*1 showing employer’s explana- burden of Because may bring Anthoine unworthy wrongful NCCC, tion was of credence. against termination claim Brown, Newton, we affirm the district Assessing in combination Anthoine’s evi- grant court’s summary judgment of on this challenging employer’s proffered dence claim. ostensibly and his explanation motive, discriminatory setting forth Conclusion
Chuang requires, Anthoine not carried has his burden. The evidence Anthoine has We hold that presented Anthoine has “specific set forth is not and substantial” triable issue material fact on his First and does not create a triable issue of fact Amendment retaliation claim but has failed gender-based as to ultimate issue of dis- gender to do so on his discrimination and crimination. wrongful discharge claims. We reverse and remand the grant summary judg- Wrongful Discharge C. Claim ment on Anthoine’s First Amendment Finally, Anthoine asserts a state- claim of retaliation for his statements wrongful law claim for termination in vio Freeman. grant We affirm the of sum- public policy. lation of In Miklosy v. Re mary judgment on his other claims. Each gents University California, 44 side is to bear its own appeal. costs on Cal.Rptr.3d Cal.4th 188 P.3d PART; AFFIRMED IN REVERSED (2008), 643-44 the California and REMANDED IN PART. Court held that a state common law claim wrongful for termination in violation of
public action, policy, Tameny known as a
cannot brought against be a public entity. Court,
According § 815 of the Cali
fornia Government Claims Act abolished
common law tort liability public for enti 643;
ties. Id. at § see Cal. Gov.Code 815 (“Except as provided by otherwise statute Lyn LUNBERY, Petitioner- ... public entity [a] is not liable for an Appellant, injury----”). As a public entity, NCCC may not be held for liable such a claim. may HORNBEAK, Warden; Attorney
Nor Tina wrongful discharge claim be General, brought Respondents-Appellees. against individual defendants such as Brown and Newton. As Miklosy ex No. 08-17576. plains, United States Appeals, Court of Tameny action wrongful
[A] dis- Ninth Circuit. charge can only be against asserted employer. An individual who is not an Argued and Submitted Jan. 2010. employer cannot commit the tort of May Filed wrongful discharge in public violation of rather, policy; he or she can be the
agent by which employer commits
that tort.
Miklosy, Cal.Rptr.3d 690, 188 P.3d at
644 (emphasis original). *2 Drous, Francisco, CA,
Juliana San for petitioner-appellant. Bowers, Deputy Attorney
Barton Gener- Sacramento, CA, al, respondents-appel- lees. NOONAN,
Before: JOHN T. SMITH, JR., and MILAN D. HAWKINS Judges. Circuit NOONAN; Opinion by Judge by Judge Concurrence HAWKINS. NOONAN, Judge: Circuit Lyn Lunbery appeals the denial by petition the district court of her for a corpus. writ of habeas reverse the We of the court judgment district and remand with directions to issue the writ.
FACTS approximately The At noon on Crime. Friday, April Charlie Bateson (Charlie) was discovered dead. He had single in the head been shot bullet four discharged to six inches head. His death violence had been person. caused another The time of his is not death established record appeal. Investigation. neighbor, A Belinda
Strickland, body discovered the a bed Burney, County, home in Charlie’s Shasta County The Shasta Sheriff California. was notified. Detectives from his office splattered examined the house. Blood on the floor wall bedroom leading on the outside of the door frame weapon a hall. was found. No blood- No No signs stained clothes were found. remind him. She and the left the children any having were found of clothes area 7:40 home about a.m. She left house recently unlocked, washed. when Fingerprints, usually as she did when Charlie taken, were was home. *3 tenants, plus recent some unidentified drove to parents’ Kristi her home print. and an A prints palm unidentified town, Burney. parents Her were out of a performed medical examiner field inves- but talked to her grandfather, she who was tigation days at the house and four later visiting there. He told her that he was an autopsy. conducted The house was un- to planning go Redding, to then too. She It was on a locked. the last house cul-de- Mall, drove the Mt. an to Shasta about sac, the footprints and detectives found hour’s distance. and tire tracks in at the wooded area She and children window-shopped end of the street. The detectives also a.m., At the mall. about went when she a refrigerator found note to Charlie on the car, her she a move discovered it had wife, telling from his him that she was flat Neither grandfather tire. she nor her taking daughters go their two shopping change could it. She decided to call Char- in Redding by and would be 1 p.m. back lie for him and ask to come with truck. his so. two got She called times but no answer. wife, Sheriffs officers found Charlie’s It her ringer habit to turn off the Kristi, at the Mt. in Redding Shasta Mall slept. while