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

company, controlling nor become a affiliate corporate of a holding compa- licensee or a obligation the licensee to stay the ny, holding nor company become a of a application key employee’s present corporate holding licensee company or a 30-day period proscribed. herein within obtaining without prior approval first 5/77.) (Adopted: 7/76. Amended: Reg- commission in accordance with 8.010 General. ulations 4 and 8. sell, person purchase, as- 1. No shall (Effective: 9/73.) lease, grant security sign, or foreclose transfer, interest, or hypothecate otherwise any

convey acquire or manner whatsoev- any in or any interest of sort whatever

er gaming operation any or any licensed thereof,

portion or enter into or create a any agree-

voting agreement trust or other any any in connection

ment of sort portion gaming operation any or

licensed

thereof, except in with law and accordance WALKER, Appellant, regulations. James Dean

these permit any person 2. No licensee shall in, any whatever or in to make investment LOCKHART, Superintendent A.L. any participate in the manner whatever Department the Arkansas of, profits any gaming operation, licensed Corrections, Appellee. thereof, any portion except or in accord- regulations. ance with law and these (Habeas). No. 81-1700 person convey 3. No shall transfer or Appeals, United States Court any any any manner whatsoever interest of Eighth Circuit. any gaming sort whatever in or to licensed thereof, to, operation, any portion or Submitted Jan. 1985. permit any partic- investment therein or May Decided 1985. ipation profits by, any person thereof acting agent, Mandate Extended 1985. any trustee or in other June representative capacity whatever for or on person

behalf of another without first hav-

ing fully pertaining disclosed all facts representation per-

such to the board. No acting representative

son such ca-

pacity acquire any shall hold or such inter- participate

est or so invest or without first

having fully pertaining disclosed all facts representation

to such to the board and permission

obtained written the board to

so act. Regulation apply 8 shall to transfers corporations subject Reg.

of interest in apply but shall not to transfers of inter- corporations subject Reg.

est

(Amended: 9/73.) respect

15.1594-6 Prohibition with

ownership corporate licensees. No

person acquire any equity security shall by corporate holding

issued licensee or a Bristow, Jonesboro, Ark., appel- Bill Paul driven Aaron Alderman. Police lant. pursued Officer Gene Barentine stopped parked the Oldsmobile and his ve- Holder, Gen., Atty. Asst. Theodore Little Vaughan hicle behind it. Officer Jerrell Rock, Ark., appellee. on arrived the scene immediately almost LAY, Judge, Before Chief and HEA- thereafter, as did cabdriver Alderman and NEY, ROSS, McMILLIAN, BRIGHT, AR- cabdriver, another Thomas Short. NOLD, GIBSON, FAGG, JOHN R. Barentine ordered out of the BOWMAN, Judges, Circuit En Banc. began driver’s side of the ear and to search Vaughan approached him. the Oldsmobile BRIGHT, Judge. Circuit the passenger’s side of the At car. court, January in a five to point, precise order of events becomes decision, four affirmed the district court’s1 uncertain, following exchange but an peti denial James Dean Walker’s second gunfire, Vaughan lay Officer dead or near corpus. for a writ of habeas tion Walker single death with a bullet wound to his Cir.) Lockhart, (8th (en F.2d 1238 v. Walker, gunshot heart. who sustained five banc), petition by stip cert. dismissed for wounds, lay face down beside the Oldsmo- — ulation, -, U.S. 105 S.Ct. Vaughan. right bile few feet from In his (1984). Thereafter, L.Ed.2d 912 new evi hand, fully-loaded, Walker held a undis- relating to crime dence surfaced the charged gun. Kumpe, who escape tried to which Walker had been convicted. We re point during confusion, some the had 13, 1984, our on called mandate June and n been shot twice Barentine. to remanded the case the district court with hearing to instructions hold on new undisputed It is gun found in certify findings and evidence its to this weapon. Walker’s hand was the murder Upon Id. court. at 1265. careful review of gun, Police found fully a second loaded new evidence and the court’s district .38, Colt under the front seat Olds- findings, we jus conclude that the ends of gun, mobile. A third found either under- directing tice will be served now neath or Walker’s body, near was later grant district court to the writ unless the weapon. identified as the murder State of proceedings Arkansas commences charged The State Walker first de with retry ninety days within from Walker trial, gree prosecution pro murder. At issuance of the mandate of court. theory on ceeded that Walker shot Vau ghan gun with the that was near found I. BACKGROUND. body, and that Barentine then shot Walker. background lengthy pro- The factual and Linda Ford and cabdriver Thomas Short history cedural of this case are forth in set indicating offered evidence that Walker majority some detail both the and the Vaughan. shot Ballistics evidence indi opin- dissent banc court’s recent en Vaughan cated that the which bullet killed 16, 1963, Briefly, April ion. on James gun was fired from found on the companion, Dean Russell ground near jury Walker. The convicted Kumpe, nightclub were at a Little Rock degree of first murder sen women, two Mary Linda Ford and tenced him to death. The Arkansas Su Following Louise Roberts. an altercation preme Court reversed his conviction and shot, patron Walker, in which another was for a Kumpe, remanded case new trial. Walker left the Rock Ford Little area Roberts, State, Ark. Oldsmobile. who was 388 S.W.2d 13 Ford, concerned about followed a cab Woods, Henry Honorable sas. United States District the Eastern District Arkan- trial, defense cabdriver Aaron Paul Alderman which to Walker’s second

Prior highly trial favorable to disqualify the state would have been Walk- counsel moved grossly er. At the habeas Alderman testi- judge ground underneath presented The defense uncon- fied that had scrambled prejudiced. shooting started. judge, evidence that after the Oldsmobile when tradicted I, request go to church Alderman claimed that he saw granting Walker’s [H. 142.] I, deputy Vaughan baptized, had instructed the fire several shots at Walker to be [H. standing 155], Vaughan and that remained if Walker “made a move sheriff down, ground. he didn’t want after Walker had fallen to the shoot him because [H. I, brought momentary him There was a lull in the him back to because he intend- 142.] II, shooting, anyway.” and then Alderman heard a final ed to burn S.O.B. [R. hollow, judge to recuse shot which had a muffled sound— The trial declined 83.]2 retrial, During though he made a it had been fired from a barrel himself. I, rulings pipe. Vaughan and comments adverse fell immedi- number [H. 141.] ately police after that shot. The then told to Walker. Kumpe to come out from under the car. trial, the second defense counsel Before I, Alderman testified that he [H. disclosure of obtained ballistics fully-loaded gun removed the from Walk- demonstrating Vaughan, not Baren away, er’s hand. As he walked he saw tine, Consequently, had shot Walker. another near the rear end of the Olds- changed theory at State its the second during mobile where had been first, and contended that Walker fired and I, exchange gunfire. of [H. 145.] wounded, Vaughan, although fatally that managed gave police to shoot five times before Alderman his Walker statement I, support theory, immediately shooting. he died. To this State after [H. essentially Although adduced the same evidence as at he moved to Florida a later, However, the first trial. Linda Ford was month or two he claimed that he present prose not at the second trial. The called the “criminal court office” or the unavailable, prosecuting attorney’s cution claimed that she was office before the objections, and over defense counsel’s read trial first to advise his location and avail- I, prior her from ability trial into the as a witness. How- [H. 169-70.] ever, The record. defense was thus unable to he was never called as a witness or light cross-examine Ford in of the State’s notified about Walker’s trials. theory. jury again altered The convicted (Judge Henley) ques- The district court murder, degree Walker of first but sen credibility tioned Alderman’s on the issue imprisonment. tenced him to life The Su suppression because no written state- preme Court of Arkansas affirmed the con surfaced, ment Alderman had he was State, 300, viction. 241 Ark. Walker v. unable to details about remember where 663, (1966), denied, 408 905 S.W.2d cert. statement,3 gave and his he how 682, 1325, 386 U.S. 87 S.Ct. 18 L.Ed.2d 403 identify person could not he called to availability of his as a advise witness. 767, petition Bishop, F.Supp. Walker then filed his first 295 Walker v. 779 corpus alleging, alia, (W.D.Ark.1967). noted, habeas relief inter The habeas court moreover, judge that the trial was biased and that the that Alderman’s account of prosecution suppressed had testimony of events varied from that of other witnesses. however, acknowledged, 2. References to the record of Walker’s first trial The district court designated throughout opinion will be this R. investigative as that other statements taken from I,_; references to the record of his second missing, witnesses were and that “Alderman II,_; trial as R. references to Walker’s first story told a of some sort” to officials. Walker v. proceeding designated corpus habeas will be (W.D.Ark.1967). F.Supp. Bishop, 295 779 I,_; H. and references to the evidentiary hearing the October 1984 as T. 947 writ, alleged (prejudice Id. The district court denied con trial judge, sup- alia, it inter cluding, that was not con evidence, pression violations) other suppressed vinced that the had Alder State grossly guilt had flawed the determination prejudice testimony, man’s and that case. After banc hearing, an en judge deny the trial sufficient judgment court affirmed the of the district panel process. Walker due A of this court court, holding that Walker had failed to judgment affirmed the the district court. required justice show ends of re- (8th Bishop, Walker v. F.2d 1378 408 Cir. consideration of issues determined adverse- 1969). to him in ly application. his first habeas present litigation originated in The dissenting judges four concluded application when Walker filed a second great injustice done, been had (Judge habeas relief. district court Walker was entitled to habeas relief. Woods) of the seven ruled that four claims particular, emphasized the dissent petition his asserted Walker in second prejudice admitted judge of the trial previously adversely had been determined deprived trial, had fair of a original him in application his for habeas prosecution suppressed had evidence favor- guidelines relief. The court considered Walker, able and that “the record as a petitions for successive set forth in strong probability whole indicates the States, Sanders United 373 U.S. Vaughan.” Walker did not shoot 726 F.2d (1963),4 S.Ct. L.Ed.2d 148 and con 1252.6 prior cluded that because the determina merits, Arnold, intervening Judge tions were on no voting although with the occurred, change in the majority writ, law had and Walk deny agreed in a con- evidence, presented er had new no curring opinion that had been tried justice” “ends of would be served prejudiced judge. pointed before He reconsideration of the claims. Walk same process out that due anything, means “[i]f Lockhart, er v. 1350-51 means a judge trial before an unbiased (E.D.Ark.1981). permitted The trial jury.” Id. Arnold fur- present Walker to disagreed ther indicated that he with this claims, asserted but found additional denying court’s 1969 decision Walker’s first grounds to be merit5 and without denied noted, petition. however, habeas He the writ. disagreement enough justify mere is not granting ap- relief on a successive habeas appeal, arguments

