convicted before an ballistics be tried prejudiced evidence that gun allegedly judge is a stain on our criminal the er fired rulings found underneath Walk- go system, ought uncor- fatal Judge Kirby’s bullet. these critical evidentiary rected. mat- prosecution ters testimony present allowed requires trial in process Due fair “[a] Linda Mary of Ford and Roberts Murchison, In fair tribunal.” Re U.S. free from cross-examination on the State’s 75 S.Ct. L.Ed. 942 theory, present new and to its own ballis- unrebutted Walker’s ballis- Moreover, (1955). “justice satisfy must the tics evidence justice.” appearance of v. United Offutt expert’s report. tics 11, 14, 11, 13, States, 348 U.S. We unprejudiced do not believe an judge (1954). judge L.Ed. Can a trial before denied have Walker’s thir- counsel a against deeply who admits his held the bias ty-minute recess to establish that Ford and satisfy jus- of appearance defendant the Roberts were available as We witnesses. judge justice? tice? such a do Can unprejudiced judge believe an would have think not. prior ruling abided his that the defense Brown, In 539 F.2d 467 United States report, following ballistics its disclosure to (5th Cir.1976), the Fifth Circuit considered prosecutor judge, would remain alleged prejudice judge of a trial part of “record proceedings,” pretrial statements similar to those made made that unprejudiced judge per- would have Brown, Judge Kirby. In the trial jury mitted the ter to report. consider the Af- judge get that he going said “was to that all, counsel for Walker * * * and the State defendant, nigger,” referring to the approved to form Judge Kirby’s as pretrial Brown. Rap H. sought post-conviction Id. at 468. When Brown ruling ordered Berg report which made pursuant relief to 28 part of the record. unpreju- We believe an § 2255, U.S.C. the district court denied re- would, could, diced judge and properly ground lief on that the record demon- have approval ruled that State’s of the had, fact, strated Brown received making report order part of the record fair trial. a stipulation to amounted to its admissibili- reversed, observing The Fifth Circuit ty- pronounced by “the truth Justinian that more than justification There be no Judge can for that, years ago a thousand ‘Im- Kirby’s changing ruling. his He knew justice,’ just is the life is partiality valid The of lacked re- sufficient financial today it as was then.” at 469. Id. sources otherwise to avail himself concluded: court report, information contained in the Berg judge’s comport The statement did not doubt on validity cast appearance justice, and it State’s crucial ballistics Wheth- evidence. be said from alone cannot the record report er Berg hearsay constituted appellant received a fair trial. Accord- irrelevant context this case. The ingly, be vacated. conviction and sentence must inquiry our is not on the correct- focus of [Id. Kirby’s ness Judge evidentiary rulings, but rather on his bias and prejudice as Here, good the record discloses deal rulings. in his judge’s more the trial than about bias did reflected the evidence In addi- Brown ease. Judge Kirby’s up defense that it was not tion to of members of the punish to him [Walker],” “to burn is no regarding expressed clergy Judge Kirby’s First, rule, general defense at all. aas no prejudice, judge’s the record contains the dispute one can that a judge biased can that, effect, own statement he con- influence a over, ways. countless More- the forthcoming unnecessary. sidered trial important and more to the case Kirby’s Judge comport statements do not bar, Kirby’s Judge rulings had an undenia- appearance justice. with the bly overwhelming impact jury’s on the ver- dict. Judge Kirby’s prejudice continued to opinions throughout prior denying manifest itself ha- Walker’s second Walker’s Having petition do presided Judge Kirby’s trial. over beas not address Walker’s first trial, Judge prejudice in this Kirby opinion context. knew the weaknesses its prosecution’s dismissing habeas the prosecution’s first application case. He knew that the relief, part the district large case rested in court devoted five the fact- prejudice his distorted issue. strate that to the paragraphs . that, assuming finding jury. function even court stated to the second Judge Kirby believed short, Judge Kirby he was admitted he guilty and that trial that Walker supported his his prejudiced, and actions death, “blatant, sub- should be sentenced permeated Kirby’s prejudice Judge words. enough sort jective prejudice depriving thus second Walker’s entire in a disqualify himself require ,of right to a fair constitutional him trial. his Bishop, supra, 295 jury case.” Walker n did not discuss F.Supp. The court at 773. rulings and their judge’s any of the Require Habeas Justice IV. Ends of fact-finding process. More- effect on over, Suppression the State’s Relieffor specifically refer court did not Testimony. Alderman’s Judge Kirby’s “burn the S.O.B.” comment. Alderman, Aaron the second cabdri- Paul remark that it would The district did scene, possessed vital on the ver arrive Judge Kirby not have been better had made some of shooting. information about eyewitness jury, comments Alderman, According lay wound- Walker to that these com- the court concluded while by the side the Oldsmobile ed of due not amount to denial ments did standing. Al- Vaughan remained Officer process. per- that the first derman testified he was dis- panel this appeal, On court’s shooting and to after the son reach Walker ex- judge’s prejudice more cussed the trial gun un- Walker held one that fired, —the court, but, did like district tensively, the loaded, pistol. Al- fully snub-nosed specific any the effects discuss undoubtedly testimony constitut- derman’s to rulings. In reference Judge Kirby’s strongest the evidence for the defense. ed comment, Judge Kirby’s “burn the S.O.B.” hearing, At first Aider- Walker’s habeas remarked, alleged panel state- “[t]he * ** following shooting man testified that very most made, ment if could at the gave police. he Several a statement feel- judge's to construed indicate be part police officers corroborated this of Al- any ings guilty that the defendant Captain Knight derman’s account. Both thoughts part on the such innermost testified the ha- and Lieutenant Gilbert at disquali- for his no cause constituted they beas the saw Alderman after Bishop, supra, fication.” F.2d v. Walker shooting prosecutor’s at office that, said panel 1382. The at