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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AT DALLAS
3:01CV-0472-X
GREGORY EDWARD WRIGHT Applicant
VS.
JANIE COCKRELL, Director,
Texas Department of Criminal Justice, Institutional
Division,
Respondent
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT WITH BRIEF IN SUPPORT
BRUCE ANTON State Bar No. 01274700
Carrie Sperling State Bar No. 00785026
Mary Margaret Penrose State Bar No. 00788179 2301
Cedar Springs #400
Dallas, Texas 75201
214/468 8100
214/468-8104 facsimile
ATTORNEYS FOR APPLICANT - Page 1
INTRODUCTION
Gregory Edward Wright awaits execution on Texas' death row.
He has claimed throughout all proceedings against him that he
is innocent of the murder of Donna Vick. Mr. Wright
respectfully requests a hearing before this Court to establish,
as a matter of law, his claims of factual innocence.
Mr. Wright has steadfastly alleged he is not guilty of the
murder of Donna Vick. Instead, John Adams, another man on death
row, is responsible for the murder of Ms. Vick. Indeed, John
Adams has confessed to several people that he murdered Ms. Vick
has been convicted of capital murder for her death. However,
the State of Texas now claims that both Mr. Wright and Mr.
Adams murdered Ms. Vick as co-actors in the crime. This is a
completely new theory of the crime, embraced after the
conviction of Mr. Wright. Rather, during Mr. Wright's trial,
the State of Texas argued that Mr. Wright murdered Ms. Vick and
that John Adams was merely caught at the scene by
happenstance.
In addition to his factual innocence, Mr. Wright further
alleges that the State of Texas withheld material, exculpatory
evidence that would have allowed Mr. Wright to establish his
claims of innocence. This omitted and withheld evidence would
have convinced a jury that Mr. Adams acted alone in murdering
Ms. Vick. Nonetheless, in violation of both the letter and the
spirit of the United States Constitution, the State of Texas
did not disclose the exculpatory evidence in its possession
that would have established Mr. Wright's claim that Mr. Adams,
not Mr. Wright, was responsible for murdering Ms. Vick. As set
forth in Mr. Wright's application for habeas relief,much
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 2
of this evidence has still not been provided to Mr. Wright
or his counsel. The State continues to subvert Mr. Wright's
attempts to prove his actual innocence.
The State of Texas, in its continued pursuit of executions,
is playing a procedural shell game , with this Court to'
prevent Mr. Wright from raising any of his constitutional
claims challenging the State's misconduct and the trial court's
errors in his capital murder trial. First, the State withheld
evidence material to the defense and at trial knowingly
misrepresented evidence. More specifically, the State withheld
witnesses favorable to the defense at trial- witnesses that
were known to the State and available to testify at trial. The
State also manufactured fingerprint evidence against Mr. Wright
at trial. The State continues to withhold some of this
evidence, claiming it is either lost or misplaced.
The State of Texas represented throughout its evidence and
argument at trial that Mr. Wright acted alone in murdering Ms.
Vick - continually asserting that Mr. Adams was merely a
bystander or victim of circumstance.! The State's approach to
this murder case, however, changed radically once Mr. Wright
was convicted and sentenced to death and Mr. Adams stood
accused of the same crime in a subsequent, separate trial.
The State of Texas now represents to this Court that Mr.
Wright and Mr. Adams were, in fact, co-actors in the murder.
Through its actions, the State of Texas has knowingly deprived
Mr. Wright of crucial exculpatory evidence he needed to support
his claims of factual innocence. These actions, are violations
of the Brady doctrine and rise to the level of-prosecutorial
misconduct. The
In fact, the State was able to introduce into evidence,
over the objection of the defense, the statement of John Adams,
placing all the blame for the murder on Mr. Wright and painting
Mr. Adams as a mere bystander. The State's argument for the
admission of the statement was that it was necessary to prevent
the jury from coming to the erroneous conclusIon that Mr. Adams
actually participated in the murder of Ms. Vick.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 3
prosecution's misconduct prevented Mr. Wright from
demonstrating that Mr. Wright, if guilty at all, was merely a
bystander with a lessor role in the crime. Such state-sponsored
behavior should not be condoned in any case - let alone one
where the accused asserts his innocence and is facing a penalty
of death. The State of Texas has sentenced two men to death for
the murder of Donna Vick - neither conviction supported by the
same story or evidence.[2]
Mr. Wright has continued to maintain his innocence and can
present a convincing case of factual innocence and a
constitutionally deficient trial. Therefore, Mr. Wright must be
afforded the opportunity and the forum in which to inspect and
present the evidence which establishes his innocence - our
federal constitution demands such protections. Although the
State of Texas may routinely rubber stamp constitutionally
infirm capital murder trials, the federal courts act as the
protector of a defendant's constitutional rights and serve at
the last bastion of justice. When a state has failed to afford
a defendant the core protections of our constitutional system,
the federal judiciary must step in. Here, Mr. Wright's trial
and subsequent pleas to the Texas courts failed to avail him of
the minimal protections guaranteed under the United States
Constitution. Mr. Wright is consequently entitled to habeas
corpus relief in this action.
I. THE STATE DID NOT DISCLOSE MATERIAL IMPEACHMENT EVIDENCE
OF THE KEY WITNESS IN THE CASE, LLEWELYN MOSLEY, IN DIRECT
VIOLATION OF GIGLIO V. UNITED STATES AND BRADY V.
MARYLAND.
The State presented only one witness at trial, Llewelyn
Mosley, to testify about the events that transpired the night
of Ms. Vick's murder. Mr. Mosley had a significant criminal
background.
