In re WILLIAM RICHARDS on Habeas Corpus.
No. S223651
Supreme Court of California
May 26, 2016
63 Cal. 4th 291
California Innocence Project, Jan Stiglitz, Justin Brooks and Alexander Simpson for Petitioner.
Steven F. Napolitano, Edward L. Tulin; Richard A. Schwartz, Jeffrey B. White; and Barry C. Scheck for Innocence Project, Inc., as Amicus Curiae on behalf of Petitioner.
David L. Faigman for Thomas Albright, Thomas L. Bohan, Barbara E. Bierer, Michael Bowers, Mary A. Bush, Peter J. Bush, Arturo Casadevall, Simon A. Cole, M. Bonner Denton, Shari Seidman Diamond, Rachel Dioso-Villa, Jules Epstein, Lisa Faigman, Stephen E. Fienberg, Brandon L. Garrett, Paul C. Giannelli, Henry T. Greely, Edward Inwinkelried, Allan Jamieson, Karen Kafadar, Jerome P. Kassirer, Jonathan “Jay” Koehler, David Korn, Jennifer Mnookin, Alan B. Morrison, Erin Murphy, Nizam Peerwani, Joseph L. Peterson, D. Michael Risinger, Michael J. Saks, George F. Sensabaugh, Jr., Clifford Spiegelman, Hal Stern, William C. Thompson, James L. Wayman, Sandy Zabell and Ross E. Zumwalt as Amici Curiae on behalf of Petitioner.
Michael A. Ramos, District Attorney, and Stephanie H. Zeitlin, Deputy District Attorney, for Respondent.
CANTIL-SAKAUYE, C. J.—In 1997, petitioner William Richards was convicted of the 1993 murder of his wife, Pamela. In 2012, by a four-to-three decision, this court rejected his claim on habeas corpus that his conviction should be overturned because the prosecution‘s dental expert had recanted his expert opinion testimony at trial that a lesion on Pamela‘s hand was a human bite mark matching petitioner‘s unusual teeth. (In re Richards (2012) 55 Cal.4th 948 [150 Cal.Rptr.3d 84, 289 P.3d 860] (Richards I).) The majority concluded that the expert‘s recantation did not constitute “false evidence” within the meaning of
Petitioner has filed a new petition for writ of habeas corpus before this court in which he contends that, under the 2014 legislative revision of
I. STATEMENT OF THE CASE
The San Bernardino County District Attorney charged petitioner with the August 10, 1993, murder (
Petitioner‘s first two full trials ended in mistrials with hung juries. A third trial ended in a mistrial because the trial court recused itself during jury selection. In petitioner‘s fourth trial, the jury announced it was deadlocked; it then received further instruction concerning reasonable doubt, after which the jury returned a conviction of first degree murder. The trial court sentenced petitioner to 25 years to life, and his conviction was affirmed on appeal in August 2000.
In 2007, petitioner filed a petition for writ of habeas corpus in the San Bernardino County Superior Court, asserting that his 1997 murder conviction
The prosecution appealed, and the Court of Appeal reversed in November 2010. We granted review, and, as noted above, affirmed the Court of Appeal judgment by a four-to-three vote on December 3, 2012. (Richards I, supra, 55 Cal.4th 948.)
Following the Legislature‘s 2014 amendment to
II. PETITIONER‘S JURY TRIAL
The following evidence was presented at petitioner‘s 1997 jury trial.
A. Petitioner‘s relationship with his wife
Petitioner and his wife, Pamela, lived on a remote property they owned in the Mojave Desert in San Bernardino County. The plot had a small house and a camper parked nearby. They used a generator, kept in a small, fenced shed, for electricity. To access their home, one had to ascend a steep, sand-and-gravel driveway. The couple kept several dogs on the property to ward off intruders.
Petitioner and his wife had been having financial and marital difficulties, and both had sexual relationships outside the marriage. At the time of her death Pamela had been having a sexual relationship with Eugene Price, whom she had helped to recover from a helicopter accident. Pamela planned to leave petitioner and find an apartment with Price.
On the night of her death, August 10, 1993, petitioner was working a night shift. Price received a message from Pamela on his answering machine sometime between 7:00 and 7:30 p.m. At approximately 9:30 p.m., Price tried calling Pamela at the camper but received a busy signal. Price continued to try to call Pamela, calling approximately every five minutes, but he continued to receive a busy signal. Because of past problems with the telephone service in that area, Price contacted the phone company to check the line. Price continued to call Pamela, but without success.
At approximately 11:55 p.m., Price telephoned Pamela again, but this time petitioner answered. He sounded stressed and agitated. When Price asked for Pamela, petitioner said she was dead—and he told Price that her head was bashed in and her eye was hanging out of its socket. Price told petitioner to call 911.
At 11:58 p.m., petitioner called 911. In that call, petitioner stated he had just come home and discovered his wife was dead. He said he thought Pamela fell off the porch steps and hit her head.
Petitioner placed a second call to 911 at 12:06 a.m. In that call, petitioner asked when responders would arrive. He said that he thought that she had fallen, but that “things don‘t look right here at all,” that “there‘s things moved,” and that they should send someone who could examine the scene. The 911 operator assured petitioner that dispatch would send someone who could examine the scene and advised petitioner not to touch anything. Petitioner responded that he had not touched anything but the phone and the door and that he had rolled Pamela‘s body over to see if she was all right.
Petitioner placed a third call to 911 at 12:33 a.m. In that call, he again asked when responders would arrive. He also stated that, when he went to start the generator, he observed blood and Pamela‘s pants in that area and saw there was blood inside the camper. He stated his belief that Pamela had been attacked and killed near the generator because oil had been spilled there as well. Petitioner expressed anger as to why responders had not yet arrived. The dispatcher repeatedly advised petitioner not to touch anything and suggested he go sit in his car. Petitioner said he had not touched anything and that he would go sit with Pamela.
San Bernardino County Sheriff‘s Deputy Mark Nourse arrived at the scene shortly after 12:30 a.m. The sky was overcast and the property was dark, with no light source. Deputy Nourse used his patrol vehicle lights and his flashlight to illuminate the scene.