I, being statements were taken. when [H. record, appeared the entire it canvass of 198, 199, Although man neither 285.] very might the court that “at the worst gave actually could confirm that Alderman a at defense have shown some irritation statement, their testimo- uncontroverted panel Id. The counsel’s tactics[.]” ny placed the other Alderman with witness- Arkansas adopted language also es from From the lished statements were taken. whom opinion upholding the con- Supreme Court’s record, it be deemed estab- must viction, the effect that “the trial to Alderman’s state- someone took exemplary manner the trial in an conducted and without Bishop, supra, 295 ment. See any toward bias F.Supp. at 779. Id., quoting the accused.” State, at 912. supra, S.W.2d Alderman testified that he contacted prosecution a few months after the shoot- opinions of the two Neither ing to report his new Florida He address. inquired prejudice issue addressed the was told that if he were needed he would Judge Kirby’s prejudice affected whether I, prosecution prosecution be contacted. never [H. 170.] fact-finding. conclude jury’s the that now Alderman; contacted Kirby’s infect the Judge prejudice did testify; pros- never called Alderman process. Judge Kirby refused fact-finding ecution never even informed defense coun- thirty-minute the de- grant a recess to sel existence or where- Alderman’s they might show that Ford fense so that abouts. Rock, present in Little and Roberts were report Berg he refused allow proceeding, At first evidence, previously although into he had containing files State announced that the part of report Alderman, be made Ford, ruled that the statements light rulings, These had, the record. crucial unaccountably, “lost.” Roberts been Kirby’s pretrial prej- Judge circumstances, admission From a clear and obvi- these Walker, conclusively demon- against udice police ous conclusion follows: The prosecution recognized tance and mony.7 dinary credibility impor- Alderman’s standards. Agurs, Under attempted proper suppress test jury might testi- whether a this, least, But at credited they were have Alderman’s testimony to such an Fulfilling poet unsuccessful. extent as to William create a reasonable Bryant’s prophecy “truth, Cullen doubt in the jurors. minds of the To this earth, end, crushed to again,” shall rise we note the following testimony Alder- testimony man’s finally surfaced at Walk- corroborated Alderman’s account: hearing. er’s first habeas 1) trials, Short, At both Thomas the oth- Agurs, cabdriver, United States v. er confirmed Alderman’s ac- (1976), count of his radio conversations with the Supreme Court held prosecutor I, II, that a dispatcher. has [R. 77.] [R. 542.] duty the the exculpatory disclose evidence to 2) description Alderman’s of the fatal defendant, even request by absent a comports shot with that of Short. Aider- defendant, when the evidence “is obvi- shot, man said that he heard a and that ously of such substantial value to the de- Vaughan took two or steps three backward elementary fense that requires fairness it I, and fell on his face. Short [H. 142.] to be Id. 96 S.Ct. at disclosed[.]” said Vaughan dancing “was jig, * * * Supreme 2400. The went on to Court set shot, I heard a and then I seen him evaluating forth the standard for ted evidence: the omit- there, jump off this bank and he [Vaughan] just I, fell flat on his chest.” [R. necessarily It follows that if the omitted 3) Alderman’s gun evidence creates a reasonable doubt that hand, found Walker’s the Smith & Wes- exist, did not otherwise constitutional er- snub-nose, son fully loaded accords has been ror committed. This means testimony. with all other that the omission must evaluated 4) Alderman testified about hostili- the context of the entire record. If there ty toward following the shooting— is no reasonable guilt doubt about wheth- one “stomped” I, officer on Walker [H. er or not the additional evidence is con- 145]; another officer cursed at Walker and sidered, justification there is no for a I, threatened to kill him. [H. 144.] hand, new trial. On the other if the gist of testimony Alderman’s was con- already questionable verdict is of validi- firmed Gilbert, Lieutenant Marvin a ty, relatively additional evidence of minor police officer, North Little Rock who testi- importance might be sufficient to create fied that he had to disarm some officers to 112-13, a reasonable doubt. at [Id. protect police Walker and that officers dis- (footnote S.Ct. at 2401-02 omitted).] played great resentment Walker. toward Alderman’s testimony at Walker’s first I, [H. 287-288.] proceeding habeas indicated that Alderman 5) important Some corroboration of Al- military had served in police the while in derman’s account exists in Officer the service Baren- during the Korean War. Aider- tine’s report initial man, police depart- a good posi- disinterested observer in ment. In that report, made six or seven events, tion to view all of the testified at incident, hours after the Barentine said length and in police detail. Both cars had Vaughan shot Walker five times. The re- lights their on and Alderman testified that port makes no mention of Walker ever he could see all participants in the firing I, 179, at Barentine. shooting except Kumpe [H. well during the 380-81.] Kumpe time when was under the Oldsmo- Thus, view, in our no basis exists for a I, 141-42, 154, bile. [H. ruling important that this suppressed but recognize that at Walker’s first testimony habe- so lacks credit it would proceeding largely as credited Alderman’s the district court dis- make no jury. Indeed, difference to a from testimony. See the clear, Walk- record we think it that members Bishop, supra, F.Supp. er v. jury could, at 779. It would, a probabiy and have is not this court’s function to evaluate the credited testimony Alderman’s at least to credibility By of witnesses. the same to- an extent sufficient to create a reasonable ken, the function of the district court at doubt of guilt. police Walker’s and Walker’s first to proceeding habeas prosecution not the suppressed Alderman’s ac- believability Alderman’s under or- shooting. count of the Their actions consti- asserting, In so we Barentine, are also mindful of the advancing theory trial and in the prosecution conduct of the Vaughan, the not shot Walker after Walker shot withholding Vaughan. ballistics evidence at Walker’s first is, whole; trials a and the records both of Walker’s consti- egregious an denial