Charlie Belin- She then called grandfather. her two with children and her go da and asked her to to the house to visibly upset She the terrible news wake him. brought the detectives her. She immedi- Forensic tests fatal established ately car, consented to a search of her bullet could have been discharged by twen- parked nearby. The detectives found no ty-seven different weapons. Fourteen weapon. bloodstains and no Kristi herself such weapons found in the course of apparent had no bloodstains on her . investigation, and two not be could clothes. as They ruled out the murder weapon. The detectives Kristi escorted no identifying carried marks. Charlie Sheriffs office where an gave she account had a given himself rifle to him day. her Charlie on the swing worked grandmother, wife’s and the model was shift, p.m. a.m., to 3 at Sierra Pacific most common the twenty-seven possible children, Mills. The couple Kayla, had two weapons. gun murder had last been 3/&, aged and Kelsey, aged about four over just seen a week earlier in Charlie’s months. The children went bed gun truck. This was not found. single bedroom the house. small Kristi and Kristi had lived in small greeted Charlie when returned Charlie (a bedroom, work, room, kitchen, a living house they talked to 3:30 a.m. about bathroom) Then, usual, hall and It two weeks. sleep together went to Street, at 20292 Fir Burney. located hide-away living bed in the room. It belonged grandmother, Mar- usual, As the children woke around 6:30 Beaman, garet who let Kristi and Charlie a.m. Charlie moved living from the room to rent-free, have it money so could save bed they had occupied. got up, for a of their house own. dressed the got children and breakfast for them. She had told plan According Beaman, Charlie about the to' Margaret go to Redding and the note previously left house had been occupied cussing Henry ap- death. Garza ex-husband Frank Charlie’s Ellis and Ellis’s Cindy their table and said: “That’s a drug proached dealer. After Ellis a known Delgado, in, My away partners Beaman noticed bummer. blew Delgado moved the house at wrong in traffic to and from dude.” increase night in a relative- day all hours May police As of had four drug consistent ly rural area—-traffic mur- independent connecting sources them because of evicted sales—and she drugs. A motive for the murder der investigators activity. The Sheriffs provided. A connection between had been Delgado, acquaintance interviewed the intended victim and Garza had been Rhoades, stayed with Del- Oney who Garza had admitted knowl- established. *4 in late Febru- at the Fir Street house gado edge of the murderers and of their mis- reported that he had ary 1992. Rhoades take. No further information on the case in that Henry Garza Delgado and seen until 2001. was obtained December worth “dope” in possession house later, years Troy Two Kristi married $40,000. occasionally a man Lunbery, she dated informant told Sheriffs A confidential marriage before her to Charlie. She and 20, 1992, April detective Willie Cox Troy have one child. murder, that he felt days three after the Investigation Reopened. In De- in- a mistake. The killing had been investigation of the crime cember Delgado had been because tended victim reopened. Detectives Steve Grashoff and people in town “ripped he had off several Blankenship Troy interviewed on De- Cliff drug dealings.” over day, 2001. Later that at cember about Voet, Street, on Fir John neighbor A noon, in they dropped on Kristi her early morning April in up had been They they home. told her wanted to dis- hospital. mother taking his death. could tell them cuss Charlie’s She returned to Fir Street around 3 When he any to leave at time. The interview was a.m., '79 he had observed a '78 or Ford recorded. orange stripe en- Fiesta with distinctive half, For the first hour and one watched the car ter the cul-de-sac. Voet approach low-key, touching detectives’ street, park turn around at the end aspects of Kristi’s life with on various house, off its in front of the Bateson switch April the events of Charlie and twenty to thir- lights engine, and and after Jim, providing care to a man depart high speed. at a rate of ty seconds epilep- with severe mental retardation and reminded Voet This deliberate maneuver in sy, points and at various the interview seen the same car a week that he had interruptions and inarticulate noises and earlier enter the cul-de-sac drive children may be heard. Kristi’s also midnight. and out around Voet saw home. day car a time on the of the second murder, lot of a parked parking The interview became intense when Half Pizza. A confiden- pizza parlor, Time profile a FBI detectives showed her car to Garza tial informant linked the both case told her that a secret witness had and Delgado. then inculpated her. Detective Grashoff “Kristi, said, you we think did it.” She May Rory