[2] An argument can be made that the use of
inconsistent theories in this fashion is itself a violation of
the applicant's right to due process of law. See Thompson v.
Calderon, 120 F.3d 1045,1058 (9th Cir. 1997) reversed on other
grounds. 523 U.S. 538 (1998) Smith v. Groose,205 F.3d 1045 (8th
Cir. 2000).
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 4
He ran and operated a crack house less than a block away
from a high school. He was also arrested in connection with the
events that transpired the night of Ms. Vick's murder. If
convicted of the crimes to which he confessed during Mr.
Wright's trial, Morely would have resulted in a minimum
sentence of twenty-five (25) years in prison. Mr. Mosley
consequently had every reason to lie to , please the State. He
was facing the notion of spending the rest of his life in
prison if convicted.
In reward for his testimony in Mr. Wright's case, Mr.
Mosley was never charged with an offense despite his stunning
admission of criminal activity. The State made him an offer -
not to charge him with a crime in return for his crucial
testimony. Mr. Mosley therefore testified in the manner the
State requested and was rewarded by the State. He was never
prosecuted for his crimes.
The evidence thus establishes that Mr. Mosley had a deal
with the prosecution. The State may quibble semantically
regarding the offer and acceptance between Mr. Mosley and the
State. However, Mr. Mosley's offer so closely resembles the
witness' offer in United States v. Giglio, that there can be no
question but that the State was constitutionally obligated to
disclose the details of the offer of immunity .
The State nonetheless never disclosed the details of its
admitted offer to Mr. Mosley. Instead, the State disingenuously
denies the existence of a "deal." The facts and evidence belie
the State's denials. Mr. Mosley had an enormous incentive to
lie.[3] Mr. Mosley was given this incentive by the
State - in exchange for his testimony. If the jury had been
aware of this bargained-for exchange, it would have stripped
Mr. Mosley of credibility. Because Mr. Mosley was the State's
only live
[3] In fact, and contrary to respondent's assertion
on page 23, as demonstrated at trial, Mosley's testimony
regarding Wright's role in disposing of the property changed
dramatically. Trial Transcript Volume 45, page 125,
169-178.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 5
witness against Mr. Wright, Mr. Mosley was crucial to the
State's case against Mr. Wright in both the guilt/innocence
phase and the punishment phase.
At the very least, Mr. Wright is entitled to a hearing to
determine the substance of the proffered carrot to Mr. Mosley
regardless of its designation as an offer, arrangement, deal,
agreement, or contract. Mr. Wright's attorneys attempted to
illicit this information during trial but were shut down by the
trial court's claim who claimed that any testimony regarding
the arrangement between Mr. Mosley and the State would violate
attorney client privilege. Such a contention possesses no legal
validity. Mr. Wright requests an evidentiary hearing where he
may subpoena the requisite testimony regarding the Mosley offer
to support his claim of factual innocence.
II.
THE STATE SUPPRESSED EVIDENCE OF A MATERIAL EXCULPATORY
WITNESS, JERRY CAUSEY, IN VIOLATION OF BRADY v. MARYLAND.
Mr. Adams is the one and only person to have confessed to
the murder of Ms. Vick. He confessed on multiple occasions and
to different people. And, he admitted acting alone in the
murder, without the aid or assistance of Mr. Wright. Most
importantly, he confessed to Daniel McGaughey, a video store
clerk. The State of Texas was aware of this confession, had
this confession in its possession, and yet provided this
confession to the defense prior to trial.
Additionally, Mr. Adams most likely confessed to the murder
in a 911 call. The tapes of this 911 call have likewise never
been provided to the defense. Mr. Adams further confessed to
Charles Neeley, another inmate, during his stay in the Dallas
County Jail (evidence discovered after Mr. Wright's trial).
And, Mr. Adams confessed to Jerry Causey.
Mr. Wright., on the other hand, has never confessed to
murdering Ms. Vick. He has instead consistently and continually
maintained his innocence. Jerry Causey could have established
that Mr.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 6
Adams murdered Donna Vick. At the very least, Mr. Causey's
testimony would have established that Mr. Adams, not Mr.
Wright, was the "ring leader" - something the jury would
certainly have assessed in the punishment phase. Mr. Wright was
unable to provide the testimony establishing Mr. Adams's
admitted guilt, however, because the State withheld the
existence of Mr. Causey and what his testimony would have
established.
It is nevertheless clear that the State spoke to Mr. Causey
prior to Mr. Wright's trial- this fact is undisputed and set
forth in Mr. Causey's affidavit.[4] The State then
called Jerry Causey as a key witness against Mr. Adams when the
State tried Mr. Adams for the murder of Ms. Vick. The State
obviously found Mr. Causey's testimony highly relevant to
establish the guilt of Mr. Adams in the murder of Ms. Vick. The
testimony of Mr. Causey was, therefore, highly relevant,
material exculpatory evidence Mr. Wright was entitled to under
the principles of Brady v. Maryland.
III.
THE STATE SUPPRESSED MATERIAL EXCULPATORY EVIDENCE OF
DANIEL MCGAUGHEY'S STATEMENT TO THE POLICE IN VIOLATION OF
BRADY V. MARYLAND.
Daniel McGaughey would have been a crucial witness for the
defense in Mr. Wright's trial. Mr. McGaughey worked at a video
rental store. He was approached by Adams one day after the
murder of Ms. Vick. Adams asked McGaughey to call 911. The
remainder of this vital conversation was never completely
revealed to the defense until Mr. Wright's trial was well under
way.