Petitioner began discussing the crime scene with Deputy Nourse. He told the deputy that Pamela was “stone cold dead” and that she must have been dead a long time because the battery in the camper had run out. Petitioner pointed out a cinder block that he said was used to kill her and stated there was also a stepping stone with blood on it. Petitioner gave his scenario concerning how he thought the assault and killing took place, including that he thought the attack had begun near the generator. According to Deputy Nourse, petitioner also said: “It don‘t matter any, all the evidence that relates to this case I already touched and moved trying to figure out how this whole thing happened.” Deputy Nourse described petitioner‘s demeanor as “very calm, cool, [and] collected,” but occasionally petitioner would fall to his knees crying, after which he would get back up and then continue talking. To the deputy, it seemed as if petitioner was speaking “like he had rehearsed or was reading from a script.”
Deputy Nourse became suspicious of petitioner and began surreptitiously recording their conversation. During this recording, petitioner explained that when he came home from work around midnight he found his wife lying facedown on the ground with her head against a cinder block. When he rolled her over in the dark, petitioner said that his fingers went into the hole in her head. Petitioner told Deputy Nourse that he initially thought that she had fallen and hit her head on the cinder block, but that he found blood on pillows inside the camper. Petitioner said that “things ain‘t right here” and expressed anger that Pamela‘s pants were lying next to the generator. He explained that Pamela “had to squeeze into those jeans” that morning because she had gained weight and that they would not have come off easily, adding, “trust me.” Petitioner stated that her underpants were inside the camper. He also stated that Pamela had placed the vacuum cleaner inside the camper and theorized that that she intended to start the generator so she could vacuum but was assaulted near the generator instead. Petitioner showed Deputy Nourse a spilled oil bottle the couple usually used to fill the generator before starting it. He stated that he knew there was “blood on rocks up against the hill,” and that there was a bloodstained paving stone that had been thrown “over the side of the hill.” Petitioner remarked that his dogs had failed to protect his
Deputy Nourse directed petitioner to stay away from the crime scene while they waited for the homicide team to arrive. The homicide detectives did not arrive until 3:15 a.m. Because of the darkness, they decided not to process the crime scene until dawn. They tried but were unable to secure the couple‘s dogs before leaving.
C. The crime scene
Detective Norman Parent, Criminalist Dan Gregonis, and Forensic Specialist Valerie Seleska began examining the crime scene at 6:00 a.m.
Approximately 25 feet away from Pamela‘s body, near the small shed for the generator, there were bloodstains on the ground, on a gasoline container, and a bloodied rock, along with one of Pamela‘s shoes. One of Pamela‘s broken fingernails was also found in this area. In front of the generator was Pamela‘s other shoe, her jeans, and a spilled bottle of oil. There was also blood spatter on the fencing surrounding the shed for the generator.
The team found Pamela‘s body lying on its back, covered with a sleeping bag, on the ground between the camper and the house‘s porch. Her right arm lay upon some heavy, metal-grate fencing material that lay flattened on the ground. She was naked from the waist down, except for socks. Her tank top had numerous bloodstains and blood spatter. Her head was crushed, an eye was hanging out, and a large pool of blood was beside her. The dogs had partially buried her head during the night.
A large, bloody cinder block was near her body and a bloody 12-by-12-inch stepping stone was a little further away on the edge of a slope. Based on the blood on them and their proximity to the body, Detective Parent believed that both the cinder block and stepping stone had been used to smash Pamela‘s head.
The porch nearby had signs of blood spatter on it, as did the side and top of a table cart that was on the other side of her body. Stepping stones leading from the porch to the camper also had obvious blood spatter. The bottom of the entryway into the camper had blood smeared on it.
Inside the camper was a couch with pillows stacked on one end. The pillows had bloodstains on them as well as dirt and small pebbles. Detective Parent believed that Pamela had already been bleeding outside before she bled on the pillows in the camper. There was also a blood smear on a
Pamela‘s Suzuki Samurai was parked in front of the camper. On the passenger seat was Pamela‘s purse, and it contained a letter signed and dated by petitioner nearly one month earlier in which petitioner proposed a division of their assets and personal property.
Detective Parent examined the area for tire tracks and was able to account for tracks left by the patrol vehicles, petitioner‘s truck, and Pamela‘s Suzuki. There was no evidence of any other tire tread marks. He also examined the area for shoe prints. He found three prints consistent with Pamela‘s shoes, and one print consistent with petitioner‘s shoes, which were very worn, with little tread. Other than these and the prints left by the officers, there were no other shoe prints. However, on several parts of the property, the soil was generally hard packed and not very conducive to retaining prints.
D. Petitioner‘s interviews
Detective Tom Bradford interviewed petitioner for several hours on August 11, 16, and 30, and September 3, 1993. Petitioner‘s statements in those interviews were generally consistent with what he had told Deputy Nourse at the crime scene. He also stated that he had been home approximately five to 10 minutes before Eugene Price called his home and petitioner told him that Pamela was dead. He explained that he and Pamela kept several guns on their property and that Pamela knew how to use them. Petitioner admitted that he knew Pamela was having sexual encounters with Price because she would tell him about them, which bothered him. He also admitted that he thought Pamela was going to leave him.
E. Autopsy evidence
Dr. Frank Sheridan, chief medical examiner for the Coroner‘s Office of San Bernardino County, performed the autopsy on Pamela‘s body. He determined that Pamela had been strangled, first unsuccessfully by ligature, and then manually. According to Dr. Sheridan, the strangulation was sufficient in itself to cause her death. In addition, the left side of her skull was smashed, which crushed her brain. According to Dr. Sheridan, this injury was also sufficient to cause her death. He believed that the strangulation came first and that Pamela was dead or nearly dead when the blunt force was inflicted because there was very little bleeding or bruising in the area of her skull injury.