On Keim informed it. The detectives said knew that on Sun- denied deputy Compomizzo Sheriffs murder, it to know he and she had done wanted day night following the it abusive? why. Pizza because two friends were Half Time dis- Was sake, test, truth,” another Gudjonsson psy- tell the Grashoff local “For God’s chologist of it who had heard but had urged. used it. did not investigate never Counsel asked, you Grashoff “Did Eventually, They into their trial file further. entered answered, She “Yes.” shoot Charlie?” stating their belief that a memorandum for Proceedings. Kristi was indicted be Ofshe’s would inadmissible murder,” permitting for “open conviction and, admitted, if negative would have a degree. first was not murder in the She impact of its lack because custody. In for preparation taken into substance. trial, lawyers accepted two pretrial sought rulings Trial counsel falsely she statement that had confessed permit the introduction of the evidence They the crime. set about to whether see the murder had committed persons confessing there was evidence of partners. The trial court ruled Garza’s They to crimes had not committed. them. against came contact Richard Ofshe. trial, suggested At state motives in psychology Ofshe holds doctorate $15,000 insurance; murder —Charlie’s life University profes- Stanford and is *5 boyfriend; of an the existence old Char- University psychology sor of social at the However, “controlling” lie’s conduct. one- Berkeley. of been an California at He has gone of the had third insurance for Char- expert prosecutors both for witness funeral; Kristi, the lie’s as mother of two of psychology for defendants the inter- children, dependent little was Charlie’s rogations psychology and the of false con- ex-boyfriend The income. was the man in- request, fessions. At counsel’s Ofshe later; years married two Kristi was reported terviewed He that Kristi. she That on the scene Charlie was well-recognized had described him “a suggested to Kristi abusive to her type of compliant confession—a stress throughout the detectives 2001 inter- false confession.” view, and appeared adopt Kristi that suggested Ofshe to counsel that reasoning as when her own she confessed have aby Kristi further examined clinical the crime. of There was no evidence Gudjonsson psychologist familiar with the physical abuse. popular psychological The Suggestibility The this Test. author of test “controlling” picked up by term Gudjonsson, faculty was Gisli H. member an of description detectives as alternate of the of Psychiatry, King’s Institute Col- conduct. Kristi gave Charlie’s When London, lege, Psy- who had written The being of example detectives Charlie chology Interrogation and controlling, story she told was not Confessions (2003). treatise, Gudjonsson In that had about Charlie all but about his father. reported on the basis of research that denied guilt repudiated some confessions crime were false. The her confession. testified to her Witnesses false either confessions made gentle disposition. prosecution The at- suspect shield another or to end stress tempted show that the murder had been of interrogation. There informa- was no no planned, produced pre- but evidence of tion on number of false confessions. prosecution’s It meditation. became That occurred was an established persuade jury beyond burden fact. Kristi, at reasonable doubt that some time a.m., during
Counsel located one 7:40 psychologist between 6:30 a.m. and Redding area had never of the she had and fed their who heard which dressed chil- pres- Kristi filed the dren, husband and then had On June had shot her any weapon murder § of the disposed petition pursuant ent to 28 U.S.C. sig- The sole incriminating of blood. spots court. in- the district Habeas counsel her con- against her was nificant evidence lawyers Kristi’s two defense terviewed guilty found her of sec- The fession. why they had not offered Ofshe’s testi- degree murder. ond mony investigated the false confession appeal centerpiece The Appeal. Each that the other reported further. party culpability third was the evidence of decision. made the The trial court had excluded. judge petition. A denied the magistrate the Third Appeal California Court appeal This followed. unpublished Appellate District issued Court of Califor- opinion. As review, unpub- summarily denied
nia
OF REVIEW
STANDARD
that in
judgment
the final
opinion
lished
is
proceeding
review.
this habeas
de
the district
We review
novo
court’s
declared that “the
appeal
court of
The
for a writ of
petition
denial of
habeas
that someone else had
only real evidence”
corpus.
Lamarque,
Musladin
Rory
report
the victim was
Keim’s
killed
(9th Cir.2009).
830, 835
report
That
Henry Garza’s admission.
if three condi-
hearsay but admissible
Lunbery filed her federal habeas
met. The first condition was
tions were
petition
petition
after
and thus the
is
the declarant be unavailable.
subject to review under the Antiterrorism
met.
was dead. The
condition was
Garza
*6
(AED-
Penalty Act
and Effective Death
against
that
was
second was
the statement
PA).
AEDPA, a writ of
Under
habeas
condition,
This
“penal interest.”