The State claims to have lost the 911 tapes which would
serve as the best evidence of the substance of this
conversation. Furthermore, the State suppressed, until the
trial had begun,
[4] The State used the record in the Adams's trial
to establish that Mr. Davis, the prosecutor had not spoken with
Mr. Causey. This fact does not contradict that someone from the
DA's office spoke with Mr. Causey prior to Mr. Wright's
trial.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 7
McGaughey's first statement detailing the substance of
regarding the conversation between McGaughey and Adams. The
defense would have certainly secured McGaughey's testimony if
the prosecution had complied with the mandates of Brady in
revealing McGaughey's original statement to police that: "I
murdered someone in DeSoto and I can't deal with it. I want to
turn myself in."
The State, however, failed to turn over McGaughey's
original statement given to the police investigator on the
scene.
In withholding this statement, the State made its own value
judgment about the relevancy of this testimony - something
Brady clearly forbids. The State is under a continuing
obligation to supply potentially exculpatory evidence in its
possession, to not assess the value of such evidence for the
defense. Recognizing the inherent conflict between such State
evaluations of evidentiary value for the defense, Brady
mandates the prosecution supply the evidence to the defense for
its own analysis. This did not occur in Mr. Wright's case.
Rather in discovery, prior to the trial, the State gave the
defense a statement attributed to Daniel McGaughey that read:
"[Mr. Adams] told me there was a murder and he wanted
to turn himself in." There is a stark and monumental
distinction between the ideas and information these two
statements convey. Only the State had both statements.
The statement which the State provided merely suggested
that a murder took place. That isolated statement supported the
State's theory of the case that Mr. Wright murdered Ms. Vick in
the presence of Mr. Adams and that Mr. Adams was merely a
bystander caught in a bad situation. McGaughey's first
statement, however, completely contradicts the State's theory
of the case, and so, this first statement was not provided to
the defense until trial. In that suppressed statement,
McGaughey told the police that Mr. Adams admitted he murdered
Ms. Vick alone. Nowhere in the
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 8
suppressed statement did Mr. Adams shift the blame to Mr.
Wright or suggest a lessened role in the offense. Mr. Adams, in
the suppressed statement, unequivocally confessed to murdering
Ms. Vick.
Nothing can be more exculpatory to a defendant on trial for
his life than an unequivocal confession , proffered by a
co-defendant.
When the defense team finally saw the McGaughey statement,
it sent an investigator to find McGaughey and requested a
continuance to secure his testimony. With practically no time
to locate McGaughey and no contact information for him, the
defense was unable to locate McGaughey for trial. Although the
State had been in contact with McGaughey - because the State
wanted to use his testimony in Adams' trial- the State would
not reveal his whereabouts. The intentional suppression of
McGaughey's contact information is, in no uncertain terms,
prosecutorial misconduct. Restated, the State compounded the
damage done by concealing exculpatory evidence, and further
sealed Mr. Wright's fate by concealing an equally important
piece of information, McGaughey's location.
Due to the State's delayed revelation of a second statement
and based on the importance of McGaughey' s testimony, Mr.
Wright asked for a continuance that was summarily denied. The
State's intentional denial or access to McGaughey's testimony
both before and at trial prevented the defense from admitting
highly exculpatory evidence, material to the jury's
determination of both guilt and punishment. This intentional
behavior by the State circumvents Mr. Wright's constitutional
guarantees and violates Brady v. Maryland.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 9
IV.
THE STATE SUPPRESSED MATERIAL EXCULPATORY EVIDENCE OF THE
911 TAPES OF ADAMS' CALL TO POLICE AND DANIEL MCGAUGHEY'S CALL
TO THE POLICE IN VIOLATION OF BRADY ~ MARYLAND.
The best evidence corroborating McGaughey's suppressed
statement was also withheld and/or destroyed by the State.
Specifically, a contemporaneous 911 tape recording was made
when McGaughey called the police. The contents of this tape
would further support Mr. Wright's claims of innocence. Mr.
Wright's defense counsel had continually sought access to this
vital evidence.
The State, conveniently, claims to have lost this best
evidence of Mr. Wright's innocence.
Defendant respectfully requests a hearing before this court
to ascertain the fate of the tapes and whether the contents of
the tapes can be determined. The State should not be permitted
such carelessness in a capital murder trial. Nor should such
carelessness be ignored or sanctioned.
Defendant deserves a forum in which to conduct discovery
into the nature of the tapes' disappearance - whether they were
carelessly lost or intentionally destroyed.
v.
THE STATE SUPPRESSED MATERIAL EXCULPATORY EVIDENCE OF THE
CONTENTS OF THE BECKLEY SHACK IN VIOLATION OF BRADY V.
MARYLAND.
After Mr. Adams initially spoke with police about the
murder of Ms. Vick, placing all of the blame for the murder on
Mr. Wright, he led police to the implements used to commit the
murder
evidence the State later used to bolster its case against
Mr. Wright. Mr. Adams led the police to the knife used to kill
Ms. Vick which he had buried in a field. He further led them to
Mr. Mosley's crack house where.Ms. Vick's property was
exchanged for drugs. And finally, Mr. Adams led them to the
Beckley shack, where police found evidence linked to the
murder, including plates from Ms.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 10
Vick's house, knives from Ms. Vick's house, and
jeans[5] soaked in the victim's blood. At the Beckley
shack, police also found Mr. Wright.
It was the State's contention throughout Mr. Wright's trial
that Wright was obviously the perpetrator of the murder because
the evidence linking him to the murder was found in his shack,
the Beckley shack. It was crucial for the State's theory in
Wright's case that the blame for the murder fall squarely on
Mr. Wright and that the Beckley shack was under Mr. Wright's
control, not under Mr. Adams' control. If the defense could
prove that Adams resided at the shack and kept his belongings
there, the defense could have directly countered the State's
case by shifting the blame for the murder to Mr. Adams - the
person on whom it belonged.