Pamela‘s body had several defensive wounds, and there was bruising across her body, and lacerations and abrasions to her face. There were no
Dr. Sheridan examined the lividity on the body. Lividity is the deep red-purple discoloration seen on a body after death, which is created when the heart stops beating and the blood settles down into the lowest parts of the body by way of gravity. Lividity becomes fixed on the body after six to 10 hours. According to Dr. Sheridan, if Pamela had died facedown, and stayed in that position for a few hours, but was later turned on her back, he would expect that the blood would drain toward her back, showing lividity there instead. At the crime scene, lividity was present on Pamela‘s back, consistent with the body‘s having lain on its back for several hours. However, the lividity was very weak, indicating she had lost a lot of blood as a result of her injuries.
Dr. Sheridan could give no opinion as to the time of death, and no liver temperature was taken when the officers first arrived at the crime scene. At the time, it was not standard practice for the coroner‘s office to take a body‘s liver temperature at the crime scene in order to estimate the time of death.
F. Petitioner‘s clothing
Detectives collected the clothing that petitioner wore on the night of Pamela‘s death. They also took pictures of his body and his arms and hands, none of which showed any fresh wounds, injuries, or other visible marks.
Criminalist Gregonis examined petitioner‘s cotton shirt, jeans, and shoes for blood spatter. He found no blood spatter on petitioner‘s shirt, but found blood transfer stains on the right collar and sleeve, consistent with petitioner‘s account of cradling his wife‘s head at the crime scene. Based on his experiments with a dummy head, however, Gregonis testified that he would have expected to see more blood transferred to petitioner‘s shirt as a result of cradling a bloodied head, as well as blood dripped onto petitioner‘s jeans, but the jeans contained no such drip patterns. Petitioner‘s jeans had three small bloodstains that were consistent with Pamela‘s blood and appeared to Gregonis to have been deposited as the result of blood spatter.3 They were present in the right knee area, the right mid-thigh area, and to the left of the zipper, on the left leg. Blood consistent with Pamela‘s was found on both of petitioner‘s shoes, with blood on the left shoe‘s toe area and blood spatter on the lacing of the right shoe.
G. Other forensic evidence
During the autopsy, Dr. Sheridan severed some of Pamela‘s fingertips from her body for later testing. Criminalist Gregonis later examined the severed fingertips under a microscope and noticed blue cotton fibers wedged deep in a crack of a broken fingernail on one of the fingertips. The microscope was equipped with a video recording device, and Gregonis recorded a video of his extraction of the fibers from the fingernail. A matching broken fragment apparently torn from the same fingernail was found on the ground at the crime scene, suggesting that the fingernail broke during Pamela‘s struggle with her assailant.
Gregonis examined the blue cotton shirt petitioner wore on the night of the killing, and he concluded that its blue fibers were indistinguishable from the fibers removed from the crack in Pamela‘s broken fingernail. Gregonis, however, also acknowledged that cotton fiber is probably the most common fiber in the world, that blue cotton is common, and that there was nothing particularly unique about petitioner‘s blue cotton work shirt.
Gregonis examined both the bloody cinder block and the bloody stone. The cinder block had hairs and a significant amount of blood spatter and areas of saturated blood on it, indicating that it was used to smash Pamela‘s head. Based on the amount of blood also present on the stone, Gregonis believed that it too could have been dropped on or thrown at Pamela‘s head.
H. Bite mark evidence
Specialist Valerie Seleska, who photographed the crime scene, also took photographs of Pamela‘s autopsy. She took a photograph of a crescent-shaped lesion on Pamela‘s right hand. Seleska acknowledged that if a body exhibited signs of a bite mark, it was standard practice to swab the suspected bite mark to collect any saliva. During the autopsy, she did not see anyone take a swab of the lesion on Pamela‘s hand.
Ten days before petitioner‘s final jury trial began in 1997, the San Bernardino County District Attorney‘s Office contacted Dr. Norman Sperber, a dentist and forensic odontologist, to examine the photograph taken by Seleska at Pamela‘s autopsy. Dr. Sperber testified that he had over 40 years of experience in dentistry. He explained that he was the chief forensic dentist for two counties—San Diego and Imperial. Dr. Sperber said that he was one of
As described hereafter, in explaining his conclusion that the photograph revealed that the lesion on Pamela‘s hand was consistent with petitioner‘s teeth, Dr. Sperber‘s testimony was composed of a series of opinions and factual observations that integrated various exhibits.
First, Dr. Sperber opined that the lesion on Pamela‘s hand was a bite mark. Second, he believed that the bite mark was of human origin. Third, Dr. Sperber testified that, based on the overall shape of the human bite mark, it was made from the lower teeth of the human jaw. Fourth, he believed that the human bite mark showed an abnormality—the presence of only one of the two canine teeth of the lower jaw. Fifth, he made a casting of petitioner‘s teeth, took a photograph of the casting of petitioner‘s lower jaw, enlarged the photograph of the victim‘s bite mark to match the proportions of the photo of the lower jaw, drew a tracing of petitioner‘s teeth on a transparency, and then overlaid that transparency over the enlarged photo of the bite mark. Dr. Sperber then stated that the overlaid transparency made a “pretty good alignment” with the photo of the bite mark.
In addition to his exhibits, Dr. Sperber explained why he believed petitioner‘s lower teeth were consistent with the lesion on Pamela‘s hand. According to Dr. Sperber, because one of petitioner‘s canine teeth was “under-erupted” and crooked, it did not protrude as much as the other teeth on the jawline, and this circumstance could account for the missing canine mark on Pamela‘s hand. He described the missing tooth mark as a “common sense expectation” or “common sense understanding” based on petitioner‘s abnormal canine tooth. He further noted that whoever made the bite mark had something wrong with one of his canine teeth, as did petitioner. Dr. Sperber also noted that petitioner‘s lower teeth were in an asymmetrical curve, with three teeth lined up straight, whereas a normal jaw would exhibit greater curvature of those teeth. He believed that characteristic was another factor showing a match with the bite mark photo.