tute proceedings. rights. both tutional case, inquiry appeal typical the the on the Entire whether, V. The Evidence From considering light most Not Walker to Be Does Show Record all the evi- prosecution favorable Beyond Reasonable Doubt. Guilty heard, a a finder jury dence of fact could have found reasonable defendant noted, discretionary con- As we have our a But this guilty beyond reasonable doubt. applica- sideration of Walker’s successive police, case The actions is different. premised relief on tion for habeas ing serv- judge improp- the trial prosecution, a justice. Absent substan- ends jury erly kept from the evi- pro- disruption jury’s fact-finding tial Therefore, favor. dence Walker’s cess, by them- constitutional violations comprehend must the evi- inquiry here all might relief at this late selves warrant heard, only jury dence—not also what case, however, date. In this we are not great prejudice— what—to “technicalities”; confronted with so-called kept hearing. the jury was from We be- setting we are not aside the conviction of that, looking from lieve both at all evidence obviously guilty man on basis of a hearings, no trials both habeas Here, “loophole.” the violations Walk- trier of fact could have found reasonable Walker rights completely er’s constitutional beyond guilty doubt. reasonable warped jury’s fact-finding distorted the and, jury’s tainted, process. The verdict is respect testimony crucial With justice, in the interest of cannot stand. Ford, good position as Linda was we are jury at the second trial to evaluate guilt of Walker’s is ex- evidence Lin- credibility. jury For that did not hear weak, tremely consisting entirely almost testify; reading da Ford it heard testimony into tainted admitted transcript from the of her Moreover, prejudiced judge. Walker's testimony, as first trial. Ford’s that recorded upon conviction is based the almost incredi- transcript, fails in several critical re- theory Vaughan, having ble fatal wound to his into record, suffered a spects support theory heart, five fired bullets advanced at the second trial. Ford State testified that Walker had his lar, considering After Walker. the entire pistol (singu- including the ballistics evidence out; pistols) two that Walker start- Judge Kirby kept that the (a firing admittedly ed conclusion not based Alderman, suppressed testimony we observation, that supra, see direct rational, strongly informed, believe no 1254); did not how and she know impartial and er trier could fact find Walk- many report gun. the This times Walker fired guilty beyond doubt. reasonable came, moreover, from a seventeen- supra relying majority, The at on year girl having had at old admitted 307, 99 Virginia, 443 U.S. (1979), S.Ct. Jackson during night ques- the least five drinks concludes II, 608-09, tion. [R. 611-12.] evidence, light seen the most favor- testimony upon in essence That is guilt prosecution, establishes able to the which the State relied to convict Walker beyond a reasonable doubt. upon rely which the must State now time, majority, At at supra the same arguing justice" not “ends of will argument that Walker’s asserts “is reaching justify the merits of this subse- * * * essentially based on conclusions quent application for habeas relief. Walker,” drawn most favorable to and that noted, Supreme setting Court accepts such this dissent conclusions. We justice” forth the “ends of as the test reject must characterization of our which to evaluate successive habeas record, as review of the inasmuch we docu- petitions, that that “cannot fine- test be too item of ment each crucial evidence with ly particularized.” Sanders v. United record. precise references States, supra, 373 at U.S. case, major- from the 1078. In this a different view defendant faced hold prejudiced ity ways is to be under the before a who in what reviewed opinions may as set enumerated in justice” “ends of standard forth this weighted evidentiary rulings majority examines have obtain a conviction. The his Sanders. record, uncritically accepts suppressed second trial the important testimony. Alderman At the the State’s contentions. ines as dissent exam- trial, prosecution suppressed objectively possible as as first bal- record Q prosecuted Alright,— evidence and Walker on listics the Vaughan shot theory that Walker prone position, A in a say. I would support that Barentine shot Walker. Q At this time Vaughan on his produced theory, prosecution testi- this feet? Vaughan’s death almost mony that Yes, sir, A definitely he was. immediate. At the second after the Q now, Alright, you described a shot evidence became known to ballistics Walk- that went “boom”? counsel, prosecution devised anoth- er’s er Vaughan Yes, theory Walker shot A sir. —that hand, gun found in his but with Q Did that occur after Walker had fall- gun lying another scene, which was found at the en from the car? Vaughan, and that with a bullet in Yes, sir, A laying Walker was face heart, his then fired five bullets into Walk- ground. down on the support theory, prosecution To