On following before a plication. Something required, panel court, more is of this case was referred change requested to the such a in law or court en banc. The court “new evi- issues, briefing additional dence unrevealed at time of the on several includ- first ing whether Id. proceeding.” constitutional violations habeas at 1250. Sanders, 1241-43,

4. Supreme thorough In Court established for a more discussion of guidelines governing consideration of successive the Sanders criteria. petitions corpus for habeas relief. When a suc- application grounds previously cessive raises appeal, seriously urge On Walker did not error determined, heard and court need a not recon- respect findings to the on these additional (1) grounds they sider those adversely were "determined and, noted, grounds* as this court the trial prior applicant applica- on to the court’s the new determinations on claims were tion, (2) prior determination was on the clearly F.2d at erroneous. 726 1249. merits, (3) justice would ends not be by reaching subsequent served the merits of the Judge Heaney panel served on this application.” S.Ct. 373 U.S. at at 1077. court which relief in denied Walker 1969. He application presents When the successive a dif- joined petition, the dissent on Walker’s second ground, ground ferent presented or if same was joins majority opinion, in with the adjudicated earlier on but not underscoring strong previous belief merits, "full consideration of the merits of the erred, panel by granting and that application new can be if there avoided * * grievous right habeas riage relief can we miscar- been an abuse of the writ Id. at justice. Lockhart, S.Ct. at 1078. See Walker 726 F.2d sum, notwithstanding proceed- the denial tion deem

In relevant to these relief,, ings. majority en banc court con- that this court erred 1969 when it

cluded The district court should determine application denied Walker’s for habeas re- whether of this evidence is credible enough lief because had not received a fair to deserve the attention of a judge. jury; trial before an unbiased whether the evidence would be ad- jury held; if a missible new were denying of our mandate After issuance evidence, and whether the new when con- Walker, corpus, the writ of against background sidered 15, 1984, petition filed a for recall of March record, existing sufficiently tips the bal- ground that new mandate on the justice” ance of the “ends of standard to crime had surfaced. That evi- about the require that a new trial be held. These diary entry dence came the form of a findings should then be certified to this Kumpe, written Russell Walk- Court, banc, sitting en which can then companion night on the er’s Officer Vau- consider, briefing after argu- and oral ghan entry killed. The was indicated that ment, evidence, whether the new in the Kumpe gun fired a at or near the time light findings, of the district court’s re- addition, Vaughan was shot. Walker's quires a new trial. prove Kumpe counsel offered to ad- 726 F.2d at 1265. he, mitted to his former wife that Arnold, Judge separate in a concurrence Walker, response, shot the officer. mandate, recalling to the order ob- possessed tape-re- indicated that it State served that if the new evidence could estab- statement, corded which it had of- never gun lish that had in fact fired his evidence, alleg- fered into in which Walker night question, on the such evidence edly confessed crime. give credibility would to Alderman’s ac- granted We the motion for recall of man- shooting, count of the which exonerates date a divided vote. The order recited Walker and which has never been heard part: jury. 726 F.2d at 1266. Arnold The case is remanded to the district concluded that the new material “suffi- court with instructions to take evidence ciently adds to the uncertainties from Russell and his former justify proceedings.” case to additional Id. wife, Davidson, Peggy relating to at 1267. Kumpe’s alleged firing of a at or instructions, Pursuant to our the district Vaughan near the time that Officer evidentiary hearing court held an in Octo- night 15-16, shot April ber 1984. court heard from That evidence is to diary include the en- witnesses, thirty some and considered the try apparently January dated specifically evidence mentioned in our re- relating to that incident. order, mand as well as additional evidence remand, may On the State offer as which surfaced after the recall of mandate. evidence the recorded confession of The district court concluded that the record allegedly made after his first tri- contained no credible evidence which merit- al. Walker offer evidence to ex- trial; only part ed a new of the new plain alleged confession. would be admissible another proceedings may held;