Dr. Sperber explained that there were no studies in forensic odontology regarding the statistical rarity of an under-erupted canine tooth. When asked, based on his personal experience as a dentist, how often Dr. Sperber had
Dr. Sperber further explained that he uses four categories to assess bite mark evidence in order of increasing confidence of a match: “not consistent,” “consistent,” “probable,” and “reasonable doubt certainty.” Dr. Sperber explained that the angular distortion of the photo of Pamela‘s lesion prevented his ability to classify his match with any degree of certainty greater than “consistent,” meaning that petitioner could have left the lesion and could not be ruled out.
I. Other evidence
The time clock at petitioner‘s work indicated that he had left there at 11:03 p.m. on the night of the killing. A few weeks after the killing, a sheriff‘s investigator went to petitioner‘s place of employment. The investigator left petitioner‘s workplace at 11:03 p.m., walked to his car in the parking lot, and then left the lot at 11:06 p.m. Although the posted speed limit was 55 miles per hour, the investigator that night was able to drive 75 miles per hour with the flow of traffic for most of the trip to petitioner‘s property. Forty-one minutes later, he arrived at petitioner‘s residence at 11:47 p.m.
J. Defense evidence
Wayne Kozica, Pamela‘s brother, telephoned and spoke with her at approximately 7:15 to 7:30 p.m. on the night of her death, and she seemed normal at that time. Pamela had told Kozica that she and petitioner had been arguing, and Kozica offered to let her stay with him in San Diego.
Arthur Quas testified that he called petitioner‘s residence but no one answered. According to Quas, he called just before 10:00 p.m. and the phone rang a few times followed by clicks and then a dial tone. He called again but the phone rang with no response. Quas was aware that petitioner and Pamela were in an open relationship and would have sexual affairs outside the relationship.
On three occasions, Christian Filipiak, a defense investigator, left the parking lot of petitioner‘s place of employment at 11:06 p.m. and drove, at different speeds, the same route as petitioner did on the night of Pamela‘s death. Driving with the cruise control set at 60, 65, and 70 miles per hour, it took Filipiak 52 minutes, 48 minutes, and 44 minutes, respectively, to arrive at the residence. The distance was 44.8 miles.
Dr. Gregory S. Golden, a dentist and chief odontologist for San Bernardino County, compared his own models of petitioner‘s teeth with an enlarged, life-sized photograph similar to the autopsy photograph used by Dr. Sperber. Dr. Golden could not eliminate petitioner as a suspect, but then did further studies, by randomly using dental models of patients he had treated in the past. Out of 15 different dental models of patients he had treated, Dr. Golden found five dental models whose teeth appeared to match the lesion on the photograph. Accordingly, Dr. Golden believed that the bite mark evidence should be disregarded because of the generic nature of the bite and the low quality of the photograph. On cross-examination, however, Dr. Golden also stated that petitioner‘s under-erupted, displaced canine was “unique” and that “there is a very low probability that you are going to find an individual with a tooth in that position in the same orientation down to maybe two percent of the population, if that.”
Dean Gialamas, senior criminalist with the Los Angeles County Sheriff‘s Department, testified regarding his examination of the bloodstains on petitioner‘s clothes. Gialamas explained that he had been trained in blood spatter interpretation and has presented papers on the subject. He had received awards from regional and international associations for his achievements in criminalistics. Although he testifies for the prosecution about 75 percent of the time, Gialamas stated that he had been appointed to examine the evidence for the defense in the present case.
Gialamas examined the photographs of the crime scene with special attention to the blood spatter around Pamela‘s body, noting that the blood had radiated out in numerous directions. He stated that he would have expected to see multiple blood patterns on the person who dropped the cinder block on Pamela‘s head. In his assessment, Pamela‘s head suffered at least three blows, based on her wounds and the fact that she had to have sustained an open, bleeding wound for the spattering to be generated.
Gialamas also conducted experiments using bloodied hair being dragged across the laces of a canvas shoe like the one petitioner wore the night of Pamela‘s death. The contact transfer of blood from the hair to the shoe created a pattern similar to those found on the laces of petitioner‘s right shoe, creating a pattern that looked very similar to blood spatter. Gialamas could not rule out either the transfer of blood from hair or blood spatter as the origin of the bloodstains found on the laces of petitioner‘s right shoe but found it odd that the dots of spatter on petitioner‘s shoe lined up in a straight row, as opposed to being randomly deposited. Gialamas testified that the bloodstains found on the toe portion of petitioner‘s left shoe had no characteristics of spatter, but was simply a contact-type transfer stain. Gialamas further believed that the blood pattern on the shoes were inconsistent with the extensive spattering that occurred in his cinder block experiments.
Gialamas also examined the three areas of petitioner‘s jeans that Gregonis testified had signs of blood spatter. Gialamas concluded the bloodstains on the right knee area were transfer stains consistent with the wearer‘s kneeling on some kind of blood source, perhaps bloody gravel, because the stains in that area varied in size, shape, and intensity. Regarding the bloodstain found on the right upper thigh, Giamalas testified that the stain looked more like a transfer stain, but could not rule out that it was “an oddball fly-off medium energy spatter.” Regarding the bloodstains to the left of the zipper, Gialamas believed they were transfer stains because the stains went along the rise of three natural creases on that area of the pants, which would mimic spatter stains once flattened out. But he also could not rule out that they were created by spatter because it was remotely possible that the three drops of spatter precisely landed on the crease areas.
Gialamas examined petitioner‘s shirt and found no evidence of blood spatter. In his opinion, the evidence on petitioner‘s shirt was more consistent with the wearer‘s cradling a bloodied head. He also testified that blue cotton is not uncommon, and that cotton is “the most ubiquitous fiber we have.”
In sum, Gialamas concluded: “Given the lack of spatter on [petitioner‘s] clothing, no, I don‘t think that this clothing is consistent with this individual being the perpetrator.”
In 2007, petitioner sought a writ of habeas corpus in the San Bernardino County Superior Court, claiming that his 1997 murder conviction was based on false evidence and that new evidence unerringly established his innocence. Petitioner also presented evidence challenging the blue cotton fibers found under Pamela‘s fingernail and presenting new DNA evidence taken from the cinder block and from a hair found under one of Pamela‘s fingernails. (See Richards I, supra, 55 Cal.4th at pp. 958-959.) But these facts are not related to petitioner‘s false evidence claim raised in his current petition for writ of habeas corpus. Accordingly, we will focus only on the significance of the prosecution expert‘s recantation of his trial testimony concerning bite mark evidence.