er. Q After this shot that went “boom” did pa- presented thologist hypothesis the altered Vaughan immediately fall? Vaughan witness that “could A steps He taken two backward or having repeatedly have” fired shot in the heart. after been three and fell forward on his face. II, [R. 760.] I, [H. 142.] circumstances, all Given these we believe justice” require that the “ends of a review Mary Roberts testified at the first habe- of the whole record to determine whether Vaughan, Walker, fired supports indeed Walker’s con- shot, undermining the first thus the State’s viction. theory Vaughan shot and then Vaughan shot Walker: Testimony by prosecution trials both witness Thomas Short indicates that Vau- Q youDo know who fired the first shot ghan shooting being did no shot. We there at the scene? testimony have cited his from the first tri- Yes, A sir. al, supra at the second trial he Q Who fired it? repeated in these words: A opened passen- The officer you police officer Q say You saw ger side of the car. try [Vaughan] jump kind of Q you Do many know how times this opening up a little bit back [after gun? officer fired this right door of the Oldsmobile]. No, A sir. Yes, A Sir. Q Before he was killed? Q you And then heard a shot? ' No, I, A sir. [H. Yes, A Sir. part That evidence is of the whole Q happened to the officer? record. What We have examined the whole record ground he raised himself off the A Well determine whether the per- ends of then his feet flew from and he—and under mit reconsideration of the merits of Walk- him and he fell on his face. petition. er’s second That whole record II, 518-19.] [R. nullify completely serves to the State’s ex- sug- common sense This evidence and tremely theory Vaughan, tenuous that opinion pathologist’s that gest that heart, a bullet shot Walker five fired the shots into Vaughan could have Vaughan times. For if first shot Walker speculation without Walker amounts him, seriously five times and wounded as support in the record. shows, the record no reasonable basis ex- postconviction testimony, to Alderman’s ists for a factual determination that Walk- made, already which reference has been Vaughan, er thereafter particularly shot did not clearly establishes that Walker when, Alderman, as testified lay Vaughan. reproduce that testi- shoot mony We ground on the outside the car when Vau- part: ghan single received fatal to his bullet body. Q Alright: after momentarily the shots you ceased what did happen see body? VI. Conclusion. slumped A He over forward and then to right ground record, on the painstakingly reviewing After stretched out— we stand convinced this erred 1551, 54, 58, 1549, 20 L.Ed.2d 88 S.Ct. U.S. affirming the district ago in years fifteen (1968). against convic It is “a bulwark petition habe- of Walker’s denial court’s ” fairness.’ ‘fundamental tions that violate convic- that Walker’s relief. believe Isaac, 126, 107, 102 S.Ct. v. Engle 456 U.S. miscarriage justice: of constitutes tion quoting (1982) 1558, 1570, deprived Walker of Judge Kirby’s 72, 97, 97 Sykes, Wainwright trial, withheld crucial and the State a fair (1977) (Ste 2511, 2497, L.Ed.2d 594 S.Ct. record, including the evi- evidence. vens, recognize that J., concurring). We prosecution and the dence will, undoubtedly, years passage of and the evidence wrongfully suppressed retry difficult, impossible, to if not make it jury’s from the consider- unfairly excluded however, Chief Justice Recently, Walker. Judge Kirby’s prejudice, ation reason many lapse of Burger reiterated informed, rational, no demonstrates possibility of not defeat years should have found of fact could impartial trier petitioner can demon if “the habeas relief guilty. a colora miscarriage justice or strate two un- Moreover, of Walker’s the taint Spalding v. Ai of innocence.” ble claim — trials, analy- we think a careful fair ken, U.S.-, demonstrates, cannot full record sis of the certiorari) (1983) (denial of L.Ed.2d 361 by reference to ignored or concealed be C.J.).8 (Statement Burger, prior opinions, the district court’s court’s or case, protec- In this the constitutional prior panel of apparent for it is guaranteed every one of us were tions analysis of the in its this court erred second state-court subverted at Walker’s record. Dean trial. It matters not whether James “good” person; Walker is “bad” majority’s decision to part, At least judicial system capacity to test of our is its perceived rests on the deny Walker relief justice persons, regardless to all of their do notwithstanding finality, importance of in life. station record, might relief the same that on the case granted when should have been Accordingly, we would reverse and re- While this court in 1969. first came before mand with directions to the district court to repeti- majority’s belief that we share the if, thirty days the writ within follow- issue ordinarily petitions should be tive mandate, the State ing the issuance of our denied, that rule cannot and should Arkansas had not its inten- announced exceptional case absolute. For retry reasonably