The remand jury right be limit- trial were that Walker’s receipt ed to the process of the evidence men- due had by not been violated material; tioned papers suppression both sides in their exculpatory and respect mandate, to the recall of includ- sufficiently that the new evidence did not ing Kumpe tip statements and the justice” re- the balance of the “ends of petitioner corded any require confession and standard to that a new trial be explanation Lockhart, F.Supp. thereof and such additional held. Walker v. (E.D.Ark.1984). evidence as the district its discre- 1410 This matter is us Vaughan, now before for further and although fatally wounded, returned the light presented Kumpe review in of the evidence fire. repeatedly as- Vaughan, serted that Walker, findings. and the district court’s fired According first. Kumpe, Officer Baren- tine ordered him get out of the Oldsmo- II. DISCUSSION. bile, and then “spread told him to eagle the before this court is whether car,” police parked which was directly be- sufficiently tips the new evidence the bal- hind vehicle. [T. 105.] justice ance of the ends of standard to leaned over the left front fender with both permit us to reconsider the merits of the spread arms out and pressed his stomach claims raised in peti- Walker’s first habeas up against police car. From [T. 20.] assess, tion. We must among things, other position, he looked “down toward the admissibility credibility and of the evi- Oldsmobile.” [T. 106.] presented, credibility, dence but as to And while I looking was down Walker issue is not whether the district court or cracked the door and when he did the this court would find the new evidence light dome came on and I could see that credible, possess- but whether the evidence pistol he had a in his hand. And about credibility es sufficient it should be Vaughan this same time up came and he heard jury.7 real factfinder: parked directly behind Barentine but slightly right to the police so the two A. Evidence Considered Under The cars were behind one another. Ends of Justice Standard. Barentine searching [T. 106.] Kumpe’s Testimony. Vaughan approached the Oldsmobile. Kumpe, testify Russell who did not at Kumpe warned Vaughan that Walker had prior proceedings case,8 in this gun, Vaughan responded “that he appeared evidentiary at the hearing as a had a get and he’d the S.O.B. And as petitioner witness for both the and the approached car, the door—the door Kumpe, blaming State. while Walker for open came Vaughan shot Jim and Jim death, Vaughan’s offered a version of returned the fire and shot and killed Vau- events inconsistent with the theory State’s ghan.” Vaughan first; fired [T. 107.] at the second trial that Walker fired first first two gun, flashes came from his suggests ignored 7. The dissent that the court has justice tween the Sanders ends of standard and Post, the district court’s that the discov- Rule 33 motions at 965 n. for new trial. Jones, however, sufficiently ered evidence is not credible to de- was not a habeas ease and Moreover, petition. Post, serve the did not involve a jury. attention of successive at 964. years Although Supreme it was decided we three before the directed the district court to make order, justice Court formulated the ends of standard in that determination in our remand Jones, Sanders. the court judge was faced with a district seems instead to have made his addition, motion for a new trial. the trial credibility own assessment of the of the evi- judge evidence, in Jones had heard all of the However, dence. See 598 at 1430. present Woods, unlike the case in which the extent the district court did make a judge who was not the trial or the district court factual determination on the lower threshold judge proceeding, in the first habeas has not question of whether the evidence was at least Thus, contrary heard all of the evidence. sufficiently jury, credible to be heard we assertion, persuasive dissent’s Jones is neither believe that the court’s determination nor illustrative. evidence did not meet that minimal level of credibility plausible light is not in of the record hearing, Kumpe 8. Atthe stated that when the entirety, clearly viewed in its and is therefore prosecutor testifying asked him about at Walk City erroneous. See Anderson v. Bessemer trials, unwillingness er’s he indicated his to do — U.S.-,-, 1504, 1511, City, 105 S.Ct. prosecutor] going so. "[The told me that he was L.Ed.2d 518 subpoena put me and me on the stand and if asserts, relying The dissent further on Jones v. charge perjury. I lied he’d me with And I dis States, (4th Cir.1960), that, United 279 F.2d 433 tinctly telling remember that I was [him] aware assessing whether discovered evidence put jail lying he could me in but he couldn’t sufficiently by jury, credible to be heard a we anything having memory do to me for a bad have drawn an unwarranted distinction be- testifying.” and I had no intention of [T. 94.] night possession from .38 in his came the car Colt next flash “[f]rom 21-24, question. Kumpe Kumpe claimed was.” did [T. 112.] where [T. 107.] weapons in that he left both the Oldsmo- actually Walker’s hand when he not see Yet, bile.12 several witnesses tes- shot; only the flash of the he saw [T. 22.] fired the hearing Kumpe tified at the that told them swung police Kumpe off the gun. [T. 55.] got he out of the car.13 Barentine, he was armed when bywho and “took off.” car 174-75, 207, 240, Although gun, Kumpe [T. 278.] unholstered his shot time had Kumpe making any denied such state- car, Kumpe police ran around the twice. ments, jury reasonably could infer from and saw Barentine stand- then looked back testimony of these witnesses and other police firing front of the car ing near the hearing new evidence adduced at the Walker and the Oldsmobile. down toward gun Vaughan that killed 108.] [T. Kumpe’s possession at the —not Walker’s— testimony Vaughan fired Kumpe’s shooting. time of the believed, first, not undermines Kumpe’s Diary Entry. 2. death, Vaughan’s theory about but State’s credibility testimony of Linda Ford’s cleaning In November while out a shooting, Walker initiated the and that closet, wife, Peg- Russell former was crucial to conviction of Davidson, gy containing found a box some Walker.9 Kumpe’s belongings. among Included belongings diary was a written shooting, police After the found three Kumpe in 1968 while he and Walker were weapons fully-loaded the scene: a in the Penitentiary. inmates Arkansas .38 Colt revolver found under the front 16, 1968, diary entry January reads Oldsmobile; fully-loaded seat of the .38 pertinent part as follows: caliber Smith Wesson & two-inch Awakened at 1:30 A.M. nite sheriff— hand,10 right barrel found in Walker’s go Told to Mr. O’s office—Emer- death, weapon Vaughan’s which caused gency. great agitating being A deal of a .38 caliber Smith & Wesson with a four- done James Dean Walker. I look at barrel, variously having inch described as him and much remorse that I feel fired body been found underneath Walker’s [H. He, according high too 4-16-63. I, 272], near the rear end of the Oldsmobile rumor has vowed that he will kill me at I, 145], right under the rear wheel of [H. opportunity. first do not underesti- I, 366], the Oldsmobile and underneath [H. potential, mate his am not but alarmed. passenger’s side car.11 [T. 595.] (emphasis added). [Pl.Exh. 1] Kumpe ownership has now admitted weapon. murder He ad- authenticity diary also stands un- [T. 21-22.] weapon mitted that he had that questioned. hearing, Kumpe and the At the identi- noting 9. It is worth that cabdriver Thomas in his waistband and the other on the front seat I, actually that, did Short see Walker fire. [H. of his car. He further testified before he addition, car, got Barentine placed gun testified at the out of the that had hearing that he did not see Walker fire a in his waistband been under the driver’s seat. shot. [T. 587.] witnesses, According Kumpe 13. said that seeing 10. No waistband, witness has testified to gun was in his but Barentine gun with more than one at the time of the Kumpe missed it when he frisked because shooting. Kumpe pressed car, against police himself hard completed and Barentine had not Importantly, at the shooting began. October 1984 search when the To refute the police report Officer Barentine authenticated testimony, Kumpe witnesses’ claimed that Bar- 16, 1963, April he filed on which stated: thorough enough “We entine’s search had been gun removed the from hand then gun [Walker’s] Kumpe's to have missed a waistband. passenger’s found testified, however, another underneath the Barentine [T. 132-33.] ground." side of the car on the [T. completed 594-95.] he had not shooting began his search when the 587], and that he shot [T. testified that when he and Walker because he did not know whether or not area, put guns left the Little Rock he one of the he was armed. [T. 602.] 36], presence Davidson and two other and in the handwriting as his [T. fied diary for kept people, Kumpe he stated that he had a acknowledged that Although year. got out of the car which pants over a his when he 139-40.] [T. entry in making the deny search, Kumpe during did missed and Barentine he made 39], explained that he question he, Kumpe, [T. that fell down under the Olds- high,” “I fired too he wrote a mistake when shooting mobile after the started. [T. fired too to write “he he meant because conversation, Kumpe During that 178.] Barentine).14 (referring to Officer high” say whether he had fired shots. did not for Kumpe several reasons offered 41.] [T. Afterwards, however, when [T. 177-78.] mistake,15 ultimately denied alleged but alone, they were Davidson recounted that “ that ‘Russell, you Kumpe: she said thing me to write any particular caused that,’ way you shouldn’t tell that. tell * * * I think it was “I” instead of “he” said, you I ‘it sounds like did it.’ And he ” 17 writing probably that I was the fact that said, grinned he T kind of and did.’ [T.. using pronoun, personal along Davidson, According Kumpe told 178.] “I, I, got I to that I” and when pronoun only on another occasion that “he made her I was point guessing now because —I’m He didn’t kill James Deán one mistake. * * * “he” “I” instead of only wrote —I Walker too.” 179.] [T. you a answer give I can’t better And Peggy court found that The district than that. testimony should be viewed Davidson’s 138.] [T. apparent skepticism of her with because Kumpe’s court characterized The district Kumpe sympa- animosity and her toward “I” for that he substituted explanation thy at 1428. Yet for Walker. “somewhat dubious.” Walker “he” as important testimony, supported by Lockhart, F.Supp. at 1428. Whether certainly Kumpe’s diary entry, is credible explanation remains credit his jury would jury. the attention of a enough to deserve clear, however, is is seen.16 What to be provides diary admissible Kumpe’s diary and It be he fired a shot on the Kumpe said others, as to Davidson and his statements question. id. night in See as sub hearsay, would not be admissible to His Statements 3. a new trial. Neverthe evidence at stantive Former Wife. less, at least come evidence could such impeach purposes of jury before Davidson, was married Peggy who to assume that It is reasonable ment. testified that Kumpe from 1968 to Walker, Kumpe would retries the State occasions Kumpe her on two or three told witness, and that he again called as a the time of the shoot- he was armed at Having occasions, testify.18 be available those would ing. On one of 180.] [T. usually firing high. 14. ings “Remorse" about too Although entry no other refer- contains Barentine, feeling person following has about his own Kumpe offered the reflects ence to omissions, "Well, not the acts of others. Mr. Bar- acts or explanation his contention: certainly wildly firing he rather entine was shooting Walker if Mr. Walker is 17. making response over Mr. and as- Kumpe denied was, shooting position and he’s in the through where responded once serted that he had certainly firing so he’s Oldsmobile possibility that Walker from Davidson about Christ, high.” "‘Well, saying, [T. 54.] too might be innocent people Baby, out there. If were three there variously suggested Kumpe that the mistake policemen didn’t didn’t do it and [Walker] writing diary his hand with was the result of it,’ said, leaves me.’” [T. ‘that do 40], entry writing the drawer [T. inside a desk 124], lighting hurriedly poor [T. and in presently in the Arkan- is an inmate entry writing after a brief encounter If, however, Kumpe una- system. prison sas agitated. 136-37.] [T. that left him time of a new reason at the for some vailable trial, might alleged diary 16. A and his significant statements jury might deem it hearsay exception for under the his feel- be admitted to describe the word “remorse” chose 952 justify proceedings October fully goes at the 1984 new if it to

testified right witness, credibility his to claim the the of a has waived but this case Kumpe against evenly Nor is so that of privilege self-incrimination. balanced this sort (as impeachment Kumpe’s credibility he of he now claim did to avoid could trials) testifying first two could in of at Walker’s that well be decisive the mind the memory ques- jury- the events in he has no of State, Presumably having the charac- tion. 726 F.2d at 1266. as [Appel- terized his “critical” Even if State does call not 4], Kumpe give Brief at call to lee’s would witness, Kumpe as a do defense surrounding account of his the events Vau- argues, citing so. The State v. Allen cross-examination, ghan’s death. On the State, 1, 922, 281 660 Ark. S.W.2d Kumpe could whether he fired defense ask (1983),that law permit Arkansas does not a night. that If answer is a party lay to merely call a witness to no, diary he could then asked about the prior foundation for a inconsistent state entry, and about other discovered case, However, ment. present indicating weapon fired a evidence undoubtedly defense would wish call to Kumpe night. diary If admits Kumpe merely impeachment pur entry and other statements now attributed poses, purposes but for the substantive him, then, explained Arnold to Vaughan establishing that fired and first

voting mandate, to recall the Kumpe weapon the murder owned prior the fact of these inconsistent state- possession April had it in his on jury, ments would then be before the cross-examination, Kumpe very On would together explanation with whatever probably shooting. offer his account of the Kumpe might If, to offer. wish on the then, redirect, The defense would on have hand, making other alleged he denies impeach an opportunity prior statements, inconsistent extrinsic prior statements.19 inconsistent statements, evidence including of these diary the testimony itself and Confession, Alleged 4. Walker’s wife, Kumpe’s former could be offered Tape. a. The Walker-Karam impeachment Jones, purposes. See Note, Case May shortly v. State: In Roberts A Limita- after he was con- Impeachment tion on the victed Witnesses and sentenced death at his first by trial, agreed tape-record- Extrinsic Evidence Prior Incon- to make a Statements, Karam, Jimmy sistent ed Ark.L.Rev. 688 statement for a member event, jury jail, either While in had would Gideons. diary entry undergone religious know about the and the al- conversion had leged oral baptized. admissions. It would have an been Karam wanted to obtain opportunity person personal testimony by observe Walker’s for use credibility and to light Billy assess his of all Graham and the Gideons at church circumstances, including meetings prior help young peo- in- “to revivals ple consistent Ordinarily, newly wayside” statements. not to fall as Walker discovered tape, evidence not sufficient had done. which [T. against penal impeachment declarations interest. Ark.Stat. ruled that the should have 28-1001, 804(b)(3) (Repl.1979). Ann. danger great § Rule been allowed because the was too that the defendant would be convicted law, party may impeach Under Arkansas testimony. danger basis of unsworn No such prior his own witness use inconsistent respect impeachment exists with evidence hearsay State, statement. Roberts 278 Ark. Rather, would here. (1983). However, 648 S.W.2d go impeaching credibility of a witness probative impeachment value issue only person to be who has claimed "the outweigh arising prejudicial must “the effect actually happened out knew what there jury give danger from the will substan- night." [T. 46.] prior tive effect to the inconsistent statement." Roberts, Supreme Id. the Arkansas Court however, explained, and He that the statement Walker’s conversion to show intended police recorded a state he for Karam “was never meant repentance, was recorded County Pulaski Jail. a at the to kind of confession to murder officer * * * apparently original tape shooting Vaughan.” been to Officer [o]r Police Rather, the Arkansas State possession of Walker intended to [T. 657.] of In the course May since acceptance 525.] distin- [T. indicate his of moral—as Christian, born-again as a his guished legal responsibility from for Vau- — among things: other says, Walker ghan’s 650], responsibility death [T. Rock, Arkansas, and to Little accepts day.20 And I come to which he 642.] [T. again, drinking and that led to that, I was regardless explained He of what actu- fight nightclub. in a Now it’s up here scene, morally ally happened at the he was here, I killed out murder. a man led to responsible for the whole chain of events say to plus probably it’s late now ... death, accept- leading up to a man’s and his intentionally, it done but that it wasn’t responsibility, ance of that as reflected in * * * day having a One were wasn’t. we statement, part acceptance his of his forgive I the Lord to prayer, and asked teaching.21 With Christian 641-42.] [T. my I commit- me if he could for sins that respect tape to the tone of and his say, I can I had committed ted because that, expression, mode of Walker recounted ah, stealing up every imaginable sin ... just prior taping, encouraged Karam murder even. adultery, fornication ... powerful the testimony him to make as as