The 2007 petition included a declaration from Dr. Sperber, the prosecution‘s forensic dentist at petitioner‘s jury trial, in which he repudiated his testimony at trial that only 1 or 2 percent of the population had petitioner‘s dental irregularity. According to Dr. Sperber‘s declaration: “These percentages were based on my own experience and were not scientifically accurate.” He added: “With the benefit of all of the photographs [of the crime scene and Pamela‘s injuries], and with my added experience, I would not now testify as I did in 1997,” and “I cannot now say with certainty that the injury on the victim‘s hand is a human bite mark injury.”
The 2007 petition also included declarations and reports by other experts in the field of forensic dentistry. Dr. Golden, the defense forensic dentist at petitioner‘s jury trial, declared that he “enlarged the image [of Pamela‘s hand lesion] to life-size” and that after comparing the enlarged image to petitioner‘s teeth, he “would tend to exclude [petitioner] as the suspected biter.” In his declaration, Dr. Charles M. Bowers described how he and Dr. Raymond J. Johansen had used computer software to remove the angular distortion from the photograph of Pamela‘s hand lesion, thereby allowing a more accurate comparison between the lesion and petitioner‘s lower teeth. According to Dr. Bowers‘s declaration, “The new scientific methods demonstrably contradict the conclusion at trial that [petitioner] could not be ruled out as a suspected biter.” Dr. Bowers was also critical of the methodology used by Dr. Sperber at petitioner‘s trial. In an earlier report, Dr. Bowers wrote that there is “significant doubt that the hand injury is even a bitemark.”
After the superior court issued an order to show cause, the court received further briefing and eventually held an evidentiary hearing in 2009 in which the forensic dentists testified consistently with their declarations. In addition to the points made in his posttrial declaration, Dr. Sperber described the angular distortion in the photograph of the lesion on Pamela‘s hand and
Drs. Bowers and Johansen both explained how they used computer software to digitally correct the photograph of Pamela‘s hand by removing angular distortion. They testified that they are experts in this process and have published articles and a book on the digital analysis of bite mark evidence. They explained that the technique was first used in 1996 or 1997 by a doctor in Canada. But Drs. Bowers and Johansen further developed the precision of the technique to correct angular distortion in photographs, and their method has become accepted in the field of forensic dentistry.
After correcting the angular distortion in the autopsy photograph, Dr. Johansen created outlines depicting petitioner‘s lower and upper teeth. He concluded that petitioner‘s lower teeth did not match the lesion on Pamela‘s hand because it was obvious to him “that this mark, if indeed a bite mark, was more likely to have been made by an upper arch.” Using an outline of petitioner‘s upper teeth, Dr. Johansen concluded the upper teeth matched the lesion in some places, but not others. Dr. Johansen could not exclude petitioner‘s teeth as a possible source of the lesion, but in his opinion it was just as likely that the indistinct lesion was caused by the fencing material under Pamela‘s right arm as it was by petitioner‘s teeth. Dr. Johansen conceded, however, that he had removed angular distortion from the same photograph in 2000, and had concluded at that time that the lesion was a human bite mark that was consistent with petitioner‘s teeth.
Dr. Bowers testified that he also corrected the angular distortion from the autopsy photograph and compared the corrected photograph to a digital exemplar of petitioner‘s lower teeth. After superimposing the image of petitioner‘s lower teeth to the corrected autopsy photograph, he found no match. According to Dr. Bowers, the lesion was 11 millimeters shorter than petitioner‘s lower teeth, and three of his teeth did not align with the lesion. Dr. Bowers examined photographs of other lesions on Pamela‘s body that appeared to have been caused by the metal fencing on the ground and doubted whether the hand lesion was a human bite mark, believing that it might have been left by the fencing material under her right arm.
At the conclusion of the hearing, the superior court granted habeas corpus relief, concluding that the new evidence unerringly established petitioner‘s
IV. THE RICHARDS I DECISION
Prior to 2014,
The majority in Richards I held that if an expert witness‘s opinion given at trial later changes, without any significant advances in the expert‘s field of expertise or in any technologies employed by the expert, “it would not be accurate to say that the witness‘s opinion at trial was false.” (Richards I, supra, 55 Cal.4th at p. 963.) The majority reasoned that the fact that an expert recants an opinion given at trial does not necessarily establish that the opinion at trial was false. Instead, the expert‘s change in opinion “has merely demonstrated the subjective component of expert opinion testimony.” (Ibid.) The majority concluded that the “false evidence” standard under
The dissenting opinion in Richards I criticized the majority for treating the recantation of expert testimony differently from the recantation of lay testimony for purposes of
V. DISCUSSION
A. The 2014 revision of the definition of false evidence for purposes of expert opinion under section 1473
After this court‘s decision in Richards I, the Legislature enacted Senate Bill No. 1058 (2013-2014 Reg. Sess.), which added
The plain meaning of the amendment to
First, Dr. Sperber clearly repudiated his trial testimony. In the habeas corpus proceedings, Dr. Sperber testified that he no longer was certain that
Second, the evidence petitioner presented in the prior habeas corpus proceedings also established that new technological advances undermined Dr. Sperber‘s trial testimony. Technology that was not available at the time of petitioner‘s 1997 jury trial was used to correct the angular distortion of the lesion depicted in the autopsy photograph. That corrected photograph informed the opinions of the experts at the habeas corpus proceedings.
In light of the corrected photograph, Dr. Sperber and Dr. Golden testified that they would exclude petitioner‘s teeth as the source of the lesion. Dr. Bowers noted that the length of the lesion in the corrected autopsy photograph was inconsistent with the size of petitioner‘s lower teeth and that three of petitioner‘s teeth did not match the lesion, and he expressed doubt whether the lesion was a bite mark at all. After examining the corrected photograph and photographs of other lesions on Pamela‘s body, Dr. Johansen testified that, because of the poor quality of the autopsy photograph, he could not include or exclude petitioner‘s teeth as the source of the mark and that it was just as likely that the lesion was created by the fencing material and not a bite.