tion to Walker within a grievous miscarriage justice has where expeditious time thereafter. occurred, applied inflexibly rule if justice has been de- means that because layed, justice must be denied. Such ADDENDUM here application, we cannot abide. parties are entitled to a word relating en banc right wrong explanation second It is not too late to Septem- habeas case. On against The “Great on this committed Walker. meeting of the symbol guardian general 1983 at a “both the ber court, Writ” is Rowe, possibili- liberty.” Peyton v. there was discussion of the individual many majority suggests mony misapplied confirms in de- that we have of other witnesses tails), grant sufficiency would not habeas relief to of the evidence standard of Jack- this court Virginia, supra, is not the situation. Walker son v. 443 U.S. at 99 S.Ct. at Walker. But that 2789, by failing established violations of his constitutional to examine the evidence in the has fact, right of all light prosecution. to a fair and the whole record most favorable to the case, including proceedings the two in this we have neither reached nor decided the issue proceed- post-conviction sufficiency the evidence at Walker’s trials and the various miscarriage ings, "a support We have demonstrates second trial to his conviction. Spald- merely prosecution’s a colorable claim of innocence.” [and] noted the weakness of the Aiken, case, ing supra, We have principally 103 S.Ct. at 1795. which relied on tainted testi- necessary proper mony by prejudiced to reach not found it admitted into evidence sufficiency get evidence to judge, jury determine of the and observed did not to important testimony. under the standards Alderman convict at the second hear Virginia, supra, when enunciated in Jackson Judge Kirby’s Had admitted not af- us demonstrates the whole record before heard, jury fected what evidence the and had States, justice,” Sanders v. United “the ends of effectively pre- prosecution 1077, require supra, S.Ct. at 373 U.S. at jury listening to Alderman’s vented relief in this case. (which the testi- version of the incident version might be re- and the recorded confession of rehearing en banc statements ty that a petitioner any explanation thereof and judges, new conceiv- quested, and with two reached, after the such additional evidence as district contrary result be ably a opinion and dissent pre- may in its discretion deem relevant to they were then court proceedings. of the seven these filed on behalf pared were heard the case. After this members determine The district court should discussion, by a 6 to 3 vote the court any of this evidence is credible whether proce- relating rules to en banc amended its jury; enough to deserve the attention of a provide: to dures admissible whether the evidence if a new be held; trial were and whether prior to appointed who is that [a] evidence, against the new the when considered opinion by released time that an is the the court * * * record, background existing suf- request make a to may ficiently tips the balance of the “ends of so, and if then the submis- participate, justice” require that a new trial re- vacated and the case sion should be standard findings then be held. These should be or oral either on the briefs submitted argument. banc, Court, sitting certified to this en consider, briefing can then change an election Following that rule evidence, argument, oral whether the new by newly appoint- in the case participate light findings, in the of the district court’s (who suggested or initial- judges ed had not requires a trial. new ly sought change), the rule the clerk expedite court is The district directed to following Sep- on court entered the order making appropriate and the its findings. 29, 1983: tember motion, own the en On the Court’s 15, 1982, September submission of banc ARNOLD, appeal Judge, concurring. the habeas issue of this Circuit on hereby reset vacated and case is I continue to believe that this Court cor- argument to the Court en banc on for rectly affirmed the District Court’s denial 29, 1983, in Tuesday, November St. petition of this successive for habeas cor- Louis, Missouri. pus. My reasons have been stated and repeated need not be here. reargued en The case was then banc. Lockhart, (8th Cir.) 726 F.2d 1250-52 (en banc) (concurring opinion), HEANEY, petition LAY, Judge; Chief Before for cert, (U.S. April MCMILLIAN, filed, 52 U.S.L. Week 3862 BRIGHT, ARNOLD ROSS 1984) (No. 83-1835). BOWMAN, The motion for recall GIBSON, FAGG, Cir- R. JOHN mandate, however, presents a new situa- Judges, cuit En Banc. my judgment, requiring, tion what different result. a some- ORDER predicate concurring opinion my mandate, filed petition for recall of (cid:127)The change was that there had been no law, 15, 1984, hereby granted. March ap- and that no new evidence had is remanded to the The case district peared, since this Court’s affirmance of the instructions to take evidence from with petition. denial of the first habeas wife, Kumpe Peggy and his former Russell Davidson, relating Kumpe’s