Garza’s
corpus may
granted only
be
if the state
ruled,
not met. The third
the court
was
(1)
“contrary
decision
to or
court’s
the declarant have “sufficient
of,
application
involved an unreasonable
condition,
subject.”
knowledge of the
This
law,
clearly established Federal
as deter
said,
too,
not
appeal
the court of
had
Supreme
mined
Court of the United
that the statement
met. The court found
(2)
States,”
or was “based on
unreason
“may
nothing more than boast-
have been
light
of
able determination of the facts
ing or the mindless remark of someone
presented
in the State court
evidence
liquor,”
influence of
and deemed
under the
2254(d);
§
proceeding.”
28 U.S.C.
see
the statement inadmissible.
628,
Woodford,
v.
also Davis
384 F.3d
637
out,
ruled
Once Garza’s statement was
(9th
dismissed,
Cir.2004), cert.
545 U.S.
single paragraph
in a
appeal
the court of
1165,
410,
126
ANALYSIS
Due
includes a
binding
process
the states.
I.
assistance
counsel.
“
Ineffective
right
meaningful
opportunity
‘a
”
that counsel
presses her claim
Petitioner
present
complete
defense.’ Crane v.
they failed to call
was ineffective because
690,
683,
Kentucky, 476 U.S.
106 S.Ct.
investigate
Ofshe and failed to
Professor
2142,
(1986) citing
Chambers
Delgado
on the street
in front
hearsay Rory
testimony
as
Keim’s
of
cluded
Garza,
at
of
Henry
dead
the time
Kristi’s house
few hours before the mur
trial,
part-
had admitted
his
testimony
der. The excluded
thus bore
had murdered Charlie Bateson
er-
ners
guarantees
substantial
of trustworthiness
ror,
court of appeal
and the California
and was critical to Kristi’s defense. Cf.
that ruling.1
affirmed
Chambers,
1038;
U.S.
S.Ct.
Chia,
(applying
the murder
usually
pieces
As is
the case with
of
exposed
He
himself to the
“partners.”
evidence, each item of information Kristi
At a mini
prosecution.
risk of criminal
sought to
gave meaning
introduce
and co-
mum,
accessory
an
after the fact.
he was
admission,
put
herence
Garza’s
it in
§§
At a maximum
Cal. Pen.Code
32-33.
context,
explained
it. The state court
the fact or a
accessory
before
however,
appeal,
of
addressed each item
subject
co-conspirator with the killers and
independently
connecting
without
it to the
actual
penalty
to the same
as the
murder
circumstances,
thereby missing
chain of
Court, 44
Bompensiero
Superior
er.
probative
By
force
the whole chain.
(1955);
281 P.2d
Cal.
Cal.2d
deeming Garza’s statement
to Keim inad-
Chambers,
971, 182(a).
§§
As in
Pen.Code
hearsay,
missible
court of appeal
state
shortly
statement was made
after
Garza’s
remaining pieces
dismissed
murder,
acquain
albeit not to
close
providing only
opportunity
motive and
Chambers,
incriminating
tance. As in
crime,
to commit the
because there was no
statement was corroborated
other evi
(1)
direct or circumstantial evidence that a
acquaintance
in the case:
dence
party
third
had done so. Had Garza’s
Delgado’s indicated that Garza and the
admitted, however,
home,
statement been
Frank Del
former tenant Kristi’s
together missing
deals
element would have been
gado,
drug
supplied,
were involved
court,
place
thus
1. As a habeas
do not review the
unable to
*8
jury.
propriety
application
The
of the state court’s
of its
before
trial court also denied
rules;
rather,
evidentiary
request
her
to
own
consider
introduce
informant’s state-
jury
prosecution
whether it was unreasonable for it to con
ment or advise the
that the
clude,
Chambers,
light
preserve identifying
in
that the exclusion
had failed to
information
right
process
due
of the informant.
did not violate Kristi’s
present
a
trial.
a defense and receive
fair
See
distinguish
3. These facts also
this case from
McCann,
546,
(7th
F.3d
Cir.
Rice v.
339
549
Frank,
Cambra,
997,
our recent decision in Christian v.
595
2003); see also Chia v.
1076,
(9th Cir.2010),
F.3d
where there
(9th Cir.2004).
corroborating
awas
"dearth of other
evi-
linkinglthe
party]
informant came forward
dence
third
to the
This confidential
crime."