As a result, petitioner has shown that Dr. Sperber‘s trial testimony constituted false evidence because that opinion has “been undermined by later scientific research or technological advances.” (
An Assembly committee analysis of Senate Bill No. 1058 (2013-2014 Reg. Sess.) stated that the impetus for the bill was the issue addressed in Richards I, supra, 55 Cal.4th 948: “The 4-3 majority in Richards held that expert opinion stated at trial is ‘false evidence’ supporting . . . habeas relief if the expert‘s conclusion is proved to be objectively untrue.” (Assem. Com. on Public Safety, Analysis of Sen. Bill 1058 (2013-2014 Reg. Sess.) as amended June 4, 2014, p. 5 (Assembly Analysis).) The analysis included a detailed
Similarly, a Senate committee analysis of Senate Bill No. 1058 (2013-2014 Reg. Sess.) stated: “The issue this bill seeks to address was clearly depicted in the California Supreme Court case, In re Richards, [supra,] 55 Cal.4th 948 . . . . The Richards 4-3 majority upheld petitioner‘s conviction, holding that ‘expert testimony’ is different from other types of testimony in that it is merely the opinion of the expert, not evidence in and of itself, and so can never be ‘true’ or ‘false.’ Because of this, the court found Richards had failed to establish the falsity of the original expert testimony, which had served as the basis for his conviction. The Richards dissent, written by Justice Liu, pointed out the injustice of the majority opinion; noting that the false evidence statute
From this legislative history, it is apparent that the Legislature agreed with the dissent‘s conclusion in Richards I, supra, 55 Cal.4th 948. The Senate committee analysis supports the notion that the Legislature intended courts to treat lay and expert opinion equally in determining whether the testimony of an expert witness at trial satisfies the false evidence language of
Accordingly, we conclude that petitioner has shown that Dr. Sperber‘s trial testimony that the lesion on Pamela‘s hand was consistent with the assertedly unusual dentition of petitioner‘s lower teeth constituted “false evidence” within the meaning of
The San Bernardino County District Attorney does not extensively discuss whether Dr. Sperber‘s trial testimony constitutes false evidence for purposes of
This contention is based on a misunderstanding of the standard that
Our courts have held that “[f]alse evidence is ‘substantially material or probative’ if it is ‘of such significance that it may have affected the outcome,’ in the sense that ‘with reasonable probability it could have affected the outcome. . . .’ [Citation.] In other words, false evidence passes the indicated threshold if there is a ‘reasonable probability’ that, had it not been introduced, the result would have been different. [Citation.] The requisite ‘reasonable probability,’ we believe, is such as undermines the reviewing court‘s confidence in the outcome.” (Malone, supra, 12 Cal.4th at p. 965, italics added by Malone, quoting In re Wright, supra, 78 Cal.App.3d 788, 814.) This required showing of prejudice is the same as the reasonably probable test for state law error established under People v. Watson (1956) 46 Cal.2d 818, 836. (Wright, supra, 78 Cal.App.3d at p. 812.) We make such a determination based on the totality of the relevant circumstances. (Malone, supra, 12 Cal.4th at p. 965.)
Accordingly, we will apply this standard to determine whether the false evidence was substantially material and probative on the issue of petitioner‘s guilt.
C. Reasonable probability that the false evidence affected the outcome
Dr. Sperber‘s qualifications were impressive. At the time of petitioner‘s 1997 jury trial, Dr. Sperber had more than 40 years of experience in dentistry, which included being the chief forensic dentist for two counties. He had testified in more than 100 cases, including well-known high profile cases. He also received a congressional appointment to set up a national system to identify missing persons through dental records. Dr. Sperber‘s credentials very likely added to the credibility of his testimony.
It is important to note that Dr. Sperber not only testified that he believed the lesion on Pamela‘s hand was consistent with the unusual dentition of petitioner‘s lower teeth, he also prepared an exhibit. On a poster board, Dr. Sperber assembled an enlarged photo of the autopsy photograph depicting Pamela‘s lesion, a photo of petitioner‘s lower jaw casting, and a transparency tracing of petitioner‘s lower canine and incisor teeth. He taped the transparency between the two photos so that the transparency tracing could be flipped back and forth between the two photos for purposes of visualizing the match. This exhibit and the casting of petitioner‘s teeth were admitted in evidence and given to the jury during its deliberations.
Although in Richards I, supra, 55 Cal.4th 948, we characterized the evidence against petitioner as strong, we did so in the context of whether the evidence was strong enough to overcome any suggestion that evidence discrediting Dr. Sperber‘s conclusion pointed “unerringly” to petitioner‘s innocence. Now, however, we must decide whether the evidence is strong enough to rule out a reasonable probability that the admission of Dr. Sperber‘s trial testimony affected the outcome of the case. In that context, the case against petitioner was entirely based on circumstantial evidence, and much of that evidence was heavily contested. Upon examination of this circumstantial evidence admitted against petitioner, it appears that Dr. Sperber‘s testimony was “material” for purposes of
Assuming that, like the prosecution‘s investigator, petitioner was able to drive 20 miles per hour over the speed limit on the night of the killing,
Although some parts of the property contained looser soil that was amenable to shoe prints, the fact that shoe prints of only the victim and petitioner were found at the crime scene is not remarkable, given that some of the landscape was generally not conducive to creating shoe prints. In fact, only four shoe prints were found at the crime scene, with three of them belonging to Pamela—despite evidence that she was chased around the crime area.
Petitioner‘s familiarity with the crime scene and with what items were used to strike Pamela may appear suspicious in the abstract, but he had had to wait for more than a half-hour before Deputy Nourse arrived. It is not unreasonable to conclude that petitioner, while waiting for the police to arrive, explored the area to determine how his wife died. Moreover, when Detective Parent examined the crime scene, it was readily apparent to him that both the cinder block and stone had been used to hit Pamela in the head because those items were covered with blood and blood spatter. In fact, he agreed that it did not take a “rocket scientist” for someone to make such a conclusion.