alleged motion for recall of mandate demonstrates fir- predicate may longer that this no valid. gun at or near the time that ing of a particular, the motion details certain Vaughan night was shot on the Officer petitioner new evidence that wishes to of- 15-16, 1963. That evidence is to in- April fer. This evidence has never been heard diary entry apparently dated Jan- court, clude by any state or federal. The most uary relating to that incident. significant diary item of new evidence is a Kumpe, purportedly written Russell remand, may the State offer as evi- On the automobile in which driver of dence the recorded confession of Walker 16, 1963, riding April night allegedly made after his first trial. Walker Vaughan diary was killed. The Officer alleged may explain offer evidence to 16, 1968, told, entry January we are confession. part pertinent reads in as follows: proceedings may The remand be limited sheriff, receipt to the both sides the recall of of the evidence mentioned Awakened at 1:30 a.m. nite papers respect go in their told to Mr. O’s Office—emer- mandate, being including Kumpe gency. great agitating A deal of hearsay if that assume I look at Even we Walker. by James Dean done evidence, in substantive I could not come as that fired much remorse him and feel however, probably get before He, still according ru- it would to high 4-16-63. too mor opportunity. of purposes for jury in some form kill me first has he will vowed could called as a Kumpe be impeachment. witness and Vaughan. I do his not underestimate not he shot asked wheter am alarmed. not potential, but no, he his is could If answer addition, by prove offered to counsel whether he had made be asked then Kumpe twice former wife Kumpe’s wife, his former and alleged statements to Walker, he, not had to her that admitted diary had the claimed he made whether the officer. shot diary entry and the entry. If he admits the wife, the fact of to his former statements previously evidence available There was statements would inconsistent these then night in Kumpe armed on the jury, together be before the question, inference could have and an been Kumpe might to explanation wish whatever testimony of Aaron Paul from the drawn If, hand, he denies offer. making other Alderman at the first alleged prior inconsistent state- under the Kumpe fired the fatal shot from ments, these state- extrinsic had been rid- car in which he and Walker ments, including diary itself and above, however, is ing. The evidence cited wife, Kumpe’s former could Kumpe in fact the first indication that solid impeachment purposes. See be offered and, gun in night question, his on the fired if greatly Note, Jones, A Roberts v. State: Case fact, it would by believed trier Impeachment on the Wit- Limitation that Alder- increase the chance In- by Extrinsic Evidence Prior nesses consistent (1984). account, Walker, man’s which exonerates Statements, L. 37 Ark. Rev. would also believed. be event, In either would alleged diary entry and the know about the response is principal The State’s aoppor- It would have oral admissions. alleged Kumpe’s diary and his statement to tunity Kumpe person to and to observe hearsay his former are wife both could ilght credibility his of all the assess circumstances, any not be admitted trial. evidence at new including prior incon- Accordingly, argued, it is their exist- Ordinarily, newly dis- sistent statements. question ence affect whether cannot justify is to evidence not sufficient covered be I such new to should held. am if proceedings goes only it to credi- new bility point inclined well believe that the State’s is witness, ease is so this taken, diary in the sense that the impeach- evenly balanced that this sort of alleged probably the be statement would credibility Kumpe’s could well be ment decisive in the mind substantive evidence. admissible (It jury. Certainly they hearsay are come would Alderman, recalling point at this worth excep- if could fit within the they Kumpé, has been heard like never against tion for interest. Uni- declarations jury.) 804(b)(3), R. adopted form Evid. Ark. § 1979), (Repl. Ann. 28-1001. creates a Stat. against hearsay exception for declarations responds State also him- The crime, interest when declarant is unavailable. has self confessed and that to Kumpe is give not unavailable. He could be a new trial to someone who admits he (though as a called witness he never had guilty justice.” cannot “the serve confession, ends of before). Possibly been he would invoke his The text of this brought first privilege against self-incrimination and re- attention Walker’s own mo- Court’s testify, as an mandate, fuse to which event he would be tion for recall is attached to witness, see response motion, treated unavailable Unif. the State’s its 804(a)(1), R. Evid. so Rule but even authenticity foes not seem to be denied. 