However,
Here,
days
completely
within three
of the murder.
the murder evidence was
prosecutor
all
re-
consistent with Garza’s out-of-court state-
*9
court
approved by
Chia,
and as
the court of
For the reasons Kristi’s and it concluded court and the the district is REVERSED likely compliant “stress false confes- it case is REMANDED to with direction Ofshe, sion.” For Dr. the failure of a writ. issue the confession to fit the facts of a crime and inability of confessor to supply infor- HAWKINS, Judge, concurring: Circuit mation that should perpe- be known to the Opinion in majority I concur and trator were “hallmarks aof false confes- only I separately write because believe sion.” Lunbery presented Kristi sufficient evi- Dr. Ofshe recommended that Kristi be dence that her trial defense counsel’s deci- by competent evaluated psycholo- clinical investigate sion not further gist who was familiar the phenome- with expert testimony regarding false confes- compliant confessions, and, non of stress in objective sions fell below an standard particular, “Gudjons- that Kristi take the reasonableness. test” interrogative son suggestibility. only linking The evidence Kristi to the attorney then contacted local two statement, murder was her own which she Redding psychologists; one had not heard no claimed false. There was forensic agreed test but to “look into the crime, connecting her to the situation”; the other had heard of it but and, weapon murder was never found even it, had never administered and sug- also confession, in displayed her no gested that he would need additional cor- of crime not knowledge publicly details roboration not mentioned Dr. Ofshe to (such known as the location of the murder “support any conclusion that Kristi was
weapon managed or how she shoot her vulnerable manipulation techniques” small, husband one bedroom house (apparently understanding he was small present). two children But she test). being asked to administer the it had confessed and is hard to imagine more anything explain lay difficult to to a Gudjonsson Kristi never took the test all, jury. just After people do not confess prior to trial. In a somewhat confusing commit, they? to crimes did not do file, memo to the her attorney *10 764 investiga- duty to make reasonable has a trial, he did not noting that at
fying tions.”). called until going to be was not discover himself attorney’s office
he contacted Wig- explained Court As the already un- was the trial and discovered Smith, to aban- premature choice gins v. habeas counsel Kristi’s derway. When can make fruitful avenue potentially don a attorneys about the respect trial to[ ] Kristi’s fully contacted “a informed decision Ofshe, they en- render counsel’s Dr. strategy impossible” not to call decision 510, 527- 539 U.S. claiming the deficient. performance each finger pointing, gaged (2003). 2527, L.Ed.2d 471 28, 156 123 S.Ct. other. made decision was Here, contacting two gave up after counsel Supreme Court the California Because by phone, and never psychologists local a rea- this claim without summarily denied Dr. to determine whether tested Kristi novo must conduct de opinion, soned could be bol- opinion preliminary Ofshe’s record to determine whether review corroborated. stered or contrary to or an unreason- was the denial failing to proffered reasons for Counsel’s law. v. of federal Greene application able testimony pro- are also Dr. Ofshe’s offer (9th 1081, Lamben, 1088-89 Cir. opined that Dr. Ofshe’s Counsel blematic. 2002). court concluded The district if likely be inadmissible testimony would counsel’s establish that her Kristi failed to Kelly-Frye ob- government lodged objective fell below an stan- representation Gudjonsson test jection because Strickland, reasonableness, see 466 dard Leaving aside that widely accepted.2 2052, 688, and concluded 104 S.Ct. U.S. attempt its admis- counsel failed even reasonable, made a instead that counsel trial, sion, expert at the time of Dr. But not to call Ofshe. tactical decision Gudjonsson part on the testimony based rea- infers a calculated a tactical decision other admitted several test had been something. Here there to do or not do son State, 100 Canady v. S.W.3d cases. See call Dr. Ofshe and no reason not to v. (Tex.Ct.App.2002); United States 31 fairly (S.D.N.Y.1999); to do so. The record every Doe, reason 318 F.Supp.2d from the conflict- incompetence, Raposo, v. 1998 WL smacks United States (S.D.N.Y. Dec.16, 1998); *3, also file, 5-6 see attorneys pointing ing note to (Alaska State, 661, 670 v. 67 P.3d another, Vent to the failure to at one fingers and law re- (noting “case law App.2003) the ex- the decision to even communicate commentary split over whether to view is any far clear whether It is also pert. testimony”).3 expert false confession admit not, decision, ever made reasoned or though “strategic Even here or whom. Second, tes- opined counsel that