The time of death was a significant issue at trial. It is undisputed that there was no evidence definitively establishing that point. But evidence suggested that Pamela stopped answering her phone hours before petitioner arrived. Although Deputy Nourse, upon examining Pamela‘s body, believed she had very recently died because the body still had wet puddled blood around it and no rigor mortis, he described her body as neither warm nor cold. Both the prosecution and defense forensic pathologists agreed that, after death, the body cools at a rate of one and a half degrees to two degrees Fahrenheit per hour with some variance depending on the environmental conditions, the weight of the body, and the circumstances leading to death. Thus, if Pamela had died an hour before petitioner arrived, Deputy Nourse‘s observation that her body was neither warm nor cold might be consistent with that hypothesis because he arrived less than an hour after petitioner did.
The fact that there were no visible, fresh injuries on petitioner‘s face, arms, and hands on the night of the killing was also unusual. The scene of the crime established that Pamela fought her attacker. Two of her fingernails were torn
Even more unusual was the evidence of blood on petitioner‘s clothing. The few stains that the prosecution‘s expert identified as blood spatter on petitioner‘s shoes and jeans were millimeter sized. But the area around Pamela‘s body exhibited a radial spray of significant blood spatter, much of which was centimeter sized. More important, the defense expert provided evidence that the alleged blood spatter on petitioner‘s jeans and shoes could have been the result of transfer scenarios that were consistent with petitioner‘s claim that he had cradled Pamela‘s head at the scene. The expert believed the assailant‘s clothes would have displayed far more blood spatter than was found on the clothing petitioner wore on the night of the killing. As a result, the defense expert believed that petitioner‘s clothing was not consistent with his being the perpetrator.
Accordingly, with the exception of the bite mark evidence, the defense had a substantial response to much of the prosecution‘s evidence against petitioner. Under these unique circumstances, it is reasonably probable that the false evidence presented by Dr. Sperber at petitioner‘s 1997 jury trial affected the outcome of that proceeding.
VI. DISPOSITION
The petition for writ of habeas corpus is granted.4 The judgment of the San Bernardino County Superior Court in People v. William Richards, No. SWHSS700444, is vacated.
Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
CORRIGAN, J., Concurring.—I concur in the majority opinion but write separately to address the observations put forward in the concurring opinion of my colleague. The separate opinion emphasizes the “relevance” of the fact that two previous juries were unable to reach a verdict without the bite mark
Our role as a reviewing court is to determine whether the false evidence admitted in this case was ” ‘material,’ ” a standard equivalent to the “reasonably probable test for state law error” under People v. Watson (1956) 46 Cal.2d 818, 836. (Maj. opn., ante, at pp. 312-313.) Under that standard, we must “examine ‘each individual case to determine whether prejudice actually occurred in light of the entire record.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802, italics added.) Prejudice must appear as a ” ‘demonstrable reality,’ not simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937.) The majority opinion aptly identifies several facts in the record that show a reasonable probability defendant suffered prejudice from admission of the bite mark evidence. (Maj. opn., ante, at pp. 313-315.)
By contrast, it is very difficult to read any significance into the fact that two other juries hung in this case. Juries fail to agree for a variety of reasons and the rules of evidence prohibit inquiry into the jurors’ subjective reasoning process. (
My colleague accepts defendant‘s assertion that “the difference between the first two unsuccessful trials and the third trial was the introduction of bite mark evidence through Dr. Sperber.” (Conc. opn. of Liu, J., post, at p. 321.) However, complete records of the first two trials are not before us, and the record that we do have shows the assertion is inaccurate, to say the least. Defendant testified in his own defense in the first two trials. He did not do so here. Of course, the last jury could not draw any negative inference from his failure to testify and there is nothing in this record to indicate why that choice was made. The fact remains that, in the first two trials, those juries received different evidence, and heard it from defendant himself. The availability of that testimony may have swayed some dissenting jurors in his favor.
Although the substance of the testimony at the first two trials is not available for our review, it is clear each case was tried with substantially different sets of witnesses. Defendant was represented by the public defender in the first two trials, and by privately retained counsel in the third. One judge presided over the first trial, and a different judge presided over the second and third. We cannot know whether there were significant differences in evidentiary rulings made in each case. We cannot know how the first two cases were argued by different counsel or whether the theory or nuances of those cases differed from either the prosecution or defense perspective.
I do not suggest that we can conclude that those differences, and others that may have flowed from them, influenced the outcome here. The pivotal point is that we do not know. I strongly urge that we cannot and should not speculate about the import of the fact that two other juries failed to reach consensus, particularly when so many factors can lead to such a result, and when the trials were so demonstrably different.
My colleague asserts that we “do know” the prosecution here “never meaningfully disputed Richards‘s observation that the bite mark evidence was a material difference” among the trials. (Conc. opn. of Liu, J., post, at p. 321.) First, as noted, that is simply not the case as to the main evidentiary difference. Second, it misstates the People‘s position.
My colleague cites other cases in which the fact of prior hung juries was recognized as “relevan[t].” (Conc. opn. of Liu, J., post, at p. 320.) People v. Gonzalez (2006) 38 Cal.4th 932 was a death penalty case in which the first jury convicted the defendant of multiple murders but hung on the penalty question. A second jury returned a death verdict. (Id. at p. 938.) The court held that the prosecution improperly failed to provide discovery of rebuttal evidence in the second penalty trial, prejudicing the defendant. (Id. at pp. 955, 957, 961-962.) The court‘s discussion reveals that it was able to compare the evidence from the first and second penalty trials in a number of particulars. The same counsel participated in both penalty phases, which were apparently tried before the same judge. (Id. at pp. 961-962.) In reversing, we observed that “a death verdict was not a foregone conclusion. Indeed, the first penalty trial ended with a hung jury.” (Id. at p. 962.) Of course, a death verdict is never a “foregone conclusion” because the penalty decision is normative. Even if all jurors agree that the evidence shows the aggravating circumstances outweigh the mitigating, they remain free to return a verdict for a life sentence if they conclude death is not appropriate. (People v. Page (2008) 44 Cal.4th 1, 55-56.) The observation that a death sentence was not a foregone conclusion does little to support an argument that a prior hung jury in the guilt phase is strong evidence of a weak factual case.