[*] ^[*] He ^[*] Jft ^[*] possible so that would have the it greatest people. fact, impact young [T. 649.] Yes, you hard on to take a life I know it’s taping, encouraged during the Karam Vaughan’s] husband’s ... Her [Mrs. “ it Walker to elaborate more and ‘[b]eef in some I know way, don’t dead and bit, up’ speak.” a little so [T. 654.] I how, like to tell her that ... I would much, sorry” say very “I’m doesn’t know explained that, from the Walker further terrible that’s how ... it’s a but ... inup hospital he to the time time woke happen.” thing to have trial, first he did not know whether his [Def.Exh. B.] directly responsible for Vau- not he was regained con- ghan’s As soon as he taped avail- death.

Although the statement was sciousness, killed a he was told that he had able State at the time of Walker’s trial, attempt policeman. He remembered the State did not second [T. 630-31.] Thus, tape being offer into evidence. while us, parties, it is not is new to new to began to search thoroughly confused. I nor discovered is it hap- my mind on the events that had as statements. same sense not re- I knew I could pened and

Nevertheless, on remand authorized the we shot, kept I search- firing a member alleged into confession State to offer my possibility mind as to the ing evidence. shot, process being maybe in the have a round reflex- deny maybe hav- I could fired At Walker did not I, firing, no. ively. But I could not recall ing quoted the statements above. made that, explained has nev- also while he he or the Gideons 21. Walker 20. Walker denies either Vaughan tape responsibility his "Chris- be- for whom he made intended moral er denied legal guilt. killed, testimony” great to be confession ing tian difference between "[t]here’s beginning tape, Karam states getting being Near that Walker is murdered and someone someone killed, jury’s verdict there to "take” the night Vaughan got killed that and Officer degree. Gideons in the first Yet the murder somehow, simply [T. know how.” don’t accept suggesting that Walker should were not 664.] fact, legal the Gide- the verdict as a matter. they encouraged appeal, ons Walker to challenging purpose for the retained counsel the 558, 657, legal [T. 695.] verdict. Testimony. During months before his b. The Carnahan [T. 631.] trial, possibility considered the first Ray testified that Carnahan shot, being might that, have he was Patrolman, Highway when he served as a trigger as a reflex action. squeezed the [T. superior, Skipper, Bill he and his immediate trial, his first when Walker But at prison drove from an Arkansas fa- first time that for the learned cility speaking a Little church for a Rock right fully- hand was from removed Carnahan, engagement. According to (he says) that he could not loaded, he knew way there Walker stated on that “he he had Vaughan because have shot gotten wrong had into the crowd as a gun.22 one young thing 693.] man [T. and that one led to anoth- night er and the that the officer was killed court found that Walker’s The district go jail that he didn’t to to and he shot want apparent his admission “did explanation for the officer.” [T. 152.] 1429. Yet a ring at true.” explanation for might accept Walker’s jury telling anybody Walker denied ever that would, jury A Vaughan. to Karam. he shot Officer his statement [T. moreover, Skipper, driving statements Bill who was the car and view all of Walker’s whole, Carnahan, the record as a who sat next to remembered in the context of place during that a including Alderman’s and some conversation took drive, but did not that Walker newly discovered evidence which remember anyone. may else have fired said he shot The suggest that someone [T. 160-62.] credibility again Vaughan. story killed of Carnahan’s would the bullet that jury. be a matter for the court, hearing the evi- The district after remand, particular sig- carefully reviewing After all of dence on attached presented hearing, at the nificance to the idea that Walker could evidence we Vaughan significant portion that a reflexively. have The court conclude of that shot fire, question Vaughan opened it is evidence bears on the of Walker’s noted that innocence, guilt “logical that Walker would return the fire or that would be admissi held, if a trial that it is deliberately by either reflex action after ble new were and enough by jury.23 to heard a Vaughan shot him.” Id. at 1429-30. The credible Although judge’s produced statement carries it the not all the evidence trial with gun response implication that if Walker fired a at to our order of remand is favor Walker, all, against may unintentionally, in able to when considered have done so record, backdrop existing which case the crime committed did not degree murder. The trial evidence creates sufficient additional doubt amount to first guilt tip judge’s suggestion completely is thus about Walker’s the balance of permit justice the ends of standard and odds with the theories advanced previously reconsideration of claims deter State at either of Walker’s trials. See by panel partic- mined of this court.24 Of ante, at 945-946. During recalling two of the the remand Woods 23. It is worth that witnesses Alderman, question, Kumpe and getting to the events in out ascertained that Walker remembered by jury. have never been heard gun judge of the car in his The hand. you maybe then asked: "Do think that as a ignored 24. The dissent states that the court has action, getting result that it’s shot reflex newly the district court's discov- you possible Vau- that could have shot Officer sufficiently tip the bal- ered evidence does ghan?" responded, thought Walker "I have justice permit ance of the ends of standard to possible, that could have been Your Honor.” claims. further consideration of Walker's When asked later if he had not essen- [T. 666.] justice Whether the ends of standard has been tially possibility admitted the that he have law, satisfied is a mixed of fact and Vaughan, explained shot that his answer within the discretion of the district and it is judge's question to the was intended For the rea- court to make that determination. prior the beliefs he held to his first trial. text, reflect in the we hold that sons discussed 675-76, 684-85, concluding [T. 689-90.] discretion in district court abused its justice has not been that the ends of standard Kumpe and his sis sation between Russell admission importance ular deceased). ter, (now gun as the murder Eisner identified Mildred he owned Kumpe fired weapon, the evidence that Ms. during and conversation occurred one of night question, as indicated Ar Eisner’s visits with her brother at the wife, testimony of his former Penitentiary. eleven-page kansas January entry of diary his own the conversation25 dated No following includes vember established Because by Kumpe: statement justifies recon discovered claims, entitled to he is sideration of look, going explain I am some- Now opin In our en bane relief. recent thing you. You understand that did ion, majority the dissent thor both go policeman he will shoot the merits of Walker’s oughly considered happened crazy trying figure out what judge de claim the bias of the gun. they place gun my If Five of of a fair trial. prived him could, no, naturally they they hand agreed that judges the en banc court of cause I had couldn’t either been [sic] a biased had been tried before Walker custody, in I know what back his don’t had, therefore, deprived of judge been and they done at the time could have and process. In Re right to due See Mur everybody didn’t care fro was shoot- [sic] 623, 625, 133, 136, chison, 75 S.Ct. 849 U.S. ing else some everybody at and I had judges of the Four 99 L.Ed. 942 things got me a on me that would have McMillian)voted (Lay, Heaney, Bright, and get I had to rid of them. years. hundred judge, fifth grant relief. The [PI.Exh. 2.] Arnold, majority to Judge voted with the Kumpe justice of stan contends that the deny the ends relief because Upon exculpatory evi transcript the Eisner contains had not been satisfied. dard record, dence, pos the en in majority a of banc it has been the State’s additional twenty years, satisfied that we review for and court is now session over claims, despite merits re and that Walker’s failure to disclose State’s it— of Walker’s discovery requests of the denial and a 1967 quire sweeping reversal corpus relief. petition directing for habeas over successive the State to turn court order Walker— held on James Dean all material Kumpe- Suppressed B. Evidence: granting independent basis for creates an Transcript. Eisner agree. Although the habeas relief. We jus of transcript to the “ends is relevant a week October Less than before of suppression the State’s analysis, tice” began, turned over hearing the State sep material constitutes exculpatory this extraordinary counsel a most to Walker’s relief ground for independent and arate revealing piece evidence: tran and of first time.26 for the we now review surreptitiously recorded conver which script aof P.M. on 1:00 P.M. and 3:00 case. curred between of this Our in the circumstances satisfied light 1963. holding particularly appropriate November in First, existing of the record two much factors. weighed argu- in suppression must be Although in case—all which made this justice particular petition, standard— under ends this balance ment in his first habeas Woods, previously has or con- made before been raised claim has not Therefore, thoroughly independently reviewed United under been Sanders sidered. Second, suggested States, Judge Woods’ the- of the of the merits court. full consideration ante, (see 954) ory an has been crime at contradicts can be avoided there claim intentionally theory Walker U.S. at 83 S.Ct. State’s of the writ. 373 abuse case, present not delib- first shot. Walker has fired the 1078. In the relief, ground nor was erately withheld lack it sooner due to recording his failure to raise tape not surfaced. itself has 25. The Rather, diligence part. cause typed copy on his transcript the head- is a carbon ing delay presenting a "recorded rested on it is this claim which indicates Walker's circum- which oc- Under the and Eisner failure to disclose. between the State’s visit” Authenticity Transcript. Police, possession State had of the tran- script. McDonald testified as a ballistics matter, As a threshold we must expert at both of Walker’s trials and at transcript consider whether been proceeding. Walker’s 1967 habeas At the sufficiently to be authenticated admitted October McDonald testified that rejected into evidence. The district court authentication, prosecutor, Bentley, the State Wilbur C. efforts Walker’s transcript February found the to be inadmissible contacted him in or March of hearsay. disagree. We and asked him to search his files for any information about the Walker case. 901(a) Rule of the Arkansas Rules of looking While for the Walker- [T. 444.] requirement provides: Evidence “[T]he tape, Kumpe- Karam McDonald found the identification authentication or as a condi- transcript Eisner in a of files box that had admissibility precedent is satisfied tion formerly support been a locked cabinet.27 sufficient [T. the matter is what its McDonald stated that he did not § proponent claims.” Ark.Stat.Ann. 28- know where the document came from or 901(a) (Repl.1979). Rule The nature long how it had been his files. [T. 455.] and the of the document itself location testimony suggests Yet his tran- found, together which was script probably came into his possession testimony, adequate own establish authen- through a “liaison man” stationed to render the tication admissible. Arkansas Penitentiary State Police at the Kumpe. where Mildred Eisner McDonald, visited