The state failed to produce to the defense crucial
exculpatory evidence that Mr. Adams actually lived in the
Beckley shack, and more importantly, kept all of his property
there. The State knew Mr. Adams kept his belongings in the
shack - investigators uncovered a stack of papers addressed to
Mr. Adams, papers such as tax information from the IRS and
letters sent to Mr. Adams while he was incarcerated. Those
papers were located in the shack near the crucial evidence in
the case - the size 32 inch bloody Umen jeans. It was crucial
to the defense to establish that the jeans worn by the murderer
were not only too small to fit Mr. Wright, but they were also
found in the same place where Mr. Adams stored all of his
important property. The presence of Mr. Adam's property
[5] The bloody Umen jeans almost conclusively
establish that the person wearing the jeans sat on top of Ms.
Vick while stabbing her to death. The Umen jeans measured 32
inches in the waist - clearly too small to fit Mr. Wright who
was 6' tall and weighed 190 pounds when he was arrested for the
murder. Indeed, at that time Mr. Wright wore jeans that measure
36 inches in the waist. The jeans most likely belonged to Mr.
Adams who weighed 25 pounds less than Mr. Wright and wore size
32 jeans at the time of his arrest. Habeas counsel has
continually requested to inspect the Umen jeans for evidence of
Mr. Wright's innocence. The State has continually denied those
requests.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 11
at the Beckley shack coupled with the State's intentional
failure to turn this property over to the defense suggests the
State knew the exculpatory nature of these items. Had Mr.
Wright been granted access to these materials, defense counsel
could have effectively and convincingly mounted a defense of
actual innocence at trial. Instead, only when pressed on the
issue of Mr. Adams' property by the defense at trial
[6] did the State relent and provide Mr. Wright with
the property found in the shack - property that clearly and
unmistakably belonged to Mr. Adams. Of course, these materials
were given to the defense during its case-in-chief, too late to
use them effectively. The intentional withholding of evidence
and delayed compliance with constitutional mandates deprived
Mr. Wright of any opportunity to mount his defense. Mr. Wright
asserted his innocence but the State of Texas intentionally
deprived Mr. Wright of the exculpatory evidence which would
have proved his assertion.
The failure of the State to proffer the exculpatory
evidence in its possession prejudiced Mr. Wright's trial and
tainted it with the indicia of unreliability. Brady v. Maryland
stands as an unfortunate testament that criminal defendants
cannot rely on the state to fairly proffer exculpatory evidence
in its possession to defendants. Brady v. Maryland forewarns
courts that states may, in their zealous quest for law
enforcement, place prosecutions above the rights of criminal
defendants. Brady thus underscores the fact that the state is
not a reliable censor of evidence that may be considered
relevant to a criminal defendant. As a result, Brady
unequivocally places the task of sifting through exculpatory
evidence to assess its usefulness to those most interested in
the reliability
[6] The defense pressed the issue of the discovery
of any of Mr. Adams' things found in the shack after Detective
Pothen misled the jury while on the witness stand, saying he
did not know whose property was found at the Beckley
shack.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 12
of the evidence - defendants. Because the State of Texas
knowingly and intentionally withheld exculpatory evidence from
Mr. Wright, Mr. Wright prays that this Court will grant him
habeas relief . so that a jury could credibly weigh all the
evidence to assess whether Mr. Wright played any role in the
murder of Ms. Vick.
VI.
THE STATE KNOWINGLY PRESENTED EVIDENCE IN A FALSE LIGHT IN
VIOLATION OF NAPUE V. ILLINOIS WHEN DETECTIVE POTHEN TESTIFIED
REGARDING THE CONTENTS OF THE BECKLEY SHACK.
The State, instead of arguing throughout the trial that
both Wright and Adams murdered Ms. Vick together, tried to
place the blame entirely on Wright. In furtherance of this
theory, the State presented false and misleading testimony
regarding the discovery of the evidence in the Beckley
shack. During trial, after the State rested its case
against Mr. Wright, the State provided the defense with a large
pile of documents belonging to Adams. They contained Adams'
name and other identifying information, such as Adams' prison
number. These documents, and other property, were found by the
State at the Beckley shack. Prior to turning over these
documents, however, Detective Pothen testified before the jury
that he did not know whose property was found at the shack.
When asked directly if the contents of the shack could have
been Adams' property, Detective Pothen falsely testified, "I
don't know."
Defense counsel's questions to Pothen regarding ownership
of the items found at the shack came from their client's
insistence that Adams inhabited the shack. Mr. Wright knew
Adams kept his things there - including papers and a chest of
clothing. Prompted by their client, defense counsel tried to
elicit this information from Pothen, who was in charge of the
investigation of the Beckley shack. Pothen misled the jury
because he had found materials clearly marked and addressed to
John
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 13
Adams but falsely testified otherwise. The State, which had
possession of Adams' documents that were recovered from the
Beckley shack, knew Pothen' s testimony was false but failed to
correct the false impression he had left.
After Pothen testified, counsel for defense demanded that
the State turn over all property found in the Beckley shack.
After Pothen' s testimony and on the day the defense began its
case-in
chief, the State provided the defense with the papers from
the Beckley shack that were clearly marked with Adams'
identifying information. Of course, the items were given to the
defense after Pothen testified, too late for the defense to use
them to cross-examine Pothen on the ownership and control of
the Beckley shack. In permitting Detective Pothen to provide
evidence known to be false at the time of its submission, the
State violated Napue v. illinois.
VII.