804(b)(3) probably keep statement, still hear- tape-recorded, which was out, say given because under this rule a “state- jail while Walker was in expose (here having tending ment declarant been convicted and sentenced to liability Kumpe) to and offered to first criminal death trial. statement was exculpate apparently played the accused is admissible un- intended to be church corroborrating clearly congregations circumstances less show Walker’s conversion repentance. of the state- statgement says, indicate trustworthiness things: among ment.” other ah, Court, I say, every banc, I had committed can fied to this can then sitting en * * * consider, imaginable stealing up to sin adul- after briefing and oral * * * murder, ter, argument, fornication even. evidence, whether the new light of the District findings, Court’s Yes, you I know hard on to take a it’s * * * requires a new trial. Vaughan’s] life Her hus- [Mrs. way, remand, dead and that in some I question band’s don’t know On may arise how, I would like to tell her whether the newly discovered evidence * * * sorry” I “I’m presented that say very know doesn’t should first be to the state * * * much, that’s how courts before being by considered the fed- ** * thing hap- it’s a terrible to have eral habeas court. I think the answer to pen. question this is no. We have heard no new ground federal setting asserted for aside reply reponse As State’s judgment of conviction. The same out, points this statement was available to grounds asserted, continue to be primarily at the time of the State second trial and of the judge. The new Perhaps was not offered evidence. evidence, rather than constituting a new thought it did not need the State evidence. ground conviction, for attack on goes thought Perhaps playing tape it of the question whether the factual basis for religious would offend someone’s ties. For sensibili- the conviction is so unsure that a succes- my part, appears the statement petition sive habeas granted. should be strong against to be evidence indeed Walk- This issue is for the federal habeas court to protestations er’s of innocense. reply His (The State, decide. case, in any has not deny does not and does not contest the that he made the statement argued that failure to exhaust state reme- accuracy problem here, dies ais point so the has appended response. text to the State’s But appreantly been waived. See Pickens v. explanation there could be some that a trier Lockart, (8th 714 F.2d 1458 n.2 Cir. might accept. again of fact This is an 1983). decided, appropriately issue to be instance, court, by by first a trial us. Certainly recall of mandate is an extraor- observed, additon, It should be that the dinary remedy. There seems to be nothing taped newly statement is not discovered ordinary about this case. Under 8th Cir. Kumpe evidence the same sense as the Rule a mandate may be recalled “to taped statements are. The confession is prevent injustice.” I think that is the situ- us, having never new evidence before in been offered into presented ation sure, here. To be a denial court, any but it is not of the motion for recall of mandatt would parties. new to the not forever bar consideration of the new proof now fered. Walker could conclusion, My balance, is that still file a third petition habeas and start presented new material to this Court in the anew in the District Court. Thisalternative motion for recall of mandate sufficiently probably would involve more cost and more adds to the uncertainites of this case to time in a case that already has consumed justify view, proceedings. my additional too much of both. The third peti- proceedings these should take the follow- might tion even be assigned ato different ing shape. This case should be remanded judge, district which would be a waste of to the DistrietCourt with directions to hold the considerable time and already effort evidentiary hearing. a new This invested in the by case Judge Woods. receipt would include the of the new evi- Probably this case will never be settled to dence pa- mentioned both sides in their everyone’s satisfaction, but the State as pers including respect mandate, to the recall of petitioner well as the will be well served Kumpe statements and the attemptiong to finally settle it as soon as petitioner. recorded confession of trict Court should determine The Dis- possible. any whether of this evidence is serve the enough credibile to de- reasons, For these I grant vote to jury; attention of a whether the motion for recall mandage and to re- evidence would be admissible if a new mand the cause for proceedings further held; trial were and whether the new evi- outlined in the order of the Court. dence, against when considered the back- record, ground of existing sufficiently McMILLIAN Judge, joins Circuit tips the balance of the justice” “ends of concurring opinion exception with the require standard to that a new trial be the paragraph first and the first two sen- findings held. These should then be paragraph. certi- tences of the second GIBSON, Judge, dis- R. Circuit JOHN FAGG, ROSS, and BOW- senting, joined MAN, Judges. Circuit deny motion recall I raises new factual The motion mandate. brought these before should issues petition for in a new