Paul now Chief Firearms Ex- passed along Such liaison men information aminer for the Arkansas State Crime Labo- ratory, formerly and head of the Criminal about criminals and criminal activities to Investigation Division of departments Arkansas interested in- state criminal stances, right Captain Walker has not waived his ato MR. HOLDER: McDonald testified hearing drawer, federal on the claim. The district court that he had a file cabinet or whatever has, fact, already in, received and considered just put things that he and he has been issue, evidence on this and the memorandum putting things something. in it since 1940 or opinion suppression discusses the merits of this police The state are more or less in an adviso- length. claim at some 598 at 1430-33. know, Arnold, ry position, you Judge as Although essentially we review this as a new Arkansas, things, the State of on most prisoner, prob- claim a state no exhaustion many things, they specifically unless are generally lem exists. While the exhaustion rule investigate, just asked to I am sure he’s enforced, strictly jurisdictional. is to be it is not things probably filed all kinds of in there. He — U.S.-, Washington, See Strickland v. 104 you couldn’t tell where a lot of it came from. 2052, 2063, (1984). S.Ct. 80 L.Ed.2d 674 The * * * trying JUDGE ARNOLD: I am [W]hat argued State has not that failure to exhaust is a out, trying hypothesize my to sort I am problem, point may so that be deemed waived. way own mind some this document could Lockhart, 1455, See Pickens v. (8th Cir.1983). 714 F.2d 1464 n. 9 exist and not be authentic. Who would have event, any even if an exhaus- up thing made like this? existed, problem Kumpe-Eisner tion tran- supporter peti- MR. HOLDER: Some script weighing could still be considered as into tioner, I would think. justice the balance under the ends of standard. put Captain JUDGE ARNOLD: And it in Mc- explana- 27. The State has offered no reasonable Donald's file? tion for how this document could exist and be MR. HOLDER: Could have sent it to him in pur- in McDonald’s files if it were not what it mail, Arnold, Judge up one of them made ports argument, following to be. At oral * * * something speculating, I said. I am colloquy place took between Arnold and speculating and I am also that one could Attorney the Assistant General for the State of probably up paper heat some like that and Arkansas: make it look a lot older than it is. Captain JUDGE ARNOLD: Let’s assume that 25-27, Transcript argument of oral at No. 81- * * * McDonald doesn't where it know came 1700, 17, (January 1985). Walker v. Lockhart from. Where it could have come from? provides expla- The State us with an incredible MR. HOLDER: I don’t know. nation. just JUDGE ARNOLD: I mean it's not the sort thing happens without some color of authenticity to it.

957 Although authenticity of which more is estab- vestigators. [T. 435-36.] taped lished.” transcript was the first conversation receiving ever from recalled

McDonald Due 2. Violation Walker’s Process man, recognized the doc- liaison Rights By Suppression of Evidence. originated Penitentiary. ument at the [T. State, argues 495-96.] that the transcript, in failing to disclose the violated case, testimony, Kumpe’s own process rights by suppressing ex his due objectively, served authenticate viewed culpatory In order to material. establish transcript. He testified that he had violation, process due Walker must show: Penitentiary at the several conversations (1) sup the evidence was indeed during which dis- with his sister the two (2) pressed, that it was favorable to Walk topics a number contained in the cussed (3) er, that it was material. See Moore 67-72; Kumpe did document. [T. 126-27.] Illinois, 786, 794-95, v. 408 U.S. 92 S.Ct. making “you under- deny the statement 2562, 2567-68, (1972). 33 L.Ed.2d 706 See policeman,” that I did stand shoot 83, v. Brady Maryland, also 373 83 U.S. although he not recall exact word- could 1194, S.Ct. It is L.Ed.2d 73, looking copy After over a ing. [T. whether good irrelevant the State acted in said, document, Kumpe “I don’t re- failing or bad faith in faith disclose the everything or not I said call whether evidence; negligent suppression may be But since in the document or it’s here. it’s sufficient. See id. at 83 S.Ct. transcript, say probably I will however, prosecutor, no undertakes then, did, pressuring I was and if I said obligation provide defense counsel with my I would call a little sister take what discovery. prosecutor unlimited vio expedient more action.”28 [T. 75.] duty of lates his constitutional disclosure Thus, confirming tran- besides signifi if “his omission is of sufficient general reflected nature of his script to result the denial of cance the defend Eisner, Kumpe much conversation right to a trial.” ant’s fair United States making that he as admitted the statement Agurs, U.S. S.Ct. Vaughan. shot at In addition to the con- 2399, (1976). In 49 L.Ed.2d 342 such cases document, apparent age tent of the gen the as this where defendant made date, paper, its location material, requests exculpatory eral all support was tend to its which it found will aside if “the the conviction be set circumstances, genuineness. these Under a evidence creates reasonable omitted conclude the evidence overwhelm- we that that did otherwise exist.” Id. at doubt supports finding ingly the document 112, at The undisclosed ma 96 S.Ct. 2402. authentic, that the district court’s is must therefore evaluated in the terial clearly contrary is erroneous. of the entire record. the ver context “[I]f already validity, questionable ad dict is Although transcript hearsay, relatively impor evidence of minor ditional impeachment it would be admissible might be to create a rea tance sufficient purposes same basis 113, at doubt.” Id. at 96 S.Ct. sonable addition, it diary entry. also be 2402. under admissible as substantive evidence 803(16) of Evi

Rule of the Arkansas Rules Suppression Transcript. a. dence, exception to the which creates an great deal evidentiary in a doc hearsay rule for a At the “[s]tatement ument existence twenty ^[20] years or of was directed toward the ques- unclear, It is explained if set.” how- [T. 73.] he made the bond further have sister, ever, pres- expe- why Kumpe thought lied to to his he her "to his sister would statement acting guilty a little more haste.” sure her into with indicated he was dite his release he encourage “get her to on” He wanted to [T. 74.] unsuspected wrongdoing. try attorney "get appeal effected and transcript ing Bentley came into Paul it for tion of when but he could not videotaped In a possession. McDonald’s when. Although remember [T. 491.] reporters days several with be- interview he was uncertain he when received the hearing,29 McDonald that he stated fore document, he believed that it had been Kumpe-Eisner transcript while received (that past years is, within the ten since Investiga- of the Criminal he the head 1974). Yet he could not ex- [T. 484-86.] Police, of the Arkansas State tion Division plain how a document dated 1963 would from 1960 to position he held 1965. [T. suddenly up in years show his files ten conceding In addition 427.] later. [T. 484-85.] 1963,” had been “around since document assumed, The district court without ex- following interchange engaged in the plicitly deciding, Kumpe-Eisner reporters: possession was McDonald’s report only You found this REPORTER: conviction, the time of Walker’s and that recently? prosecution duty had to disclose the recently. Not McDONALD: statement to the defense. 598 Well, here’s REPORTER: what want any findings 1432. We believe that to the Why to know: is dated 1963— —this contrary clearly would be erroneous. Po- twenty-one years ago. Why is that’s prosecu- lice are treated as an arm of the just being turned over to now attor- Brady purposes, tion for “and the taint on ney’s attorneys, prosecuting or —defense the trial they, is no less if rather than the anyone. attorney, guilty state’s were of the nondis- I don’t know. McDONALD: * * * duty closure. to disclose is that you REPORTER: But knew about this in state, ordinarily through which acts prosecuting attorney; but if he too is I did. McDONALD: police suppression the victim of of the ma- REPORTER: You knew that Russell information, terial the state’s failure is not police- said he fired a shot at the on that account excused.” Barbee v. man? Warden, Maryland Penitentiary, 331 F.2d I did. McDONALD: (4th Cir.1964). REPORTER: This wasn’t considered over, enough crucial to turn Mr. Mc- Although police knowledge not all Donald? imputed prosecution, should be I don’t McDONALD: know. That came the record before us it is reasonable to Penitentiary. from the charge suppression the State with Kumpe-Eisner 12 at transcript. McDonald added that The evidence in [Pl.Exh. when he transcript, received the he re- possessed dicates that the State Police placing viewed it before it in his files. He document before Walker’s second trial explained that he did not turn the doc- 1965. The record discloses that McDonald anyone ument over because he assumed was of its aware contents because he ad knowledge,” “it was common and that he having mits read the document when he copy only had received a for his informa- Moreover, having received it. testified as a tion. Id. at 2. expert ballistics at both of Walker’s trials and at the first evidentiary hearing At the McDonald days several later, very familiar story. McDonald told a different He was with the facts of the though testified he case. knowledge that had no of the Even he was not involved transcript general investigation crime, at the time of Walker’s trials or of the he hearing. first habeas weapons He knew that one of the recov [T. 479.] seeing transcript Thus, recalled before locat- ered at the scene had been fired. videotape transcript hearing. 29. The and a of the video- tape part were of the record at the remand Therefore, Kumpe’s statement that he was close. “additional evidence