IN DIRECT CONTRAVENTION OF THE CONFRONTATION CLAUSE OF THE
SIXTH AMENDMENT, THE COURT ADMITTED INTO EVIDENCE THE BLAME
SHIFTING "CONFESSION" OF MR. WRIGHT'S CO-DEFENDANT, JOHN
ADAMS.
The two lynchpins on which the State relied to make its
case against Wright were Mosley's testimony and Adams'
statement placing all blame for the murder of Ms. Vick on
Wright and painting Adams as an innocent bystander. Mosley's
testimony could have been undermined by the defense if the
State had disclosed the offer made to Mosley for his testimony.
Adams' statement would have then become the central focus of
the State's case against Wright. Adams' statement offered a
motive, a contemporaneous eyewitness, and the thread that wove
the State's entire theory of the case against Wright
together.
Adams' statement was nevertheless unreliable hearsay.
According to a long parade of Supreme Court cases, Adams'
statement was the unreliable, inadmissible "confession" of a
co
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 14
defendant, shifting all blame on the other defendant in the
case. The only reliable part of Adams' statement, according to
the Supreme Court, was the part in which Adams gave police
inculpatory evidence - such as, the fact that the knife used to
murder Ms. Vick belonged to Adams and that Adams buried the
knife.
On cross-examination, the defense questioned the State's
witness regarding Adams' statement that his knife was used to
murder Ms. Vick and that Adams buried the knife after the
murder. Under well established Supreme Court precedent, these
statements are statements against Adams' penal interest and
admissible as well-founded exceptions to the hearsay role.
After the defense elicited testimony that Adams confessed to
owning and burying the murder weapon, the State attempted to
extract the rest of Adams' self-serving statement from its own
witness. The defense strongly objected to the admission of
Adams' statement because the statement was unreliable hearsay.
The State responded that the statement should come into
evidence, not as an exception to the hearsay rule, but under
Texas' optional completeness rule. The State argued that
allowing the jury to hear the perfectly admissible statement as
to ownership and disposal of the murder weapon would give the
jury the false impression that Adams actually used the knife
and murdered Ms. Vick himself. The trial court allowed the rest
of Adams' blame shifting statement into evidence under the
optional completeness rule, not as an exception to the hearsay
rule. Later when the State tried Adams for the murder of Ms.
Vick, the State vigorously objected to the admissibility of the
same statement by Adams to the police. The State argued, much
like the defense argued in Wright's trial, that the statement
was unreliable self-serving hearsay. The same
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 15
trial judge who allowed the statement into evidence in
Wright's trial, denied its admission in Adams' trial.
The Texas Court of Criminal Appeals upheld Wright's
conviction without a hearing. In its opinion, the court
reasoned that the trial court correctly allowed the
introduction of Adams' statement in Wright's trial under Texas'
optional completeness rule. The State now argues that Wright is
precluded from challenging the admission of Adams' statement
because the state court relied on the adequate and independent
state law grounds of the contemporaneous objection rule.
However, in Wright's trial his attorneys timely and
adamantly objected to the admission of Adams' hearsay
statement. The independent state law ground the Court of
Criminal Appeals relied upon was the rule of optional
completeness. However, this Court cannot allow the rule of
optional completeness to trump Wright's Sixth Amendment right
to confront the witnesses against him. The only exceptions to
the Sixth Amendment right of confrontation, as set forth by the
Supreme Court, are those hearsay exceptions that are firmly
rooted in this nation's jurisprudence. The unique rule of
optional completeness which is not followed by even a
significant minority of states, cannot trump the Sixth
Amendment to the Constitution. The trial court's admission of a
blame shifting statement of a co-defendant flies in the face of
a long history of Sixth Amendment jurisprudence.
VIII.
MR. WRIGHT'S TRIAL COUNSEL FAILED TO PROVIDE ADEQUATE
ASSISTANCE OF COUNSEL.
A.
Confrontation Clause Objection
As noted above, the Adams' Statement was the cornerstone of
the prosecution's case.
Notwithstanding trial objections, the trial court admitted
the statement. This decision was the subject of appellate error
as well as a ground for post-conviction relief in the State
courts. The respondent
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 16
~
does not deny that this issue has been preserved for
review. Rather, respondent's contention is that the basis for
the court's decision has been determined and further inquiry is
thus foreclosed. The entire basis for the claim that the
decision was reasonable is the trial court's speculative
finding that trial counsel had made a strategic decision not to
object on confrontation clause grounds.
This argument is specious. Counsel attempted a variety of
objections which gainsays any strategy to allow admission of
the statement. No reasonable reading of the record permits an
inference that the defense sought to permit Adams' statement
before the jury. Moreover, the argument overlooks the
affidavits attached to the instant application wherein trial
counsel admit that they simply failed to make proper objection
by mistake and error and had no intention to allow the
statement into evidence. Therefore, the determination by the
State court regarding reasonableness and strategy are clearly
now exposed as baseless speculation contrary to the factual
record. If further evidence is necessary, a hearing on the
matter can establish once and for all that applicant has
demonstrated a deficient performance in this regard.
The respondent then goes on to argue that admission of the
statement was harmless because the State did not need Adams'
statement to tie applicant to the crime:
The mercurial nature of the respondent's position can best
be demonstrated by juxtaposing two portions of the answer, to
wit:
'Citing DNA evidence, fingerprint testimony, eyewitness
accounts and corroborative physical evidence. As set forth
throughout the application, none of this evidence reveals any
role applicant Wright may have had in the offense save the
ridiculous fingerprint comparison of Mr. Cron.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 17
"By having detective Tripped testify to Adams' statement
about his knife out of context, the defense was able to elicit
incomplete and therefore misleading , testimony (that Adams'
knife was used in the killing) in front of the jury..."