Ofshe’s thorough investigation after choices made impact” be- timony “negative could have plausible op- facts relevant to of law and lacking in substance.” cause it was “so virtually unchallengeable,” self-fulfilling tions are an excuse but a This is not investiga- limit an Dr. lacked prematurely prophesy: decision to if Ofshe’s corroboration, be, itself, it was due may in and of unreasonable. “substance” or tion (“[Cjounsel testing that 690-91, failure to obtain counsel’s Id. at 104 S.Ct. trial, Indeed, testi- after Kristi’s Dr. Ofshe’s 3. memo does not elaborate The trial mony in two other California was admitted is based on further whether this conclusion cases, People Gulley, WL *8 research, unfamiliarity or if it is based Cota, People v. (Cal.Ct.App.2008), and psychologists with test. two local (Cal.Ct.App.2007). WL *12 *11 it, being ad- that provided despite have decision counsel’s choice—not to would fur- Surely to do that should be investigate vised so. ther Dr. offer Ofshe as an appears also have enough, but counsel to expert witness—was a reasonable tactical specialized exper- Dr. discounted Ofshe’s and that decision the court California in favor the area of false confessions tise objectively not unreasonable denying preliminary psychol- views of a local that, Having the claim. I agree said that Summing up Dr. deci- ogist, Caruso. presently necessary it delay is not to attempt Ofshe not to even to offer Dr. sion grant of the writ remanding for an witness, wrote: “As Dr. Caru- counsel evidentiary hearing to determine Strick- put it: defense would be so ‘Kristi’s best prejudice.4 land explanation, jury needs to believe ” Kristi.’ naively jury rather This assumes that a inno easily persuaded
would be —that person they cent would confess to a crime testi
did confessor’s commit—
mony alone. to jury Of course Kristi, jurors
believe but have would America, UNITED STATES better cred equipped evaluate her Plaintiff-Appellant, ibility and the confession itself had known of the identified traits of stress- compliant confessions been able SMALLS, Paul Othello Defendant-
compare testimony. them to her Revers Appellee. trial ing conviction where the court ex testimony very expert cluded the No. 09-2126. here, involved the Seventh Circuit noted Dr. Ofshe’s went States of Appeals, United Court defense, heart of the and had ad it been Tenth Circuit. mitted, it jury “would have let the know May 3, 2010. a phenomenon known as false confes exists, it, recognize sions how how
to decide it fit whether the facts of the Hall, being
case tried.” United States v. (7th Cir.1996); F.3d see also State, (Fla.Ct.
Boyer v. 825 So.2d (“It
App.2002) is for to determine weight give Dr. Ofshe’s testimo
ny, decide whether believed theory or commonplace ‘the more ex ”)
planation that the confession was true.’ 1345). Hall,
(quoting reasons,
For these addition
persuasive granting case for made writ
by Judge majority Noonan in the Opinion,
I would also reverse the district court’s
us,
Obviously,
if
were the
before
purposes.
issue
I would favor
remand
such
the detective or
lost
notes
identity
garding the
of this informant and
ment.
remaining
of the
pieces
puzzle
appeal
and
left
Charlie’s wife
view as
would have become more relevant.
the murderer.
An accused does not have an “unfettered
The denial of
right
present
right”
present
any evidence he or she
compounded
magnified by
defense was
Illinois,
Taylor
400,
wishes.
v.
484 U.S.
by
factual
ap-
mistakes made
the court of
410,
646,
(1988).
108 S.Ct.
Notes
notes one Well, it turns out sometimes do. paragraph that has made arrangements Among persons the hundreds of exonerat- testify 5th, for Dr. Ofshe to on November through testing ed of DNA serious crimes then in following paragraph concludes are numerous individuals earlier who con- that the likely would be inadmis- fessed.1 sible, finally it would best be lawyers simply to recognized testify Kristi’s defense have Kristi because the problem an expert ultimately reached out to needed believe Af- her. confessions, convicted, field false Dr. Richard ter Kristi was Dr. Ofshe wrote Ofshe. Dr. Ofshe reviewed various mate- to express his sadness and related relating rials to the murder and a anticipated video- that he had he would be testi- Garrett, exoneration, 1. Brandon L. prov- Substance False confessions have also been Confessions, (April identity perpe- Stan. L.Rev. 1051 en false when of the true 2010) discovered, forty (examining false is confessions trator later or when it is later rapes later physically murders exonerated DNA demonstrated would it have been evidence); Godsey, Shining impossible see also Mark A. for the defendant to have commit- crime, Light Bright Interrogation Police proven ted the such as it is when America, jail Ohio L. St. J.Crim. defendant was in for another crime on the 2009) (noting occurred). (Spring that in addition to DNA the new date crime