significance night policeman that should relatively importance might at a minor shot Indeed, even McDonald. been lost on have enough to create a doubt.” reasonable significance of overlooked the if McDonald Agurs, 427 U.S. at 96 S.Ct. at 2402. A statement, incorrectly assumed that or by Kumpe indicating statement that he aware of the doc prosecution was policeman shot at a is of more than minor ument, obligation the State’s constitutional particularly importance, in view of other measured McDonald’s willfulness is not suggesting discovered evidence that character of the negligence, by the or but weapon Kumpe’s posses- the murder Agurs, 427 U.S. at evidence.30 undisclosed sion, high.” and that he “fired too instance, In this 96 S.Ct. at 2400. Kumpe-Eisner transcript is suppressed emphasized The district court that it was and material on favorable to Walker both not clear from statement whether guilt. ante of Walker’s See Vaughan. he fired at Barentine or Be- 11(B)(2)(b). part Kumpe go crazy try- cause added “he will

ing figure happened out what to that gun,” appears the reference to be to some- Materiality of Jb. living, is, one who is still Barentine Evidence. Undisclosed However, Vaughan. rather than that, The district court noted “on anyone fired is excul- transcript helpful the whole the is not patory because one of the recovered Kumpe allegedly said he Walker. While weapons (apart policemen’s weap- from the policeman,’it shot at ‘the clear which ons) Thus, Kumpe’s had been fired. admis- policeman talking he was about—Barentine policeman” he “did sion that shoot at that Vaughan. transcript Later alleged weapon in effect takes the murder strongly makes statements that out of Walker’s hand.31 suggest Vaughan as a died result F.Supp. at shoot-out with Walker.” 598 above, passage quoted In addition to the that, 1428. The court concluded in the transcript following includes the ex- record, Kumpe context of the entire “the change: Eisner statement does not create a reason everybody EISNER: I from heard guilt concerning peti able doubt gave you them no trouble. shooting tioner in the death of Vau Officer short, ghan.” Id. at 1433. the district KUMPE: I didn’t he until shot me. You court determined even if the happened don’t know what over there. improperly suppressed, had been it was not policeman suicide, do. committed and, therefore, process material no due vio shot Walker first. See if he don’t shoot disagree. lation had occurred. We then all we don’t have the trou- you and he is still alive. would prior opin- As this court has discussed in ble What ions, you the evidence used to convict Walker do if someone shot first? event, prior proceedings the district court ordered the before the which has extensively prior State to turn over all material held on James been discussed in the prior hearing Dean Walker opinions. anywhere to the 1967 habeas No evidence exists in the apparently and McDonald was aware of that complete proceedings record of the Walker court order. [T. 532-34.] McDonald turned places alleged weapon murder in Walker’s Kumpe-Eisner transcript over neither the nor directly possession of the hands or ties Walker to transcript, the Walker-Karam both of which alleged ground weapon murder found on the at possession were in his at that time. observed, the murder scene. As we have undischarged gun held an in his hand.

31. The dissent asserts that this constitutes an Post, alleged weapon "extraordinary finding” by murder If did fire the this court. scene, dispel any contrary, would the we have made at the that fact To no found possible matter, gun merely on this held that but have reflected on inference that Walker case, including entire record in this the record the time of the murder. inferred The district court III. 2 at CONCLUSION. [Pl.Exh. sug- exchange that was from record, After careful review of the Vaughan because shot gesting that Walker newly discovered evi we conclude that Therefore, ac- him first.

Vaughan shot sufficiently tips the balance of the dence court, transcript permit district cording justice ends of standard to peti habeas Yet court to reconsider Walker’s helpful to Walker. not as a whole was tion, specifically concerning his claim interpret- also could be Kumpe’s statement judge. Although the state trial bias of (Kumpe) indicating did not ed as presented the evidence at the re none of (that is, get in- “trouble” give police hearing mand relates to the state trial shooting) until after Baren- in the volved actions, suffi judge’s the evidence casts you do him. “What would tine shot on the factual basis for Walk cient doubt applies first?” you someone shot justify reexamination of er’s conviction to as well as Walker’s. Kumpe’s situation prior legal We now hold our conclusions. Indeed, interpretation is consistent judge’s deprived bias that the trial Kumpe’s earlier statement only not with is therefore entitled of a fair trial. Walker policeman,” but also “shot at that that he corpus suppressed relief. The to habeas entry stating that he Kumpe’s diary transcript, although Kumpe-Eisner rele Furthermore, that inter high.” “fired too justice inquiry, provides vant to the ends granting to corroborate Alderman’s pretation independent tends basis for Walker’s an hearing sug petition for relief. first habeas at the un Kumpe fired a while gesting that asserts that The dissent v. Lock See Walker der the Oldsmobile. granting the writ on the court is basis fact, hart, at 1258. 726 F.2d not the newly discovered evidence. That is transcript only lends Kumpe-Eisner agree quiteWe with the dissent that case. credibility Alderman’s account of events newly rele a claim of discovered evidence Walker, ground credence to exonerating guilt it lends is not a vant power The federal habeas habeas relief. prosecution suppressed theory constitutionality of deten goes only to the If, testimony. id. at the Alderman’s See tion, guilt or inno not to the proceeding, the original time of case, detention is cence. In this Walker’s suppres had known about the district court questions new unconstitutional because transcript, as as about the sion of the well innocence, guilt raised about or have been surfaced, it other new evidence that judge who tried his case but because difference might have made a substantial newly prejudiced against him. The analysis. in that court’s factual relevant discovered evidence is be sum, transcript con- Kumpe-Eisner sufficient doubt on the factu cause casts powerful stitutes corroboration justify reexa al for the conviction basis to Walker discovered evidence favorable (bias ground legal of the trial mination of a to consid- we asked the district court which rejected by judge) previously this court. Although er on remand. suggests further The dissent may weighed under the into balance summarily concluded that court has bias standard, justice provides it also an ends of supports granting the writ without setting independent aside Walk- basis prior analysis review of decisions reach- that the tran- er’s conviction. We conclude on this issue. ing a different conclusion itself, script considered in the context when previous In the Again, that is not the case. record, entire is sufficient to create court, four dissent- opinion of this en banc guilt. doubt about Walker’s reasonable Judge Arnold in his concur- ing judges and con- Suppression the document therefore the merits ring opinion considered did process due concluded that Walker stituted a violation of Walker’s issue and bias impartial before an a fair trial not receive rights. J., (Arnold, correcting of stain on our 726 F.2d at this criminal judge. See J., (Bright, concurring), and 1258-60 dis- justice system. C.J., joined Lay, Heaney and

senting, Accordingly, we conclude that James McMillian, J.J.). The surfaced evi- corpus Dean Walker is entitled to habeas power, in to attain gives us the order dence grant direct relief. We the district court to justice, ques- reach the ends of bias the the writ unless the of Arkansas com- State judge’s The state trial statements tion. proceedings retry mences Walker within forthcoming trial un- stand Walker's about 17, 1985, days from ninety May the date of judge’s particularly the statement disputed, opinion. the S.O.B. that he “intended to burn [Walk- way can anyway.” In no that state- er] LET OUR MANDATE ISSUE FORTH- requirement squared the ment be WITH. be fair tribunal. a defendant tried before repeat prior of this need not all court’s We ARNOLD, Judge, concurring. Circuit point. on Given the undis- discussions expression prejudice by the state puted of arguments made in Some the dis- Kirby), previous le- judge (Judge trial opinion deserve, my view, senting in a brief conclusion, readopt, we gal which comment. prejudiced judge was tried Walker before made 1. statement is that “[t]he grant impels us to the writ.32 today Court frees James Dean Walker concurrence to this court’s en banc In his ____” Post, at That is at all 962. not that, decision, Judge emphasized al- Arnold doing. simply the Court is We are what though justice petitioner is crucial to the fairness, holding that fundamental embod- system, we must consider as well our of in the Due Process Clause the Four- ied fairness, right to and the effect on State’s Amendment, requires a trial. teenth new at granting this writ. 726 F.2d the State freed, ultimately If it will note, however, agree. 1250. We We acquitted by jury, assuming because he is Attorney remand Gener- at the drop state not the matter on that the does had al of Arkansas remarked State motion, unlikely. its own which seems most “seeking court before the district come if the recom- justice,” do and that my yield to 2. I no one conviction trial, a new the State wins because mended clearly-erroneous rule of Fed.R. justice are has been done. We [T. 13.] legitimate exer- is central to the Civ.P. 52 record before us that convinced appellate power. dissent cise trial conviction before an ad- Walker’s findings ignoring charges that Court is mittedly prejudiced judge constituted Again, of fact the District Court. miscarriage justice. Retrial of gross recalling disagree. opinion As our must might after more than two decades stated, District clearly mandate State, but present some difficulties its find- duty was to make own Court’s seriously prejudice that would none fact, ings using its own assessment Many of the State’s witness- prosecution. case, ordinary but to credibility, as available, notably Barentine es are still lesser, judgment threshold make the Kumpe as Tes- now well. McDonald—and sufficiently the new was whether longer no available timony of witnesses jury. attention of a credible to deserve the presum- preserved record and been respect Kumpe-Eisner Except with in record as it ably could be offered form conversation, Dis- rejecting we are to be unavailable for witnesses said usual findings of fact trict Court’s Surely second trial. the time Walker’s Having every page of read sense. here, long de- justice has been so where earli- as well as the transcript, recent weigh heavily in favor most equities layed, authority or any way of Post, drawing constitutes an abuse our this obvious We fail see how law, conclusion, dissent contends. power as a as the decide matter of which we 962 ones, joining though I have no hesitation the Walker’s trials