Response page 57
"... Wright cannot demonstrate that he was prejudiced by
the admission of Adams' selfserving comment that Wright used
Adams' knife to kill Vick, particularly when the State refuted
the same allegation and did not need to link Adams' knife to
obtain a conviction." Response page 66
Either Adams used Adams' knife, Adams and Wright both
participated in the murder, the cross-examination of Detective
Tripped did not leave a false impression regarding Adams' use
of the knife and Adams' statement was therefore inadmissible,
or Wright acted alone. It cannot be both ways. Aside from a
brief statement in opening argument and a statement in closing
argument (that was the subject of objection), the State relied
upon the theory that Wright was the sole actor. Indeed, the
respondent concedes that the State's theory of the case as
demonstrated in the Adams' confession, was that Wright stabbed
Vick while Adams merely watched, although Adams helped dispose
of her property. Response at-page 55.8
The rest of the State's case, aside from Cron's fingerprint
testimony, merely demonstrates that Wright was living in the
victim's home, and Wright helped dispose of the victim's
property. Adams' statement was the cornerstone of the State's
case, was the only explanation of Wright' s role in the
offense, and thus, was inherently harmful. Even the respondent
now concedes that applicant was merely a co-actor in the
homicide, not the sole actor.
8 Even this characterization by the respondent is not fully
accurate. Adams denies even assisting in loading the property,
putting all the blame on Wright.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 18
Response at page 28.
Courts have held that one's role in the offense is
important mitigating evidence to be considered at punishment.
See Rape v. Wood, 93 F.3d 1434-1441 (9th Cir. 1996).
B.
Failure to Locate McGaughey
As respondent concedes, the issue of trial counsel's
failure to locate McGaughey has been preserved for review. The
issues are whether counsel was diligent in attempting to locate
McGaughey and whether McGaughey's testimony was material.
As to the first issue, the respondent relies upon the trial
court's finding that the efforts made to locate McGaughey after
the trial commenced constituted due diligence. This finding of
fact is manifestly unreasonable. As noted above, Adams
apparently made a 911 call in which he confessed to the
murder.[9] In the absence of the 911 tape, which the
State claims to have lost, McGaughey's account of the
confession is the best evidence of Adams' culpability. Evidence
that someone other than applicant Wright committed the murder
is indisputably material, as it goes to both actual innocence
and applicant Wright's role in the offense. However, the
defense team did nothing to locate McGaughey until after the
trial had commenced. Even though McGaughey was in town and
available to testify, he was not discovered. The trial court's
finding of due diligence is premised upon the assumption that,
given the discovery materials provided the defense, a
reasonable attorney could not have discerned the necessity for
procuring McGaughey's presence. As previously noted, if that
assumption is correct, it underscores appellant's contention
that the State's failure to provide necessary discovery
materials concerning McGaughey's statement constitute a Brady
violation. Once again, the respondent is caught riding two
horses simultaneously, to wit:
[9] The fact that Adams may have made a 911 call,
and not merely McGaughey, was not disclosed until trial.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 19
"...the defense had ample notice and time to investigate
McGaughey as a potential culpatory witness. The State filed a
written statement from McGaughey with the court on September
29, 1997-2 months before Wright's trial. McGaughey's statement
detailed that Adams had told McGaughey that there was a murder
and he wanted to turn himself in." Response at page 30.
"Finding 357: The Court...finds (and the record reflects)
that once the defense became aware of the possible significance
of McGaughey's testimony, defense counsel responded diligently
by immediately sending out an investigator.... As the State
court findings reflect, defense counsel did attempt to locate
McGaughey. Thus, defense counsel's failure to present McGaughey
as a witness was not due to a failure to investigate..."
Response at page 69.
Either the defense knew about McGaughey two months in
advance of trial and did nothing, which is not diligent by the
standard of even the laziest of attorneys, or the State hid
McGaughey's significance until trial had commenced. Plainly,
the trial court's finding of diligence is patently
unreasonable.
The response then goes on to argue that McGaughey's
testimony was not material primarily because both Adams and
Wright committed the murder. As noted above, and throughout
this application and response, the State's theory of
prosecution was that Wright was the sole actor. Since the
respondent's assertion of harmlessness is contrary to the
theory of prosecution, it should be wholly disregarded. Harm is
manifest if Adams was the perpetrator and that evidence was not
adduced at trial. Harm is also established by denying the jury
the opportunity to correctly assess applicant Wright's role in
the offense.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 20
C.
The Umen Jeans
At the State level counsel complained of the defense teams'
failure to prepare and present evidence. The primary failing is
that the defense failed to establish that the blood soaked Umen
jeans had to have been worn by Adams because they were too
small for applicant Wright. The respondent contends that,
because Adams was arrested wearing a different set of jeans,
and because several of the jeans had gold paint on them, the
jeans must have belonged to Wright. That response is a
prototypical "straw man" fallacy. Contrary to respondent's
position, the "fit of the jeans" is not a matter of relative
credibility, it's an objective fact. Either the jeans could fit
applicant Wright or they couldn't. Either the jeans fit Adams
alone or fit both he and applicant Wright. It doesn't matter
that someone in the shack owned additional pants- - obviously
more than two pair were found. It also doesn't matter that gold
flecks were found on pairs of dirty pants found in a burned-out
shack. If Wright could not fit into the jeans, he wasn't the
person who wore them to commit the murder. The respondent does
not refute this contention, choosing to argue around it.