In People v. Kelley (1967) 66 Cal.2d 232, we found the trial court erred in admitting evidence of the defendant‘s unlawfully obtained confessions to uncharged sexual acts as circumstantial proof that he committed the charged offenses. (Id. at pp. 236-251.) In assessing prejudice, we noted “that at the first trial when such evidence was excluded the jury was unable to agree but at this trial when the evidence was admitted a unanimous verdict resulted.” (Id. at p. 245.) We found this fact relevant given that the two trials were “otherwise substantially similar.”
Kyles v. Whitley (1995) 514 U.S. 419 was also a death penalty case. There the original jury hung as to guilt and a second jury convicted and returned a death judgment. (Id. at p. 421.) The case was reversed for significant Brady violations (Brady v. Maryland (1963) 373 U.S. 83). (Kyles, at pp. 441-454.) The court had before it an extensive evidentiary record, produced in connection with habeas corpus review, allowing a comparison of the evidence presented and the theories relied upon in each trial. (Id. at pp. 429-431.) Justice Stevens wrote separately in response to a four-justice dissent. Even Justice Stevens‘s opinion, joined in by two other justices, cannot be fairly said to support a reliable conclusion that a hung jury means the factual case is weak. (Id. at p. 455 (conc. opn. of Stevens, J.).) Indeed, as the majority noted, “Because the State withheld evidence, its case was much stronger, and the defense case much weaker, than the full facts would have suggested.” (Id. at p. 429, italics added.) Justice Stevens‘s concurrence merely relied on the previous hung jury as one factor in concluding the Brady errors were prejudicial. (Id. at p. 455 (conc. opn. of Stevens, J.).)
My colleague also cites cases from federal courts of review and the states of Georgia and Massachusetts. Those cases are not binding precedent, and my colleague does not suggest otherwise. It appears that in most of those cases the courts had far more complete records of all proceedings involved. They did not draw speculative conclusions as to the strength of a case from the mere fact of a hung jury.3
I am not suggesting that a full record can never provide sufficient evidence for a reviewing court to make a proper evaluation of the strength of cases as presented. I do counsel that courts should be hesitant to label a case weak due to a hung jury in a previous case, the record of which is not before them.
LIU, J., Concurring.—I join today‘s opinion, including its determination that it is reasonably probable that the false evidence presented by Dr. Norman
In assessing the significance of the bite mark evidence, I think it is also relevant that two previous juries were unable to reach a verdict without this evidence. It was only at the final trial, where the false evidence was admitted, that a jury convicted Richards. In similar circumstances, this court and others have recognized the relevance of prior hung juries to the determination of prejudice. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 962 [concluding that the improper denial of discovery of rebuttal evidence in a penalty retrial was prejudicial because it was reasonably possible that defense counsel would have presented mitigating evidence and the first jury hung when such evidence was admitted]; People v. Kelley (1967) 66 Cal.2d 232, 245 [finding it significant that the first jury was unable to agree when the disputed evidence was excluded, but a unanimous verdict resulted when the evidence was erroneously admitted at the later trial]; People v. Diaz (2014) 227 Cal.App.4th 362, 385 [a previous hung jury “supports a finding of prejudice in light of the fact that the evidence presented at both trials was similar, with the significant exception that the [improperly admitted] videos were not shown at the first trial“]; Kyles v. Whitley (1995) 514 U.S. 419, 455 (conc. opn. of Stevens, J.) [“the fact that the jury was unable to reach a verdict at the conclusion of the first trial provides strong reason to believe the significant errors that occurred at the second trial were prejudicial“]; Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 35 [finding that defense counsel‘s failure to present the repeatedly promised testimony of petitioner was prejudicial because the only “salient difference” between the petitioner‘s third trial and the previous trials was the absence of petitioner‘s testimony]; Perry v. U.S. (D.C. 2011) 36 A.3d 799, 821 [finding erroneous jury instruction to be prejudicial where previous jury deadlocked without such instruction]; Bass v. State (2009) 285 Ga. 89, 92 [674 S.E.2d 255, 258] [“A prior hung jury is a factor this Court has recognized in addressing the prejudice prong of an ineffectiveness claim.“]; Commonwealth v. Broomhead (2006) 67 Mass.App.Ct. 547, 554 [855 N.E.2d 413, 420] [finding prosecutor‘s erroneous statements to be prejudicial at third trial where presentation of the same evidence, without the statements, resulted in two prior hung juries].)
Justice Corrigan argues that “it is very difficult to read any significance into the fact that two other juries hung in this case.” (Conc. opn. of Corrigan, J., ante, at p. 316.) Noting various differences among the three
In his opening brief in Richards I, Richards observed that in each trial “the prosecution relied on blood spatter evidence, the absence of evidence indicating the presence of a third party at the crime scene, the tuft of blue fibers found in a crack of Pamela‘s fingernail which was similar to the fibers in a shirt that Richards had worn on the night of the murder, and evidence of some marital discord. It was not until the third full trial that the prosecution, for the first time, introduced evidence suggesting Richards was responsible for a bitemark found on Pamela and that only 2% of the population had a dentition which could have made that bitemark. That trial resulted in Richards’ conviction.” In his most recent petition, he again noted that “the difference between the first two unsuccessful trials and the third trial was the introduction of bite mark evidence through Dr. Sperber.” The District Attorney‘s office has not specifically contested these assertions, even as it has vigorously opposed reversal of Richards‘s conviction. If the three trials had differed in material respects other than the bite mark evidence, one would have expected to see this argument made in the course of multiple rounds of briefing by the party with the knowledge and incentive to make it.
In sum, the fact that two prior juries hung without the bite mark evidence further suggests that admission of this evidence at the third trial was prejudicial, and I join the court in holding that Richards‘s conviction must be reversed.