er even his where- opinion today. availability Court’s abouts were known. reaching conclusions, ignores its the court dissenting opinion my quotes 3. The the district court’s of fact that the concurrence, earlier Walk- in an statement sufficiently new evidence is not credible to Lockhart, 1238, (8th F.2d er v. 726 1250 Rather, jury. deserve the attention of a Cir.1984) (concurring opinion), to the effect viewing light evidence most favor- part judge of the trial bias Walker, engages able to the court in whole- shown to have done Walker had not been fact-finding grounds sale never asserted any harm that would not have oc- actual corpus petitions. in his habeas case had been tried anoth- curred if the statement, course, judge. er That was I. newly a time no discovered made at when First, relying the court errs in on new evidence in the case. As I also stated to set Supreme evidence Walker free.1 The concurrence, I believe this Court Sain, v. Townsend Court held in 372 U.S. initially rejected erred in 1969 when it 293, 745, (1963), 83 S.Ct. 9 L.Ed.2d 770 This is claim of bias. belief based not on newly a claim of discovered evidence rele- prejudice, assessment of actual but only guilt generally ground vant is not a everyone, rather on view whatever justify granting relief. To him, against is entitled to evidence writ, upon “such evidence must bear impartial judge. tried before an Such a constitutionality applicant’s deten- had, newly and the Walker has never tion; merely newly the existence discov- discovered that has now come into evidence guilt ered evidence relevant of a gives power, the case us the in order to prisoner ground state is not for relief on justice, attain the ends of reach and Id. corpus.” 317, federal habeas 83 decide the bias anew. argument S.Ct. at 759. No is made that holding today only Our benefits not the evidence discussed the court bears James Dean Walker. It benefits also all upon constitutionality of Walker’s de- Arkansas, people who have a vital plainly only tention. It has to do with interest the honor and fairness of their guilt. applied court This the rule from Walker, anyone courts. like own else ac- Wyrick, Townsend in Drake v. 640 F.2d crime, cused of should have a fair trial Drake, (8th Cir.1981). petition- impartial judge. before an Unless and un- newly er’s discovered evidence consisted of trial, til he receives such a he should not be prior inconsistent statement one of the deprived liberty. of his prosecution’s The court witnesses. held comments, join With these additional upon that such did not bear opinion entirety. the Court’s in its constitutionality petitioner’s deten- tion and denied relief under Townsend. Id. GIBSON, Judge, JOHN R. Circuit dis- . argument at 913. Drake’s for habeas re- ROSS, FAGG, senting, joined by and BOW- presented lief even a better claim than MAN, Judges. Circuit Walker does because the evidence there today allegedly impeached actually frees James Dean Walk- a witness who Here, essentially however, er on the basis of discov- testified at trial. the evi- ered evidence that would have value dence relates statements impeach Kumpe. person testify Yet did Russell who Walker’s tri- testify by was not called to either side at als. Even if we assume that tes- Newsome, Granting great liberty,” "the writ of Burns v. tioner. See 420 U.S. Lefkowitz 137, 148, Wilson, 886, 896, (1975) 346 U.S. 73 S.Ct. 95 S.Ct. 43 L.Ed.2d 196 (1953) (separate opinion J., L.Ed. 1508 furter, J.); of Frank (Powell, dissenting). While the court's order 200, 225, Burford, Darr v. 339 U.S. conditional, effectively frees Walker unless is 587, 600, (1950) (Frankfurter, S. Ct. 94 L.Ed. 761 the state obtains a third conviction. J., dissenting), equivalent freeing peti- is existing record, sufficiently tips the timony would be admissible bal- credible and court,2 pro justice” it does not ance of the “ends of in state standard to Arkansas require relief. the held. My a for habeas As that a new trial be vide basis held, recently “newly strongly dis answer to is in Eleventh Circuit the negative. the form of a confes covered in I in evidence believe evidence render by hearing does not the convic sion another the me taken as a whole before subject to collateral attack guilt tion void and confirms Walker’s accordance goes it to the merits corpus Supreme because the of the with two decisions Drake conviction, legality.” the not its of appeal jury of on from Court Arkansas 990, (11th Francis, v. 994 Cir. 727 F.2d guilt. of verdicts Ellis, v. 1984) F.2d Shaver (quoting 255 Lockhart, 1410, v. F.Supp. 598 Thus, Cir.1958)). 509, (5th the new 511 (E.D.Ark.1984). 1434 This court directed grounds provide for ha evidence does not findings. the district court to make these under Townsend. beas relief discussion, only it With the briefest finds that the district court abused its discretion II. conclusions, reaching are its which es- the Second, ignores findings of the court sentially factual. v. Sanders regarding the district court States, 1, 1068, 83 10 United 373 U.S. S.Ct. III. discussing the L.Ed.2d After 148 granting The for foundation writ is test, “ends Justice Brennan stat- justice” Kumpe discovered evidence: dia- ed in Sanders: * * * ry of a conversation principles governing justifica- The sister, his Kumpe between Eisner. hearing a on a succes- tions for denial of only evidentiary value that either of are addressed to the application sive these documents would have would be to sound discretion of federal impeach testimony. Kumpe’s judges. major responsibili- Theirs is the ty just for and sound administration late gained Little is to at this date remedies, and of the federal collateral analysis of the voluminous from a detailed as judgment theirs to wheth- must be say record in this case. Suffice application er second or successive alleged subject Kumpe’s state- on the shall without consideration wife, be denied the district court ments to then the merits. found as follows: added). (emphasis Id. 18, 1079 83 S.Ct. at testimony [Tjhere is or no credible little In found the ends night Woods Kumpe gun fired a on * * * justice served reconsid would not be question. wife came claim. ering judicial bias Walker’s testimony, her closest to but testi- such Lockhart, (E.D. F.Supp. 1353 514 skepti- mony great deal deserves considering Ark.1981). after obviously animosity has much cism. She evidence, again Judge Woods conclud new shooting admitted Kumpe. toward She occasion, would not further ed that reconsideration Kumpe Kumpe on one justice: kill him on another claimed she tried to animosity Kumpe toward occasion. Her directed determine have been and admiration evidence, sympathy mixed con- is new when

whether background Walker. against sidered lightly disregarded. State Kansas Bank v. be that” "[i]t 2. observes Cf. (8th Bank, Cir.1984) 1496 Kumpe's 737 F.2d diary statements “would not and other Citizens (district of local law entitled conclusions a new court’s evidence at be admissible as substantive trial.” however, If, deference). the evi- to substantial Supra at 951. The district court held as purposes, substantive dence is admissible for local law that new matter of controlling, for the new evi- impeachment. Townsend still could be used implications. constitutional F.Supp. dence does not have conclusion should not be This at 1433. diary- at 1427-28. As to the Kumpe’s admission that he owned the entry, the district court found: gun identified as weapon, the murder and the evidence that entry Kumpe Kumpe exactly

If wrote this fired as night truth, question, and if it reflects the intended indicated wife, of his former is the admissible evidence where and his diary entry January 16, he fired a own night said shot single question. eyewitness Not a Id. at 954-955. testified that fired a shot. § Actions (1982) under 28 U.S.C. fact, overwhelming proof is that suits, are civil in which findings being Kumpe was searched when the district court only be reversed if clear- Vaughan Walker and shoot-out between ly erroneous. Mayo, See Wade v. 334 U.S. ensued. 672, 683-84, 1270, 68 1275-76, S.Ct. 92 Regarding pistol Id. at 1428. the Kumpe (1948). L.Ed. 1647 The conclusions above secreted, claims to the have district court are by reached the court without determin- concluded: ing that the district court clearly erro- I find no such in credible evidence in reaching findings.3 neous its The court Kumpe record Vaughan], shot I [that flatly disregards Judge finding Woods’ further find no in credible evidence this no credible evidence indicated that Kumpe Kumpe Vaughan. record that shot at Vaughan shot at and that little credible very worthy find little evidence of belief proof Kumpe showed that any fired shot. night fired shot on the at 1430. The court’s action question. Kumpe in has denied under flies in the face principles recently oath that he did so. The evidence to have been clarified Supreme Court. contrary appears very strange — City Anderson v. Bessemer City, ambiguous diary statement be- -, 1504, U.S. 105 S.Ct. 84 L.Ed.2d 518 ing kept by Kumpe, which has been dis- (1985), explained: the Court cussed in detail. clearly plainly standard [The erroneous] Id. at 1430. does not entitle a reviewing court to re- Contrary findings, to these the court to- verse the of the trier of fact day diary provides decides that “the simply admis- because it is convinced that it sible evidence that said he fired a would have decided the differently. case shot night question,” supra at reviewing court oversteps in the Eisner-Kumpe and that tran- duty bounds of its under Rule 52 if it script “Kumpe as much as admitted mak- duplicate undertakes the role of the ing the statement that he shot at Vau- applying lower court. ‘In clearly er- ghan.” Id. at 957. interpreta- From this roneous standard to findings of a tion flows extraordinary finding sitting district court jury, without a ap- “alleged weapon murder out of pellate [was] courts must constantly have in Walker’s hand.” Id. at 959. The court mind that their function is not to decide concludes: factual issues de If novo.’ the district carefully After reviewing all of the court’s account of the plau- evidence is presented

evidence at the light we sible of the record viewed its significant conclude that a portion of entirety, appeals the court of may not question bears on the of Walk- reverse it though even convinced that guilt innocence, er’s that it would be sitting fact, had it been as the trier of held, admissible if a new trial were weighed would have the evidence differ- that it enough is credible to be heard ently. permissible Where there are two * * * jury. particular Of importance evidence, views the factfinder’s explicitly 3. The court finds the district credibility court supra minimum threshold. See clearly respects, erroneous in two the au- at 949 n. thenticity Eisner-Kumpe transcript of the clearly credibility own assessment of the them cannot be choice between * * * fine a erroneous. evidence.” court draws too dis- tinction. Woods has made a deter- the district so even when This is credibility findings credibility not rest on mination of and it has not do been court’s determinations, instead on but are based clearly shown to be erroneous. in- documentary evidence or