Having established materiality, the sole remaining issue is
the existence of a valid strategy for not demonstrating who fit
the jeans. As noted by respondent, the defense attempted to
utilize the strategy of showing that the jeans were too small
for applicant Wright by arguing that assertion to the jury.
Unfortunately, since no evidence in support of that argument
was adduced at trial, the argument served only to confuse the
jury. The notes sent by the jury in deliberation now establish
that 1) "who wore the jeans" was an essential trial issue and;
2) that the lack of evidence caused the jury to find against
applicant Wright, thus underscoring the inadequacy of the
defense presentation.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 21
Further, the affidavit from defense counsel establishes his
belief that the jeans did not fit Wright. In fact, had the
defense been aware, prior to the near conclusion of the trial,
that Adams had property in the Beckley shack, the defense would
have pursued that theory.
There is no reasonable explanation, aside from inadequate
investigation and discovery, to fail to make the appropriate
demonstration for the jury. Counsel's performance was deficient
and these findings can be buttressed at a further hearing.
D.
Failure to present mitigation evidence.
As with other contentions regarding applicant's claims of
ineffectiveness, this issue was addressed in the State habeas
proceedings and thus is preserved for review. The respondent
does not take issue with the general notion that failure to
present mitigating evidence in the punishment phase of a death
penalty trial is an inexcusable trial strategy. Nor does the
respondent take issue with the overwhelming authority that the
failure to prepare and investigate possible mitigating evidence
is a necessary pre-requisite to an informed decision about the
type and quantity of mitigating evidence to present at
trial.
Instead, the response is limited to a contention that the
type of mitigating evidence available is not of record. While
the trial court made findings that counsel had contacted and
interviewed witnesses, the trial court's findings are primarily
anchored in a belief that a punishment investigation had been
conducted. These findings are patently unreasonable. As set out
at length in the original application, trial counsel made the
court painfully aware that there had been no review of any of
the punishment material and no attempt to interview the State's
witnesses until moments before the sentencing phase of trial
was to commence. Now, trial counsel's affidavits conclusively
establish that they had not reviewed any of the police reports
prior to trial, had
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 22
interviewed none of the witnesses and in fact had not
anticipated that any such evidence would be presented.
Since trial counsel was admittedly unaware of the types of
mitigating evidence available, the decision not to present any
is not reasonable and is clearly contrary to well-established
precedent. Therefore, the trial court's findings are patently
unreasonable.
Further, this response entirely ignores the punishment
affidavits and arguments set out in applicant's motion, pages
100-103. Substance abuse, positive character attributes, work
history, all provide a context to applicant's life in contrast
to the vacuum at trial. But most importantly, and as noted
throughout, the jury was deprived of the most significant
mitigation evidence available that applicant's role in the
offense was not that of sole or primary actor. As noted above,
this mitigation evidence alone would preclude imposition of the
death penalty by a reasonable finder of fact.
E.
Fingerprint testimony
The only physical evidence that arguably ties the applicant
to the commission of the murder, as opposed to his mere
presence in the house before and after the event, is the
dubious print comparison testimony given by Detective
Cron.[10] Contrary to the apparent contention of
respondent that the applicant is attacking fingerprint
testimony generally, applicant's contention is that Cron' s
testimony is not competent evidence from a fingerprint expert.
Cron' s conclusions are fanciful and incapable of corroboration
by other experts. Contrary to the respondent's contention,
Daubert stands for the proposition that certain minimal
scientific standards must be met before expert testimony can be
presented. The fact that Cron was subjected to
cross-examination begs the question
[10] Cron was able to compare a partial fingerprint
found on a pillowcase. Although the response indicates that a
comparable palm print was found (page 23) that assertion is
untrue.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 23
- - his opinions should never have made it through the gate
to begin with. The response is notably silent in addressing the
validity of Cron' s opinion.
Cron's testimony also serves as the basis for applicant's
claim of false light testimony under Napue. The respondent
claims that Cron's testimony is not false, just impeachable.
However, as stated above, that opinion completely ignores
applicant's Daubert argument that the opinion is so incredible
as to constitute junk science. To the extent that the
respondent faults applicant for not demonstrating further the
falsity of the evidence, a hearing is required. At the hearing,
and in accordance with the affidavits in support of the
application, the baselessness of Cron' s opinion will be proven
to the satisfaction of all.
As to the issue of harm, again the respondent plays a shell
game. In addressing Adams' statement and its impact on the
defense, the respondent says in effect "we don't need it, we
have Cron's testimony". Response at page 66. Now in addressing
Cron' s testimony, the respondent notes "we don't need it, we
have the other evidence (Adams' statement)." Response at page
38. The truth of the matter is that the applicant was convicted
on Adams' statement, as supported by Cron' s absurd opinion. In
the absence of either, the prosecution's case is effectively
dismantled. In the absence of both, it withers away to nothing
at all.
IX.
Cumulative Error.
The State's procedural shell game and its continual switch
of theories is intended to further one purpose - to obscure the
fact that Mr. Wright is innocent of capital murder. The State
has previously shut down Mr. Wright at every opportunity he has
had to present evidence of his factual innocence. Pre-trial,
the State withheld significant and material exculpatory
evidence: (1) evidence
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 24
that Mosley was offered immunity in exchange for his
testimony in Wright's case; (2) evidence of the existence of a
witness, Jerry Causey, who would testify that Adams confessed
to murdering "some bitch in DeSoto" as he exchanged her
property for crack; (3) evidence of the existence of a
confession by Adams to Daniel McGaughey in which Adams said, "I
murdered someone in DeSoto and I can't deal with it. 1 want to
turn myself in;" and (4) evidence that the jeans which had to
have been worn by the person who murdered Ms. Vick were found
next to Adams' important papers in the Beckley shack At trial
the State (1) withheld information regarding the location of
McGaughey; (2) introduced Adams' statement shifting all the
blame for the murder on Mr. Wright - evidence the State knew
was unreliable and subsequently objected to in Adams' case; and
(3) attempted to tie Wright to the crime scene by the use of a
"fingerprint" expert who found a comparison that no other
specialist could confirm.