the district § 2254. corpus 28 U.S.C. under habeas my view, simply con- of mandate recall upon clearly matters new fuses evidence what been must be heard and has before.

considered charges today the dis- The Court’s order determining whether trict court with Kumpe be submitted to evidence should is I some doubt that order

jury. have Sain, consistent 293, 317, Townsend L.Ed.2d (1963), Wyrick, 640 F.2d and Drake v. (8th 1981). Newly evi- discovered Cir. constitutionality upon must bear dence evidence relevant to the detention. Such not a guilt prisoner state corpus. federal habeas ground for relief on Further, newly when discovered evidence considered, of whether evidence both issues time of available original criminal trials hearings, and whether the evidence could ar diligence due have been discovered appropriate inquiry. issues GRAHAM, re Debtor. Charles W. Trustee, SAMORE, Appellee, F.

Edward GRAHAM, W. Trustee of the

Charles Graham, W. M.D. Ltd. Profit Charles Trust,

Sharing Appellant. Plan 82-2477.

No. Appeals, States Court of

United

Eighth Circuit. 20, 1983. May

Submitted

Decided Jan.

Case Details

Case Name: James Dean Walker v. A.L. Lockhart, Superintendent of the Arkansas Department of Corrections

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 13, 1984

Citation: 726 F.2d 1238

Docket Number: 81-1700 (habeas)

Court Abbreviation: 8th Cir.