physical or from other facts. ferences IV. (citations at-, at 1511-12 105 S.Ct. Id. The most is wheth- troublesome omitted). findings ignoring suppression Kumpe- er there was reaching its own factual district court and Eisner so as to entitle Walker to conclusions, blatantly disregards Brady Maryland, relief under 373 U.S. v. holdings Supreme Court. 10 L.Ed.2d 215 83 S.Ct. a new test: today The court announces The issue is whether the “omitted evidence is suffi- newly discovered evidence whether that did creates reasonable doubt to deserve the attention ciently credible Agurs, otherwise exist.” United States authority no for this jury. It relies on 97, 112, 2392, 2402, S.Ct. 427 U.S. standard, created seems to be which L.Ed.2d 342 There are at least two I As far as precisely for this case. court why .grounds reasons the not is in the it has no basis Constitu- can discover First, under it has Brady. for relief never statutes, the courts. tion, opinions of or properly The district been authenticated. newly minted this is a or not Whether following findings court made the factual threshold, a its essence is determina- lower concerning transcript: “It not is au- evidence, credibility which is tion of the that it thenticated. McDonald testified of the district singularly province by parties sent to the State Police was discussion, the detailed courts. Without years. in the last ten unknown sometime that the district court today holds court took it or how it He does not know who clearly in its on erroneous was * * * one has attested was taken. [N]o that the dis- The court concludes issue.4 1430-31. authenticity.” 598 its assign- beyond this limited trict court went however, conclu- today, finds this made his The court instead to have ment and “seems appeal resolution of the has said an from his Any and material evidence that is relevant enough by jury. may a as to be heard facts should be dismissed frivolous. be credible Nevertheless, here, where, it does not applied as a third See Fed.R.Evid. has been rule discovery evi- of such credible follow that the evi- party is the after-discovered confession jury grounds a has a new trial after dence is for upon for new trial is dence which the motion verdict, Agurs, States v. returned its United cf. founded. 2392, & n. n. S.Ct. 427 U.S. 111 & procedure, for new remedial a motion This (under (1976) Fed.R.Crim.P. 49 L.Ed.2d 342 evidence, upon trial based after-discovered grounds * * * newly evidence is discovered justice. designed to serve the ends of "probably would have a trial unless it for new hardly if purpose be served That would pro- during acquittal”), or resulted in judge, all the required who heard law the trial distinguish this ceedings. case, however, would The court witnesses, to as- evidence and saw all of involving rather than Sanders jury would believe testimonial sume that a unwarranted, as distinction is Rule 33. Such a unworthy improbable and evidence however States, 279 F.2d 433 in Jones v. United illustrated purpose of finds it to be. If the of belief he Jones, (4th Cir.1960). prisoners moved two served, subjecting remedy without is to be grounds discov- a new trial on the abuse, judge ap- who the trial it to undue consisted of a con- The evidence ered evidence. probable proaches question of the effect party an accom- that he and fession a third result, upon in the of the new plice crimes for which had committed the trial, be vested with of a new should event The district been convicted. defendants had considering matters of discretion broad relief, appeals and the court court denied materiality. credibility as of as well affirmed: omitted). reasoning (footnotes This Id. at 436 grave question credi- Where there is a legal support * * * court’s for the the absence of evidence, bility after-discovered suggest strongly that conclusion here judge of the fact- is that the role of the trial finder, findings not be overturned. should Woods’ Supreme Court so much so that es, erroneous and clearly greater sion reasons Rule demands even defer- objective- testimony, “Kumpe’s findings; own viewed ence trial court’s transcript.” ly, judge authenticate the the trial served to can be aware of the It underscores variations demeanor and tone of Supra at 957. voice “since heavily it’s the document that bear so statement listener’s say probably understanding I will that I said transcript, or of and belief what is * * * did, pressuring my I I objective was said. then and Documents evi- may expedient little more ac- story; sister to take dence contradict the witness’ Nevertheless, story tion.” district or the itself be so internally Id. testimony way: interpreted implausible inconsistent or on its face that a reasonable factfinder would purported Kumpe shown document * * * judge's credit it. But a trial when transcript of a conversation with finding is based on decision to credit Kumpe admit his sister. would not one two or more having made statements contained witnesses, each of whom told a co- 76.) (T. He therein. was asked about a facially plausible story herent and that is statement, ‘You understand that did evidence, not contradicted (T. extrinsic 73.) policeman.’ shoot at finding, internally if not inconsist- that if he made a state- said such ent, virtually can never be clear error. ment, pressure acting ‘to he lied her into — (T. 74.) more with a little haste.’ at-, (cita- U.S. 105 S.Ct. 1512-13 court, from the answer to omitted).5 tions say that he stated could not Second, the transcript is not material he had conversation set in the forth light when considered in of the whole transcript. He testified that from time record. The district court found that “the time, visiting, to his sister when was Kumpe-Eisner surreptitious statement was did certain in the discuss items related ly acquired and not oath. only under The (T. 127). transcript. given by Kumpe sworn statement disavows F.Supp. 598 at 1420-21. testified any participation in shooting the actual person before district court. When Vaughan.” Officer 598 at 1433. today the court concludes that his testimo- correctly The district court also observed ny authenticity establishes the a tran- suppressed likely less evidence is to be script, parts the critical of which he has impeachment. if it only material relates lies, all, testified engag- were said at it is States, Lindhorst v. 658 See United F.2d ing credibility determination, in a thereby 598, (8th Cir.1981), denied, 606 cert. 454 reaching contrary directly conclusions 1153, 1024, 102 U.S. S.Ct. 71 L.Ed.2d 309 Thus, again district court’s. the court (1982); Librach, United 520 States v. F.2d disregards the dictates of City, Bessemer 550, (8th Cir.1975); n. 3 Link 554 v. United Supreme in which the Court stated: States, 207, (8th Cir.1965), 352 F.2d 212 findings denied, 915, 906, are When based on determina- 383 86 cert. U.S. S.Ct. 15 regarding credibility (1966).6 tions of witness- L.Ed.2d 669 It concluded that in however, Kumpe-Eisner Apparently, ing). 5. The relies court also on the no court has held transcript concluding that impeachment the new evidence evidence is material under justice" satisfies the "ends test. To extent impeached Brady allegedly when the witness did authenticated, transcript that ever, is not how- testify. Kumpe certainly was known to be a support ground it cannot relief under that eyewitness and direct his whereabouts were either. during both and the known the first second testify He was called trials. neither. The Supreme 6. The Court has never held whether gossamer grant court indeed weaves a web to Brady apply Agurs to evidence admissible newly on the the writ basis of discovered im- impeachment purposes. Several courts peachment who of a witness could apply have only upon that these decided cases do so but testify have been called to in the trial but was showing a more substantial of mate- not. Oxman, riality. See United States v. 740 F.2d 1298, J., (3d Cir.1984) (Sloviter, 1321 dissent-

967 record, opinion, Judge Arnold of the entire wrote that while he the context statement does not create “Kumpe-Eisner bias part believed there was concerning” Walker’s doubt reasonable judge, persuaded he was not that it F.Supp. at 1433. This conclu guilt. 598 any actual “did Walker harm that would clearly if it is set aside sion be if the not have occurred case had tried been ex rel. erroneous. See United States Lockhart, judge.” another Walker v. 288, (7th Brierton, 560 F.2d 292 Moore v. (8th 1238, Cir.1984)(Arnold, F.2d 1250 726 denied, 1088, Cir.1977), 434 U.S. cert. J., concurring). specifically He concluded 1285, 55 L.Ed.2d 794 S.Ct. that the denial of the recess not crucial was today is concedes that the court ruling report and that the on the ballistics interpretations, of different susceptible not to faulted. are favorable to Walker. all of which summarily Now the court concludes that unfavor court’s choice the views district clearly granting is not erroneous. supports to Walker able bias the writ. Even — at-, City, U.S. See Bessemer opinions in without the the first round of Thus, suppression claim at 1511. S.Ct. proceedings, the court would be materiality grounds. fail on must arrogating role of the district court making findings appeal. initial factual y. Fuller, See Anderson v. 455 U.S. reviewing the exercise in The court’s S.Ct. 72 L.Ed.2d merely newly discovered evidence issue C.J., (1982) (Burger, dissenting). But this justify a reconsideration springboard doubly improper zealousness is rendered con- judicial claim.7 The court bias the court the earlier because contradicts justi- discovered evidence cludes finding prior approv- district court our issue, then reconsideration the bias fies al of that without effort immediately determines that analyze or review these decisions. The in the dissent decided been seriously authority in thus abuses its opinion, found earlier en banc which bias deciding issue. the bias denying recess to court’s Walker a the trial rejection and its of a bal- locate witnesses report. Supra

listics at 960-961. VI. reality, reaching the court is this conclusion history of the Walker habeas efforts The by a district independent findings eagerness of the court to demonstrates court. and to find its own facts free Walker. Judge proceeding In the first habeas proceedings, deci- the earlier first habeas judi- argument of Henley rejected Walker’s banc, opinion en of this court sion unanimously cial and this bias shifting factual today reflect Walker’s appeal. In second habeas affirmed on speculative reexamina- From claims. refused to con- proceeding, Woods engaged dissent the facts tion of claim because he found sider the consideration, en court’s earlier banc Following had not been satisfied. Sanders proceeds today to discard the court recall, Judge consider Woods did not carefully findings reached court’s district argument the bias because the merits of path appealing most take the and to issue. did new evidence not concern power no finding its own facts. It has findings relat- Thus, district court of habeas application for a writ do so. history are ing in this extensive to bias Moreover, corpus be denied. in an earlier should adverse Walker. because, does not recalling conclusion follow purpose mandate This

7. The concedes, presented remanding was to case to district court none the evidence impact hearing Based of new evidence. bias claim. consider related to the at the remand evidence, the court now holds this new Supra at 960. judge's deprived a fair trial. bias Walker of

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 10, 1985

Citation: 763 F.2d 942

Docket Number: 81-1700 (Habeas)

Court Abbreviation: 8th Cir.