Unfortunately, Wright's own trial counsel was complicit in
the denial of due process. Trial counsel did not investigate
the crime scene evidence from the Beckley shack. This lack of
preparation caused the defense to initially pursue the
self-defeating strategy that all the physical evidence belonged
to Wright alone, a strategy which was not only abandoned but
reversed mid- trial.
The defense failed to properly object to the fingerprint
evidence, which allowed the prosecution to invent a crime-scene
tie-in out of whole cloth. This fingerprint comparison is the
only physical evidence tying Wright to the commission of the
murder. Worst, it appears that the assailant wore a pair of
jeans much too small for Wright to don, yet this most crucial
evidence was belatedly mentioned only in final argument and
without evidentiary support, because the defense had never
inspected the physical evidence before trial. Certainly, the
prosecution hid evidence, as stated above,
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 25
but the defense also failed to follow up on leads presented
in police reports, leads which might have still led to the
discovery of witness McGaughey and the missing 911 tape.
Finally, the defense apparently decided to ignore the
punishment phase of trial altogether. The defense interviewed
no prosecution punishment witnesses at all and did not even
read the punishment evidence until the commencement of that
phase of the trial. The defense called no witnesses and put on
no mitigation evidence whatsoever. The result was inevitable
and predictable-the jury was given no alternative to the death
penalty.
Now, in consideration of post conviction relief, the
respondent engages in a smoke and mirrors analysis worthy of
Penn and Teller, piece-mealing the evidence and trial
errors--always insisting that each error is insignificant by
itself. If the focus is on Mosley's store-bought testimony, the
respondent brings up "other evidence"- the Adams' statement,
the Cron fingerprint comparison and the bloody jeans. If the
focus is on the Adams' statement, the reader is asked to
consider instead the Mosley's account, Cron and the jeans. If
the focus is on Cron and his lack of science, its "look at
Adams, Mosley, and the jeans." Instead of addressing the merits
of the fact that the jeans don't fit Wright and thus exculpate
him, Adams, Mosley, and Cron are substituted. Only by taking
the evidence as a whole, examined in light of the complete lack
to effective trial strategy and presentation, each deficient
piece leaning weakly on the others, is the reviewing court able
to ascertain that the cumulative effect of the evidence was to
convict someone with a strong claim of factual innocence.
Worse, the totality of the record shows that Wright was given
the death sentence as for a role even the state concedes he did
not have, that of sole actor.
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 26
- --
If the jeans do not fit Wright (and they don't) and if the
fingerprint is not his (and no honest person can say that it
is), if Mosley was paid to implicate Wright (and he clearly
was) and if Adams' statement is a self-serving blame-shifting
attempt to save his own neck at Wright's expense (which the
State maintained it was at Adams' trial) than no one can have
confidence in a verdict that Wright committed the homicide.
Even if these circumstances coalesce to cast some blame on
Wright, no rational finder of fact, given what the record now
shows concerning the merits of the evidence against Wright,
would ever impose the death penalty .
This case now appears to be a classic miscarriage of
justice. Wright was framed by Adams, in conjUnction with law
enforcement, put to trial by ambush, and provided with
attorneys who did not prepare. They gave him a self-defeating
strategy at the fIrst phase of trial and no strategy at all in
the second phase. In general, the Respondent is not contending
that Wright received a fair trial. Instead, the Respondent
maintains that since his attorneys at trial did not make an
effective presentation and since his state writ attorney made a
travesty of the post-conviction writ process, it should be okay
to execute Wright. The Respondent seems to acknowledge that
Wright had valid arguments, he just didn't have any attorney
who could present them properly. But let's not take that out on
Wright. Schlup stands for the proposition that, when the record
as a whole raises substantial issues of innocence, procedural
bars must give way to justice. All of Wright's claims merit
consideration.
PRAYER
Wherefore, premises considered, applicant respectfully
prays that this court conduct an evidentiary hearing on the
disputed matters of fact raised in the writ including, but not
limited to, the
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 27
State's use of inconsistent theories of prosecution, the
failure to disclose Brady evidence, including witnesses Causey
and McGaughey, the factual basis, if any, for Cron' s
fingerprint testimony, whether applicant is capable of wearing
the jeans worn by the murderer, the existence and circumstances
surrounding the offer made to witness Mosley in return for his
testimony, the disposition of the original 911 tape, defense
counsel's effort to investigate ownership of the shack and its
contents, and defense counsel's efforts to investigate and
present mitigating evidence. After hearing, applicant prays
that this writ be in all things granted and that the underlying
conviction be set aside.
Respectfully submitted,
BRUCE ANTON
State Bar No. 01274700
Carrie Sperling
State Bar No. 00785026
Mary Margaret Penrose
State Bar No. 00788179
2301 Cedar Springs #400
Dallas, Texas 75201
214/468-8100
214/468-8104 facsimile
ATTORNEYS FOR APPLICANT
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 28
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of
Applicant's Response to Respondent's Motion for Summary
Judgment was forwarded by certified mail to Deni S. Garcia,
Assistant Attorney General, P.O. Box 12548, Capitol Station,
Austin, Texas 78711-2548, on this 11 day of February,
2003..
______________________
BRUCE ANTON
APPLICANT'S RESPONSE TO RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT - Page 29